SAIJAD ALI SHAH, J.-Both the respondents, who are brothers inter se, were tried for offence under section 302/34, P. P. C. For having committed double murder by learned Second Additional Sessions Judge, Larkana and were acquitted by the impugned judgment, dated 29th June, 1976 against which the State has filed this acquittal appeal. After hearing in detail the learned counsel for each side on 19th/20th October, 1982 by a short order we have dismissed the appeal for reasons to be recorded later, which follow now.
2. Briefly stated Prosecution story is that deceased Mst. Hoor, maternal-aunt of complainant Gul Muhammad purchased girl by name Mst. Qamarunnisa from Pathans and brought her up.
Subsueqently she married her to Abdul Latif Mugheri from whom Mst. Qamarunnisa gave birth to two girls namely Mst. Zebunnisa and Mst. Zarina. Abdul Latif Mugheri died about 6/7 years before the incident. Mst. Qamarunnisa came with her daughters and lived with deceased Mst. Hoor in her house. About 3/4 years before the incident Mst. Hoor remarried Mst. Qamarunnisa with one Issa Shaikh but retained her two daughters in her own house to bring them up. After the second marriage of Mst. Qamarunnisa both respondents, who are nephews of late Abdul Latif and his brother Ghulam Muhammad used to approach Mst. Hoor for return of the two daughters of Abdul Latif but she kept them on promises that she would do so after the girls have attained majority.
About 3/4 days before the incident Ghulam Muhammad and the two respondents came again to the house of Mst. Hoor and repeated the demand and in return they got the same reply, and became very much annoyed and went away threatening Mst. Hoor of dire consequences.
Complainant was present on this occasion and had persuaded them to go away. On the day of incident i,e, 29th January, 1976 at about 8 p. m. Both respondents came armed with hatchets to the house of Mst. Hoor in Mohalla Ali Gohar Abad in City Larkana to take the girls. On the cries of Mst.
Hoor and her servant Gul Muhammad, alias Gulan, was attracted to the spot complainant Gul Muhammad son of Ali Asghar. He saw respondent Abdul Rahim giving hatchets blows to Mst. Hoor inside the room, while respondent Saindino gave hatchet blows to Gulan, who attempted to intervene. Both the respondents while giving hatchet blows threatened complainant not to come near. Some other persons also came to the spot and the respondents after inflicting injuries ran away with their weapons. After the departure of respondents, complainant went near and found Gulan lying dead, while Mst. Hoor was still alive and he took her to the hospital but she died on reaching the hospital. From the hospital complainant went to Police Station Larkana Town where he filed F. I. R. On the same day at 8-00 p. m. The distance between the Police Station and the scene of offence is stated to be 2i furlongs.
3. A. S.-I. Abdul Hassan after recording F. I. R. Came to the scene of offence with complainant and inspected the same. He found the dead body of Gulan and secured blood-stained earth, clothes and other articles like bed-sheet, relhi, ladies headwear and lamp which were found to be stained with blood. He sealed those articles. He prepared inquest report of the dead body and despatched it to the hospital for autopsy. He prepared mashirnama of the scene of offence and then went to the hospital, where he prepared mashirnama of injuries of the dead body of Mst. Hoor and inquest report and then handed over the dead body for post-mortem examination. He returned to the scene of offence and examined Mst. Zebunnisa, Mst. Zarina and Mst. Rani. On the following day he went to the village of the respondents and searched their houses but would not find them or anything else. Subsequently, on the same day on spy information he arrested both respondents from near Mangi Mill at a distance, of one mile from Larkana. Respondent Abdul Rahim, while in custody led to a place near Babur Wah on Phull road and produced blood-stained hatchet from under Date trees, which was put into a sealed parcel. Similarly, respondent Saindino, while in custody, led to the bushes at the distance of about 1 furlong from the place of first recovery and produced blood-stained hatchet, which was sealed into a parcel. After completion of other steps of investigation, the challan was presented in the Court.
4. Before the trial Court prosecution examined nine witnesses in support of its case. There are three eye-witnesses, namely, P. W. 2 complainant Gul Muhammad, P. W. 3 Mst. Zebunnisa and P. W. 4 Mst.
Zarina. Both P. Ws. 3 and 4 have been examined as child-witnesses. P. W. 5 is mash it Muhammad Bux, who has attested mashirnarna of scene of offence Exh. 10, inquest report of Gulan Exh. 11, mashirnama of dead body of Mst. Boor at the hospital Exh. 12 and her inquest report Exh.
13. P. W. 6 is mashir Muhammad Hassan, who has attested mashirnama of arrest of respondents and recovery of hatchets from them but he did not support the prosecution case and was declared hostile and cross-examined. Co-mashir Ghulam Shabbir was not examined and P. W. 9 Abdul Karim constable Process-Server, deposed that Ghulam Shabbir had shifted to Nawab Shah and his whereabouts were not known. P. W. 7 is Doctor Shamsuddin, who performed post-mortem examination on the dead body of Gulan alias Gul Muhammad and found one incised wound on the neck, which resulted in instantaneous death. He also performed postmortem examination on the dead body of Mst. Hoor and found 10 incised wounds on different parts of the body and mostly on head. Death was result of shock and haemorrhage in consequence of injuries. Doctor also opined that injuries on both dead bodies were caused by sharp-edged weapons such as hatchets.
Prosecution also examined P. W. 1 Tapedar Ghulam Nabi Shah, who prepared sketch of scene of offence and P. W. 8 is Abdul Hassan A. S.-I., who investigated the case. Prosecution also produced before the trial Court report of Chemical Examiner Exh. 29 according to which earth and both hatchets were found to be stained with human blood.
5. Both respondents before the trial Court in their statements under section 342, Cr. P. C. Have denied prosecution allegations and proclaimed innocence and false implication. Respondent Abdul Rahim produced copy of challan in some other case Exh. 32, copy of 164, Cr. P. C. Statement Exh. 33, copy of F. I. R. Exh. 34 and copy of order of Rent Controller in a rent case Exh.
35. Respondent Saindino did not produce any document and further both respondents did not examine any witness in defence.
6. We have scrutinised the evidence of the eye-witness with great care and caution. P. W. 2 Gul Muhammad complainant is admittedly son of sister of deceased Mst. Hoor. P. W. 3 Mst. Zebunnisa and P. W. 4 Mst. Zarina who are sisters, are not blood-relations of Mst. Boor but they lived in the same house and were in fact brought up by Mst. Hoor. It is admitted by both these girls before the trial Court that even after the incident they are living with Akbar son of deceased Mst. Boor and not with their mother Mst. Qamrunnisa. In such circumstances these two witnesses can be termed as interested witnesses. The evidence of all the three eye-witnesses produced before the trial Court by the prosecution is discrepant and we view with doubt occular acount for the reasons stated below.
7. It would be convenient at this stage to make some comments upon the evidence of motive which is testified by these three eye-witnesses. Motive is not furnished by the prosecution from any other indepe -ident source. In this respect complainant Gul Muhammad has deposed before the trial Court that some days before the incident he was present in the house of deceased Mst. Hoor when Ghulam Muhammad his wife Mst. Pirani and respondents Abdul Rahim and Saindino came there. They demanded Mst. Zebunnisa and Zarina from Mst. Floor and she told them that she would give the girls after they became major. They were annoyed with the reply and went away extending threats. Complainant did not live in the house of deceased Mst. Hoor but claimed that he lived two houses away from the house of Mst. Hoor at the relevant time. It is apparent from the evidence of the complainant that the girls Mst. Zebunnisa and Mst. Zarina were not present at the time when demand was made because complainant has not said so specifically. On the other hand, both the girls before the trial Court testified that they were present on the occasion mentioned above and demand was made for their restoration in their presence. P. W. 3 Mst. Zebunnisa stated before the trial Court that about 4days before the incident, Abdul Rahim, Saindino, Ghulam Muhammad and Mst. Pirani has come to their house. They demanded from Mst. Hoor that she and her sister should be handed over to them as some land of their deceased father was to be given to them. Mst. Hoor replied that she would restore the girls to them after they had attained the majority. After that respondents and their relatives went away threatening. Two things are conspicuous in the evidence of this witness. Firstly presence of complainant on this occasion is not mentioned, secondly the fact as stated by this witness that she and her sister were demanded for the reason that land of their father was to be given to them is not mentioned by the complainant in his evidence. On this point evidence of P. W. 4 Mst. Zarina is entirely different. She has deposed that 2 or 3 days prior to the incident both respondents came to their house and demanded her hand and that of her sister Mst. Zebunnisa from their grandmother, who replied that girls were minor and they could not be given in their custody. This witness does not mention the presence either of complainant or of Mst. Zebunnisa. Claim of the three eyewitnesses to be present some days before the incident on the occasion when the demand was made for restoration of girls is not free from doubt.
8. So far version of the actual incident is concerned complainant Gul Muhammad has deposed before the trial Court that on the day of incident at about 7-15 p. m. He was present in his house when he heard cries from the house of Mst. Hoor. He went there and stood at the door of her house and saw Abdul Rahim giving hatchet blows to Mst. Hoor and Saindino giving hatchet blow to Gul Muhammad alias Gulan, servant of Mst. Hoor, who fell down in the open space of the house.
Respondents threatened the complainant not to come near. Mst. Zarina and Mst. Zebunnisa were present at the spot raising cries. Respondents went away with their hatchets. He went and found Gulan to be lying dead and Mst. Hoor still alive. Other persons and mother of this witness by name Mst. Rani also came to the spot. Complainant further stated that he carried away injured Mst. Hoor on a cot to Civil Hospital but on reaching there she died. He left the dead body of Mst. Hoor in the Hospital and came to the Police Station where he lodged F. I. R.
9. From the evidence of the complainant it appears that he claims to have seen with his own eyes infliction of injuries to both deceased persons. He further claims to have seen the incident from the outer door of the house and he could not enter because he was threatened. Complainant has also not stated as to how he could see the incident at 7-15 p. m. On 29th January, when it was pretty dark. The complainant has not stated whether he saw the incident in the light of lantern or twilight.
We have verified from the calendar that on 29th January, sunset at 6-14 p. m. And in the instant case the incident is stated to have taken place at 7-15 p. m., hence in the ordinary course, it would be pretty dark at the relevant time. Although the complainant is quiet in his evidence on this point but P. W. 3 Zebunnisa has stated that at the time of incident it was already dark and the lamp was burning in the house. Deposition of Mst. Zebunnisa does not show that complainant came to the spot and saw the incident as eye-witness. After narrating the facts of the incident she has deposed that many persons of Mohallah had come on hearing the cries and she could not give any name.
She has further stated that Mst. Hoor was still alive when she was removed to the Hospital by Gul, Tapedar (she pointed out to complainant Gul Muhammad who was present in the Court). P. W. 4 Zarina has deposed before the trial Court that on the day of incident at about sunset time both the respondents came to their house and gave hatchet blows to her grandmother on her head. They did not say anything before causing blows to her grandmother. Their servant Gul Muhammad, who was trying to go out of the house was attacked by respondent Saindino. Both grandmother Mst.
Hoor and Gul Muhammad became injured and Gul Muhammad died at the spot while grandmother received serious injuries. Maternal-uncle Gul came at their cries and he was threatened by the respondents not to come inside. It may be mentioned that this witness does not say that respondent Abdul Rahim gave hatchet injuries exclusively to her grandmother. She has further contradicted Mst. Zebunnisa, who stated that their servant Gul Muhammad came to the spot on cries and wanted to intervene when he was threatened by Saindino who then gave hatchet blows to Gul Muhammad. Mst. Zarina has stated that Gul Muhammad was going out of the house and was attacked by Saindino. Further, in the evidence of Mst. Zarina there is no mention about the light of lantern.
10. Mashirnama of scene of offence Exh. 10 on the record shows that house in which incident took place has a courtyard within Pacca wall with door on the southern side used as entrance. Inside there is a room facing south. There is another room on the West of first room. Dead body of Gul Muhammad was found lying at two paces from the door of courtyard. The blood lying near the dead body of Gul Muhammad had gone up to the door of the room. Inside room there was sufficient blood where Mst. Hoor is stated to have been given injuries. Mst. Zebunnisa has not stated specifically as to where the lantern was hanging at the time of incident in the house but mashirnama shows that the lantern was lying on the window of room of scene of offence and was alight and was taken in the possession by Police. The question that arises for consideration is whether the lantern which was on the window in the room threw sufficient light outside in courtyard to enable the complainant at the outer entrance door to see the incident as he claims. The evidence of eye-witness this point is not clear.
11. Complainant has deposed before the trial Court that when he took away Mst. Hoor on the cot to the hospital, his mother Rani and others waited near the dead body of Gul Muhammad. While Mst.
Zebunnisa is silent on the point whether Mst. Rani, mother of complainant came to the spot after the incident and waited near the dead body of Gul Muhammad, Mst. Zarina has categorically stated before the trial Court that she did not know Mst. Rani and did not see any woman by that name coming in their house. She further stated that she had seen mother of complainant Gul Muhammad, who had been visiting their house but she did not come to their house on the day of incident whether before or after the incident.
12. Complainant has deposed before the trial Court that he took away Mst. Floor on the cot to the hospital and from the hospital he went to the Police Station where he filed F. I. R. And then brought Police to the scene of offence. As against this Mst. Zebunnisa has deposed before the trial Court that Police Arrived at the vardat when Mst. Floor still there. Body of Gul Muhammad was taken away from the house at the same time when Mst. Hoor was removed to the hospital. Likewise Mst. Zarina has also stated before the trial Court that Police had seen her grandmother and Gul Muhammad lying injured in their house. Police had removed both injured persons to the hospital on a cot.
13. If motive furnished by prosecution as stated above is correct that the respondents wanted restoration of the two girls namely Mst. Zebunnisa and Mst. Zarina which was not being allowed by Mst. Hoor and when these two girls were present at the scene of offence at the time of incident as claimed by the prosecution, then why the respondents did not carry the girls away after committing the murders. A doubt arises that these two girls who have deposed as eye-witnesses were not present at the scene of offence at the relevant time. This is probably so apart from the inconsistent evidence of these girls, which is discrepant with evidence of complainant Gul Muhammad. One other factor which strengthens our doubt is that in the mashirnama of scene of offence Exh. 10 which was prepared by the Investigating Officer, who came to the spot immediately after the incident, there is mention of the fact that side the room where blood was found and Mst.
Hoor is said to have been given injuries, there were three cots lying, one to the East, one to the West and one to the North and only on the cot towards North the bed was spread. This shows that only on one cot bed was spread which was for deceased Mst. Hoor and these two girls were not available at the relevant time otherwise there would have been beds on their cots as well.
14. All the eye-witnesses have admitted that several persons came to the scene of offence on the cries and some of them also saw the incident. These eye-witnesses have also admitted that the story of incident was narrated to the witnesses, who came to the spot after the incident and even names of assailants revealed to them. It is in the evidence of these E eye-witnesses that there is a Thana/Office of C. I. A. Police near the vardat and C. I. A. People also had come to the spot on cries but still no independent witness has been produced by the prosecution to corroborate the story deposed by the eye-witnesses. In this context complainant Gul Muhammad has stated before the trial Court in his cross-examination that people from the entire neighbourhood came to the spot on cries. These people belonged to various castes. They saw the incident and he also narrated the facts. Rasul Bux Khakaro, who has a house adjacent to the house of Mst. Hoor also came to the spot and saw the incident. Complainant has further admitted before the trial Court that when he brought the police to the vardat, people of neighbourhood were sitting near the dead body of Gul Muhammad. Police did not make enquiries from Rasul Bux or from those persons of neighbourhood, who were present there.
15. P. W. 3 Mst. Zebunnisah has also admitted before the trial Court that persons from the Moballah came but could not iatervene to rescue the deceased because on seeing them respondents ran away. She further stated that she could not say if Rasul Bux Khakaro also came alongwith neighbours. She also could not say if C. I. A. Police had come to the spot. Mst. Zarina has also stated before the trial Court that it is a fact that C. I. A. Police Office is near their house. Many persons had entered the house after respondents had left. However, these persons saw her grandmother and Gul Muhammad lying injured in their house. She further stated that name of the assailants were disclosed to these persons. The Investigating Officer has deposed before the trial Court that when he reached scene of offence many persons of locality were present and he did not record the statement of any other witness.
16. In the circumstances it would have been much better if some independent, witnesses would have been produced by the prosecution to depose as witnesses for corroboration, if not as eye- witnesses. Absence of such evidence creates doubt on the truthfulness of ocular version of the incident. Surprisingly, Rasul Bux Khakaro, who is specifically named. In F. I. R. Also has not been examined P. W. 5, Muhammad Bux mashir:, F who has attested mash irnama of scene of offence and claims to be the neighbour and had reached the scene of offence on cries has testified before the trial Court that when on cries he went into the house where incident took place, he did not see either the complainant Gul Muhammad or two girls, viz. Mst. Zebunnisa and Mst. Zarina. This witness was not declared hostile which means that his version was not challenged by prosecution. For the reasons stated above we feel inclined to say that the eye-witnesses do not inspire confidence and their claim to have seen the incident is rather doubtful.
17. There is one other aspect of ocular testimony which requires comment. Two eye-witnesses namely P. W. 3 Mst. Zebunnisa and P. W. 4 Mst. Zarina aged 10 years and 6 years, respectively at the time of recording of their evidence are child witnesses. The learned Trial Judge while recording their evidence has omitted to ask question to satisfy himself whether they would understand about what they were going to testify. It is necessary for the trial Court to test the intellectual capacity of a child witness by putting a few simple and ordinary questions before recording examination. This would give satisfaction to the trial Court that the child witness is in a position to understand the import and importance of the evidence proposed to be given by him and this would also satisfy the appellate Court as well on that point. Necessary significance of such questions is that if the trial Court is not satisfied as to the child's capacity to depose, it should decline to examine him and if the trial Court is satisfied then it should administer the oath to the witness and examine him in the ordinary way. It is stated in the "Principles and Digest of the Law of Evidence" by Munir (Pakistan Edition) at pages 408 and 409 that is desirable that Judges and Magistrates should always record their opinion that the witness understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence altogether. There are judicial pronouncements in respect of proposition that as a rule of prudence there must be corroborat on of the evidence of a child witness. In this context reference can be made to Muhammad Sugal Esa Mamasan Rer Alalah v. The King Sultan and another v. State and Shahadat v. State .
18. Coming to corroboration, we have already stated above that story of motive testified by eye- witnesses is not satisfactory. So far recovery of weapons from the respondents with positive report of the Chemical Examiner is concerned, prosecution has examined mashir Muhammad Hassan, who did not support the prosecution case and was declared hostile. Prosecution failed to examine co-mashir Gulam Shabbir. P. W. 9 Abdul Karim Police Constable has been examined as Process- Server and he had deposed that Ghulam Shabbir could not be served as he had shifted to Nawabshah and his new address could not be located. It appears from Exh. 25 that this constable had recorded statement of one Ghulam Muhammad who had stated about the shifting of Ghulam Shabbir to Nawabshah. Complete address of Ghulam Muhammad is not given. In such circumstances, the constable should have recorded statements of other persons also and should have made more attempts to get the new address of Ghulam Shabbir. No further attempt was made. In the circumstances, we hold that proper attempts were not made to serve Ghulam Shabbir. Even otherwise this piece of evidence has its own other infirmities. According to I/B. The incident took place on 29th January, 1976 at about 7-15 p. m. And on the following day i,e, 30th January, 1976 he went to the village of respondents, searched their houses but could not find them.
On the same day he got spy information on which he arrested both the respondents who were1 2 3 going to their village. Time of arrest in mashirnama Exh. 15 is shown as 4-30 p. m. On 30th January, 1976. On the other hand, complainant Gul Muhammad has deposed before the trial Court that both the respondents were arrested on the same night by police and they were brought to the Police Station and showed to him and they were also shown to Mst. Zebunnisa and Mst. Zarina at the Police Station on that night for the purposes of identification. On this point Mst. Zebunnisa has stated that on the following day of incident she and Mst. Zarina were called at the Police Station at noon time where they had seen the respondents in custody. In this context Mst. Zarina has stated before the trial Court that she and her sister were not taken to the Police Station. Further, it is the case of the prosecution that both respondents produced hatchets from Dub bushes at a short distance from each other. There is no clear evidence that exclusive knowledge can be attributed to the respondents about the concealment of hatchets. In any case, one mashir has not supported and the other mashir has not been examined. The story about the arrest becomes doubtful when there are conflicting versions of the eye-witnesses and the I.O. On this point. We are not satisfied with this piece of evidenee about the recovery of blood-stained hatchets.
19. Respondents in their statements under section 842, Cr. P. C. Have stated that they have been implicated falsely. Respondent Abdul Rahim has produced a number of documents mentioned in the above part of the judgment. His plea is that he appeared as a witness in a murder case against Himat Ali and Khadim Hussain, who are by cast Tagars and deceased Mst. Hoor in this case was married in Tagars hence he and his brother have been involved falsely in this case by Akbar son of deceased Mst. Hoor who is also Tagar. The other plea taken by the defence is that Mithan Khan Jatoi, owner of the house in which incident took place had filed ejectment proceedings against Mst.
Hoor and had succeeded in the case but Mst. Hoor was not prepared to vacate the premises hence sh e could have been murdered on that account. It is not necessary to go into the defence pleas for the reason that even otherwise prosecution has to prove its case beyond doubt and in that attempt prosecution has failed to produce evidence of satisfactory nature to connect the respondents with the commission of crime. Pieces of evidence produced by prosecution are all tainted. One tainted piece of evidence cannot support another tainted piece of evidence.
Prosecution has failed to prove the case against the respondents beyond doubt hence we do not find any reason to interfere with the impugned judgment whereby the respondents have been acquitted. Appeal is, therefore, dismissed. AIR 1946 P C 3 PLD 1965 Kar. 615 1968 P Cr. L J 68