ALLAY MADAD SHAH, J.-All the four appellants Ali Hassan, Zahoor Hussain, Shabbir Hussain and Laldin were convicted of an offence punishable under section 302 read with section 34, P. P. C., and sentenced to death, subject to confirmation by the High Court ; and were also imposed fine Rs, 1,000 each, and were further directed to pay a sum of Rs, 1,000 each to the heirs of the deceased as compensation or suffer rigorous imprisonment for three months in default on each count, by the learned Additional Sessions Judge, Sanghar, by judgment dated 28th April, 1983. The case has been submitted to this Court for confirmation of the death sentence. The appellants also have preferred appeal against their conviction and the sentence awarded on them. Both the confirmation case and the appeal have been heard together. The hearing commenced on 14th November, 1983 and concluded on 15th November, 1983. The reference for confirmation of death sentence was rejected and the appeal was allowed and all the appellants were acquitted by the short order dated 15th November, 1983 for the reasons to be recorded later. The reasons therefore are recorded here in below,
2. Prosecution case against the appellants, briefly stated, is that the appellants Ali Hassan, Zahoor Hussain and Shabbir Hussain, who are brothers inter se, entertained grievance against the deceased Nazir Ahmed ')son of Rehmat Ali over a piece of land purchased by him. The appellant Laldin was their sympathiser. The appellants as well as the deceased were residing in Village 23- Jamaru in District Sanghar consisting of over hundred houses. The deceased used to reside with his father-in-law Abdul Rehman complainant. It is alleged that the deceased Nazir Ahmed left his house in the morning of 21st September, 1981, at about 7 O'clock, informing his father-in-law Abdul Rehman that he was going to Sanghar with his own work. Soon after his departure, his father-in- law Abdul Rehman complainant also made up his mind for going to Sanghar and followed him.
When the deceased reached near the village school situated by the side of the lane leading to nearby bus-stand on the public road, all the four accused allegedly overtook him, while appellant Ali Hassan was armed with a gun, and other appellants were carrying hatchets. Appellant Ali Hassan shot the deceased from his gun and laid him to ground. The other appellants then gave him hatchet blows. The incident was witnessed by deceased's father-in-law Abdul Rehman complainant who had reached the spot by that time. It was also witnessed by co-villagers Muhammad Ramzan and Shabbir Ahmed who also were going towards the bus-stand. The assailants then left the wardat. The victim Nazir Ahmed died there and then. Abdul Rehman complainant made report of the incident at P. S. Sinjharo, at a distance of nine miles, on the same day, at about 10 O'clock in the forenoon. The crime was registered by the incharge P. S., Mian Khan A. S. I. P. Thereafter, he inspected the wardat in presence of two mash irs Ali Akbar and Fakir Hussain and prepared its mashirnarna. He found corpse of the deceased lying there with numerous injuries on it and prepared a its inquest report and forwarded it to Civil Hospital, Sanghar, through Manzoor Shah P. C., for its post-mortem examination, which was conducted by Medical Officer Dr. Girdhari Lal. The deceased had suffered as many as 15 injuries, thirteen caused by means of sharp cutting weapons and two by a fire-arm, resulting in his death. Mian Khan A. S. I. P., also recorded statements of witnesses Muhammad Ramzan and Shabbir Ahmed. He then made inquiries about the assailants but could not trace them. Further investigation was resumed by Muhammad Sharif S. H.O., the next day viz., 22nd September, 1981. On the same day, he arrested the appellants Ali Hassan, Zahoor Hussain and Shabbir Hussain at their respective houses in the same village in presence of mashirs Akbar Ali and Fakir Hussain, at about 4 p. m. Appellant Ali Hassan produced from his house his licensed gun and also blood-stained clothes. Appellant Zahoor Hussain produced from his house blood-stained hatchet and clothes. Appellant Shabbir Hussain also produced from his house blood-stained hatchet and clothes. The arms and the blood-stained clothes recovered from all three appellants were parcelled under seal in presence of the same mashirs. The gun produced by the appellant Ali Hassan was found containing one live cartridge and one empty cartridge in its chamber. Appellant Laldin remained at large. He surrendered in Court on 7th Oztober, 1981 and was taken into custody. Interim challan was submitted on 7th October, 1981. The gun recovered from the appellant Ali Hassan was referred to Ballistic Expert who opined that the empty cartridge had been fired from it. The blood-stained hatchets recovered from the appellant Zahoor Hussain and Shabbir were sent to Chemical Examiner. The blood- stained clothes recovered from them as well as from Ali Hassan appellant also were forwarded to the chemical Examiner. Chemical Examiner certified that the hatchets and the clothes were stained with the human blood.
3. The case was tried by the Additionaj Sessions Judge, Sanghar. The appellants were charged with an offence punishable under section 302 read with section 34, P. P. C. They did not plead guilty.
Prosecution examined two eye-witnesses---Abdul Rehman complainant (P. W. 1) and Muhammad Ramzan (P. W. 2), Medical Officer Girdhari Lal (P. W. 3), Mashir Akbar Ali (P. W. 4). Mian Khan A. S. I. P.
(P. W. 5). Tapedar Fida Hussain (P. W. 6), Investigating Officer Muhammad Sharif S. I. P. (P. W. 7) and corpse carrier Manzoor Shah, P.C. (P. W. 8). Third eye-witness Shabbir Hussain was given up on the ground that he had been won over. Chemical Examiner's report was produced by Muhammad Sharif S. I. P. As (Exh. 30). Report of the Director P. S. L. Crime Branch, Karachi, also was put in evidence through Muhammad Sharif S. I. P. As Exh. 31.
4. All the appellants, in their statements under section 342, Cr. P. C. Denied their involvement in the murder of the deceased Nazir Ahmed. They also denied that they had grievance against the decessed. Appellant Ali Hassan admitted that he had produced his licenaed gun before the police but without cartridges. He also denied that he had produced his blood-stained clothes. The appellants Zahoor Hussain and Shabbir Hussain denied that they had produced blood-stained clothes and hatchets before the police. All the appellants alleged false implication. Appellant Laldin also advanced plea of alibi that he was under treatment of Medical Officer Dr. Mushtaque Ahmed at Jhudo on that day and he produced a Medical certificate Exh.
38. The appellants did not adduce any evidence in defence.
5. The learned Trial Judge formulated three points for determination, which related to the cause of death of the deceased Nazir Ahmed, involvements of the appellants in causing his death and the nature of offence committed by the assailants. He held, on the basis of medical evidence and ocular evidence, that the deceased Nazir Ahmed had met homicidal death. He further held on the basis of ocular evidence of two eye-witnesses Abdur Rehman complainant and Muhammad Ramzan and circumstantial evidence of recoveries against the appellants Ali Hassan, Zahoor Hussain and Shabbir Hussain and motive of dispute over land that all the four appellants were responsible for causing homicidal death of the deceased and found them guilty of the offence punishable under section 302 read with 34, P. P. C.
6. Mr. Muhammad Hayat Junejo, Advocate representing the appellants, did not take exception 2 to the findings of the trial Judge that the deceased Nazir Ahmed had died homicidal death but he assailed the findings as regards involvement of the appellants in causing death of the deceased.
Mr. Ghulam Ali Agha, Advocate appearing for the State did not support the judgment. Mr. Muhammad Ali Shaikh Advocate, who appeared for the complainant, made submissions in support of the judgment. Their respective contentions reflected hereinbelow.
7. The first point for determination is, whether the deceased Nazir Ahmed died homicidal death. In proof thereof there is evidence of complainant Abdur Rehman (P. W. 1) and Muhammad Ramzan (P. W. 2) that the deceased Nazir Ahmad was done to death by means of a gun-shot and hatchet injuries. There is further evidence of mashir Akbar Ali (P. W. 4) and Mian Khan A. S. I. P. (P. W. 5) that the deceased was found lying murdered and the injuries observed on his corpse were noted in inquest report Exh.
18. Their evidence is confirmed by the Medical Officer, Sanghar, Dr. Girdhari Lal (P. W. 3) who conducted post-mortem examination of the deceased at Civil Hospital, Sanghar. His evidence at Exh. 13 reveals that the deceased had sustained 15 injuries. According to him, 13 injuries were inflicted by means of a sharp cutting weapon and the remaining two injuries were caused by means of discharge from a firearm. He has opined that death of the deceased had occurred due to the injuries suffered by him. This fact is not disputed.
8. The crucial point for determination is whether the appellants or any one or more of them caused death of the deceased Nazir Ahmed. Prosecution case rests on the ocular evidence of the eye- witnesses. Abdur Rehman complainant (P. W. 1) and Muhammad Ramzan (P. W. 2), out of three eye-witnesses, the third witness Muhammad Shabbir having been given up, recoveries of crime weapons and blood-stained clothes from appellants Ali Hassan, Zahoor Hussain and Shabbir Hussain, and motive of dispute over land.
9. Abdur Rehman complainant (P. W. 1) is father-in-law of the deceased Nazir Ahmed. He has stated that the deceased who has living with him, left the house on the day of incident, at about 9 a. m., saying that he was going to Sanghar. He has further stated that he too left for Sanghar and followed the deceased. He has alleged that all the four appellants, who are their co-villagers, laid attack on the deceased in the lane near the village school and the appellant Ali Hassan shot him from a gun and the other appellants then belaboured him with hatchet blows. According to him, the incident was also witnessed by the co-villagers Muhammad Ramzan and Shabbir Hussain, who were going by the same lane. The report of incident was made by him at Sunghoro Police Station. It is at Exh. 10 in evidence. Muhammad Ramzan (P. W. 2) also has implicated the appellants that appellant Ali Hassan shot the deceased Nazir Ahmed from a gun and other appellants gave him hatchet blows. He too has stated that he was on his way to the village bus-stand for going to Sanghar when he witnessed the incident. He has also made mention of the presence of complainant. Abdur Rehman and P. W. Shabbir Hussain as having witnessed the incident. Their evidence has been assailed on various grounds. The learned defence counsel urged that both of them are not only interested witnesses but are also unnatural witnesses and their evidence stands contradicted by the medical evidence. Elaborating his arguments, as urged that complainant Abdur Rehman is admittedly father-in-law of the deceased and P. W. Muhammad Ramzan is not only their co-villager but had also affiliation with them as he has admitted that be was cited as a witness in a case filed by the deceased's brother. He also made pointation of an admission by P. W.
Muhammad Ramzan that the appellant Ali Hassan had filed a criminal case against him and his brother. Obviously, both Abdur Rehman complainant and Muhammad Ramzan are not independent witnesses. The learned Advocate representing the State has frankly conceded that they are interested witnesses. According to the learned counsel for the complainant, they are trustworthy witnesses. But their interest in the deceased stands magnified by their own admission mentioned above. It has also been urged on behalf of the appellants that both Abdur Rehman complainant and Muhammad Ramzan were not natural witnesses as their version is that they were on their way to Sanghar when they happened to see the incident. But both the witnesses reside in the same village was not unnatural. Of course, their witnessing the incident by coincidence of their setting out for Sanghar by about the same time the deceased had left was rather a curious event.
The incident was allegedly witnessed also by a third person Shabbir Hussain but he was not examined on the ground that he had been won over. Be that as it may, the result is that the ocular evidence consists of only two interested witnesses and the evidence of third eye-witness has been withheld. The wardat lay in the village consisting of more than 100 houses and many persons had collected there and yet not a single person from amongst them was examined either during the course of investigation or at the trial as to furnish corroborative evidence. The evidence of the eye- witnesses has been assailed also on the ground that the medical evidence contradicts it as regards time of the incident. According to the eye-witnesses, the deceased was done to death at about 7-15 a. m. The complainant Abour Rehman has stated that the deceased had taken breakfast just before his departure and about 15 minutes before the fatal assault on him. The evidence of the Medical Officer Dr. Girdhari Lal is that he conducted poq-mortem examination of the deceased at 1-30 p. m. And found semi-digested food in his stomach and, according to him, the deceased had died at about 10 or 10-30 a. m. No attempt was made at the trial to reconcile such inconsistency between the ocular evidence and the medical evidence regarding the time of death of the deceased. Of course, the learned counsel for the complainant argued that opinion of the Medical Officer regarding the time of death of the deceased on the basis of contents of the stomach is not conclusive evidence and he placed reliance on a case Rustaim v. The State wherein it was observed that contents of the stomach do not furnish conclusive evidence as regards time of death of a deceased. In that case, ocular evidence, which as unimpeachable, was preferred to the medical evidence. Of course, medical evidence as regards time of death of the deceased cannot be conclusive, yet it casts reflections on the story told by the eye-witnesses and their evidence needs to be appraised with more care and caution. As discussed above, the ocular evidence is interested and it could not be implicitly relied upon.
10. Next is the evidence of recoveries of arms and blood-stained clothes which has been furnished by the Investigating Officer Muhammad Sharif S. I. P. (P. W. 7) and mashir Akbar Ali (P. W. 4). They have implicated the appellants Ali Hassan, Zahoor Hussain and Shabbir Hussain that they were arrested at their respective houses in the same village, in the afternoon of the day following the day of the incident, and a licensed gun, containing one live and one empty cartridges, was produced by the appellant Ali Hassan and a blood-stained hatchet was produced by each of the appellants-Zahoor Hussain and Shabbir Hussain. They have also implicated all the three1 appellants that they had produced their blood-stained clothes. Muhammad Sharif S. I. P. Has produced Chemical Examiner's report Exh. 30 showing that all the clothes were stainad with human blood. He has also produced report of the Ballistic Expert Exh. 31 revealing that the empty cartridge was fired from the gun recovered from the appellant Ali Hassan. Their evidence has been criticised by the learned Advocate for the appellants on various grounds. He has attacked the evidence of mashir Akbar Ali that he is not a respectable person of the locality as envisaged under section 103 of the Code of Criminal Procedure as he admittedly resides at four miles distance from the wardat.
His impartiality also has been questioned on the ground that he had acted as mashir of wardat and inquest report etc. On the first day and he made himself available also on the second day to act as mashir to the arrest of the appellants and recoveries of the incriminating arms and blood- stained clothes from them. It is also on the record that his son was associated with the deceased in the purchase of the land, which was allegedly resented to the appellants. Of course, recovery of a gun from the appellant Ali Hassan has been admitted by him. But it was hi licensed gun. No crime empty was recovered from the wardat. The empty cartridge alleged to have been found in chamber of the gun did not connect him with commission of the crime. Even the opinion of the Ballistic Expert that the empty cartridge was found to have been fired from it did not advance the prosecution case as that empty cartridges was not found from the wardat. As regards recovery of blood-stained clothes an hatchets. It is unbelievable that the appellants had preserved them and voluntarily produced them. It is also improbable that Ali Hassan appellant, who is alleged to have shot the deceased from a gun, got his clothe blood-stained. Moreover, the recoveries were allegedly made on 22nd September, 1981 and the blood-stained articles were despatches to chemical examiner on 22nd January, 1982 and he issued report on 17th April, 1982. By lapse of so much time, the origin of blood must have suffered change due to natural decay and deterioration.
The cumulative effect of all the factors mentioned above, therefore, is that the circumstantial evidence of recoveries does not carry much incriminating force.
11. As regards dispute over land constituting motive of murderous attack on the deceased, there is solitary word of the complainant Abdur Rehman that the appellants were annoyed with him over purchase of land. But it has not been disclosed as to what grievance the appellants had over that transaction. The appellants have denied such fact. Obviously, the motive behind the murder of the deceased has not been proved.
12. The appraisal of the prosecution evidence thus portrays that ocular evidence furnished by only two witnesses out of three is not only interested but is also adversely affected by the medical evidence ; the circumstantial evidence of recoveries of crime weapons and bloodstained clothes is impeachable, and motive attributed to the appellants has not been proved. It was observed by the Supreme Court in a case Thoba an another v. The State , that evidence on capital charge must come from an impeachable source, and if such source is not available it must be supported by strong circumstances to overcome inherent doubt by which evidence is necessarily effected. The same view was reiterated in a case Bagh Ali and 4 others v. The State . A Division Bench of this Court made observation in a case Lashkari and 4 others v. The State that th rule in regard to corroboration of the evidence of interested and inimical witness although a rule of caution has virtually ripened into a rule of law. In the light of these authorities, the evidence of the complainant Abdur Rehman and P. W. Muhammad Ramzan, which is not of independent character for the reasons mentioned above, could not by itself prove the guilt of the appellants. The supporting evidence adduce in the form of recoveries of crime weapons and blood-stained clothes also does not inspire confidence for the reasons recorded above. Such evidence cannot furnish support to the ocular evidence needing corroboration for inspiring confidence. Reference in this respect may be made to a case reported in 1976 P Cr. L J 258. The evidence to motive is scanty and cannot be2 3 4 considered as corroborative evidence. In the result, the evidence on the record does not prove guilt of the appellants that they were responsible for causing death of the deceased.
13. Of course, the appellants Laldin did not establish the plea of alibi that he was under treatment at Jhudo on the ill-fated day for the deceased but his failing to do so does not necessarily connect him with commission of the crime.
14. The evaluation of the evidence adduced by the prosecution, as discussed above, leads to the conclusion that involvement of the appellants in the murder of the deceased Nazir Ahmed is not proved beyond reasonable doubt and they are entitled to acquittal and are acquitted. The appeal is allowed and the reference for confirmation of death sentence is rejected. PLD 1975 Pesh. 43 PLD 1963 SC 40 PLD 1973 SC 321 PLD 1981 Kar. 1