The appellants above named, being aggrieved by judgment dated 31st July, 1980 of the learned Additional Sessions Judge, Shikarpur, whereby the appellants have been convicted under section 302, P. P. C. Read with section 120-B, P. P. C. And each sentenced to imprisonment for life, have preferred this appeal on the following facts and grounds.
2. The episode of the prosecution case as stated to be is, that on 9th May, 1975 at 7-45 p. m.
Complainant Hidayatullah lodged report at Gaheja Police Station, alleging therein, that deceased Khawand Dino was his brother-in-law as well as his cousin. He was married to Mst. Bakhshul, the daughter of one Ghulam Abbas. Mst. Rajul is said to be sister-in-law of deceased Khawand Dino. It is further alleged, that about one year ago, Mst. Rajul was declared as 'Karl' with appellant Hidayatullah and as such appellant Hidayatullah was fined Rs. 10,000 (Rupees Ten Thousand) in private 'faisla' by brothery people. The appellant despite of above fine used to visit the house of Ghulam Abbas, the father of Mst. Rajul. The deceased Khawand Dino had prevented appellant Hidayatullah from visiting the house of Ghulam Abbas, as caceased had demanded band of Mst.
Rajul from her father, for his brother. Due to above demand of deceased, appellant No. 1, Hidayatullah annoyed with deceased. On the day of incident i.e. On 8th May, 1976 at about 6-30 p. m., deceased was returning from Gaheja to his village, complainant and P. W. Fateh Muhammad were also coming along Khaliqdino Wand. When they reached the path in the north of Khaliqdino Wand, they saw appellant Ghazi armed with open knife, Ghulam Shabir with a hatchet and Haji empty-handed, standing in the jungle. They all attacked Khawandino. Appellant Ghulam Shabir gave hatchet blow to Khawand Dino on his head. Appellant Ghazi stabbed with knife, in the abdomen of Khawand. Dino and. Appellant Haji gave fists and kicks blows to him and sat over him.
The complainant and P. W. Fateh Muhammad challenged the appellants. On above challenge, and on cries of Khawand Dino and commotion, P. Ws. Parial, Ghulam Sarwar and others came running.
The appellants then seeing complainant and above-named witnesses ran away towards their village. The complainant and above cited witnesses went over to injured and found injuries on his head and stomach, with his intestine protruded out. P. W. Fateh Muhammad thereafter went and brought the bullock-cart from Muhammad Pannah. They took injured Khawand Dino in the bullock cart and left for Gaheja Police Station, but Khawand Dino breathed his last, on the way to Police Station, hence F. I. R. In question was lodged. The motive of above incident is alleged to be the above shown annoyance of appellant Hidayatullah with deceased.
3. The then S. H. O., Gaheja, Mr. Abdul Ghani registered the case of complainant vide F. I. R. Exh. 10, prepared Inquest Report of dead body Exh. 21 and then referred the dead body to Medical Officer, Dakhan for post-mortem, through P. C. Abdul Fattah. He then recorded the statements of P. Ws.
Fateh Muhammad, Parial and Muhammad Pannah and thereafter proceeded to wardat and prepared such mashirnama in presence of Mashirs Ghulam Murtaza and Attaullab, vide mashirnama Exh.
22. He secured blood from wardat. The S. H. O. Further secured black shoe, alleged to be of deceased and prepared such mashirnama Exh.
23. He thereafter examined P. Ws. Gbulam Sarwar, Mst. Rajul and Ali Anwar. On 10th May, 1976, S. H. O. Examined P. Ws. Laldino. Gut Muhammad and Sahib. All the four appellants namely appellant Hidayatullah, Ghazi, Ghulam Shabir and Haji voluntarily appeared before S. H. O.. On 11th May, 1976 and he arrested them, under Memo. Exh. 24.
The S. H. O. Further secured blood-stained clothes from person of appellant Haji under mashirnama Exh.
25. On 13th May, 1976. He secured blood-stained `Bursha' (Knifaq) from appellant Ghazi, in presence of same mashirs, under memo Exh.
26. On same date, appellant Ghulam Shabir also produced hatchet voluntarily, which was secured under mashirnama Exh.
27. On 14th May, 1976 he got 164. Cr. P. C. Statements of P. Ws. Fatheh Muhammad, Pariai, Ghulam Sarwar, Muhammad Pannah and Ali Anwar recorded, before Civil Judge and F. C. M., Garhi Yasin. On 25th May, 1975 he challenged the above appellants in the Court of Civil Judge and F. C. M. Garhi Yasin.
4. The prosecution examined the following witnesses in its support :- Complainant Hidayatullah Exh. 9 and P. Ws. Muhammad Pariaf Exh. It, Ghulam Sarwar Exh. 13, Ali Anwar Exh. 15, Fateh Muhammad Exh. 16, Laldino Exh. 17, mashir Ghulam Murtaza Exh. 19, Tapedar Hussain Bux Exh. 30, Medical Officer, Mr. Abdul Qayoom Exh.
28. S. H. O. .Mr. Abdul Ghani Exh. 32.
Police Constable Abdul Fateh Exh. 37, Mr. Nabi Bux, Civil Judge and F. C. M. Garhi Yasin Exh. 38.
5. The appellants above named in their statements under section 342, Cr. P. C. Totally denied all the allegations made against them by the prosecution and further stated that they have been falsely implicated by complainant party, due to dispute over the land. The appellants also examined D. W.
Sajan Khan Exh. 51, D. W. Mst. Nihalan alias Mst. Kami Exh. 52 and D. 1 W. Mst. Rajul Exh.
53. According to these defence witnesses the murder in question was an unseen murder. The learned trial Court, after having appraised the evidence produced before it and taking into consideration the arguments advance by the learned Advocate for the appellants vide its impugned judgment dated 31st July, 1980 convicted and sentenced the appellants above named as mentioned hereinabove, for the reasons given in the said judgment.
6. The appellants above named being aggrieved by the impugned judgment dated 31st July, 1980 of the learned Additional Sessions Judge, Shikarpur, have preferred this appeal on the grounds mentioned in the memo. Of appeal.
7. I have heard at length the learned Advocate for the appellants, who has taken me through the impugned judgment as well as through the statements of all the witnesses which were recorded before the learned trial Court, as well as documents produced before the said Court.
8. The learned Advocate for the Appellants in support of the above appeal submitted as under :-
(a) F. I. R. Exh. 10 is not the real F. I. R., as F. I. R. Was earlier lodged by D. W. 2 Mst. Nihalan, which has been suppressed.
(b) Dying declaration is not reliable, as the same has not been mentioned in F. I. R. And has been falsely introduced later on.
(c) That the learned trial Court has misread the evidence on record and has failed to consider material contradictions in the statements of prosecution witnesses.
(d) The learned Court has wrongly stated, that the mashir of the recoveries is an independent witness and as such he relied upon his statement and believed recoveries. The co-mashir who is also related was not examined.
(e) That the mashirs were not of the same locality and as such the investigating agency have violated provisions of section 103, Cr. P. C.
(f) that There are contradictions between medical and ocular evidence, and
(g) This is the case of no evidence at all.
9. The learned Advocate appearing for the State, on the other hand, submitted, that there was a strong motive for the crime in question. He further submitted, that presence of P. Ws. Fateh Muhammad and Hidayatullah was not (unnatural at. The site. The learned Advocate for the State further submitted, that recoveries should be believed in view of the evidence of S. H. O. And the reasons given by the learned trial Court for believing the recoveries are immaterial. The learned Advocate for the, state further submitted, that there is nothing on record to show that 'there was earlier F. I. R. Than Exh. 10, as the same allegations have not been proved. The learned Advocate for the State further submitted, that the dying declaration was above board and has rightly been relied upon by the learned trial Court. In view of this, the learned Advocate for the State stated, that be supports the impugned judgment in question.
10. The learned Advocate for the appellant, in support of his contention that F. I. R. Exh. 10 is not the real F. I. R., but actual F. I. R. Was lodged by D. W. 2 Mst. Nihalan, the mother-in-law of the deceased, but the same has been suppressed by prosecution, invited my attention to the statement of P. W. 2 Abdul Parial, in. Which in his cross--examination, the said witness has stated as under :- ---First one lady bad gone to police station to inform about the assault. Mst. Kami went to inform police, that Khawand-Dino has been murdered. Police met us on the way. We sent dead body to police a station and we went to wardat. Police met us at the distance of 20 paces from police station, while coming to wardat. Mst. Kami went alone to police station and informed Allah Rakhio and Wadero Laldino and Abdul Ghani, S. H. O. Met us at the distance of 20 paces from police station. They were going to the wardat. Hidayatullah went to police station with the dead body. First we left the dead body and police left for wardat and, thereafter, Police came and recorded the F. I.
R.--- The learned counsel also drew my attention to the cross-examination of P. W. 3 Ghulam Sarwar, in which the said witness has stated as under: ---Mst. Kamalan was already standing at police station. Mst. Nihalan was also with us. Again the witness says, that she met us at police station or she came after, but she was there. She is mother- in-law of the deceased and mother of Mst. Bachul and Mst. Rajul.--- The learned counsel also invited my attention to the cross-examina--tion of P. W. 6 Laldino, in which the said witness has stated as under: - "Mst. Nihalan is the wife of Ghulam Abbas. Ghulam Abbas has only one wife Mst. Nihalan. Mamul is not his wife. I saw, that Mst. Nihalan was sitting at police station. I do not know why Mst. Nihalan was sitting at police station."
The learned counsel also invited my attention to the statement of D. W. 1 Sajan Khan, in- which the said witness has stated as under :- "I had gone with my own work to Police Station, Gaheja and it was about sunset time and it was dusk time. After some time Mst. Kamalan wife of Ghulam Abbas came there along with her husband Ghulam Abbas. They had Holy Qur'an with them. They both were crying, that their son-in- law named Khawind Dino was murdered. The S. H. O. Recorded their report on a blank paper and Police set out for investigation immediately. After sometime Police returned back and brought the dead body to Police Station, Gaheja. Muhammad Pannah was with the dead body alongwith Muhammad Paryal and Abdul Kadir and Abdul Ghafoor, who were also with dead body. There-- after, complainant Hidayatullah and father of deceased' also came to police station after an hour."
The learned counsel also invited my attention to the statement of D. W. 2 Mst. Nihalan alias Kami, the mother-in-law of the deceased. She in her statement has stated as under :- "I am known as Kamalan also. I have two daugthers namely Bukhshul and Rajul. On the day of incident, at about dusk time I was available in my house, when all of sudden I heard hue and cry.
Mst. Rajul, I and my husband went running there towards the cries and found my son-in-law Khawand Dino lying unconscious. I did not see any culprit there. The other persons, who came on wardat from different villages, came after me there. None from our village had come there. 1 do not know complainant Hidayatullah, in this case, I had gone to police station alongwith my husband for report, alongwith Holy Qur'an. We found there Defence witness Sajan Khan, available at police station. S. H. O. Had recorded my report on blank paper, and went for the investigation of this case.
After sometime I was still sitting there, when Police brought the dead body at police station. It was somhani time. The dead body was referred to hospital and I went to my house."
The learned counsel also drew my attention to the statement of D. W. 3 Mst. Rajul who in her statement has stated as under :- "Mst. Nihalan is my mother. Mst. Bukhshul is my sister, and she is elder than me. On the day of incident of above murder, I was present in the house of my mother, as I had gone there for visiting purpose with my mother. It was sunset time, when all of sudden there were cries heard by us. We went running outside towards cries and saw there deceased Khawand Dino, who was my brother- in---law, lying on the ground with his intestines protruded cut. We did not see any culprit there. On the cries, many other persons had gathered there subsequently, after our arrival there. Thereafter my mother and father went for report to police station and I remained in the house."
The above extracts from the statement of prosecution witnesses, P. W. 2, P. W. 3, P. W. 6 and D. W. 1, 2 and 3 show, that before the dead body of the deceased was brought to police station by P. W. 1 Hidayatullah, P. W. 2, Muhammad Parial and P. W. 3 Ghulam Sarwar, Police had already started for wardat for purposes of investigation, according to P. W.
2. This statement of P. W. 2 is corroborated by D. W.. 1 and D. W.
2. In view of these statements of these three witnesses, at least, doubt has been created on prosecution case, about Exh. 10, being actual F. I. R. Of the case in question, in my opinion.
11. In connection with the contention of the learned counsel for appellant, that dying declaration' was falsely introduced in the case and is bogus, he drew my attention to so-called F. I. R. Exh. 10 and stated, that nowhere in this F. I. R. Any mention of the alleged dying declaration is there. In view of this, the learned counsel's contention, that it was after thought, and was introduced in the statements of P. Ws. 1, 2 and 3, in order to improve the prosecution case and in order to explain the involvement of appellant Hidayatullah in F. I. R. Exh. 10, has great force, in my opinion. I have carefully gone through Exh. 10, nowhere complainant has mentioned anything about this allege dying declaration nor the course of his informa--tion about involvement of Htdyatullah appellant, in F. I. R. Exh. 10.
12. The learned counsel in support of his contention, that learned trial Court has misread the evidence on record and has failed to consider material contradictions in the statements of prosecution witnesses, drew my attention to the following facts mentioned in the judgment of the learned trial Court :---
(a) Impugned judgment at page 115 of P. B. At lines 123-129 states :- ---As regards ocular testimony, the prosecution ha3 adduced the evidence of complainant Hidayatullah and P. Ws. Muhammad Paryal, Ghulam Sarwar, Fateh Muhammad, who all are eye- witnesses to the above incident. According to Court evidence all these four eye-witnesses have affirmed, that they saw accused Ghazi, Ghulam Shabir and Haji killing deceased Khawand Dino.--- The learned counsel after drawing my attention to above lines, stated that P. W. 3 Ghulam Sarwar, in his statement before the learned trial Court has not claimed to be eye-witness of receipt of the injuries by the deceased, from the hands of appellants. He only claim to have seen the appellants running away from scene, duly armed. In spite of this admitted position, the learned trial Court has described P. W. 3 as eye--witness of the incident.
(b) Impugned judgment at page 124 of paper-book, at lines 443-450 states :- "The Mashir Ghulam Murtaza is an independent witness having no relations with complainant party or having no dispute with accused, as no such question in cross has been put to mashir by any of the defence Advocate. Under these circumstances, it appears, beyond reasonable doubt, that the evidence of above mashir cannot be questioned any more with any iota of doubt."
The learned Advocate after drawing my attention to above lines in impugned judgment, drew my attention to the statement of P. W. 7 Ghulam Murtaza, who in his cross to Mr. Abdul Mian Soomro defence counsel states, that "Complainant Hidayatullah is my cousin and deceased was my nephew". In view of this the learned counsel for the appellant submitted, above observation of the learned trial Court in the impugned judgment is obviously due to misreading of the evidence on record.
(c) The learned counsel for the appellant pointed out the statement of P. W. 2 Muhammad Parial, in which he has stated in his examination-in-chief that "when he reached wardat, he found P. W. 3 Fateh Muhammad and P. W. 1 Hidayatullah were already there". But in his cross-examination to defence counsel he admitted, that he sent his brother Uris to inform complainant Hidayatullah and Laldino, father of the deceased about the incident and then, they came to wardat. This means that P. W. Hidayatullah, complainant was not present at the time of incident at wardat. This is material contradiction in the statement of this witness as well as between the statement of P. W. 1 and P. W.
5, but the learned trial Court has not even cared to consider these contradictions in its impugned judgment and by general statement that minor contradictions do not effect varacity of witness, which has otherwise not been shaken in their cross-examination; by passen consideration and effect of these contradictions.
13. The learned counsel for the appellant in support of his conten--tion, that learned trial Court, on account of obvious misreading of the statement of P. W. 7 Ghulam Murtaza, mashir of the allege recoveries, relied on said recoveries, as it came to conclusion, that he was independent mashir and not related to complainant's side and as such believed his statement about alleged recoveries and treated such recoveries as corroborative piece of evidence against the appellant, in spite of the fact, that P. W. 7 in his cross-examination admitted close relationship with complainant as well as deceased. In view of this, the earned Advocate for the appellant submitted, that as prosecution failed to examine any independent mashir for such recoveries, no reliance can be placed on evidence of this witness for said recoveries. Learned counsel submitted that P. W. 7 Ghulam Murtaza is mashir in respect of all the mashirnama and he is not from locality, where mashirnamas were prepared and as such provisions of section 103, Cr. P. C. Were violated by investigation agency and consequently no reliance can be placed on such mashirnamas. However, learned trial Court in order to overcome this legal difficulty has misinterpretated the provisions of section 103, Cr.
P. C. And has stated in its judgment, that section 103, Cr. P. C. Only applied to the mashirs of search of houses. The learned counsel for the appellant in view of his above submission, stated that all the mashirnamas, including those relating to recoveries be discarded. In support of this, the learned counsel relied upon cases reported in 1976 P. Cr. L J (Lab.) 52, 1977 P Cr. L J 663, 1973 P Cr. L J 1006, 1972 P Cr. L J 137 and 1981 P Cr. L J 1292. The learned State Counsel on the other hand submitted, that mashirnamas of recoveries, be, taken into consideration, as corroborative evidence, on the basis of the evidence of P. W.
10. Abdul Ghani, S. H. O, and reasoning given by learned trial Court be ignored.
I have carefully considered the above submissions of the learned counsel before me and in view of the law laid down by above-mentioned authorities, with which I am in respectful agreement for the reasons giving them, I agree with the contention of the learned counsel for appellant that no reliance can be placed in respect of allege recoveries from the possession and/or at pointation of the appellants at all, firstly because P. W. 7 Ghulam Murtaza, is not only interested witness, which is evident from his presence with Police during the investigation throughout, but closely related to P.
W. I and deceased, as admitted by him in his cross-- examination and secondly because the mashirs of the mashirnamas in a question were not people of the locality as required by section 103, Cr. P. C. And as such on the basis of evidence of P. W. 10 Abdul Ghani. S. H. O., it would not be safe to rely on allege recoveries from appellants and/or at their pointations, in my opinion, specially, as alleged recoveries were made after 2 days of the arrest of the. Appellants in question.
14. The next contention about contradiction between ocular and medical evidence, the learned Advocate for the appellant submitted, that according to allege eye-witnesses, P. W. 1, deceased was given blows by fist and blunt side of weapons, but evidence of P.W. 8 Dr. Abdul Qayoom shows that deceased only had four incised injuries and did not have any other injuries on his person and as such presence of P. W. 1 Hidayatullah at the time of incident becomes doubtful, on this account as well, as he has mentioned in his statement, that deceased received injuries by fists and Burchhi (Iron Bar), which were not there according to P. W. 8, who performed the post-mortem examination.
In view of the above submissions made by the learned counsel for appellants, he stated, that if evidence of recoveries against the appellants is discarded, then the ocular evidence by itself, of P.
W. I Hidayatullah cannot be relied upon, as his presence at the time of incident is doubtful and as such prosecution case would rest only on the statement of P. W. 5, Fateh Muhammad and P. W. 2 Muhammad Parial, remaining alleged eye-witnesses of the incident. In connection with the evidence of P. W. 2 Muhammad Parial, the learned counsel pointed out, that .In his cross-- examination, he stated, that on hearing cries, he went to roof and saw accused running away from the scene of offence but in his examination---in-chief be stated, that on reaching wardat he saw appellant Ghulam Shabir giving one injury to deceased in his presence and consequently his evidence cannot be relied upon. As far as P. W. 5 Fateh Muhammad is concerned, the learned counsel for the appellants stated that he is masat and brother-in-law of the deceased and as such interested witness and -consequently no reliance can be placed on his evidence, without independent corroboration, which is not at all available in the present case. In this connection the learned counsel for the appellants relied upon case reported in PLD 1981 Kar.
1. Learned State Counsel on the other hand submitted, that mere relationship would not make evidence of P. W. 1 and P. W. 5 doubtful, specially as their evidence is fully corroborated by recoveries from the appellants which have been proved by P. W. 10 Abdul Ghani, S. H. O, and P. W. 7 Ghulam Murtaza and dying declaration of the deceased.
I have carefully considered above submissions made by learned counsel. In my opinion, presence of P. W. 1 Hidayatullah at the time of incident is doubtful and statement of P. W. 5 Fateh Muhammad, who is near relation of P. W. I and deceased cannot be relied upon without independent corroboration, which in my opinion is not at all. Available in the present case, as for the reasons given hereinabove I have discarded alleged recoveries from the appellants and have come to the conclusion, that dying declaration of the deceased, has been introduced at later stage, to strengthen and improve the prosecution case, as there is no mention there of in F. I. R. At all. As far as prosecution case against appellant No. t is concerned, prosecution relies upon the statement of P. W. 4 Ali Anwar. I have gone through his statement before the learned trial Court. His evidence does not inspire confidence at all. Furthermore, his presence at otak of appellant No. I, on the day of incident is doubtful and further he does not say, that appellant gave the name of deceased for alleged murder, to co-appellants. It may further be noted that this P. W. 4 is also related to Laldino, father of the deceased and as such no reliance can be placed on his evidence in question, without independent corroboration, which is not at all available in this case.
15. The contention of the learned counsel for the State, that there was strong motive for the appellant No. 1 to murder of cause of deceased --in my opinion, has no force, as in my opinion, prosecution has failed to prove its motive beyond reasonable doubt. The contention of the learner; counsel, that trial Court has come to correct conclusions, in spite of alleged misreading of evidence etc. And as such findings of trial Court ought not to be set aside, in view of cases reported in PLD 1963 SC 109, PLD 1970 SC 206 and PLD .1971 Lab. 883, in my opinion also no force. I have gone through these authorities and in my opinion, they are based on different facts and as such not applicable to B present case.
In view of my above conclusions and findings, I allow the above appeal and set aside convictions and sentences awarded to appellant and acquit them, by giving them benefit of doubt and direct, that they may be released forthwith, if they are, not required in any other case.