SAJJID ALI SHAH, J.---This appeal is filed against the impugned judgment dated 24-3-1982, of learned 1st Additional Sessions Judge, Jacobabad, whereby the appellant named above has been convicted for offence under section 302, P. P. C. And sentenced to death. Additionally, he bas been sentenced to a fine of Rs. 3,000 or in the default whereof R. I. For two years. There is also reference under section 374, Cr. P. C. For confirmation of sentence of death and we propose to dispose of both the appeal and the reference by this single judgment.
2. Briefly stated the prosecution case is that about two months prior to the incident there arose a dispute between the appellant and deceased over a seat in a bus in which both were travelling. At that time complainant Sher Shah, brother of deceased was also present, who was travelling with the deceased. In consequence of that dispute, appellant exchanged harsh words with deceased and threatened to see him. On the day of incident i.e. 21-6-1980, deceased Hyder Ali Shah alongwith complainant Sher Shah and P. W. Ghulam Rasool came to Jacobabad city by a bus.
Complainant, and the deceased were residing in village Abdul Qadar Shah, Tehsil Jhatpat, which was about 32/33 miles away from the city of Jacobabad. P. Ws. Ghulam Rasool and Anwar Ali Shah were residents of village Daulat Khan Khoso at a distance of about two miles from the village of the deceased on the way in between the village of deceased and Jacobabad city. Deceased, complainant and Ghulam Rasool came in the same bus and after attending to their private work in the city of Jacobabad, at about 12 noon were passing from a Katcha street leading to bus stand in the southern side, when appellant emerged from the back side of the house of Karman Tallani armed with wooden peg of the cot (described in Sindhi as `Sairoon'). Appellant who came from behind the deceased gave blows to him with wooden peg and in the result deceased became injured and fell down unconscious. Witnesses Sher Shah and Ghulam Rasool raised cries on which Anwar Ali Shah and others also came to the spot. Witnesses chased the appellant, who left behind at the spot the weapon and made good his escape: Witnesses came back and took injured Hyder Ali Shah, who was then unconscious to police station City Jacobabad, which was at a distance of one furlong from the spot, and lodged report, which was registered at 12-45 p.m. On the same day for offence under section 307, P. P. C. S. H. O. Shahid Hussain after recording the F. I. R. Examined injuries of Hyder Ali Shah and prepared such mashirnama. He sent the injured to Civil Hospital and examined P. Ws. Anwar Ali Shah and Ghulam Rasool. Complainant Sher Shah also produced blood- stained wooden peg, which was left by the appellant at the spot and the same was seized by the S. H. O. Who prepared such mashirnama. On the way to hospital Hyder Ali Shah succumbed to his injuries and the doctor informed the S. H. O., who modified section of the offence in. F. I. R. To section 302, P. P. C. S. H. O. Then rushed to the hospital, saw the dead body, prepared inquest report and gave letter to the Medical Officer for post-mortem examination. S. H. O. Then visited the scene of offence which was pointed out by the complainant. He secured blood-stained earth which was put into a sealed parcel. He recorded statements of witnesses and on 24-6-1980 he arrested appellant, who was produced by Nekmard Sobdar Khan Khoso at the police station. He prepared mashirnama of arrest. On 30-6-1980, S. H. O. Got recorded statements under section 164, Cr. P. C. Of prosecution witnesses and after completing other steps of investigation submitted challan in the Court.
3. Before the trial Court prosecution examined 8 witnesses in support of its case. Ocular testimony is furnished by three witnesses, who are P. W. 1 Sher Shah complainant, P. W. 2 Ghulam Rasool and P. W. 3 Anwar Ali Shah, P. W. 4 is. Moulvi Nazar Muhammad, who is mashir and has attested and produced mashirnamas of injuries Exh. 14, dead body Exh. 15, recovery of weapon Exh. 16, scene of offence Exh. 17 and inquest report Exh.
18. P. W. 5 is Ali Ahmed Tapedar who has prepared and produced sketch of varaat Exh.
20. P. W. 6 is Shahid Hussain S. H. O. Who has investigated the case.
P. W. 7 is Dr. Manzoor Ahmed, who performed post-mortem examination on the dead body: He found four injuries, out of which two were swellings on the face and occipital region, one abrasion on left zygomatic area and the fourth contused wound on the left eye-brew. On internal examination he found fracture of occipital bone with brain lacerated and blood vessels injured at the site of injuries. Doctor was of the opinion that death was due to shock and haemorrhage and injuries caused were sufficient to cause death in the normal course of nature. P. W. 8 is Muhammad Ibrahim Police Constable, who deposed that he attempted to serve process on P. C. Mehar Gul and came to know that he had absconded after abducting a woman and was dismissed from service as such his whereabouts were not ascertainable. It may be mentioned here that P. C. Mehar Gul was corpse-bearer. Prosecution closed its case and produced report of Chemical Examiner Exh. 24 which is to the effect that the earth and wooden peg both were found to be stained with human blood.
4. Before the trial Court appellant in his statement under section 342, Cr. P. C. Denied the prosecution allegations and proclaimed false implication due to enmity. He has examined no witness in defence.
5. We have heard Mr. Muhammad Hayat Junejo, Advocate, for the appellant and Mr. Muhammad Mustafa for A. G. For the State. Mr. Muhammad Hayat Junejo has very strongly criticised the evidence produced by the prosecution and argued that the three eye-witnesses produced are not natural witnesses and most likely they have not seen the incident. He has further stated that these eye-witnesses are interested inasmuch as Sher Shah is brother of deceased and Ghulam Rasool has admitted that he is on life-long visiting terms with complainant. So far Anwar Ali Shah is concerned, a suggestion was put to him that he was cousin of deceased, which he has denied in his cross-examination before the trial Court. It is further submitted by Mr. Muhammad Hayat Junejo that all these three eye-witnesses are chance witnesses because they did not belong to the locality in which incident took place and have given strained explanations to justify their presence at the spot at the relevant time to see the incident: We have scrutinised evidence of these three eye-witnesses with great care and caution. P. W. f Complainant Sher Shah admittedly is brother of deceased and he claimed to have come in the company of deceased on the day of incident and both boarded together the Bus from their village Abdul Qadar Shah which is at a distance of 2 or 3 miles away from village Daulat Khan Khoso which is about 30 miles away from Jacobabad City.
Before we go into discrepancies in the evidence of eye-witnesses, it would be pertinent to point out here that P. W. 2 Ghulam Rasool is not related to the deceased or complainant and lived in village Daulat Khan Khoso and likewise P. W. 3 Anwar Ali Shah claimed that he is not related to the complainant and lived in village Daulat Khan Khoso. A suggestion was put to P. W. Anwar Ali Shah in cross-examination before the trial Court that he was cousin of complainant and deceased which is denied by him. The main question is that all these three witnesses, who lived in far away area as mentioned above have claimed to be present at the spot at the time of incident, which is about 30/32 miles away from their village where they ordinarily resided. Complainant Sher Shah has stated in his evidence that on the day of incident he, his brother Hyder Ali Shah deceased and P. W.
Ghulam Rasool had come-together in a Bus to Jacobabad. Complainant Sher Shah has further stated that on the day of incident he had a pre-arranged programme with P. W. Ghulam Rasool, with whom he bad spoken 2 days prior to the incident that they would go to Jacobabad together from his village. On the day of incident P. W. Ghulam Rasool came to his village in the morning to accompany him to Jacobabad. On this point complainant Sher Shah is openly contradicted by P.
W. Ghulam Rasool, who admitted to the extent that he, complainant Sher Shah and deceased Hyder Ali Shah came to Jacobabad City in the same Bus but further denied assertion of complainant that there was pre--arranged programme between him and the complainant or that on the day of incident he first went to the village of -Sher Sher Shah. On the other hand P. W.
Ghulam Rasool has stated before the trial Court that on the day of incident he was coming to Jacobabad for making some purchases of cloth and other household articles and boarded the Bus from village Daulat Khan Khoso and when the Bus reached village of Sher Shah, complainant Sher Shah also boarded the Bus. On that day Sher Shah met him in the Bus all of sudden and they, had no pre-arranged programme of meeting among themselves. In another context; complainant Sher Shah has stated before the trial Court that he knew P. W. Ghulam Rasool since a long time as a labourer but was not on visiting terms with him. This assertion is rather strange because in the same breath in cross-examination he had stated a little later that 2 days prior to the incident he had arranged programme with Ghulam Rasool to go together to Jacobabad and that for that purpose Ghulam Rasool bad come to his village. Anyway complainant Sher Shah might have said that he was not on visiting terms with Ghulam Rasool with the object of portraying Ghulam Rasool as an absolutely independent witness. On the other hand P. W. Ghulam Rasool has success-- fully falsified the assertion of the complainant, when he stated before the trial Court that not only he is on visiting terms with complainant Sher Shah but such terms are life-long. Before the trial Court complainant Sher Shah was at pains to explain as to why he had accompanied deceased Hyder Ali Shah in the Bus to Jacobabad. 1n his examination-in-chief he has not stated the purpose of his visit to Jacobabad on the day of incident in the company of deceased. On the other hand, in his cross- examination it appears that complainant Sher Shah had arranged a plan to go with P. W: Ghulam Rasool in the Bus to Jacobabad on the day of incident and this appointment was filed 2 days prior to the incident. P. W. Ghulam Rasool in his evidence before the trial Court has denied pre-arranged appointment but stated that when the Bus came to the village of Sher Shah, Sher Shah boarded the Bus. This witness does not mention that deceased Hyder Ali Shah had also boarded the Bus alongwith complainant Sher Shah. This appears to be rather strange because as per prosecution case deceased Hyder Ali Shah and complainant Sher Shah both boarded the Bus together from their village to go to Jacobabad on the day of incident. Now coming back to the complainant Sher Shah, he stated in his cross-examination before the trial Court he and his brother Hyder Ali Shah went together for their work and they had come to Jacobabad on the day of incident to meet their uncle Noor Ali Shah for some private work, which he could not disclose. After visiting their uncle they went to some Hotel for taking tea and also giving round of Bazar and it is further clear from the evidence of this witness that after reaching Jacobabad City P. W. Ghulam Rasool on one side and complainant Sher Shah and his brother Hyder Ali Shah on the other side parted company to attend to their respective works and decided upon meeting again in the same Bazar. On this point complainant Sher Shah stated before the trial Court that he and deceased Hyder Ali Shah had asked P. W. Ghulam Rasool to meet them again in a Hotel which was situated near Tower but be could not remember the name of that Hotel but when they all were coming to the City he had pointed out that Hotel to P. W. Ghulam Rasool. Complainant Sher Shah has further stated in the trial Court that after coming back he did not remember whether P. W. Ghulam Rasool came in the Hotel prior to their arrival or they came in the Hotel after the arrival of Ghulam Rasool. Complainant further asserted in this context that they reached the Hotel at about 1 i-15 a.m. And thereafter started for the Bus stand. As against this P. W. Ghulam Rasool has given an entirely different story. P.
W. Ghulam Rasool has stated before the trial Court that he met Sher Shah in the Bus and reached Jacobabad then got down from the Bus and went towards Bazar. They reached Jacobabad at about 10-30 a.m. They went to the Bazar where he "Ghulam Rasool" purchased some articles and at that time complainant and deceased Hyder Ali Shah were with him all the time during which purchases were made. Ghulam Rasool has further categorically stated that neither complainant Sher Shah nor Hyder Ali Shah purchased anything. At about 11-00 a.m. Sher Shah and Hyder Ali Shah went for their works leaving him behind alone in the Bazar and they did not inform him as to where they were going. They told him that they would come back at 11-30 a.m. In the same Cloth Shop from which he "Ghulam Rasool" purchased the cloth. Ghulam Rasool has further stated before the trial Court that be did not know the name of the shopkeeper but the Shop was situated in the market. He reached the Cloth Shop 2 or 3 minutes before I 1-30 a.m. And at the same time Sher Shah and Hyder Ali Shah reached there. From the above narration, it is very clear that complainant Sher Shah and P. W: Ghulam Rasool had contradicted each other and given divergent versions.
Sher Shah spoke about the Hotel to be the meeting point again and Ghulam Rasool spoke about the shop to be the meeting point again. Not only this, Ghulam Rasool also claimed to have made purchases of cloths from that shop but he had not shown purchased cloth to the Investigating officer to convince him of his presence and the purpose for which he came to Jacobabad.
Complainant Sher Shah has further stated before the trial Court that after visiting their Uncle Noor Ali Shah they went to some Hotel for taking tea and also gave round of Bazar before they stated for Bus stand.
6. Now so far as the actual incident is concerned, complainant Sher Shah has stated before the trial Court that when they reached near Police Station in a lane which was situated near the house Kamran Tallani, appellant Allah Rakhio alias More Jat suddenly emerged there and was armed with wooden peg of cot started giving blows to his brother. Hyder Ali Shah on which his brother fell down on the ground. They raised cries which attracted P. W. Anwar Ali Shah and many others. P. W. Anwar Ali Shah also witnessed the incident. It would be noteworthy to mention here that the complainant did not say as to how many blows were given and from which side: It also appears from the version of the complainant that Hyder Ali Shah fell down after he sustained 2 blows which were given to him. In the cross-examination there is improvement and complainant has stated that he, Ghulam Rasool and deceased all three were going together at the time of incident. Hyder Ali Shah was little behind them. Appellant came from behind arid started giving blows to his brother Hyder Ali Shah.
After giving blows with wooden peg of cot appellant ran away towards the back side. At that time many persons were coming from-the front side but nobody was coming from the back side. Hyder Ali Shah sustained two injuries and thereafter he fell down and became unconscious. Now if this version of the complainant is correct that they were going ahead and Hyder Ali Shah was behind and he too was given two blows from behind and the assailant had retreated after giving two blows and- Hyder Ali Shah on receipt of injuries fell down and became unconscious, then it is likely that complainant Sher Shah and P. W. Ghulam Rasool might not have seen the infliction of blows with their own eyes. Now let us see what is the version of P. W. Ghulam Rasool about infliction of blows. In the examination-in-chief Ghulam Rasool has stated that when they reached in a lane near City Police Station appellant Allah Rakhio emerged there and was armed with wooden peg ("Sairoon"). He immediately gave blows with wooden peg of cot to Hyder Ali Shah on which Hyder Ali Shah fell down on the ground. He raised cries, which attracted Anwar Ali Shah and others.
Meanwhile, appellant left the wooden peg of cot at the wardat and started running. It is noticeable that number of blows are not mentioned nor it is mentioned .As to from which side blows were given. P. W. Ghulam Rasool is not very clear in the cross-examination on this point and has stated that deceased Hyder Ali Shah sustained injuries all of a sudden from their back side. The appellant after giving blows started running away from their back side. Thereafter they raised cries. At that time immediately many persons and P. W. Anwar Ali Shah gathered there. They saw that Hyder Ali Shah was unconscious and received two injuries. It is clear from the evidence of this witness that he did not say how many blows were given. Afterwards, he says that Hyder Ali Shah was lying unconscious arid had sustained two injuries.
7. It may be pertinent to point out bore that P. W. Dr. Manzoot Ahmad has deposed before the trial Court that on external examination. He found the following injuries on the dead body :- "(1) A swelling 3 c. m. x 2 c. m. Of upper and lower lip, slightly left side with broken upper and lower left incissor teeth.
(2) A swelling 5 c.m. X 3 c.m. Of occipital with fracture of occipital bone.
(3) An abrasion 8 c.m. On left zygomatic.
(4)A contused wound 2J c.m. X 1 c.m. On left eye brew. On internal examination he found the following damages-Fracture of occipital bone, brain lacerated, Blood vessels injured at the site of injuries and stomach was empty and normal and all other organs were also normal."
8. The doctor opined that death was due to shock and haemorrhage caused by hard and blunt substance. All the injuries were anti-mortem in nature and sufficient to cause the death in normal course of nature. The time between injury and death was immediate.
9. The injuries are described by the doctor as stated above and the assertion of eye-witnesses that they saw the incident with their own eyes does not inspire confidence. Out of the four injuries two injuries are swellings, third injury is abrasion and fourth is contused wound. First injury is on upper and lower lip, slightly left side with broken upper and lower left incissor teeth. This injury was certainly not on back but was in front which might have been caused only when the assailant was in front of the victim. The second injury is a swelling of occipital region with fracture. Third is abrasion on left zygomatic. Fourth injury which is contused wound is on left eye--brew. No specific question was put to the doctor in cross-examination to explain as to how these injuries could be caused when the appellant had given blows as alleged by the prosecution from behind.
Additionally we saw the crime weapon in the Court and we found that what was called a wooden peg was not a leg of the cot but was rather part of frame of the cot, on which the net is woven. It was more than 4 feet long and thick square shape. That piece of wooden peg was such that it could not be carried in the ordinary course as a. Weapon conveniently and if it was used as a wooden then one blow from sufficient distance at the head with great impact would be more than sufficient to cause very serious damage to the head which might be smashed into pieces. In the instant case, the result of many blows with this weapon 4s is alleged by the eye-witnesses are two swellings, one abrasion and the fourth is contused wound. Different parts where injuries are located do not conform to the eye version of the witnesses.
10. Apart front what is stated above, there are other glaring discrepancies which belie eye- witnesses or rather throw doubt on their claims of being eye-witnesses. No doubt, complainant, Ghulam Rasool and Anwar Ali Shah have claimed to have chased the appellant from the spot, who left behind the weapon and ran away, but on this point, the versions of witnesses differ.
Complainant Sher Shah, has stated before the trial Court that they followed the appellant and he was few steps ahead from them and they followed him about a, furlong but thereafter, he disappeared and when appellant reached Kashi Ram bridge they stopped following him due to his disappearance. Except complainant and P. W. Ghulam Rasool nobody followed the appellant.
Complainant has further stated that he did not know whether there were shops of cigarettes on the way where they started chasing the appellant. He did not see the appellant biding himself in the shop of Monohar Lal or Vishan Das, De did not inform either shopkeeper keeper or Monoher Lal that some unknown persons after killing his brother were going towards Bazar when they returned to the place of occurrence. He saw many persons standing near wardat and amongst them many persons were known to him but he did not remember their names. Occurrence took place at about 15 to 10 paces from the City Police Station. One Police Constable was also present, who was standing near his brother. This constable also came from the Bazar but not a single man came from the Police Station at the wardat at that time. He, Ghulam Rasool, Anwar Shah and Police Constable brought his brother to the Police Station. He did not inform the Police Constable or any other person about the name of the assailant. They sat at the police station for about 1-- hours and they received the dead body at about 6-00 p.m. From the Civil Hospital. Complainant also stated in his deposition that he took the wooden peg from the wardat and gave it to the police at the Police Station.
11. P. W. 2 Ghulam Rasool has described the incident in his evidence before the trial Court and has stated that appellant after giving blows started running from their back side and thereafter they raised cries. At that time immediately many persons and P. W. Anwar Ali Shah gathered there. They saw Hyder Ali Shah was unconscious. No other person except him, com--plainant Sher Shah and P.
W. Anwar Ali Shah followed the appellant. This witness further said that it was correct to say that when they reached near Kashi Ram bridge assailant suddenly went inside the shop of Indus Cigarette Company where 2 or 3 persons were already sitting. Thereafter the appellant disappeared from their sight. They informed the shopkeeper that appellant Allah Rakhio after killing Hyder Ali Shah was running away. This witness admitted having not stated in Police Statement that he said that Allah Rakhio after killing Hyder Ali Shah was running away. The witness corrected himself and said further that he had not informed the name of the accused to the shopkeeper of Indus Cigarette Company. Further this witness said that when they came to the wardat they saw many persons including Sub-Inspector of Police and Police Party standing at the scene of offence.
Police secured wooden peg of cot from the wardat and they took injured from the wardat and that they took him to the Police Station. He was not examined by the Police at the wardat, Police examined him on the same day 'in the evening at the police station when they returned from the Civil Hospital and reached at the Police Station at evening time where his statement as well as statements of Sher Shah and Anwar Ali Shah were recorded.
12. We propose to discuss evidence of third eye-witness Anwar Ali Shah separately but in the context stated above with regard to the time of writing of Police Statement, it would be proper to point out X portion from the statement of Anwar Ali Shah recorded before the trial Court in which he has stated that he was examined by Police on the same day at 2-00 p.m. And at the same were recorded statements of P. W. Ghulam Rasool as well as complainant Sher Shah. This witness has further stated that after the death of Hyder Ali Shah they, went to the police station from Hospital where they were examined. As against this Investigating Officer Shahid Hussain has deposed before the trial Court that on 21-6-1980 at about 12-45 noon, complainant Sher Shah and P. W.
Ghulam Rasool and Anwar Shah brought injured Hyder Ali Shah at police station. Complainant Sher Shah lodged F. I. R. Which he registered under section 307, P. P. C. And obtained the signature of the complainant. Complainant produced blood-stained wooden peg which he secured in presence of mashirs Maulvi Nazar Muhammad and Farooq and put it into a sealed parcel. Injured Hyder Ali Shah was unconscious and he noted injuries and prepared such mashirnama and then referred to Medical Officer of Civil Hospital, Jacobabad with Police letter. He then examined P. W. Ghulam Rasool and Anwar Ali Shah. Meanwhile he received information from the Hospital that injured had expired as such he rushed to the Civil Hospital and saw the dead body and prepared Inquest Report and then he visited the wardat at the pointation of complainant and secured blood-stained earth.
13. Now we come to the P. W. Anwar Ali Shah. According to F. I. R. He is not an eye-witness but is stated to have come to the spot after the cries were raised. Portion of F. I. R. Relevant for this purpose is reproduced as under ---We are going on a Katcha road leading toward Bus stand in the southern side and from the back side of the house of Kamran Tallani, accused Allah Rakhio son of Mir by caste Babar Jat suddenly came running from our back with a wooden peg of cot and gave two blows to Ryder Ali Shah on his head. After giving blows he again ran back. Syed Hyder Ali Shah due to injuries fell down and went unconscious. We raised cries "murder" "murder". On cries Syed Anwar Ali Shah son of Wahid Bux Shah resident of Daulat Khan Khoso and other persons of town came running there.
We followed the accused.---
14. From the above narration, it is very clear that Anwar Ali Shah reached the spot late and did not see infliction of blows as such was not eye-witness but might have seen accused running away. In the Court both eye-witnesses namely complainant Sher Shah and Ghulam Rasool improved the version of F. I. R. And claimed that Anwar Ali Shah was also an eye-witness. P. W. Anwar Ali Shah while deposing before the Trial Court has stated that he was Munshi in some other Bus which came to Jacobabad at about 10.30 a. m. Was supposed to leave back again at 1.00 p. m. And in the meantime he was going to Bazar for purchasing some household articles, on the way he saw complainant Sher Shah P. W. Ghulam Rasool and Hyder Ali Shah coming and appellant was following them. Appellant was at a distance of 2 or 3 feet from the complainant and his party.
Appellant did not challenge but suddenly started giving blows to Hyder Ali Shah. He saw that appellant Allah Rakhio gave two blows to Hyder Ali Shah and when appellant gave first blow to Hyder Ali Shah he fell down on the ground and thereafter appellant also gave second blow. Neither complainant Sher Shah nor Ghulam Rasool tried to catch hold of the appellant at that time.
Appellant started running so he and other witnesses also chased the appellant. This witness further said that except him, Sher Shah, Ghulam Rasool and no other person chased the appellant. It is correct to say that appellant entered into the shop of Indus Cigarette Company and 2 or 3 persons were already hitting in the shop. They informed them that appellant was running away after giving injuries to Hyder Ali Shah but none of them tried to catch hold the appellant. Appellant after entering the shop of Indus Cigarette Company ran away. They did not see any Policeman while following the appellant. They returned back at the scene of offence and saw that many persons had gathered near the injured Hyder Ali Shah. He was examined by the police on the same 'day at 2.00 p. m. And so were P. W. Ghulam Rasool and complainant Sher Shah. After the death of Hyder Ali Shah they went to the Police Station from Hospital where they were examined. This witness further admitted that he had not stated in his Police Statement that be heard cries of "murder" "murder" when he reached the house of Kamran Tallani.
15. Now several questions arise for consideration. Firstly when F. I. R. Was lodged and secondly when were Police Statements of witnesses recorded. Investigating Officer has clearly stated that F. I. R.
Was lodged on the same day at 12.45 noon, complainant brought the weapon which was secured at the Police Station, injuries of Hyder Ali Shah, who was unconscious were noted at the Police Station and Police Statements of Ghulam Rasool and Anwar Ali Shah were also recorded at the Police Station. Thereafter injured was sent to the Hospital and I. O. Was informed that injured had died on the way. Version of I.O. As stated above with regard to the timing of F. I. R. And recording of Police statement as asserted is not supported by the eye-witnesses. Complainant has stated in his examination---in-chief that after F. I. R. Was registered and injuries of Hyder Ali Shah were noted at the Police Station, they took the injured to the Hospital and on the way injured died. P. W. Ghulam Rasool has stated categorically that he was examined by the Police at the Police Station when he returned from the Civil Hospital and reached at the Police Station at the evening time. Not only this he had said so about himself but he had also categori--cally stated that statements of Sher Shah and Anwar Shah were also recorded at that time. In this context P. W. Ghulam Rasool has stated categorically before the Trial Court that he was examined by the Police on the same day at 2.00 p. m. And so also P. W. Ghulam Rasool as well as complainant Sher Shah. He has further stated that after the death of Hyder Ali Shah they came back from the hospital to the Police Station where they were examined. Now it is beyond dispute that there is no consensus-among eye-witnesses and I.
O. About the time. It also appears that all the three eye-witnesses claimed to have gone with injured to the Hospital and after the death they returned from the hospital. In such circumstances when complainant Sher Shah who is brother of deceased went alongwith injured Hyder Ali Shah to the Hospital then his name should have appeared as well as names of other eye-witnesses in the column of persons, who identified the dead body. In the post-mortem report Exh. 23 on the record, the relevant column shows that dead body reached in the hospital and was brought by Police Constable Meher Gul and the body was identified by No. 1 Habibullah Shah son of Meher Ali Shah No. 2 Ghulam Mustafa Shah son of Ilyas Ali Shah, both relatives of the deceased. It is not understandable that when eye-witnesses claimed to have gone to the hospital with injured Hyder Ali Shah, who died on the way and remained in the hospital even after the death and further claimed to have waited to receive the dead-body then why their names were not mentioned by the Medical Officer in the column meant for identification of dead body. This throws serious doubt on the claim of eye-witnesses. Mr. Muhammad Hayat Junejo, Advocate has drawn our attention to the original F. I. R. And submitted that the First Page of F. I. R. Is on the printed form, both sides of which have been used in writing the -details of F. I. R. But the last portion on the back page is left out and written on a separate sheet of white paper. He has further submitted that on the additional sheet of white paper there is written "Police Karwai" which could easily have been filed in the last portion on the back page of F. I. R. The learned counsel further submitted that this was done perhaps for the reason that facts of F. I. R. Were still to be ascertained hence only number of F. I. R.
Was written and the remaining details were left out which were filled in subsequently. Learned counsel has also drawn our attention to the column where offence is mentioned under section 307, P. P. C. Which is subsequently deleted and instead 302, P. P. C. Has been added. We do not attach much importance to the addition of separate sheet of white paper for the reason that on this sheet only Police Karwai is written which does not show that any manipulation was made. In fact this Police Karwai could also have been written on the back page of F. I. R. Learned counsel for the appellant then argued that the eye-witnesses have not seen the incident as there are so many discrepancies in their evidence which are very material in nature. We have already stated the discrepancies in the above part of judgment which need not be repeated. We feel that although the eye-witness like Sher Shah, Ghulam Rasool and Anwar Ali Shah have given their explanations to show their presence at the spot, which fact can be confirmed further by F. I. R. Which was lodged promptly by complainant Sher Shah as alleged and the fact that Police Statements of Ghulam Rasool and Anwar Ali Shah were recorded on the same day. But the question remains to be decided whether these witnesses were really present at the spot and saw the incident as they have alleged. So far as Anwar Ali Shah is concerned, he has not been shown in the F. I. R. As eye-witness but has deposed before the Trial Court as eye-witness. Complainant Sher Shah as well as Ghulam Rasool is the Court for the first time have stated that Anwar Ali Shah met them at the spot and told that he also saw infliction of blows. Had it been true that there was sufficient time when Sher Shah, Ghulam Rasool and Anwar Ali Shah were chasing the assailant together, Anwar Ali Shah could have told them that he saw the infliction of blows with his own eyes and was as such an eye-witness and Sher Shah also very easily could have named Anwar Ali Shah in F. I. R. As eye-witness. In the circumstances we do not feel inclined to rely upon the evidence of Anwar Ali Shah as eye-witness.
He might have come to the spot late or might have joined in the chase but we doubt in his own assertion that he saw the infliction of blows with his own eyes. Likewise claim of Sher Shah and Ghulam Rasool that they saw the actual infliction of blows with their own eyes is also not free from doubt. First of all at the initial stage neither Sher Shah nor Ghulam Rasool have categorically stated number of blows inflicted by the appellant nor they have stated as to from which side.
Subsequently both these witnesses stated that appellant gave two blows to Hyder Ali Shah from behind and Hyder Ali Shah fell down and became unconscious. Even this assertion does not find any support from the Medical Evidence as stated above. Anwar Ali Shah has stated that he saw the appellant giving one blow to Hyder Ali Shah from behind and in the result Hyder Ali Shah fell down then appellant gave second blow while Hyder Ali Shah was lying. This also is not consistent with medical evidence. In fact injuries mentioned in the post-mortem report are not consistent at all with number of blows as mentioned by eye-witnesses. With two blows 4 injuries cannot be caused on different parts as stated in the evidence of Doctor. We also doubt ocular evidence for the reason that if Sher Shah and Ghulam Rasool were present with deceased then they would have been in position to catch hold of appellant because appellant was carrying very long and thick wooden peg which must have been inconvenient to carry or wield as weapon of offence. With such heavy weapon if blow is given from behind and with great impact, then one blow would be more than sufficient to crush the head into pieces. It is also in the evidence that appellant after giving two, blows left the weapon at the spot and ran. If it is true then why complainant Sher Shah, P. W.
Ghulam Rasool and P. W. Anwar Ali Shah, in all three were not able to catch the appellant, who was empty handed. Another reason whichinduces us to doubt the claim of eye-witnesses is the fact that it is in the evidence that several persons came at the spot and eye-witnesses chased the appellant who was running then if the identity of the appellant was known to the eye-witnesses they could have informed those persons about the identity of the assailant and some of them or even one of them could have been examined on this point that eye-witnesses or one of them gave out the name of assailant. Failing this some witness could have been produced, who could say that although he did not seethe incident but he saw eye-witnesses chasing the appellant Allah Rakhio, who made his escape good, even that was not done.
16. On the other hand, arguments were raised on behalf of State that there is no enmity between the parties and eye-witnesses had no motivation to implicate appellant falsely. That may be so and even the appellant in his statement under section 342, Cr. P. C. Has not mentioned any enmity specifically for his false implication. Mr. Muhammad Hayat Junejo has argued that if there is no background of enmity then also there is no guarantee that the eve-witnesses must have spoken nothing else but absolute truth. He has further stated that such eye-witnesses may still speak lies to bring their statements in conformity with the case of prosecution. Mr. Muhammad Hayat Junejo has referred us to the case of Nazir Muhammad v. The State (PLD 1974 Kar. 274) in which it is held that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate an accused person should be accepted at its face value or that, conversely, the evidence of a person who is interested should be completely discarded. Indeed such an approach to the question of assessing the oral evidence of witnesses would be rather artificial and has been- repeatedly disapproved by the superior Courts. Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue.
17. From the appraisal of evidence as made above, we hold that the claim of the eye-witnesses, to have seen the incident is not free from doubt it is possible that Complainant Sher Shah, P. W.
Ghulam Rasool and P. W. Anwar Ali Shah might be available in the Bazar and the deceased might be alone where blows were struck to him and tile alleged eye-witnesses might have reached the spot later on. So far as the question of motive is concerned, only Sher Shah has stated about the quarrel of deceased and appellant over a seat of Bus which took place two months ago. This c incident does not seem to be sufficient to generate such intense enmity to commit a murder but this motive emanates only from Sher Shah whose claim as eye-witness is not free from doubt. We also feel from the circum--stances stated above that it is possible that after Hyder Ali Shah was given blows and he became unconscious, some persons might have informed the relatives of Hyder Ali Shah as complainant himself has made a mention of the name of his Uncle Noor Ali Shah and in the meantime the injured was taken first to Police Station and then to Hospital alongwith letter from the I.O. But on the way injured died and post-mortem was performed. It is possible that registration of F. I. R. Was delayed and that is why the eye-witnesses were not able to support each other about when F. I. R. And Police statements were recorded and when they returned from Hospital with dead body. In the column of identification of dead body in post-mortem report names of other relatives are mentioned and not of eye-witnesses. We also doubt that F. I. R. Was delayed because even the eye-witnesses themselves have admitted that their statements were recorded late at 2.00 p.m, or even after that. In these circumstances, we hold that ocular testimony is replete with discrepancies and as such we doubt the veracity of these eye-witnesses. Ocular evidence is therefore not free from doubt and fog' additional reason it is not consistent with medical evidence.
18. So far as the recovery of weapon of offence is concerned, it does not have incriminating value for the reason that it was left at the spot and was not recovered from the exclusive possession of the appellant to connect E him with commission of crime. Moreover, Mashir Moulvi Nazar Mohammad has admitted in his crass-examination before the trial Court that he was working as Naib Pesh Imam in Jamia Mosque Bukhari Pir where Noor Alt' Shah is the Head Pesh Imam.
Complainant Sher Shah is nephew of Noor Ali Shah. This Mashir has further admitted that Farooq, who has signed as co-mashir with him is also son-in-law of Noor Ali Shah. From this, it appears that both the Mashirs are closely related to the complainant'. This is basically wrong and the Investigating Officer has not joined the independent witnesses in the investigation of this case. No value can be attached to the recovery of weapon which was produced by the complainant.
19. For the facts and reasons mentioned above, we are of the view that evidence produced by the prosecution is not free from doubt and prosecution has failed in its duty in proving the case against the appellant beyond reasonable doubt. We, therefore, give the benefit of doubt to the appellant and set aside his conviction and sentence and allow the appeal. Appellant may be released forthwith, if not wanted in any other case Reference of confirmation is hereby rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.