MUHAMMAD HALEEM, J.-Appellants Ramzan, Hado and Minhoon were tried along with the acquitted accused, Kalu and Misri for the murder of Wali Mohammad by the learned Sessions Judge, Dadu and convicted under section 302, P. P. C. And each of them was sentenced to transportation for life and fine of Rs. 500 or in default to suffer regorous imprisonment for 6 months.
The appellants have appealed against their conviction.
2. The incident occurred at tipahri the on 18th December 1966, near Shaikhani graveyard on a path leading from the road from Dadu to Daro. It was alleged that in the morning the deceased along with his younger brother Esso, his wife Mst. Sami and his mother-in-law Mst. Mehar had gone to Dadu to purchase cloth and other sundry articles. They were there till tipahri the and after traversing about 2 miles they reached the place of incident at tipahri the. Suddenly the appellants and the acquitted accused emerged from the 'Lai' bushes armed with hatchets and three of them, namely appellants Minhoon, Ramzan and the acquitted accused Kalu inflicted hatchet blows on the head of the deceased, whereupon Esso raised cries. He was silenced by the threats of appellant Hado and the acquitted accused Misri. Esso their ran to his village Butra and informed Ghazi Mataro, Ali Bux and others and took them to the place of incident where they saw the deceased lying dead with hatchet injuries. There--after Mst. Sami and Mst. Mehar also came there who also narrated to these persons as to what had happened: Esso and the other to ladies went and stayed in the house of Ghulam Mohammad in village Ghazi. To whom they narrated the same story until the arrival of Ali Murad, the father of the deceased, at the scene of offence and he was also informed of the incident. He then asked Esso to lodge the report which was accordingly recorded at 2 a.m. On 19th December 1966, by Khemchand, S. H. O. Of Police Station Dadu which was 2 miles away from the place of incident.
3. After recording the report Khemchand repaired to the place of incident and saw the dead body of the deceased and secured the blood-stained earth from there. He sent the dead body for post- mortem examination to Civil Hospital, Dadu and recorded the statement of Mst. Sami, Mst. Mehar, Ghazi and others. He arrested appellant Ramzan who produced a blood--stained hatchet from his house which was lying under a cot in the presence of mashir Lal Bux. He then arrested appellants Hado, Minhoon and the acquitted accused Misri. Appellant Hado and the acquitted accused Misri produced one blood--stained hatchet each from the same room, of the house where they resided.
Appellant Minhoon also produced one hatchet from his house which was concealed in the palal lying on the cot. He also produced a blood-stained shirt hanging on a peg. These recoveries were also made is the presence of the same mashir. The acquitted accused Kalu was also arrested but he did not produce any incriminating article.
4. Dr. Alam Kumar performed the autopsy on the dead body of the deceased and noticed one incised injury on the right cheek and front temporal region of skull, one incised injury on the right side of the neck cutting the 4th and 5th cervical vertebrae, one incised injury again cutting the 5th and 6th cervical vertebrae and one incised wound on the back of the thorax at the level of 10th and 11th thorax vertebrae, and in his view the injuries were caused by a sharp cutting weapon like an axe and three of them were individually sufficient in the ordinary course of nature to cause death.
5. The appellants in their defence denied the prosecution case and alleged their false implication due to enmity without giving its particulars. Appellant Ramzan stated that "God knows better why these witnesses had deposed against me." He alleged that the hatchet was foisted on him and that "Sahju's sister is his wife and he does not permit her to visit her parents" without stating the relevancy of this assertion. Appellant Hado has alleged that the hatchet was foisted on him. In the committal Court he alleged enmity but resiled from it in the trial Court and alleged that due to some misunderstanding with Sahju he was involved in the case. Similarly appellant Minhoon also ascribed enmity for his implication in 'the committal Court and adopted the same defence as of his father Hado in the trial Court: Lastly, he alleged that the incriminating articles were foisted on him.
6. We have examined the evidence on' record with the assistance of the learned counsel for the parties. Mr. Mohammad Hayat Junejo, the learned counsel for the appellants, invited our attention to various features in the case, which go to show that the instant case was an un-witnessed crime.
We now propose to examine each one of them in the context of the claim of Esso. Mst. Sami and Mst. Mehar that they had accompanied the deceased to Dadu and had returned along with him and while on the way back the deceased was killed. The first is the delay in the lodging of the F. I. R.
The incident according to Esso had occurred at tipahri the, that is late afternoon. The police station is hardly 2 miles away and the reason assigned by Esso is that it was only, after the arrival of his father, Ali Murad, who lived in Juhi, 12 miles from there, that he lodged the report at 2 a.m. On the next day. Why should he have waited' for his father, is not apparent from his statement and how Ali Murad came at the place of incident is again a mystery as there is nothing in the testimony of Esso to show whether any person was sent to fetch him. According to Esso, Ali Murad arrived at the place of incident after Isha prayer the while Mst. Sami the widow of the deceased, has stated that he came at sunset the. Mst. Mehar has not even mentioned the fact of the arrival of-- Ali Murad and has stated that after the arrival of Esso along with Ghazi Mataro and others Esso went to lodge the report. All the three witnesses are at variance about these important details and in this state of evidence it is not possible for- us to accept that Ali Murad had come at the spot as alleged by Esso.
It is also not understandable why Esso would have delayed the lodging of the report if the assailants were known to him and this aspect of the case given an impression that there was something suspicious which prevented him from lodging the report soon after the occurrence.
7. The second feature is also of substantial significance. The case of the eye-witnesses was that they had gone to purchase cloth and sundry articles and had made purchases worth Rs. 20, which the deceased carried with him in a bundle when lie was attacked. He was unable to name the shop from where the articles were purchased. Surprisingly, the bundle was not seized by the Police.
According to Esso, the bundle was with the ladies and the investigating officer had seen it, which fact was denied by the investigating officer. Mst. Sami has stated that the bundle had fallen when the deceased was attacked and thereafter it was lifted and kept by her. She denied that it was seen by the police. Mst. Mehar has not stated anything about the bundle or what happened to it although in her examination-in-chief she has stated that she had gone for making purchases.
Ghazi Mataro, to whom Esso had narrated the incident. Immediately after its occurrence, has not spoken about the purpose of his visit and that of the ladies to Dadu. He has also not stated about having seen any bundle at the place of incident. It is surprising that if the deceased had carried a bundle why should the particular in removing it from the place of incident when it was hardly of any significance. If it had been found at the place of incident, it would have provided corroboration of' the purpose for which Esso and the to ladies had accompanied the deceased. The incident had taken place on a path 4 miles away from the village where the eye-witnesses resided. Their presence at that place could only be explained if they were able to show that there was reason for them to accompany the deceased The variance in their testimony clearly gives an impression that they had concocted a reason and had failed to justify it. We are not inclined to accept in: the absence of the securing of the bundle itself that what they stated was true.
8. The third doubtful feature is the number of blows and the persons who inflicted them. In the F. I. R.
Esso mentioned that it was Minhoon, Kalu and Ramzan who gave hatchet blows on the head of the deceased. The autopsy on the dead body disclosed that there were four incised injuries on the deceased, one on the right cheek and front of temporal region of the skull, to on the right side of the neck one after another cutting the 4th and 5th cervical vertebrae and fourth on the back of thorax at the level of 10th and 11th thorax vertebrae. His version is thus inconsistent with the medical evidence. Again in, his testimony he attempted to reconcile his version with that of the medical evidence by saying that appellant Ramzan gave a hatchet blow on the head while appellant Minhoon at his back without stating on what part of the body acquitted accused Kalu gave the blow. He gave no explanation when he was confronted with the inconsis--tency between this version and the F. I. R. But merely stated that he does not remember to have stated in the F. I. R. That three blows were given on the head. Mst. Sami merely stated that the appellants and the acquitted accused emerged suddenly and inflicted hatchet blows on the deceased. If this statement is to be accepted then it is not consistent with the medical evidence which shows only four injuries: In, her cross-examination she was confronted with her statement recorded in the course of investiga-- tion, in which she stated that blows were given by each of the three appellants and the to acquitted accused in succession. It was appellant Ramzan who gave the first blow followed by appellants Hado, Minhoon, the acquitted accused Misri and Kalu, whereas in her examination-in- chief she gives the impression that all these persons had given the blows at the same the. Similarly Mst. Mehar has also stated that each of the three appellants and the to acquitted accused inflicted hatchet blows on the deceased and she denied having stated in her police statement about appellant Minhoon inflicting the first blow followed by acquitted accused Kalu and, appellant Ramzan. In her 164 (Cr. P. C.) statement she stated what she has deposed in her examination-in- chief that the appellants and the acquitted accused gave hatchet blows. These variations in the testimony of the witnesses who claimed to have witnessed the incident are inconsistent with the medical evidence and the number of persons who had attacked the deceased and as such they do not provide any assurance to their claim of having witnessed the crime.
9. There is yet another feature which makes doubtful the presence of the to ladies at the the of occurrence. Esso in the F: I. R. Disclosed that Mst. Sami and Mst. Mehar came there after he had brought Ghazi Mataro and others to the place of incident. In his deposition he stated that these ladies were there when he arrived along with Ghazi Mataro and others. A different stand is thus taken. In his cross-examination he denied that the ladies had gone to the village of Ghulam Mohammad. When confronted with his statement in the F. I. R. He denied having made that statement. He further stated that these ladies had not told him that they had gone to the house of Ghulam Mohammad, to whom they narrated the incident. Mst. Sami denied in her testimony that she had gone to the village of Ghulam Mohammad. In cross-examination she stated that she had not told Esso about her visit to village Bagh and of giving information of the incident to Ghulam Muhammad. She even denied having made any statement to this effect in her police statement.
The contradiction was duly proved by the investigating officer. Similarly Mst. Mehar did not state in her examination-in-chief about having gone to village Bagh and she denied this fact in her cross- examination and also of having made such statement before the investigating officer. This contradiction has again been duly proved by the investigating officer. We have noticed from the testimony of Khemchand, the investigating officer, that he had recorded the statement of Ghulam Mohammad on 23rd December 1966, but have found no reason why Ghulam Mohammad was not mention--ed even as a witness in the challan. We fail to see why a case was made out earlier about the ladies visiting Ghulam Mohammad and then resiling from it when examined in Court. At least if Ghulam Mohammad had been examined there could have been a corroboration of the presence of the ladies at the place of incident. His non-examination adds to the improbability of their presence.
10. These features cumulatively reflect on the credibility of the eyewitnesses and to the improbability of their claim about witnessing the crime. The lodging of the report at 2 a.m. On 19th December 1966, is more. Consistent with the theory that the body was discovered late at night without anyone having witnessed of the crime and it was thereafter that a report was lodged: otherwise it is not possible to explain the delay of 10 hours in the context of the ocular evidence as to the the of occurrence.
11. One feature in the medical evidence also requires con--sideration and that is, that there were to injuries almost exactly at one place on the neck. It is impossible that to persons could have given blows at that place with such precision. This possi--bility is very remote and cannot be taken into consideration. Further there were three injuries on the right side and one on the back. It appears to us that the injury on the back was given first and after the deceased had fallen the other three injuries were inflicted when he lay on his side, otherwise it is not possible to explain the three injuries on the right side having been inflicted by three persons almost, at the same the. This aspect also would recoil against the improbability of the ocular version as to the manner, in which the blows were inflicted on the deceased.
12. The trial Court in para. 27 of the judgment reached the conclusion that it were appellants Hado, Ramzan and Minhoon who had inflicted the blows on the deceased. There is no appraisal of the ocular testimony in the context in which we have considered and no justifiable reason has been given why it had accepted this part of the prosecution case. The trial Court has also erroneously accepted the explanation for the delay my upon the ground that it was after the arrival of Ali Murad after Isha prayer the that it was lodged at his instance. It has not con--sidered the features which weighed against the delay in the lodging of the report, and has merely accepted the words of Esso in this behalf. Under the circumstances, it was also an erroneous con--clusion. While dealing with the denial by the ladies of having gone to Ghulam Mohammad the trial Court expressed the view that they had done so foolishly as Ghulam Mohammad was not supporting the eye-witnesses, from where the trial Court got this impression is not known.
13. Since we have discarded -the ocular testimony it is not possible to support the conviction merely on the basis of recoveries which provide only an assurance to the ocular testimony and cannot by themselves for the basis of conviction. Even otherwise, it is not possible to explain the recovery of the blood-stained hatchet from appellant Hado, to whom no part was assigned in the F. I. R. In this context, the evidence of mashir as to the recoveries of the hatchets is also not above board. He is a maternal uncle of the deceased and resided in Juhi, about 10 miles away from the place of incident. It is surprising why he should' be made mashir and examined in the case when the other mashir was also available.
14. We have also noticed that the trial Court while acquit--ting Misri and Kalu has not accepted the ocular testimony upon the ground that it cannot be said with confidence that they had participated in the crime. Even though there was corroboration against Misri in that he had produced a blood-stained hatchet, yet it was not taken into consideration merely upon the ground that in the mashirnama there was a statement to the effect that no blood was seen on it. How could that statement in the mashirnama, which was no evidence, be relied on in the face of the opinion of the chemical analyser, is not understandable. Similarly, though a part was assigned to Kalu from the earliest stage yet he was acquitted and this was so because we feel that the trial Court was not convinced about the credibility of the eye-witnesses.
15. Lastly, the motive requires to be considered. In the F. I. R. It is alleged that Mst. Mehar, daughter of appellant Hado who is married to Haji Siddique son of Sahju, a cousin of the father of the deceased and Mst. Dhiani, wife of appellant Ramzan and sister of Sahju, were detained by appellant Hado and despite the demand for return of both the girl, appellant Hado had refused to accede to that request and it was-for that reason that the deceased was killed. Esso in his testimony explained that the girls were not allowed to visit their relations and it was upon Shaju's complaint to the deceased, who was a nekmard, that he had asked appellant Hado to allow the ladies to visit their rela--tives and this intervention provided a reason for his killing. The motive assigned could not be one for the killing of the deceased as appellant Hado had got the girls with him and the aggrieved party could only be Shaju who had made-the complaint. Accord--ingly we are not convinced with the probability of the motive assigned for the murder of the deceased.
16. In the result we are of the view that the prosecution has failed to establish its case against the appellants. We would accord--ingly give to them the benefit of doubt and acquit them. Their appeal is accepted and they are directed to be released forthwith unless required in some other case.