GHOUS ALI SHAH, J.-This appeal under section 410, Cr. P. C. Is directed against the judgment dated 30th November, 1977 of the learned Additional Sessions Judge, Larkana, whereby he acquitted co- accused Jam and Khabar and convicted the above-named three appellants under section 302 read with section 34, P. P. C. And sentenced them to undergo imprisonment for life and also to pay a fine of Rs. 1,OU0 and in default of payment of fine each of them has to suffer further R. I. For one year more. There is also a suo motu notice issued to the appellants as to why their sentences be not enhanced. We shall dispose of the appeal as well as suo motu notice by this judgment.
2. The facts of the case are that Dhani Bux son of Muhammad Umer lodged his F. I.~R. On 4-3-1975 at 8-30 p.m. At Police Station `Dhamra' of District Larkana, which reads as under :- "Deceased Muhammad Yousif was my brother. He was residing with me. Today i.e. On 4-3-1975 at Tripahri time I and my brothers Muhammad Usman and Muhammad Yousif and my son Moharam were present in the house when Khabar son of Jam Shaikh called Muhammad Yousif from outside the alley and told him that, `Baboo' Jam has called him. Upon this, my brother Muhammad Yousif accompanied by Khabar went there. My son Moharam also went with my brother Muhammad Yousif. After a short while, there were cries of murder murder, I and Muhammad Usman came out of the house and went towards that side. We reached near the deserted shop of Ali Gohar Shaikh and found that accused namely (1) Ali Murad son of Jam, (2) Wazir son of Shahnawaz, (3) Khabar son of Jam, (4) Shahnawaz son of Ghulam Haider all by caste Shaikh resident of Gul Shaikh, who were armed with hatchets were giving hatchet blows to my brother Muhammad Yousif on his head and on other parts of the body, and accused Jam son of Murad Shaikh who was empty handed was instigating other accused and was asking them to catch him and kill him. He also raised cries, whereupon Achar Fakir son of Allahdino Sheikh came running. He also witnessed the above facts.
My son Moharam was also with him and was raising cries. My brother Muhammad Yousif fell down, as a result of receiving blows, and started bleeding and died there. My son Moharam said, "as I and uncle Muhammad Yousif came together and reached near deserted shop, when accused Ali Murad, Shahnawaz and Wazir, who were armed with hatchets and Jam who was empty handed came out of the deserted room of the shop. Accused Khabar went into the shop and brought the hatchet, which was already lying there. Jam instigated other accused and told them to kill Yousif and not to spare him. The accused gave hatchet blows to Yousif. We raised cries, whereupon you have come. Thereafter many people of the village arrived there. I after leaving my brother Usman at the dead body of deceased Muhammad Yousif, have come here to lodge report. About three days back, my brother Muhammad Yousif had passed along with street near the houses of accused. Upon this, Mst. Sonee wife of Shahnawaz had abused him and Muhammad Yousif had also spoken with her. Thereafter Jam had told me that my brother Yousif had abused his `masat' wife of Shahnawaz. He had asked me to remonstrate him. I had told him to decide this matter himself. Today accused Khabar took him on the pretext and the accused having conspired with them by forming unlawful assembly duly armed with deadly weapons, have murdered him by taking chance without any reason. I lodge complaint, justice be done."
3. The F. I. R. Exh. 8 was recorded by Marzoor Ali S. H. O. Who proceeded to place of incident which was shown to him by the complainant where the dead body of the deceased Muhammad Yousif was lying on the ground and blood ,marks were available there. He arranged a guard over the dead body and could not investigate due to darkness. He however examined P. Ws. Moharam, Muhammad Usman and Achar on the same date. He inspected the scene of offence on 5-3-1975 in presence of mashirs Khamiso and Lal Bux. He found a bed-sheet and a handkerchief lying at the vardat which was stained with blood and he' secured the same. He also secured blood-stained earth and sealed it and prepared such Mashirnama Exh.30 in presence of same mashirs. He then prepared inquest report Exh. 31 and then sent the dead body to the Medical Officer, Civil Hospital, Larkana, through P. C. Muhammad Muqeem for post-mortem examination. He arrested all the accused from near village Gulsher on 6-3-1975. The accused Ali Murad was wearing a blood- stained shirt, Wazir a blood-stained loin-cloth and Shahnawaz a blood-stained shirt and a loin- cloth at the time of their arrest. He secured these blood-stained clothes from the accused. The appellants Shahnawaz, Wazir and Ali Murad produced blood-stained hatchets. He secured all these articles when the accused were already under arrest and prepared such Mashirnama Exh.
34, in presence of same mashirs. He then got under section 164, Cr. P. C. Statements of P. Ws. Achar, Usman and Moharam recorded on 7-3-1975. He sent blood-stained earth, hatchets and clothes to the Chemical Analyser through S. P. Larkana for examination and report. He produced such report as Exh. 35.
4. The prosecution case is based on ocular testimony, evidence of motive, recoveries of blood- stained hatchet and clothes and medical evidence.
5. The accused have however denied all the allegations and claimed to be innocent.
6. The medical evidence shows that the deceased Muhammad Yousif Shaikh died due to severe haemorrhage and shock as a result of injury on the skull by sharp heavy cutting substance. There were in all following eight injuries on his person and all of them were ante-mortem. The Injury No. 1 was sufficient to cause death in ordinary course of nature :-- "(1) An incised wound 9' x 1" x bone deep on the top of vertage circular in shape extending from left to right side tranverse in position on skull.
(2) An incised wound 1 -- ' x 1 -- ' x scalp deep on the left side of skull front of Injury No. 1.
(3) An incised wound -- " x 1/9' x skin deep on the right side of neck infront.
(4) An incised wound 1' X 1/8' x skin deep near the Injury No. 3, in continued form.
(5) An incised wound 2 --' x 1' x bone cut on the right elbow.
(6) An incised wound 2 -- ' X 1' x superficially bone cut on the right elbow above the Injury No. 5.
(7) An incised wound 3' x 1/8' a skin deep on the left side of back on the middle 1/3rd part.
(8) An incised wound 1 -- ' x 1/8' x skin deep on the right lumbar region of back."
Dr. Shamsuddin, Medical Officer, Civil Hospital, Larkana who performed the autopsy has been examined and he has supported the prosecution case.
7. The point for determination is whether the offence was committed by the appellant or some body else ? In this regard prosecution has led the evidence of eye-witnesses Dhani Bux complainant P. W. 2, Moharam P. W. 3, Usman P. W. 4 and Achar P. W. 5, evidence of recoveries of blood--stained clothes and hatchets. Khamiso P. W. 6 is mashir for both the recoveries, evidence of motive, medical evidence and the Report of the Chemical Examiner Exh. 35.
8. We will first of all examine the evidence of eye-witnesses so as to be satisfied if it is worthy of reliance. The complainant Dhani Bux Shaikh P. W. 2 and Usman P. W. 4 are admittedly brothers of the deceased, whereas, Moharam P. W. 3 is his nephew being son of the complainant and all the three live jointly in the same house. Achar 1-. W. 5 is admittedly brother-in-law of the complainant being husband of his sister. Though relationship with mashir Khamiso has been denied by .He complainant before the trial Court but his admission in the committal Court to the effect that he was their relative is there and such extract Exh. 19 has been brought on the record. Moreover Moharam P. W. 3 has admitted that Khamiso mashir P. W. 6 is his `masar' i.e. Husband of sister of his mother. This Khamiso Mashir P. W.6 has not supported the prosecution case and has been declared hostile. His deposition in the committal Court has been brought on the record of the trial Court. Lal bux was co-mashir with him but the prosecution has preferred not to examine him.
9. The complainant Dhani Bux P. W. 2 and Usman P. W. 4 have stated before the trial Court that they and Moharam P. W. 3 were sitting in the house and so also Muhammad Yousif (deceased). It was at about 'Bipahri' or 'Tripahri' time when Khabar, the acquitted accused called Muhammad Yousif that he was sent for by Jam another acquitted accused. Muhammad Yousif (deceased) and Moharam P. W. 3 went together out side along with Khabar. They, hardly covered 50 paces from their house and reached near shop of Ali Gohar, cousin of Jam when Moharam raised cries of `murder' `murder' which were heard by the complainant, who along--with Usman ran towards that direction. They saw four accused there namely Ali Murad, Shahnawaz Wazeer and Jam. Accused Jam was standing nearby while remaining three accused were causing hatchet injuries to Muhammad Yousif. Moharam was also standing nearby there. The houses of the accused were at the distance of 10-15 paces from the vardat. After killing Yousif and seeing the complainant and his brother Usman, all the accused ran away to their houses. Moharam on enquiry, told the complainant that accused Jam instigated the remaining accused on which Ali Murad gave first blow to Muhammad Yousif (deceased) which was followed by the remaining two accused.
10. Moharam P. W. 3, has stated before the trial Court that he had accompanied the deceased when he was called by Khabar (acquitted accused) on the day of incident. They reached near shop of Ali Gohar and saw accused Ali Murad, Shahnawaz, Wazeer and Jam who were armed with hatchets except Jam who instigated them not to leave Mohammad Yousif. He raised cries which attracted his father Dhani Bux, uncle Usman and one Achar who came there and witnessed the incident. He has also admitted in cross-examination that the deceased Yousif fell on the ground after receiving 2-3 blows and he was,-lying on the ground when the complainant and other witnesses reached `vardat'. About 50-100 persons collected at the vardat on commotion and cries.
They also saw the accused causing injuries to the deceased who was lying dead on the ground.
They also disclosed that they too identified the accused. P. W. Achar is his `Phuphar'. .
11. Achar, P. W. 4 has stated that it was `Bipahri' or `Tripahri' time when he heard cries of `murder!' `murder!' and be rushed towards that direction. When he reached near shop of Ali Gohar, he saw accused Ali Murad, Khabar, Wazir, Shahnawaz and Jam, out of them, Ali Murad, Shahnawaz and Wazeer were giving blows to the deceased with hatchets. Accused Khabar went inside his house and brought a hatchet. But he did not inflict any blow. Accused Jam was instigating the remaining accused. He, Usman and Dhani Bux (complainant) reached 'vardat' simultaneously. They did not go near the accused, out of fear, as they were armed with hatchets. The deceased Yousif after receiving injuries fell op the ground while the accused ran away. Moharam P. W.
3. Was present nearby and was also raising cries. After accused left `vardat' they went near `Yousif' and found him dead. P. W. Moharam told them that while he and the deceased `Yousif' were sitting in their house, accused Khabar called Yousif who and Moharam went outside their house and accompanied Khabar. When they reached near shop of Ali Gohar, the accused party attacked the deceased on instiga--tion of the accused Jam. The accused were sitting inside shop of Ali Gohar. He had also stated that about 2-3 days prior to this incident, the deceased Yousif had exchanged hot words with wife of accused Shahnawaz and it was on account of it that they killed him. He has also admitted in cross-examination that the Police had arrested the accused on the night of incident and they were made to sit at `vardat'. They were arrested from their houses which were shown to Police by the complainant. He has also admitted that his sister was wife of the complainant Dhani Bux.
12. The recoveries of blood-stained hatchets and clothes have been proved through Manzoor Ali, S. H. O., who has stated that he arrested the accused on 6-3-1975 from near village Gulsher and they were wearing bloodstained clothes and having blood-stained hatchets in their hands. Khamiso Mashir, P. W. 6 has not supported the prosecution case for recoveries and has been declared hostile. Lai Bux who acted as a co-Mashir has not been examined by the prosecution as discussed above.
13. As far as evidence of motive is concerned, the complainant Dhani Bux, P. W. Usman and P. W.
Achar have stated that about 2-3 days prior to murder of Muhammad Yousif, there was exchange of hot words between the deceased and Mst. Sonee wife of the accused Shahnawaz. It was on account of it that the accused killed him.
14. The medical evidence as discussed above proves death of the deceased as a result of injuries by sharp cutting heavy weapons.
15. The report of the Chemical Examiner, Exh. 35 is positive showing hatchets and clothes to be stained with human blood.
16. Mr. Akhtar Ali, G. Kazi, the learned counsel for the appellants has contended that the appellants according to the eye-witnesses have been arrested on the following night after the incident or latest in the morning on the next day, i.e. 5-3-1975. The S. H. O. Manzoor Ali on the contrary has stated that the appellants were arrested on 6-3-1975. He is the only witness on the point of recoveries. According to him the appellants were wearing blood-stained clothes at the time of their arrest and were also having blood-stained hatchets .In their hands. Though the recoveries according to prosecution were made in presence of Mashir Khamiso, P. W. 6 and co---Mashir Lai Bux but none has supported the prosecution case on this point, Khamiso Mashir, P. W. 6 has not at all supported the recoveries and has thus been declared hostile, whereas co-Mashir Lal Bux was called by the prosecu--tion for examination but was subsequently given up which leads to only conclusion that if he had been examined he, too had not supported the prosecution. Therefore recoveries of clothes as well as hatchets are doubtful.
17. He has therefore contented that only piece of evidence against the appellants after the recoveries became doubtful is ocular testimony of P. Ws. Who are closely related to each other and inimical to the appellants on two counts.
(i) It is an admitted position that sometime before the incident, the complainant's mother had married one Abdullah after getting divorce from her husband. This Abdullah is maternal-uncle of the appellant/ accused Wazeer and the appellant/accused Shahnawaz is his brother-in-law.
(ii) The complainant Dhani'Bux was annoyed with abovesaid Abdullah and he had filed a robbery case against him, Suleman and Ghulam Hyder about two years before this incident in which they were acquitted.
18. It has also been contended that the F. I. R. Has been lodged after consultations as otherwise there was no reason for the complainant to wait at the vardat till sunset time and then go to report to the Police for an inci--dent which took place at about "Bipahri" time or at about 3'00 or 4-00 p.m.
Which has been admitted by the complainant in the lower Court and such extract has been brought on the record as Exh.
10. He has also pointed out that the complainant in the lower Court stated that he reached at the Police Station at about 2-00 a.m. (night) vide extract Exh. 11, whereas Usman, P. W. 4 who is another eye-witness and brother of the complainant has stated that the complainant bad come along with Police in a jeep and the Police had reached the vardat at sunset time on the day of incident.
19. That last contention of the learned counsel for the appellants is that the eye-witnesses apart from being related to each other and inimical to the appellants, have not been supported by any other independent witness in spite of the fact that the incident occurred during a broad-day light when about 50/160 persons collected on commotion and cries who had also seen the accused causing injuries to the deceased and had also disclosed there that they too had identified the accused. He has relied upon PLD 1959 Kar. 257 wherein it has been held, "the prosecution should in all . Cases where enmity exists between the parties, and where they can reasonably anticipate that impartiality of the witnesses would be challenged, make effort to see that independent people residing in the area, or having cultivation around the place of occurrence, are examined." In absence of such indepen--dent witnesses it has been held that the case had not been proved beyond reasonable doubt.
20. Mr. Murtaza Hussain, the learned counsel appearing for State has very frankly conceded that the suo moto notice for enhancement of sen--tences of the appellants be vacated as it is a case in which insult of a lady has been avenged by calling the deceased from his house. He has how-- ever supported the conviction and sentences awarded to the appellants. , The occular testimony, according to him is worthy of reliance and the evidence of the S. H. O. Manzoor Ali is sufficient to prove recoveries of blood-stained hatchets and clothes. Therefore ocular testimony stands supported by the recoveries.
21. We have heard the learned counsel for the appellants as well as State. We have carefully examined the occular testimony which apart from being of P. Ws. ; who are closely related to the deceased and inimical to the accused, is also full of contradictions and discrepancies to such an extent that no reliance can be placed on it. There are many contradictions in the depositions of the eye-witnesses regarding witnessing the incident, motive, presence of other persons and recovery of weapons. For instance Moharam, P. W. 3 has not even shown the presence of the complainant Dhani Bux and his uncle Usman P. W. 4, in their house at the time when the acquitted accused Khabar called the deceased from his house. He has stated that he accompanied his uncle Muhammad Yousif (deceased) when he was called by Khabar. When the complainant and other witnesses .Reached the vardat Muhammad Yousif (deceased) was lying on the ground. He has also stated that about 50/100 persons had collected at the vardat on commotion and .Cries and they also saw the accused causing injuries and not a single witness has been examined out of them. The motive accord--ing to the complainant in F. I. R. Is that about 3 days prior to this incident Muhammad Yousif (deceased) had passed along the street near the houses of the accused. Upon this Mst. Sonee wife of Shahnawaz had abused Muhammad Yousif who had also spoken with her.
Thereafter Jam had told the complainant that his brother Muhammad Yousif had abused his `Masat' who was wife of Shabnawaz. He had also asked the com--plainant to remonstrate his brother Muhammad Yousif (deceased) but be bad told him to decide the matter himself. The complainant has not stuck to this motive in evidence before the trial Court. He has stated contrary to what he said in the F. I. R. By saying that Mst. Sonee wife of accused was extending insulting gesture (bonda) to his brother Muhammad Yousif (deceased) whenever he was passing in front of her door. They bad even complained to accused Shahnawaz about the attitude of his wife to Muhammad Yousif. Mst. Sonee did the same thing about 2-3 days prior to the murder of Muhammad Yousif, who, gave her kicks, fists and blows with back side of hatchet while she was cutting grass i.e. (lucerine). The accused party came to know of this incident and therefore became annoyed with his brother Muhammad Yousif and killed him on the day of incident.
We therefore disbelieve the ocular testimony totally. The trial Court has rightly disbelieved it against accused Khabar and Jam who were given benefit of doubt and acquitted.
22. We are in full agreement with the learned counsel for the appellants as far as recoveries of blood-stained hatchets and clothes are concerned, as, they cannot be accepted under the circumstances of the case. It is not natural and therefore cannot be believed that the appellants who were arrested on the third day of incident as per deposition of the S. H. O. Were holding the blood-stained hatchets in their hands and were still wearing the blood--stained clothes at the time of their arrest. Moreover, the recoveries have not been supported by the Mashirs apart from the fact that the eye-witnesses have stated that the appellants/accused were arrested on the night following the incident. We therefore hold the recoveries to be doubtful and not worth reliance.
23. We have therefore reached the conclusion that the ocular testimony, and the recoveries are not believable and convictions and sentences on such evidence cannot be upheld. When the ocular testimony and recoveries are not believed in view of what has been discussed above, the appellants/accused be--come entitled to benefit of doubt which accordingly is given to them and they are acquitted.
24. In the result we allow the appeal and set aside the convictions and sentences awarded to the appellants by acquitting them. They shall be set at liberty if not required in any other case. The suo motu notice issued to the appellants for enhancement of their sentences is also vacated.