1. ' The appellants who were tried for the murder of Kandero son of Sumar Katiar by the First Additional Sessions Judge, Dadu and convicted under section 302, P.P.C. Read with section 34, P.P.C.
2. Undergo imprisonment for life and to pay a fine of Rs,3,000 each or in default to suffer R.I. For further period of one year, have filed appeal against the aforesaid conviction and sentence.
3. ' The facts of the case are that Moula Bux son of Sumar Katiar and brother of Kandero, resident of village Channa Taluka Sehwan filed F.I.R. On 1-4-1979 at 9 a.m. Stating that he was originally resident of village Pacca Channa and alongwith his borhters had shifted and settled in village Arozi a year back. At Pacca Channa, a quarrel had taken place between Ghulam Rasool, Ghulam Hadi and Ghulam Hyder Burdis with his brother Usman, Din Muhammad, cousin Abdul Rehman, Shafan and Saleh over cattle trespass in the grass cultivation and during the quarrel Ghulam Hyder Burdi had died, and Abdul Rehman, his cousin had also received injuries. Counter-cases were registered with the Sehwan Police Station and in the murder case Usman, Din Muhammad, Abdul Rehman, Shafan and Saleh were sent up for trial. In the counter-case Ghulam Rasool and Ghulam Hadi had been sent up. However, Ali Muhammad Shah, Pir of Burdis had decided the dispute and imposed a compensation of Rs,1,40,000 payable to Burdis for the murder, out of which the Burdis had forgiven them to the extent of Rs,20,000 and Rs,1,20,000 had yet to be paid. The complainant's party had agreed to give land to the Burdis in place of cash. It was the case of the complainant that he and his brothers had jointly cultivated the land of Zamindar Syed Ghulam Hussain Shah, and there was standing wheat crop which was being harvested. On the day of the incident he had told his brothers Kandero and Din Muhammad to go for harvesting and he would follow them as the night before his son was taken ill. His two brothers left for the field, and after some time he also started going there. He had covered half the distance when he heard cries of his brother Din Muhammad, Isso and Piral Chandios who were in their lands at some distance also heard the cries and came running, throwing out challenges. It was stated in the F.I.R. By the complainant that in the meanwhile Ghulam Rasool, Ghulam Kadir, Ghulam Hadi and Loung Burdis, who were armed with hatchets, gave sharp-sided blows to his brother Kandero and ran away towards east after murdering him. By the time he reached the scene of offence his brother Kandero had died.
4. ' A.S.I. Qurban Ali, who was Incharge of Police Outpost Bubak, recorded the F.I.R. Of Moula Bux, after reading it out tc him and obtained his signature. He entered it in the daily diary of the Police Post and sent a copy of the F.I.R. To Police Station Sehwan for incorporation in the Book kept under section 154, Cr.P.C. He then accompanied complainant Moula Bux to the scene of offence which was shown to him and was in Survey No,409/4 of Deh Arazi. He visited the scene of offence in the presence of Mashirs Allahrakio and Amir Bux. Dead body of Kandero was sent through Police Constable Khar Muhammad to Medical Officer Sehwan for post-mortem examination and report Ourban Ali then recorded 161. Cr.P.C. Statements of P.W. Din Muhammad, Piral and lsso. On 3-4-1979 he arrested Ghulam Rasool, Ghulam Kadir, Ghulam Hadi and Loung in the presence of Mashirs Hassan and Sawan and prepared such Mashirnama. On 9-4-1979 the accused persons volunteered to produce the crime weapons. Appellant Ghulam Rasool voluntarily led the police party and Mashirs Abdullah and Muhammad All to his house and produced a country-made pistol which contained an empty cartridge. According to the Investigating Officer, the pistol was giving smell of fresh gun powder. Next appellant Ghulam Kadir led the same Mashirs and the police party to his house and produced a hatchet which was secured and sealed in the presence of Mashirs.
5. Similarly, accused Ghulam Hadi led the A.S.I. And Mashirs to his house and produced a hatchet which was blood-stained. The hatchet was secured and sealed. Appellant Loung then led the same Mashirs and the police to his house and produced a hatchet which too was blood-stained. The A.S.I. Secured and sealed it. He took the accused and the property to the police station Sehwan where later he lodged F.I.R. Under section 13-D of the Arms Ordinance against appellant Ghulam Rasool because he had no licence for keeping the pistol. He then recorded statements of P.Ws Abdullah, Muhammad Ali, Khan Muhammad and Allahdito, and on the same day he got the statements of P.Ws. Din Muhammad, Piral and lsso recorded by the Mukhtiarkar and F.C.M.. Sehwan under section 1614, Cr.P.C. After completing the investigation he handed over the papers to S.H.O.
6. Muhammad Khan of Sehwan Police Station for verification.
7. ' The four appellants in their statements in the trial Court denied all allegations and stated that they had been implicated in the case due to enmity. The complainant and his relatives were involved in murder case of their brother Ghulam Hyder and had filed the false case against them due to the enmity. With regard to the prosecution witnesses deposing against them, it was the plea of the appellants that they were inimical to the appellants and had also been set up by their Zamindars Ghulam Shah and Kaural Shah.
8. ' The evidence against the appellants consists of ocular testimony of Moula Bux, brother of the deceased, Piral, Kamdar of Ghulam Hussain Shah, Din Muhammad another brother of the deceased and lsso, cultivator of adjoining field.
9. ' Mr. Azizullah K. Shaikh, the learned counsel for the appellants had contended that since there was no mention of gunfire or firearm injury in the F.I. R. It was an unwitnessed crime. He has further contended that the alleged eye-witnesses are all closely connected with the deceased and are consequently interested witnesses and, although the murder took place rear village Arazi, which has a population of about 3,000 persons, no independent person of the locality has come forward to give evidence. The record of the case has been perused keeping in mind the contentions of the learned counsel for the appellants.
10. ' Complainant Moula Bux in his deposition has obviously improved his own version in the F.I.R., a perusal of which would show that he had not mentioned that appellant Ghulam Rasool was armed with a pistol or that he had fired the pistol at Kandero. He stated that he heard cries of Din Muhammad and went running towards the scene of offence and P.W. Lsso and Piral Chandios who too were standing in their land at a distance came running. He used the following words to describe the incident:- ' In the meanwhile Ghulam Rasool, Ghulam Kadir, Ghulam Hadi and Loung Burdis, who were armed with hatchets, gave sharp-sided hatchet blows to my brother Kandero and ran away towards east after murdering him."
11. ' In his deposition, however, he, for the first time, stated that accused Ghulam Rasool was armed with a pistol and the rest of the accused were armed with hatchets. P.W. Din Muhammad, who is brother of deceased Kandero and complainant Moula Bux, states that at the time of the inicident he sat down for the purpose of urinating, and his brother Kandero had gone a little further, and his brother Moula Bux was coming after them. He further stated that while he was urinating he heard the cry of his brother Kandero and saw accused Ghulam Rasool armed with pistol and accused Ghulam Kadir, Ghulam Hadi and Loung armed with hatchets. He further stated that Ghulam Rasool fired pistol at his brother Kandero and accused Ghulam Kadir, Ghulam Hadi and Loung gave sharp-sided blows of hatchet to Kandero. He had raised cries which attracted his brother complainant MoUla Bux and prosecution witnesses Piral and Isso who came running. The accused persons, after causing injuries to Kandero, went away towards the east. This witness has definitely stated that he narrated the facts of the incident to complainant Moula Bux and P.Ws. Piral and Isso.
12. If we are to accept this statement to be truthful, there is no reason whatsoever why Moula Bux did not mention about accused Ghulam Rasool being armed with pistol and about his firing the pistol at Kandero. The witness further states that they went to Kandero and found him lying dead with injuries and bleeding from the injuries. It may here be observed that witness Din Muhammad has stated in his deposition that Ghulam Hyder, brother of accused Ghulam Rasool, Ghulam Hadi and Ghulam Kadir was murdered and the case of murder of Ghulam Hyder had been filed against him.
13. It has been argued by the learned counsel for the appellants that in case Din Muhammad had been present at the scene of offence he would have been the first person to be picked out for taking revenge for the murder of Ghulam Hyder and not his brother Kandero, who was admittedly not one of the accused in the murder case of Ghulam Hyder, This position has been admitted by Din Muhammad in his cross-examination that Kandero was not accused of the murder of Ghulam Hyder.
14. ' P.W. Piral states that he is Kamdar of Syed Ghulam Hussain Shah and on the day of the incident at about 7 a.m. He had visited the land cultivated by P.W. Lsso which is about 10 to 20 furlongs from the land cultivated by complainant Moula Bux and deceased Kandero. At that time he had seen P.W. Isso cutting wheat crop from the land. Then they heard gun-shot reports and cries being raised by Din Muhammad and he and Isso had gone running towards the scene of offence where they found deceased Kandero lying injured on the ground and breathing his last. P.W. Din Muhammad was, according to the witness, standing there while the complainant had just reached the Vardat. This witness admitted that he was convicted and sentenced to five years in the murder case of Misri Chandio and that he was challaned under section 13-D of the Arms Ordinance. With regard to the witnessing of the incident he has stated as under: "I had seen Kandero cutting wheat crop from the land cultivated by him when I reached the land of Isso. I first heard pistol shot report, then cries and saw there and found the other accused giving hatchet blows to deceased Kandero. I was at the distance of about half a call when I heard pistol shot report."
15. ' This witness has named only accused Ghulam Rasool, Ghulam Kadir and Ghulam Hadi and he stated that he did not know the name of the fourth accused. The only other eye-witness, namely, Isso Chandio states that he was in his own land near the land cultivated by the deceased Kandero and complainant Moula Bux. P.W. Piral was also with him at that time. They heard reports of fire shots and cries raised by P.W. Din Muhammad. The complainant Moula. Bux also went running.
16. According to this witness, he and others saw four persons who were running away with their backs to him. He is definite that he could not see the faces of at least two of the four persons and further states that they saw Kandero lying dead, and P.W. Din Muhammad had related the facts to them and had told them that the accused persons, in order to take revenge of Ghulam Nyder, brother of Ghulam Nadi, had murdered his brother Kandero. In his cross-examination this witness has admitted that about 5-7 persons were harvesting the wheat crop in the adjoining land and about 10-15 persons subsequently came on the scene on hearing the fire shot reports and cries. In respect of this witness his statement, which was recorded under section 164, Cr.P.C., was to the effect that he had identified all the four accused persons and he had been an eye-witness of the incident; whereas in his deposition he stated that he had identified only two of the accused. Al!
17. That can be said about this witness is that to his own admissions he had been making different statements at different times and therefore he is not a truthful witness. Witnesses lsso and Piral have definitely stated that they heard the gun-fire and the cries before they started running towards the scene of offence and, therefore, the only witness who could have, according to the version of the prosecution, witnessed the actual shooting is Din Muhammad. He in his cross- examination stated that he was not able to say as to from what distance accused Ghulam Rasool fired pistol shot at deceased Kandero because at that time he was urinating and had got up on hearing the shot and the cry of his brother Kandero. However, although complainant Moula Bux is stated to have come on hearing the cries of Din Muhammad, and the pistol shot report, he has definitely stated that Ghulam Rasool fired pistol from a distance of 3/4 feet from deceased Kandero. Dr. Abdul Latif, who performed the post-mortem examination of the dead body of Kandero, has stated that the gunshot injuries Nos. 4 and 5 appeared to have been caused to the deceased from a distance of about 30 feet. This statement of the doctor falsifies the version of Moula Bux that the pistol was fired from a distance of 3/4 feet.
18. ' The inquest report mentions in the relevant column that Moula Bux had informed that the accused had murdered his brother by giving hatchet blows and death occurred as a result of hatchet blows. The injuries mentioned were only those caused by hatchet. Dr. Abdul Latif in his cross- examination has admitted that Police had given him information that death was caused by injuries with hatchet. They had not given him the information of injuries caused by discharge of firearm.
19. A.S.I. Qurban Ali, who was the Investigating Officer has admitted that the complainant had not stated in his F.1. R. Which he had recorded that he had seen a pistol in the hand of Ghulam Rasool who had fired it at Kandero.
20. It is apparent from the facts discussed that there is material inconsistency in the statement of the complainant with the version made at the initial stage in the F.I.R.; and further that the evidence of the eye-witnesses does not inspire confidence. From the very fact that the gun-shot injuries were not noted in the inquest report, and further the fact that no mention was made by the complainant about accused Ghulam Rasool being armed with a pistol or having used it at the time that he reported the matter to the police, the argument of learned counsel for the appellants that it was an 'unwitnessed crime' gains support.
21. ' The ocular evidence discussed above, which is undoubtedly of interested witnesses, needs corroboration. The medical evidence shows that the following injuries were found on the dead body of Kandero:--
(1) An incised wound 51" x 1k" x 61" on the postero lateral part of left side of the neck at the base of skull.
(2) An incised wound 5I" x 1k" x 5-3/4" on the postero lateral part of left side of the neck at the lower part of the neck.
(3) An incised wound 21" x 1" x skin deep on the superior part of the left shoulder joint.
(4) A punctured wound 1" x in circle x 1I" deep on the mid part of the right buttock (a pellet recovered from the wound).
(5) A punctured wound 1" in circle x x deep 1k" superior to supro medial to the injury No,4 on the right buttock. (A pellet recovered from the wound).
22. ' Of the five injuries those at Nos. 1 and 2 could have been caused by same weapon looking to the dimensions and the nature of the wounds. Injury No,3, which was only skin deep, shows altogether different dimensions, and injuries 4 and 5 are punctured wounds caused by firearm and from both the wounds pellets were recovered. AU the ocular evidence is that all the four accused, three of them were armed with hatchets and the fourth with a firearm, caused these injuries. It is difficult to accept the word of the so-called eye-witnesses about even three persons armed with hatchets having all participated in causing the three incised injuries. The medical evidence, therefore, cannot be said to be corroborative of the ocular evidence, at least with regard to the causing of injuries by all the four appellants. The learned counsel for the appellants has relied on the decision of the Supreme Court in Bagh Ali and 4 others v. State reported in PLD 1973 SC 321 in which it was observed as under:- "As has been pointed out by this Court in the case of Thoba v. The State PLD 1963 SC 40, the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
23. The evidence of the eye-witnesses who are interested requires corroboration but in the instant case the only evidence adduced for the purpose is that of the so-called recoveries. A.S.I. Qurban Ali states that he arrested the four accused on 3-4-1979. There is nothing in his evidence to show as to what he was doing from 3-4-1979 till 9-4-1979, as in his evidence he has given no details of what he did during that period. On 9-4-1979 accused Ghulam Rasool in the presence of Mashir Abdullah and Muhammadan is stated to have produced a country-made pistol from his house. There are no details as to the actual place from which Ghulam Rasool took out the pistol from his house. He has admitted that all the four accused live in the same village within common compound hedge and, therefore, it was all the more necessary for him to specifically state the place from which the weapons were produced. He admitted that he has not shown the time of recovery of pistol from accused Ghulam Rasool in his Mashirnama Exh.20, and he had not mentioned the location from where Ghulam Rasool took out the pistol in the Mashirnama of recovery. He further admitted that he has not shown time of the production of hatchet by the other accused and also the place from where they took out the hatchets and produced the same before him. No such mention is there in the relevant Mashirnamas which are Exhs. 21, 22 and 23. The accused were admittedly in police custody from 3-4-1979 to 9-4-979 when the alleged recoveries were made. P.W. Abdullah, who is the Mashir of recoveries, states that the pistol which Ghulam Kadir had produced was empty.
24. Accused Ghulam Rasool, according to him, went away and brought a hatchet where they were sitting and produced it. He did not see anything on the hatchet. The witness further states that the other accused present in Court did not produce anything before the Police in his presence. After he was declared hostile, he has denied in his cross-examination that accused.Ghulam Rasool had produced country-made pistol from his house in his presence, or that accused Ghulam Kadir had produced a blood-stained hatchet from his house. He has further stated that he does not know accused Ghulam Hadi and accused Loung. The other Mashir Muhammadali in his examination-in- chief states that three hatchets and one pistol were lying sealed at the police station which were shown to him by the police, and that none of the accused was present at the police station at the time. This witness was also declared as hostile and cross-examined, but the fact remains that there is no independent and reliable evidence with regard to the recoveries said to have been made from any of the accused. The evidence of A.S.!. Qurban Ali specially when it is not corroborated by the two Mashirs cannot be considered as worthy of reliance, and even the prosecution version that some of the hatchets produced were stained with blood hardly appeals to reason as the recoveries were made a long time after the incident, and the persons who are alleged to have produced the weapons had full opportunity to wash, destroy the weapons or eliminate the evidence. The incident is stated to have taken place on 1-4-1979 and although, according to A.S.I. Qurban Ali, the pistol was produced before him on 9-4-1979, it was giving smell of fresh gun powder. The assertion only goes to prove the tendency to exaggerate in order to strengthen the case of the prosecution. Under the circumstances, there is no independent corroboration of the testimony of the interested witnesses, and in view of the admitted enmity between the parties and feud over an earlier murder, the evidence on record is not considered reliable enough to sustain a conviction. At least, for the reasons given, a doubt is created with regard to participation individually of the appellants in the crime, and the benefit of doubt should be given to them. I accordingly accept the appeal, set aside the convictions and sentences against the appellants giving them the benefit of doubt and acquit them.