FAKHRUDDIN H. SHAIKH, J.-Appellants Hamzo and Allah Deno along--with acquitted accused. Uris and Deno were tried by learned Sessions Judge, Thatta for offences uner section 302/34, P. P. C.
And 201/34, P. P. C. The appellants only were convicted and sentenced as under :--
(1) Under section 302/34, P. P. C. To death and also to pay fine of Rs. 2,000 each or in default of payment to suffer R. I. .For one year each; and
(2) Under section 201/34, P: P. C. To R. I. For five years each and also to pay fine of Rs. 5,000 each or in default of payment of fine to suffer further R. I. For six months.
Co-accused Uris and Deno have been acquitted. Learned Sessions Judge has referred the case to this Court under section 374, Cr. P. C. For confirma--tion for the death sentence. The two appellants have also filed appeal challenging their convictions and sentences. The reference and the appeal were heard together and are being disposed of by this Judgment.
2. The case of the prosecution is that on 2nd October, 1978 complainant Lakhano alongwith his brother deceased Siddiq and P. Ws. Ghulam Muhammad and Abdul Aleem left Sujawal Town for their village Gahikhan at about 8-00 p.m. They had reached the land of Haji Amro at about 8-30 p.m. When. It is alleged, the two appellants and the acquitted accused Uris and Deno came there and surrounded deceased Siddiq. The two appellants Hamzo and Allah Deno are said to have been armed with hatchets while the acquitted accused Uris and Deno were empty-handed. Accused Uris instigated the two appellants, whereupon the two appellants gave hatchet blows to Siddiq, who fell down and died instantaneously. It is further alleged that the culprits warned the complainant and, the other witnesses to keep away. The four culprits are said to have dragged the body of Siddiq and left it in the land of Subban Punjabi, a short distance away from the scene of offence. Complainant Lakhano, P. Ws. Ghulam Muhammad and Abdul Aleem have claimed to have identified the two appellants and their companions in the light of a torch which P. W. Ghulam Muhammad had with him at that time and had flashed it at the culprits. Complainant Labbano went to Sujawal Police Station, which was two miles away from there, and lodged report of the incident. The motive for this crime is said to be illicit connection between Siddiq deceased and Mst.
Phapo wife of appellant Hamzo. It is alleged that Mst. Phapo had left appellant Hamzo and started living with deceased Siddiq before the incident. She was twice restored to her husband on the intervention of one Qadir Deno Shah, but every time she left appellant Harnzo and chose to live with deceased Siddiq.
3. Mr. Muhammad Aslam, A. S. I. Of Sujawal Police Station bad recorded the F. I. R. Of complainant Lakhano at 10-00 p.m. The same night that is 2-10-1978. He left for the scene of offence immediately, accompanied by complainant Lakhano and reached there at 10-45 p.m. It was situated two miles away from Sujawal Town on the road leading from Sajawal to Belo Town. P. Ws.
Ghulam Muhammad and Abdul Aleem are said to be present there. Some blood was found on the ground. The A. S. I. Found a trail of blood which they tracked in the light of the torch which was secured from P. W. Ghulam Muhammad. The trail of blood led them to the land of Subhan Punjabi about 630 paces away from the scene of offence. There were also dragging marks in between the two places. They found the dead body of Siddiq lying on the land. Inquest was held on the dead body on which there were two hatchet injuries, one on the right cheek and the other on the back side of the neck. The dead body .Was then sent to the Medical Officer Sujawal for post-mortem examination.
4. P. Ws, Ghulam Muhammad and Abdul Aleem were examined on the same night. A Mashirnama was also prepared of securing torch from P. W. Ghulam Muhammad. In the following morning i.e. On 3-10-1978 the A. S. I. Again went to the scene of offence and found two hatchets lying in the mud of a watercourse near the scene of offence. Handle of one of the hatchets was broken. Both the hatchets were blood-stained. They were secured in presence of Mashirs Ibrahim and Suleman.
Blood-stained earth was also secured from the scene of offence and sealed in a parcel.
5. It is alleged that at about 11 a.m. The same day i.e. 3-10-1978, the two appellants and the acquitted accused were arrested from the house of appellant Uris which was not very for away from the land of Subhan Punjabi. It is alleged that appellant Hamzo had produced broken piece of handle of the hatchet from rice palal. The piece of wood was blood--stained. It is further alleged that appellant Hamzo had led the police to the watercourse near his house and produced blood- stained Shalwar and Shirt. Accused Allah Deno is also alleged to have produced blood-stained Shirt and Shalwar from the Khara near his house. All the blood-stained articles were sealed in separate parcels and Mashirnamas were prepared.
6. Mr. Sher Khan S. H. O., Sujawal Police Station also reached the scene of offence and verified the investigation. The person of accused Hamzo was examined. Some mark of injury was found on his finger. He was also referred to Medical Officer Sujawal for examination and treatment. The S. H. O.
Recorded statements of Mst. Pbapo and Qadir Deno Shah. On 5-10-1978, that is, after two days of their arrest, the appellants Hamzo and Allah Deno were produced before Mukhtiarkar and F. C. M., Sujawal Mr. Pirdhansingh for recording their confessions. P. Ws. Ghulam Muhammad and Abdul Aleem were also produced for statements under section 164, Cr. P. C. Before the same Magistrate.
On 21-10-1978 the parcels containing the blood-stained articles were sent to the Chemical Examiner for examination and report. His report has been produced by Mr. Sher Khan as Exb. 40 which is in positive. After completing the investigation the Appellant alongwith the acquitted accused, were sent up for trial.
7. It may be stated that acquitted accused Uris and Deno are real brothers inter se. Appellant Hamzo is son of Uris and Allah Deno is son of Deno. Thus, both the appellants are first cousins to each other. In their statements under section 342, Cr. P. C. They have denied having killed Muhammad Siddiq by causing hatchet injuries. They have also denied having produced the blod- stained clothes and the broken piece of handle of a batchet. They have alleged that they have been implicated due to enmity over matrimonial affairs, but they have denied the affair between Mst. Phapo and deceased Siddiq. They have also have retracted from their judicial confessions.
8. In support of the prosecution case threw witnesses have been examined who have claimed to have seen the incident and identified the culprits in the light of a torch flashed by P. W. Ghulam Muhammad. The three witnesses are P. W. 2 Lakhano (Exh. 3), P. W. 3 Ghulam Muhammad (Exh. 15) and P. W. 4 Abdul Aleem (Exh. 17). The evidence of the above witnesses is sought to be corroborated by P. W. 8 Muhammad Ibrahim (Exh. 25), who is Omni-Bus Mashir in this case. This Mashir has produced inquest report (Exh. 26), Mashirnama of scene of offence (Exh. 27), Mashirnama of securing torch from P. W. Ghulam Muhammad (Exh. 8), Mashirnama of arrest of the appellants (Exh. 29), Mashirnama of securing blood-stained clothes alleged to have been produced by Hamzo as (Exh. 30), Mashirnama of securing blood-stained clothes alleged to have been produced by.
Appellant Allah Deno (Exh. 31) and Mashirnama of securing blood-stained piece of wood said to be part of a broken handle of hatchet produced by appellant Hamzo (Exh. 32). It is also alleged that one pair of Chappal was secured from the scene of offence which was tested in the feet of appellant Hamzo. This pair of Chappal fitted in the of appellant Hamzo and such Mashirnama was also prepared in the presence of the same Mashir i.e. Muhammad Ibrahim which is (Exh. 33).
9. So far as the factum of murder of Muhammad Siddiq is concerned, it is not disputed by the appellants whose defence appears to be that the deceased was a notorious criminal who had several enemies and that he was killed by some unknown persons in the darkness of night. The fact that Muhammad Siddiq died as a result of hatchet injuries on the night of 2.10-1978 is further proved by the evidence of Medical Officer, Sujawal Dr. Abdul Jabbar (Exh. 41), who had held post- mortem examination on the dead body of Muhammad Siddiq and found two incised wounds, one on tile neck and other on the right cheek of the deceased. Both these wounds appeared to have been caused, according to the Medical Officer, by a sharp cutting weapon such as hatchet and were sufficient in the ordinary course of nature to cause death. The injury on the back of the neck was individually sufficient to cause death in the ordinary course of nature. Besides the two incised wounds there were two abrasions also on the left and right thighs of the deceased. According to the Medical Officer, these abrasions could have been caused by fall on the ground. However, there is no direct evidence as to the cause of these abrasions.
10. The connection of the accused with the crime is sought to be established by the evidence of the three eye-witnesses named above. All these three witnesses i.e. Lakhano, Ghulam Muhammad and Abdul Aleem are closely related to each other and are admittedly inimical to the appellants.
Complainant Lakhano is husband of sister of the deceased; P. W. Ghulam Muhammad is cousin of the deceased while P. W. Abdul Aleem is son of sister of the deceased. Even Mashir Muhammad Ibrahim admits to be cousin of P. W. Ghulam Muhammad.
11. The evidence of the alleged eye-witnesses, in view of their inter se relationship and the admitted enmity between the parties, cannot be believed without independent corroboration on material particulars. The only corroboration comes from the evidence of Mashir Muhammad Ibrahim who himself is close relation of the deceased and the P. .Ws. And is inimical towards the appellants.
According to the prosecution case the enmity between the parties is on account of illicit connection between Mst. Phapo, the wife of appellant Hamzo and the deceased Muhammad Siddiq. How--ever, the appellants have not directly admitted this illicit connection but they do allege that there is dispute over matrimonial affairs between the parties. The evidence of Muhammad Ibrahim, therefore, cannot be taken/ to corroborate the evidence of the alleged eye- witnesses. It is a well-established principle that one piece of tainted evidence cannot corroborate another piece of tainted evidence.
2. The eye-witnesses i.e. Lakhano, Ghulam Muhammad and Abdul been have claimed that they had identified the appellants and the acquitted accused in the light of the torch which was flashed by P. W. Ghulam Muhammad. It is doubtful if in the light of the torch the witnesses could have correctly identified the culprits in the dark night. The incident had taken place at 8-00 p.m. In the month of February. Admittedly it was dark night. In the flash of the torch the witnesses could only have a momentary glimpse of the culprits and, therefore, it cannot be said that the witnesses were able to identify the culprits with certainty. Learned counsel for the appellants has, in this connection, referred to the decision in the case of Muhammad Nasim Agha and another v. The State (1978 P Cr. L J 579), in which a Division Bench of this Court held that no reliance can be placed on the evidence of prosecution witnesses who are alleged to have had only a momentary glimpse of the culprits in the street lights. In another case reported in 1970 P Cr. L J 633 it has been held that on the point of identification, evidence of witnesses who claim to have identified the culprits in dark night in the light of e torch, is always unreliable. This is particularly true in the case of incidents in which several persons are involved, as in the present case.
13. So far as the recoveries are concerned, there is interested word of Mashir Muhammad Ibrahim. It is surprising that even the other Mashir Suleman who has not been examined, is also a close relation of the P. Ws. This fact is admitted by Mashir Ibrahim himself in his cross-examination.
Moreover so far as the blood-stained hatchets are concerned, the same are said to have been secured from the mud of the watercourse. It is not understood how blood was visible on the hatchets when they were secured from the mud. This circumstance makes even the evidence of the Investi--gating Officer Mr. Muhammad Aslam A. S. I. Also highly doubtful. Again there is a very serious inconsistency about the time of arrest of the appellants. According to Mashirnama (Exh. 29) the appellants and the acquitted accused were arrested at 11-00 a.m. On 3-10-1978. But this fact is belied by the three alleged eye-witnesses who have said that all the four persons were arrested on the same night i.e. Between 2nd and 3rd October, 1978 at about midnight. Even Mashir Ibrahim has not supported this part of the Mashir--nama. He has contradicted the time of arrest as stated in the above Mashirnama by saying that the appellants Hamzo and Allah Deno w6re arrested from their house at 12-00 or 12.30 am. The same night. This fact further makes the conduct of the Investigating Officer Mr. Muhammad Aslam suspicious and even his evidence regarding recoveries having been made at the instance of the appellants, cannot be relied upon.
14. The only evidence that now remains to be considered is the judicial confessions of the two appellants which were recorded after three days of their arrest on 5-10-1978. It is established that both the appellants were arrested on the night between 2nd and 3rd October, 1978. They were kept in Police custody on 3rd and 4th October, while on. 5th October, 1978 they were produced before the Magistrate. There is no explanation as to why the appellants were not produced on 3rd or 4th October, for confession when several Magistrates were available at Sujawal, which is a Sub- Divisional Headquarter of Thatta District. Even a Civil Judge is posted there. In this connection learned defence counsel has referred to the case of Tooh v. The State (1975 P Cr. L J 440), in which a Division Bench of this Court held that confessiont recorded on the third day of the arrest of the accused should be ruled outs of consideration. We are in respectful agreement with the principle laid down in the above decision. We are, therefore, not inclined to rely on the judicial confessions which have been retracted by the two appellants. Even the learned counsel for the State Mr. Rashid Akhtar Qureshi has not supported the convictions and sentences.
For the reasons stated above, we hold that the prosecution has failed to establish the charges against the appellants. Their appeal is allowed and the are acquitted of the offences they are charged with. They shall be released p forthwith if not required in any other case. The reference for confirmation o death sentences is consequently rejected.