FAKHRUDDIN H. SHAIKH, J.----The above three appellants were tried by the learned Sessions Judge, Tharparkar at Mirpurkhas for offences under sections 302/34 and 307, P. P. C. Under section 302/34, P. P. C. All the three appellants were sentenced to imprisonment for life for having caused death of Talho by causing hatchet injuries in furtherance of their common intention on 22-9-1977 at 8.00 p. m. Under section 307, P. P. C. Only appellant Mataro was sentenced to R.
1. For seven years for having caused fire-arm injuries to complainant Abdul Khaliq. In his case both the sentences were to run concurrently. All the three appellants were further directed to pay Rs. 2,000 each as compensation. The amounts if recovered from Rehmatullah and Shahoo were to be paid to the heirs of deceased Talho, whereas the amount if recovered from appellant Mataro was directed to be paid to complainant Abdul Khaliq as compensation. In default of payment of t-he amount each of them was to suffer further R. I. For six- months. The three appellants have filed joint appeal against their convictions and sentences. While admitting the appeal the D. B. Of this Court had directed on 13-11-1979 that suo rnotu notices should be issued to the appellants to show cause as to why the sentence of imprisonment .For life should not be enhanced. The appeal and the revision were heard together and are being disposed of by this judgment.
2. Complainant Abdul Khaliq is a petty Zamindar and lived in Deb 161-A Taluka Digri, District Tharparkar. His sister was married with deceased. Talho who used to reside with his father Shakkal in Deb 164-A situated about four miles away from the complainant's village. On 22nd September, 1977, the deceased alongwith his wife had gone to the village of complainant Abdul Kbaliq to celebrate 'Eid'. It is stated that be suffered from stomach pain due to which complainant Abdul Khaliq carried him to Taluka Digri in the bullock=cart driven- by P. W. Rano. The deceased was treated by Dr. Madad Ali at Digri. Thereafter the complainant and Talho started for the complainant's village in the same bullock-cart i. e. Of Ratio. They had covered only a distance of three miles from Digri and were on the road connecting Digri and Tando Ghulam Ali Town, when it is alleged, all the three appellants emerged from a bush. Rehmatullah .And Shaboo were said to armed with hatchets and Mataro with a country-made pistol. It was 8.00 p. m. And there was moon in the sky as it was 9th of the month of Shawal. It is alleged that first Mataro opened fire which bit complainant Abdul Khaliq in his arm. Due to the fire shot the bullocks of the cart got frightened and strayed from the road into the ploughed land of Dewandas. The appellants are alleged to have come in front of the cart blocking its way. Appellant Rehmatullah is then alleged to have given a hatchet blow to Talho but it missed and landed on the wheel of the cart. Appellant Mataro then fired again with his pistol. Abdul Khaliq complainant was hit in his head. Meanwhile Talho and Rano jumped down from the bullock-cart. Appellants Shahoo and Rehmatullah then gave hatchet blows to Talho who fell down and died instantaneously. The appellants had, it is alleged, warned complainant Abdul Khaliq and P. W. Rano to keep away. Due to the pistol shot injuries Khaliq remained lying in the bullock-cart. The bullocks without, being driven by any one, dragged the bullock-cart and reached the village of Sbakkal i.e. Father of deceased Talho, while Ratio remained behind with the dead body of Talho. Abdul Khaliq injured is alleged to have informed Shakkal, Dost Ali and other villagers, of the incident. These persons, accompanied Abdul Khaliq, came to the scene of offence and found Talho lying dead in a pool of blood. There were hatchet injuries on the face, neck and head of the deceased. Leaving Shakkal and others at the scene of offence, Abdul Khaliq complainant went to Digri Police Station three miles away from there and lodged report of the incident at 10.00 p. m. The same night.
3. Mr. Abdul Kbaliq S. H. O. Digri Police Station (he is other than complainant Abdul Khaliq) recorded the F. I. R. And also prepared Mashir--nama of his injuries in presence of Mashirs Nasir Khan and Sahojh. He then proceeded to the scene of offence where dead body of Talho was lying. A hatchet with a broken handle was lying near the dead body. It was blood-stained. An empty shell of 12 bore cartridge was also lying there. These articles were secured alongwith blo6d-stained earth.
Mashirnama of securing these articles were prepared in presence of the same Mashirs. Dead body of Talbo was despatched to Medical Officer Digri through Head Constable Abdul Rahim for post- mortem examination, but before that inquest report had already been prepared by the S. H. O.
4. On the following day statements of Rano, Dost Ali and Shakkal were recorded by the S. H. O. Ratio had produced the bullock-cart which was secured. A mark of hatchet blow was noted on the left side of the bullock-cart. There was blood on the cart also. Such Mashirnama was prepared in presence of the same Mashirs. Dead body of Talho was despatched to Medical Officer Digri through Head Constable Abdul Rahim for post-mortem examination, but before that inquest report had already been prepared by the S. H. O.
5. On 24-9-1977 appellant Shahoo was arrested from his house. It is alleged that he produced a blood-stained shirt and loin cloth which were hanging on a peg in the room of his house. The same were secured and sealed in a packet. It is further alleged that Shahoo also brought a blood-- stained hatchet from a Kirrir bush which was inside the lohra of his house. It was also blood- stained: The same was secured and such Mashirnama was prepared. On 27-9-1977 appellants Mataro and Rehmatullah were arrested at Police Station Digri at 10.00 a. m. In the morning and such a Mashirnarna was prepared which is Exh.
29. This Mashirnama does not show whether these two appellants had voluntarily surrendered themselves at the police station or " they were taken to the police station by some body. It is alleged that appellant Rehmatullah was wearing blood- stained shirt and Shalwar. His clothes were secured. Appellant Mataro is alleged to have led the S. H. O. And the above Mashirs to the Otaq of Mil Ghulam Ali Talpur at his village about 12 miles away from Digri and he is said to have brought a blood-stained Shalwar from a cupboard lying in the Otaq of Mir Ghulam Ali Talpur. The blood-stained shirt and Shalwar were secured and Mashirnama was prepared in presence of the same Mashirs. Malaro is then said to have led the S. H. O. And the Mashirs to his house and produced a country-made pistol and three live cartridges which were in a wooden box in the house. These articles were also secured, sealed and Mashirnama was prepared. Mataro had no licence for this pistol hence a separate case under section 13-D of Arms Ordinance was also registered against him. Appellant Rehmatullah is said to have produced handle of a hatchet which was lying behind a box in his house. This piece of the handle was said to be blood-stained. The S. H. O. Then came to the police station, broke open the parcel containing the hatchet with a broken handle which was secured from the scene of offence, and fitted the broken piece of handle with the broken hatchet and found that the broken handle matched with the other part of the handle which was fixed in the blade. A Mashirnama of this experiment was also prepared and then all the articles were re-sealed. All these articles were sent to the Chemical Examiner. The crime empty secured from the Vardat and the country-made pistol alleged to have been secured from Mataro were also sent to the Ballistiu Expert for examination and report. The report of the Ballistic Expert is in the positive. According to the report of the Chemical Examiner all the articles except the white shirt and broken handle of the hatchet were found to be stained with human--blood. Blood stains or the white shirt were disintegrated, therefore its origin could not be determined, whereas on the broken handle of the hatchet no blood was detected. It may be stated that the parcel containing the broken piece of the handle was not produced before the trial Court and has not been made available to this Court either at the time of the hearing. The parcel said to be containing the broken handle was in fact found to contain only a blade with a broken piece of handle stuck in its ring. The other piece of the handle which according to the, S. H. O. Had matched with the handle fixed in the blade, is still missing.
6. After completing the investigation all the three appellants were sent up for trial. In his F. I. R. (Exh.
16) complainant Abdul Khaliq bad described the motive for this offence in the following words:- ---About a month back Bago Nuhani the cousin of accused Rehmatullah and Shahoo had taken Ust. Sharifan the sister of the above accused persons at Digri Police Station for lodging complaint of blows against the deceased Talho and Dost Ali. The case is pending in the Court. The accused suspected deceased Talho to be on illicit terms with Mst. Sharifan.--- It may be stated that appellants Rehmatullah and Shahoo are real brothers to each other, while appellant Mataro is only their caste fellow. In his deposition (Exh. 15), however, the complainant has denied that there was any illicit intimacy between deceased Talho and Sharifan, the sister of the appellants. According to him this allegation was absolutely false and the appellants had never complained to him about any such affair between their sister and Talho nor anybody had informed him of such affair. It was, however, suggested in cross-examination to him that there was dispute between him and the deceased over land and that he (complainant) had killed Talho due to enmity and implicated the appellants. The complainant had replied in the negative to this suggestion. It was also suggested to the complainant in cross-examination that there was litigation between the complainant's father and one Gul Sher. He denied the suggestion but the Investigating Officer Mr. Abdul Khaliq admitted in cross-examination that there was enmity between the parties over litigation.
7. In their statements under section 342, Cr. P. C. The appellants have denied all the allegations regarding the incident of murder of Talho and injuries of complainant Abdul Khaliq. They have also denied that any blood-stained article was produced by them or was secured from their person by the Investigating Officer. Appellant Mataro has also denied any blood--stained clothes or any country-made pistol was produced by him before the Investigating Officer. Appellant Shahoo has further stated (Exh. 39) about enmity between the parties as under: - Our cousin Bago had filed a criminal case against deceased Talho and his cousin Dost Ali which was pending before the Mukhtiarkar and F. C. M., Digri at the time of incident. My sister Mst. Sharifan was married to Mir Muhammad son of Manik brother of Shakkal P. W. Father of deceased Talho.
Since Mir Muhammad was still minor we did not permit Mst. Sharifan to go to Manik's house. One Gulsher is married with the sister of accused Mataro another Jamaldin is paternal-uncle of Gulsher.
There were civil cases between Gulsher on one band and Jamaldin father of the complainant on the other hand over a piece of land which wsre pending at the time of incident. One Karimdad son of Gul Khan Nuhani and others were co-sharers with Shakkal father of deceased talho in lands situated in taluka Digri. Shakkal had sold this land to Hamzo and Jamaluddin Nuhani without the permission or consent of Karimdad son of Sultan and other sharers and therefore Karimdad and others were annoyed with them and filed a civil suit against Shakkal, Jamaldin father of complainant and one Hamzo which were pending at the time of incident. Daughter of P. W. Shakkal was given in exchange to complainant Abdul Khaliq while sister of Abdul Khaliq was married to deceased Talho. Abdul Khaliq had detained both the ladies before this incident and the connections between the parties were strained. We have been falsely implicated because of the above enmity."
Appellant Rehmatullah (Exh. 40) has adopted the same statement in respect of the enmity.
Appellant Mataro (Exh. 41) has stated that his brother-in-law Gulsher had enmity with the father of the complainant over land and the cases are pending between them. He has denied his relationship with appellant Shahoo or Rehmatullah.
8. So far as the murder of Talho is concerned, there is no dispute about it. The defence of the appellants, as suggested to complainant Abdul Khaliq in cross-examination, was that complainant himself had killed Talho on account of enmity over land and that Abdul Khaliq had received injuries in this fight. The fact that Talho died as a result of hatchet injuries is further proved from the evidence of Medical Officer Dr. Rana, who was examined as P. W.
1. He had received dead body of Talho on the same night i.e. 22-9-1977 at 10.00 p.m. And held post-mortem examination on the following morning at 10.00 a. m. He found seven injuries on the person of Talho out of which one was lacerated wound and six were incised wounds caused by sharp-cutting weapons. One of such wounds was on the left side of head at the level of external ear 10 x 7.5 x 7.5 c.m. Cutting external and internal ear, ramus of the mandible, occipital bone and all vessels on left side of neck. This injury was individually sufficient to cause death of the deceased in the ordinary course. Other injuries were over chin, lip, back side of neck and arms. The lacerated wound which appeared to have been caused by a blunt weapon was on the left thumb and index finger of the deceased. At the time of the post-mortem examination the injuries were 12 hours old and the death was due to shock and haemorrhage on account of the above injuries. According to the Medical Officer, the injured must hake tied instantaneously, According to the age of injuries deposed too by the Doctor, the deceased had died in, the evening of 22nd September, 1977. This tune almost coincidence with the time given by complainant Abdul Khaliq in his F.1. R. (Exh. 16).
9. The same Medical Officer, had also examined complaint Abdul Khaliq and found four fire-arm injuries and cite contused, wound, which were alt simple in nature. The fire-arm injuries were on the right, ear back of right fore-arm and elbow joint. All these were w6unds;of, entry the contused wound was on the right perietal region which appeared to have been caused by a blunt substance. The Medical Officer had also extracted pellets from the fire-arm wounds and sent same to the police. It is thus proved that complainant Abdul Khaliq had also received fire-arm injuries during this incident.
10. The main question that now remains to be determined is that whether the three .Appellants are connected with the murder of Talho and fire-arm injuries on complainant Abdul Khaliq? The prosecution has sought to prove their case by the testimony of .Complainant Abdul Khaliq (Exh. 15) and P. W. Rano (Exh. 18) who have claimed to be theeye-witnesses. Their evidence is said to have beencorroborated by P. W. Shakkal (Exh. 19) who is father of deceased Talho. Then there is evidence of-the Investigating Officer Mr. Abdul Khaliq S. H. O. (Exh. 20), who has deposed about the recoveries from the appellants in presence of Mashirs Naseer Khan and Sewaj. Mr. Abdul Khaliq S. H.
O. Has also produced Mashirnama of injuries on the person of complainant Abdul Khaliq as Exh. 21, Mashirnama of scene of offence as Exh. 22, inquest report as Exh. 23, Mashirnama of arrest of accused Shahoo as Exh. 26, Mashirnama of recoveringblood-stainedclothes of Shahu as Exh. 27, Mashirnama of recovering hatchet from accused Shahu as Exh. 28, Mashirnama of recovering, clothes from appellant Rehmatullah as Exh. 29, Mashirnama of securing clothes from appellant Mataro as Exh. 30, Mashirnama of securing pistol and cartridges from appellant Mataro. As Exh. 31, Mashirnama of securing broken handle of hatchet said, to have been produced by appellant Rehmatllah from his houseas Exh. 32 Mashirnama of matching the two portions of the hatchet as Exh. 33 and report of the Ballistic Expert as such Exh.
34. The D.P.P produced the chemical examination report alongwith his statement which was brought on record as Exh. 37
11. It may be stated that the have produced by one of the Mashirs namely Nasir Khan who has been examined as Exh. 35 as the last witness of the prosecution. But as thiswitness did not appear in spite of service of summons, hence his attendance was procured by bailable warrant. As a result of this he was examined after the evidence of the Investigating Officer Mr. Abdul Khaliq was recorded.
P. W. Naseer Khan is Mashir in all Mashirnamas produced by the S. H. O. This witness has admitted in cross-examination that P. W. Shakkal the father of the deceased is cousin of his father, and he lives in the village of the deceased.
12. Complainant Abdul Khaliq and P. W. Rano (Exh. 15) and (Exh. 18) respectively have given the evidence as stated in the prosecution story above. P. W. Shakkal is father of the deceased and has stated that he had received information about the incident from injured Abdul Khaliq and had gone to the scene of offence. He found his son Talho lying in a pool of blood. Before evaluating their evidence it will be proper to refer to certain circum--stances which have transpired from the prosecution evidence showing that there is longstanding enmity between the parties and that all the above three witness including Mashir Naseer Khan are not only highly interested but are also inimical to the accused/appellants.
13. In this connection reference may first be made to the F. I. R. (Exh. 16) in which the complainant Abdul Khaliq admits that about a month before this incident Bago Noohani cousin of appellant Rehmatullah and Shahoo had taken their sister Mst. Sharifan to police station Digri for lodging report against deceased Talho and Dost Ali. P. W. Shakkal (Exh. 19) the father of the deceased has in his examination-in-chief almost admitted all the facts regarding enmity between the parties which have been alleged by appellant Shahoo in his statement, relevant portion of which has been reproduced in para. No. 7 above. This is what he states in his examination---in-chief :- ---Rehmatullah's son Sher Mohammad was married to the daughter of Manik my brother's son. In return Mst. Sharifan sister of Rehmat--ullah was married to Mir Mohammad son of M.Anik. The accused had detained Mst. Sharifan and had also not allowed Manik's daughter to come to us. My son had objected to this behaviour of the accused on which they have murdered him.--- This witness not only proves that the P. Ws. Are inimical to the appellants but he also contradicts the original motive which has been attributed by the complainant to the appellants that the appellants suspected that deceased Talho son of Shakkal had illicit intimacy with Mst. Sharifan.
This motive has been contradicted by the father of deceased himself, according to whom Talho had objected to the behaviour of the appellants in not returning Mst. Sharifan to her husband Mir Mohammad the cousin of the deceased and also for not allowing Manik's daughter to visit her parents. P. W. Rano (Exh. 18) who is maternal-uncle of complainant Abdul Khaliq, has given quite different story about the motive. According to him, the appellants had, no enmity whatsoever with complainant Abdul Khaliq.
14. From the above admissions two facts have become clear; firstly the original motive ascribed to the appellants for this crime by complainant Abdul Khaliq has been abandoned or it has not been proved and secondly that the main P. Ws. Rano and Shakkal who are closely related to each other are inimical to the appellants on account of matrimonial dispute and as such they are highly interested witnesses. The evidence of these witnesses cannot, therefore, be relied upon without corroboration on material particulars. P. W. Naseer Khan who has acted as Mashir is equally interested witness because be is related to the above P. Ws. Moreover, he had been a very reluctant witness because he did not appear, before the Court until the last moment i.e. At the last stage of prosecution evidence and that also by a bailable warrant. He has also made an admission in cross-examination which makes his evidence all the more unreliable. He admits that whenever the Police is in need of a Mashir, it calls him to serve as such. This proves that he is a habitual Mashir or a stock witness who is called upon to act as Mashir whenever required by the Police.
15. There are certain inherent defects and infirmities in the prosecution evidence which has made the evidence of the so-called eye-witnesses Abdul Khaliq and Rano highly doubtful. Complainant Abdul Khaliq and P. W. Ratio are residents of Deh 161-A which is four miles away from the scene of offence whereas deceased Talho and his father Shakkal lived in village 164-A, 3/4 miles away from the scene of offence. The complainant has deposed that after receiving injuries from the pistol shots of appellant Mataro he remained lying on the bullock-cart while Talho and Rano had jumped down and that this bullock-cart was dragged by the bullocks and taken to the village of Shakkal i.e. 3/4 miles away in Deh 164-A. This version is quite unintelligible because the bullock-cart belonged to P. W. Rano who lived with P. W. Khaliq in the same village i.e. Deh 161-A four miles away from the scene of offence. If the bullock-cart really belonged to P. W. Ratio, as claimed by him then the bullocks should have taken the bullock-cart to the complainant's village and not to the village of the, deceased. Moreover it is not understood why P. W. Rano should not be in the bullock-cart when it was being taken away by the bullocks towards the village of the deceased. There was no point in remaining behind alone for this witness by the side of the dead body. If he was actually in this bullock-cart then he too would have accompanied complainant Abdul Khaliq in the same bullock- cart. He could not have dared to stay alone at the wardat, where three persons armed with hatchets and a fire-arm had, according him, committed a ghastly murder and caused fire-arm injuries to complainant Abdul Khaliq. It seems that the story of the bullock-cart has been introduced in order to justify presence of P. W. Rano at the scene of offence. But the circumstances under which bullocks are alleged to have dragged the bullock-cart to the village of the deceased, instead of the village of the witness, falsify the prosecution story regarding this witness taking the deceased to Digri in his bullock-cart and returning from there in the same bullock-cart at the time of the incident. There is one more circumstance which completely disproves the presence of Rano at the scene of offence. From the statement of the Investigating Officer it transpires that when he reached the scene of offence alongwith complainant Abdul Khaliq and Shakkal on the same night; P. W. Ratio was not found at the scene of offence, that is why his statement was not recorded on the same night when the statements of P. W. Shakkal and P. W. Dost Ali were recorded. Statement of P. W. Ratio was recorded on the following day i.e. On 23-9-1977. 1f the evidence of P. W. Ratio is excluded then there remains no direct evidence against the appellants except the word of injured Abdul Khaliq complainant 'whose evidence is not corroborated by any independent evidence. P. W.
Shakkal is father of the deceased and is as much interested as P. W. Abdul Khaliq himself. There is one more circumstance which has made even the conduct of Investigating Officer Mr. Abdul Khaliq highly suspicious. In the F. I. R., complainant Abdul Khaliq states the handle of the hatchet of Rehmatullah had broken as a result of the blows given by him to deceased Talho and that the broken piece of the handle was lying at the scene of offence. The same is the statement P. W. Rano, if he is to be believed. However, the Investigating Officer states that it was the brokers hatchet and not the piece of handle, which was secured from the wardat. The broken piece of handle; according to the S.H.O. Was produced by appellant Rehmatullah from his house. P.W.
Naseer Khan; the Mashie has also stated the same thing. Mashirnama (Exh.33) shows that appellant, Rehmatullah had produced a blood-stained portion of the broken handle of a hatchet from his house. This fact is contradicted by complainant Abdul Khaliq who states in F. I. R. That the broken piece of the handle was lying at the scene of offence. According to Mr. Abdul Khaliq S. H. O. It was not the broken piece of handle but the broken hatchet itself soiled With blood which was lying clear the dead body of Talho at the scene of offence, while the other portion of he broken handle yeas secured from the house of appellant Rehmatullah and was found to match with the other portion. It appears that Mr. Abdul Khaliq S. H. O. --has fabricated the evidence regarding the two pieces of the hatchet and while preparing the Mashirnama regarding recoveries of the two pieces of the hatchet inadvertently omitted to notice the relevant portion of the F. I. R. In which it was stated that it was the broken piece of handle of the hatchet which was lying at the scene of offence. Thus even the words of Mr. Abdul Khaliq S. H. O. Regarding recoveries cannot be relied upon.
16. The factum of recoveries has become all the more doubtful in view of the admission of Mashie Naseer Khan, a close relative of complainant Abdul Khalik that none of the articles secured from the Vardat or from the house of the appellants or said to have been produced by the appellants was baled at the spot or at the place where the same were secured. He categorically states that all the articles were sealed at the Police Station. This Mashir'is man of the complainant's party and therefore, cannot be deemed to have obliged the appellants who were admittedly their enemies. If the articles were not sealed at the places where they were secured then it cannot be said that the articles despatched to the Chemical Examiner and the Ballistic Expert were the same which were allegedly secured from the appellants or at their instance or from the scene of offence.
17. So far as appellant Mataro is concerned, he is only caste-fellow of the other two appellants. No motive is alleged against him for this crime. However, it is admitted that there is enmity over land between the relations of Mataro and the relations of the complainant Abdul Khaliq Even the Investigating Officer has admitted that there is litigation between the parties. Hence implication of appellant Mataro in this case due to enmity cannot be ruled out. The manner in which recoveries are said to have been effected at the instance of appellant Mataro is also unbelievable. It is saidthat after his arrest on 24-9-1977 this appellant had taken the Police and the Mashirs to Tando Ghulam Ali 12 miles away from the scene of offence and that from the Otaq of Mr. Band-e-Ali in that village he bad brought some blood-stained clothes and produced before the Police. It is not understood why the appellant should have concealed the blood stained clothes 21 miles away in the Otaq of Mir. Band-e-Ali. If the clothes were actually blood, stained then there was no reason for him to have let the blood stains remain on the clothes so as to be an incriminating circumstance against him. No same person would allow blood stains to remain on his clothes after the incident for so many days. It is stated that the appellants Mataro and Rehmatullah were arrested on 27-9- 1977 at the Police Station And clothes of Rehmatullah were blood-stained at that time. This story is Ridiculous. The appellant would not have gone to the Police Station five days after the incident wearing the same clothes which he was wearing at the time of the incident. In the first place there was no reason for them to have gone to the Police Station voluntarily. If at all they had gone after five days of the incident there was no reason for them to have keep the same clothes on their persons in the same condition in which they were at the time of the incident. All these facts have reduced, the prosecution story to a farce and has rendered the conduit of the Investigating Officer highly suspicious. There is no reliable evidence to prove that the murder was committed by the three appellants or that any of them was involved in causing fire-arm injuries to complainant Abdul Khaliq. There is only interested word of Abdul Khaliq, Rano and Shakkai, who are interested and inimical towards the appellants. There is neither any cor--roboration by any independent evidence nor there is any consistency in their evidence so as to regard them as reliable witnesses in murder case. Due to inherent infirmities pointed out above they cannot be relied upon in a case of capital charge.
We, therefore, hold that the case against the appellants has not bee proved beyond reasonable doubt. Giving them benefit-of doubt we accept the appeal and set aside the convictions and sentences. The appellants shall beset at liberty forthwith if not required in any other case. Suo moto notice issued to them for enhancement of punishment is recalled.