' Sajjad Ali Shah, J.-- Present three appellants namely Khalil son of Sahebdino, Dawood son of Nabahoo and Abdul Jabbar son of Azizullah have filed this appeal being aggrieved against the judgment, dated 30th June, 1979 of learned First Additional Sessions Judge, Sukkur whereby they have been convicted for offence under section 302/34, P.P.C. And have been sentenced each to imprisonment for life and a fine of Rs, 2,000 in default of the payment whereof R.I. For six months. It is further directed by the learned trial Judge that half of the fine if realised be paid to the heirs of deceased as compensation under section 544-A, Cr. P.C. In fact initially six persons including the present three appellants were challaned and tried and by the impugned judgment three namely Gulsher son of Abdullah Abdul Haque son of Ghulam Rasool and Haji son of Dhani Bux have been acquitted. It would not be out of place to mention here that the appellants as well as acquitted accused persons are Kalwaras by caste with the exception of Haji son of Dhani Bux, who is Bhutto by caste. There is also before Acquittal Appeal filed by the State in which acquittal of three persons mentioned above has been challenged. There is also before us Criminal Revision Application filed by complainant Zaheer Ahmad calling in question the impugned judgment on the grounds that acquittal of three persons named above is not proper and sentence of life imprisonment to present three appellants is inadequate. Since the two appeals and the revision application arise from the same case and the same judgment impugned herein, we propose to dispose them of by this common judgment.
2. Briefly stated the prosecution case as depicted in F.I.R. Is that deceased Muhammad Ashraf resided at his land in Deh Jhangiari and had a quarrel with Kalwaras over possession of the land and to that effect cases were pending in the Court. On the day of incident i,e, 22nd March, 1976 deceased Muhammad Ashraf and P.Ws. Sajid Ali and Abdul Sattar came to complainant Zaheer Ahmad in -Ghota Bazar in Ghotki and deceased Muhammad Ashraf informed complainant that Kalwaras were threatening him so he apprehended danger. At 6-30 p.m. Complainant and the two witnesses mentioned above went together with deceased Muhammad Ashraf to the bus stand to see him off. On the way when they crossed railway crossing, which was in the vicinity of Khanpur bus stand, six assailants, who are specifically named in the F.I.R. Including present three appellants emerged from the eastern side duly armed with hatchets. Appellant Abdul Jabbar abused and declared that Muhammad Ashraf had provided an opportunity and should not be spared. After that all the six assailants showered hatchet blows on Muhammad Ashraf. Witnesses present raised cries and the assailants fled away after having knocked down Muhammad Ashraf with hatchet blows. On cries several other persons came to the spot, who saw the assailants and identified them. Complainant lifted Muhammad Ashraf and held him in his lap. Muhammad Ashraf mentioned names of all the six assailants and then died. Complainant Zaheer Ahmad left other witnesses near the dead body and repaired to Police Station Ghotki at a distance of one mile from the spot where he lodged report on the same day at 6-40 p.m.
3. Raja Muhammad Akram S.H.O. After recording F.I.R. Visited scene of offence, which was pointed out by the complainant. He found the dead body of Muhammad Ashraf lying on the road in a pool of blood across the railway gate on the main road. He collected blood-stained earth and put it into a sealed parcel. He prepared the Mashirnama of scene of offence. S.H.O. Found on the person of deceased a revolver of .32 bore with a leather belt containing 11 live bullets tied around his waist. He also found a wrist watch and made recovery of these articles vide the same Mashirnama of scene of offence. S.H.O. Also prepared Inquest Report and despatched the dead body to Civil Hospital Sukkur for post-mortem examination. S.H.O. Recorded 161 statement of P.Ws. Sajid, Abdul Sattar and Niaz Ahmad on the same night of incident. It would be pertinent to point out here that S.H.O.
Deposed before the trial Court that he had recovered blood-stained clothes of complainant at police station and those of P.W. Abdul Sattar at the scene of offence and put them into sealed parcels. Subsequently on 24th March, 1976 he arrested three assailants namely appellants Khalil and Dawood and acquitted co-accused Gulsher from the Otak of Nekmard Masoo Khan from village Haji Qamardin. S.H.O. Found clothes of appellants Dawood and Khalil to be stained with blood as such he recovered them and put them into sealed parcel. Appellant Khalil while in custody led to the recovery of hatchet from the heap of manure in the courtyard and the hatchet was put into a sealed parcel. Appellant Dawood led to his house and produced a hatchet from wheat crop behind his house which was found to be washed but even then was put into a sealed parcel. It may be mentioned here that no recovery of weapon was made from acquitted accused Gulsher on that day when he was-arrested but subsequently on 26th March, 1976 he is stated to have produced a hatchet from bushes on Khanpur road near 'Choral Dhori'. The hatchet was found to be stained with blood and was put into a sealed parcel. It is deposed by the S.H.O. Before the trial Court that on the same day, i,e, 24th March, 1976 he went and arrested the remaining three assailants .1amely appellant Abdul Jabbar and acquitted accused Abdul Hague and Haii from village Mula Chhutto and took them in custody. Appellant Abdul Jabbar while in custody led to the recovery of hatchet which was buried underground near the wall of his house. The hatchet was put into a sealed parcel. On 26th March, 1976 i,e, after two days of arrest acquitted accused Haii produced hatchet which was lying below the railway bund. The hatchet was found to have been washed but there appeared slight stains of blood hence it was seized and put into a sealed parcel.
Acquitted accused Abdul Haqe though arrested on 24th March, 1976 is said to have produced hatchet on 26th March, 1976 after digging out the same from the bed of the Dingro canal near the culvert. This hatchet was put into a sealed parcel. S.H.O. Has further stated that he did not send blood-stained clothes of the witnesses to the Chemical Examiner but sent the other articles in the sealed parcels to him for examination. After completing the investigation he presented challan in the Court. . ' Prosecution has examined nine witnesses in support of its case.
' Ocular testimony is furnished by three witnesses namely P.W.4 Saiid Ali, P.W.5 Zaheer Ahmad complainant and P.W.6 Abdul Sattar. P.W.1 Dr. Abdul Rauf conducted the post-mortem examination and produced in the Court such report Exh.
8. According to the doctor there were 12 injuries ot of which 11 incised wounds and injury No,12 was multiple abrasions on the back of left shoulder. On internal examination he found both parietal, frontal and occipital bones fractured on left side. Membrances and brain substance was out under injury No,1 which was incised wound 5" x 1}" x cranial cavity deep on the vertex. Death was due to shock and haemorrhage. Injury No,1 individually and all other injuries collectively were sufficient to cause death in the ordinary course of nature. Injuries were caused by sharp cutting weapon such as hatchet. Death was instantaneous.
5. P.W.2 Hidayatullah constable is corpse-bearer while P.W.3 Gohar Ali Tapedar has prepared the sketch of Vardat Exh. 12 on 14th September, 1978. P.W.7 Rau Muhammad Zafaryab is Mashir who has attested and produced Mashirnamas Exh. 20 to Exh. 32, which covers most of Mashirnamas including those of arrest, recovery of clothes and recovery of weapons and Inquest Report. P.W.8 is Amanullah Mashir, who has attested and produced Mashirnama Exhs. 30, 31 and 32. P.W. 9 is Raja Muhammad Akram S.H.O. Who has investigated the case as stated above. Prosecution has produced report of Chemical Examiner Exh. 34 which is positive in respect of contents of all the nine parcels sent to the laboratory that they were found to be stained with human blood.
6. Before the trial Court in their statements under section 342, Cr.P.C. Defence has been taken of denial simplicitor of all prosecution allegations and false implication due to enmity. Appellant Khalil has produced certified copy of judgment in Case No, 279 of 1975 State v. G!Iulam Qadir and others under section 324/323/148, P.P.C. As Exh. 28/A. He has also produced true copy of Challan Exh. 28/B.
Certified copy of complaint filed by Muzaffar Ali Arain Exh. 28/C and true copies of statements with orders of Magistrate thereupon as Exh. 28/D and Exh. 28/E. He has produced copy of sketch of land in Deh Jangiari Exh. 28/F, Rubkari Exh. 28/G. Khasra Gardawari Exh. 28/H and Exh. 28/1. He has also produced Electoral List of Deh Penhwar showing name of P.W. Abdul Sattar at Serial No,
18. This is Exh. 28/J. He has also produced Electoral List Exh. 28/K and a certificate issued by Principal Government Degree College Sukkur Exh. 28/L showing P.W.5 Sajid Ali as student for years 1975-76 and 1976-77.
' Acquitted accused Abdul Haqe had stated that he was a primary teacher and had no concern either with deceased or other accused.
7. In defence three witnesses namely D.W.1 Karamdin D.W.2 Manjhi n d D.W.3 Ghulam Muhammad Lashari have been examined, who have claimed that they were near the scene of offence and had seen the ;ncident. It is further stated that statements of these witnesses were recorded by police during the investigation but they were not examined as eye-witnesses hence they were examined as defence witnesses. According to these witnesses there were three assailants, whose faces were open and they were different from accused persons involved in this case. Defence has examined Agha Kalbe Hyder as D.W.4 who is Principal Government Degree College, Sukkur and stated that he had issued certificate Exh. 28/L which shows that P.W. Sajid Ali was a student of that college. It is argued by the counsel for appellants before us that evidence of this witness in particular has been produced to negative the claim of eye-witness Sajid Ali who has claimed to have accompanied deceased Muhammad Ashraf on the day of incident from his village to Ghotki at 12-00 noon and to have seen the incident at 5-30 p.m. It is stated by Mr. Junejo that this witness was in the college at Sukkur on the day of incident.
8. We have heard Mr. Muhammad Hayat Junejo counsel for appellants, Mr. Murtaza Hussain counsel for State and Mr. Shaukat Naqvi counsel for complainant and with their laborious assistance we have subjected the record to minute scrutiny. Prosecution has produced ocular evidence, evidence of dying declaration of deceased who gave names of assailants to the eye- witnesses, circumstantial evidence of ar.Rest, recovery of weapons and clothes from the assailants and motive. Defence has produced documents to show enmity and has examined four witnesses out of whom three have claimed to be present at the scene of offence at the relevant time and saw three assailants, who were different from accused persons present in the trial Court. Fourth defence witness Agha Kalbe Haider, Principal Degree College Sukkur deposed that P.W. Sajid Ali an eye-witness in this case was a student at Sukkur.
9. We now first take up ocular evidence. Prosecution in this context has examined three witnesses namely P.W. 4 Sajid Ali, P.W.5 complainant Zaheer Ahmad and P.W.6 Abdul Sattar.
' It will not be out of place to mention that deceased Muhammad Ashraf originally belonged to Chak No, 42/12 in District Faisalabad. He came from Punjab in the year 1965 and first settled in Deh Jamal Taluka Kandkot District Jacobabad and purchased some land there. He handed over those lands to his brother and moved to District Sukkur. Deceased had many other lands in other parts but at the relevant time was living on his lands in Deh Jhangiari. Taluka Ghotki. Incident took place in Ghotki town near the bus stand at railway crossing. Three eye-witnesses have claimed to be present there at the time of incident and have further asserted that they have seen the incident.
Since the incident had taken place in the town these eye-witnesses have to account for their presence at the spot with satisfactory explanations. Before we come to the explanations we would like to point out that eye-witness Sajid Ali is nephew of deceased and at tbe relevant time resided with his uncle in Deh Jhangiari. Another eye-witness complainant Zaheer Ahmad is not related to the deceased but his father's name is Ch. Muhammad Ismail and at the time of deposing before the trial Court he has given his address as People's Colony in District Faisalabad. In the very first sentence of his examination-in-chief-before the trial Court complainant Zaheer Ahmad has admitted in categorical terms that deceased Muhammad Ashraf was known to him as he was his friend. At another place in his evidence before the trial Court complainant has stated that deceased Ashraf had met him on other places also prior to this incident. Deceased Ashraf was friendly with him but with Mr. Ashfaq Advocate deceased had cordial relations. Complainant has further testified before the trial Court that deceased Ashraf came to his house at about 4 p.m. And told him that Hap Ibrahim and his relatives all Kalwaras by caste had threatened him with dire consequences. Still at another place in his deposition complainant has expressed that deceased had on two previous occasions informed about his apprehension from Kalwaras but he was not advised by this witness to report the matter to the police. At another place in his deposition complainant has further stated that he knew that deceased Ashraf was accused with P.W. Sajid Ali in a criminal case pending at Ghotki. It is also stated by the complainant in his deposition that on the day of incident after hearing about apprehension of deceased from Kalwars he accompanied deceased and the other two eye-witnesses to the bus stop to see the deceased of. The references from the evidence of complainant stated above clearly show that complainant was a close friend of the deceased and was vitally interested in him. This fact of frienship is further fully supported by P.W. Sajid All who has deposed before the trial Court that on the day of incident at 4 p.m. Deceased, P.W. Abdul Sattar and he went to the house of the complainant Zaheer Ahmad. Deceased Ashraf informed complainant Zaheer Ahmad that he was being threatened by Kalwars and it is on that account that complainant Zaheer had to accompany them to the bus stop of Khanpur. This witness has further stated in his evidence before the trial Court that, on the day of incident he, deceased Ashraf and P.W. Abdul Sattar went from the shop of Shah Muhammad to the house of complainant Zaheer Ahmad where they stayed for 11 hours and from there all went together to the bus stop. This witness has further stated before the trial Court that he used to come to the house of complainant Zaheer with deceased. At another place this witness has admitted that complainant Zaheer belongs to Faisalabad but in Ghota Bazar he used to reside with his family and they were on friendly terms with Zaheer. Likewise P.W. Abdul Sattar has also admitted friendship between deceased Ashraf and complainant Zaheer and has further stated in his deposition before the trial Court that he had gone with Ashraf to the house of complainant Zaheer once or twice in the past and on those occasions Zaheer did not come with him upto Khanpur bus stop. This answer was given by this witness in response to the question as to apart from the day of incident did complainant Zaheer accompany deceased Ashraf to the bus stop. It is, therefore, clear that three is enough material on the record to say that deceased Ashraf and complainant Zaheer were very close friend and on that account complainant Zaheer was vitally interested in the deceased and his evidence can be treated at par with a witness who is a relation.
10. The third eye-witness Abdul Sattar claimed in his deposition before the trial Court that deceased Muhammad Ashraf was known to him and at the time of incident he was cultivating land of deceased Ashraf in Deh Jhangiari Taluka Ghotki and further that he used to live in a house in Deh Jhangiari. To P.W. Sajid Ali suggestive question was put which he denied by saying that it is not a fact that P.W. Abdul Sattar is my real brother. In the deposition of Sajid Ali it appears at the caption that father's name of Sajid Ali is given as Muhammad Sadiq. Likewise in the 'deposition of Abdul Sattar his father's name appears in the caption as Muhammad Sadiq. Both these witnesses have given different castes. P.W. Sajid Ali has given his caste as Bhatti while P.W. Abdul Sattar has given his caste as Rindawa. P.W. Abdul Sattar in his deposition before the trial Court has admitted that he had given his caste in his police statement as "Jat" which is sub-caste of Rindawa. Any way we take the statement of P.W. Abdul Sattar at its face value that he was Hari of deceased Ashraf at the relevant time and was living in Deh Jhangiari where deceased also used to live.
11. Now we take up the evidence of these three eye-witnesses for proper appraisal to see whether it inspires confidence that they are truthful eye-witnesses and have seen the incident and have fully identified all the assailants. Both Sajid Ali and Abdul Sattar have claimed to have come alongwith deceased Ashral from Deh Jhangiari to Ghotki town on the day of incident. In the very outset it may be mentioned that Sajid Ali is nephew of deceased and used to live with him and in his deposition before the trial Court stated categorically that during the days when incident took place he had obtained admission in Ghotki College in First Year Science. Then voluntarily stated that he was not attending the college regularly. This assertion of P.W. Saiid Ali stands falsified by D.W. 4 Agha Kalbe Haider, Principal Degree College Sukkur who has deposed before the trial Court that he had issued certificate to the effect that Sajid Ali son of Sadiq Bhatti was a student of Degree College Sukkur. He produced such certificate as Exh. 28/L. The defence witness further stated in the trial Court that he knew Sajid Ali who was his student and he was known to him very well. This defence witness was cross-examined on the lines whether a student can take admission in two different colleges at two different places in the same academic year. To this question this witness replied that if a student wants to make a mischief he can do so. This defence witness further could not say whether on the relevant day when the incident took place Saiid Ali had attended the college at Sukkur for the reason that he had not brought attendance register with him. Now whatever be the value of evidence of this defence witness a few things emerge outstandingly. Firstly P.W. Sajid All has categorically stated that he had taken admission in Ghotki College in First Year Science but did not produce Identity Card of that College before the trial Court. On the other hand the defence has examined a witness who is Principal of the Degree College at Sukkur who has issued certificate to the effect that Sajid Ali was at the relevant time a student of Degree College Sukkur. There is no rebuttal of this evidence produced by the defence. For the time being it can be said that assertion made by P.W. Sajid Ali about his admission in Ghotki College stands to a great extent falsified. On one hand Sajid. Ali has not challenged or denied his admission in Degree College at Sukkur and on the other hand he has failed to produce his admission card of College at Ghotki. This shows that this witness has the tendency to lie whenever it suits him.
' Another thing which goes against this witness Sajid Ali is that he had admitted before the trial Court in his statement that Raja Muhammad Akram had filed a case against him under section 211, P.P.C. Incidently section 211, P.P.C. Relates to false charge of evidence made with intent to injure.
Additionally P.W. Saiid Ali has admitted in his deposition before the trial Court that he has been convicted for an offence under section 325. P.P.C. And appeal arising from that was pending before the Sessions Court.
12. Eye account of occurrence testified by these three eye-witnesses is far from satisfactory. It is stated by them that they were in the company of deceased on the day of incident at the relevant time and after they crossed the railway crossing six assailants emerged armed with hatchets, out of them Abdul Jabbar instigated and then all the assailants inflicted hatchet blows and when deceased Ashraf fell down, assailants ran away. The most important feature of ocular evidence is whether these eye-witnesses knew the assailants before the incident or not. Eye-witness Sajid Ali has stated before the trial Court in his examination-in-chief that the assailants were not known to him prior to the incident. Eye-witnesses Abdul Sattar deposed before the trial Court that he knew all assailants by their names and faces. Complainant Zaheer Ahmad has stated before the trial Court that he knew all the six assailants and had named them in F.I.R. Specifically. It is further stated by all the three eye-witnesses that apart from their having seen the incident when Ashraf fell down after injuries and the assailants ran away, injured Ashraf was taken in lap by complainant Zaheer Ahmad and iniured Ashraf uttered the names of all the six assailants. In this context it may be mentioned that when eye-witnesses knew the assailants by names and faces then what was the need of deceased Ashraf making a dying declaration to utter the names of all the six assailants for the benefit of eye-witnesses. Deceased can be expected to make such dying declaration when either the eye-witnesses have not seen the incident or they did not know the names of the assailants. Complainant Zaheer Ahmad stated before the trial Court that names and faces of six assailants were known to him and in his examination-in-chief he has given the relationship of assailants by saying that Abdul Jabbar is nephew of Haji Ibrahim, Abdul Haque is cousin of Haji Ibrahim, Khalil is nephew of Haji Ibrahim and Haji Bhutta is tenant of Abdul Jabbar. Strangely enough complainant has not given such relationship of assailants inter se in his police report.
When cross-examined further on this question complainant stated before the trial Court that he could not give details of brothers of Khalil nor he knew how many brothers he has. Similarly he cbuld not give details of other relatives of other assailants. This witness further admitted that he never attended any feast of assailants nor they were invited by him. He had no dealings with assailants prior to this incident. This witness denied a suggestion that assailants were not known to him and he had been tutored to give their names with exact relationship. In this connection remaining two eye-witnesses Sajid Ali and Abdul Sattar have deposed before the trial Court that after the incident deceased Ashraf addressing the complainant Zaheer uttered the names of all the six assailants and further said that they were the persons from he had apprehension. Both these witensses have further stated before the trial Court that complainant Zaheer was not aware of the names of the assailants and that is why deceased had to give him the names. Eye-witness Sajid All stated before the trial Court that Zaheer was not aware of the names of the assailants but subsequently stated that he could not say if Zaheer knew the names of the assailants or not but his uncle gave the names of culprits to Zaheer in his presence. At another place in cross-examination before the trial Court Sajid All stated that he could not say if Zaheer reported the incident to the police on the information given by deceased about the identity and names of assailants, or he reported the incident on his personal knowledge. Similarly eye-witness Abdul Sattar also stated that iniured Ashraf gave names of assailants to them while addressing Zaheer and further said that they were the same persons who were extending threats to him about whom he expressed his apprehension to Zaheer. This witness further stated in his examination-in-chief that deceased Ashraf gave names of the culprits to Zaheer being under the impression that probably Zaheer might not be knowing the assailants.
13. So far claim of this witness Abdul Sattar is concerned with regard to the identity of assailants, he has deposed before the trial Court that at the time of incident he was cultivating the land of Ashraf in Deh Jhangiari Taluka Ghotki and was also living in that Deh. Assailants had their lands near the land which he was cultivating as such they were known to him. This witness further deposed that prior to his shifting to Deh Jhangiari he lived for about 21 years in Deh Panhwar Taluka Rohri where he cultivated land of Akhtar who was his maternal-uncle and a partner in the land with deceased Ashraf. It may be mentioned here that the total period before the incident this witness remained in Deh Jhangiari was only 11 years. We are reproducing relevant portion of cross-examination of this witness before the trial Court on this question which speaks for itself and shows that this witness could not possibly know and identify six assailants.
"I started cultivating the land in Deh Jhangiari 1 years prior to this incident. I had taken two crops from the land one in Kharif and the other in Rabi that was wheat, sugar-cane and cotton. I cannot give Survey Numbers of the land which I had cultivated. The area under cultivation by me was about 16 Acres. On the Southern side of my land Kalwars land. Is situated but I cannot give the names of the owners. I cannot give the names of the Haris cultivating the land of Kalwars. On the Northern side of my land Legharis were cultivating their lands. I cannot give the name of any Hari as I do not remember. Again says on the Northern side lands of Bhuttos are situated. On the Eastern side the lands of Legharis are situated. I cannot give the name of any of the Haris of these owners.
On the Western side of my land Kalwars are owners of the and on the other side of the canal. I cannot give the names of Haris."
14. In the circumstances a very serious doubt arises with regard to the fact whether names and identities of the six assailants were known to these eye-witnesses before the incident. The very evidence of these three eye-witnesses shows that the identity of assailants was not known to them and that is why an attempt has been made to get the names from injured Ashraf before his death.
In the circumstances as stated above if it is to be believed that these three eye-witnesses were present there and saw the incident then it was imperative for prosecution to have held identification test to enable the eye-witnesses to pick out assailants in the manner provided by law. In the absence of such evidence the claim of the eye-witnesses to have seen the incident and identified the assailants cannot be accepted as absolutely truthful.
15. These three eye-witnesses very strangely have not given the details of the incident. They have made short work of it by simply stating that six assailants emerged armed with hatchets and out of them Abdul Jabbar instigated by saying that Ashraf has provided an opportunity and he would not be spared. After that all the six assailants attacked Ashraf and gave him hatchet injuries. When Ashraf fell down on the ground assailants ran away. These witnesses have refrained from giving details as to who caused how many injuries and on what part of the body. They have not stated whether the assilants made a full circle around deceased at the time of attack or made semi- circle. This general allegation that attack was made in which six assailants contributed hatchet blows to the deceased is vague in nature and stands falsified by the medical evidence. Medical evidence shows that three were in all 12 injuries out of them 11 were incised wounds. Injury No,1 which is incised wound 5" x 11" on the head cutting right and left parietal bones. Remaining injuries Nos. 2 to 10 are incised wounds on the head, ear, thigh, leg and knee. Strangely enough all these injuries mentioned above on different parts of the body are on the left side only. Iniury No, 11 is on the right little finger and iniury No, 12 is multiple abrasions on the back of left shoulder. This medical evidence and nature of injuries particularly on the left side of body is not consistent with ocular version. If ocular version is correct then the injuries should be on all parts of body and not only on the left side of the body. From the way the injuries are described by the doctor, is appears that after the first iniury on the head deceased fell down on the right side hence all other blows fell on the left side of the body. Doctor has also stated that iniury No,1 on the head was sufficient and all other injuries collectively were sufficient to cause death. Doctor has also stated that death was probably instantaneous. Furthermore, injury No, 1 is found by the doctor to be cranial cavity deep on the vertex cutting right and left parietal bones meninges and brain substances. Death was due to shock and haemorrhage. Doctor has also stated that deceased might have fallen on the ground on receipt of first injury on the head. Medical evidence most certainly throws very serious doubt on ocular version.
16. Another important feature of ocular testimony is that deceased Ashraf at the time of incident was armed with a revolver in a leather cover with belt containing 11 live bullets tied around his waist. It is surprising that deceased did not or could not use this revolver for his self-defence. The only possible inference available is that attack was so sudden that deceased could not avail the opportunity to use his revolver. This fact gives support to the opinion of the doctor that first injury on the head was fatal and the deceased fell down after which probably other injuries were caused. To cover this weak point in the evidence of prosecution eye-witnesses before the trial Court have stated that assailants were hiding behind a Chapra and emerged suddenly. Be that as it may, even then eye-witnesses have stated that Abdul Jabbar extended a threat that Ashraf had provided an opportunity and he would not be spared and only thereafter attack was made. In the meantime there was sufficient time for the deceased to pull out his revolver and use it. Had the deceased pulled out his revolver and brought it in the open, then it was possible that assailants might not have made the attack seeing that deceased was armed with a revolver. Any way eye-witnesses have spoken before the trial Court about emergence of assailants from behind Chapra or Landhi.
Complainant Zaheer Ahmad has not mentioned Chapra or Landhi in his F.I.R. He stated in that six assailants specifically named emerged from eastern side. Eye-witness Sajid Ali in his examination- in-chief before the trial Court also said that six assailants emerged from eastern side but in cross he spoke about emergence of assailants from Chapra. Likewise Abdul Sattar has also stated about emergence of assailants from behind a Chapra. Eye-witnesses Sajid Ali and Abdul Sattar have not mentioned Chapra in their police statements. S.H.O. Who came to the spot and prepared Mashirnama of scene of offence Exh. 20 has not mentioned in it Chapra or Landhi behind which the assailants are alleged to be hiding before the incident. S.H.O. Has prepared Inquest Report Exh. 21 and at the end of it has prepared sma ll sketch showing Burrow pit, railway crossing, place where dead body was lying and bus stand Khanpur but has not shown Chapra or Landhi. P.W.3 Gohar Ali Tapedar has prepared belatedly on 14th October, 1978 sketch of scene of offence Exh. 12 at the pointation of eye-witness Sajid Ali in which point '0' has been shown as the place where assailants were standing. This point was 12 feet away from point 'A' where dead body was lying. It is worth noticing that while the eye-witnesses have not given distance of Landhi or Chapra nor that is mentioned in Mashirnama of Vardat but Tapedar in his sketch has given distance of the place where assailants were said to be standing as 12 feet. Now this was sufficient distance and the deceased could easily have taken out his revolver on seeing the assailants from whom he apprehended the danger about which he had informed complainant Zaheer on that very day just before the incident. If the deceased did not see the assailants then one of the three eye-witnesses who claim to have known assailants from before could have pointed out to the deceased about the assailants and could have put him on guard to use his weapon in private defence.
' Apart from what is stated above there are several other factors which go against the prosecution case. It is indiputable that incident took place at evening time and at such a place where several other persons were available. Eye-witnesses have admitted that Soofi Niaz came on motor cycle and he saw the incident. This witness was not examined by the prosecution. The presumption is that he had been examined he would not have supported the prosecution case as it is. Eye- witnesses have also admitted that after the departure of assailants several persons came to the spot. They could have been apprised about the facts of the incident and could have been given the names of the assailants. No such witness has been produced in corroboration. On the other hand defence has examined three witnesses namely Karamdin, Manji and Ghulam Muhammad Lashri Karamdin has deposed that he was at his shop at 50/60 feet from railway crossing in which he sold wood. D.W.2 Manji has a hotel at a distance of 15 paces from the scene of offence. D.W.3 Ghulam Muhammad Lashri is the gate-keeper at railway crossing. S.H.O. Admitted in his evidence before the trial Court that he had mentioned in the Mashirnama of Vardat hotels and shops near the Vardat and quarter of gate-keeper on the railway crossing. These are the natural witnesses, whose presence at the spot at the relevant time cannot be called in question. They have deposed before the trial Court as defence witnesses and have stated that they have seen the incident and there were only three assailants who were different from accused persons present in the trial Court.
These three defence witnesses have been cross-examined but their credibility is not shaken. They have been cross-examined on the lines why they did not make applications to higher authorities that persons other than actual culprits were arrested by the police. The evidence of these defence witnesses mentioned above when road in juxtaposition with evidence of the eye-witnesses further confirms our doubt with regard to the credibility and veracity of eye-witnesses. It, therefore, hold that evidence of eyewitnesses is not seen from doubt and does not inspire confidence.
17. So far dying declaration is concerned we do not feel inclined to reply upon it for the reason that it is testified by the same three eye-witnesses whose evidence as such is held by us to be not free from doubt. If the eye-witnesses knew the assailants from before then there was no need for the dying man who was so very seriously iniured to have made a dying declaration only to disclose names of six assailants one by one. Further according to medical evidence injury No,1 on the head of the deceased was so serious in nature that it had cut parietal bones, meninges and brain substance. After the infrction of all these injuries Muhammad Ashraf fell down and according to the doctor this iniury No,1 was sufficient to cause death. Although doctor has stated that death was instantaneous but even if we assume that Muhammad Ashraf did not die instantaneously then too it was not possible for him to have spoken and uttered names of six assailants perticularly when he had sustained as many as 11 incised wounds on different parts of the body and specially injury No,1 which had cut meninges and brain. When the eye-witnesses can lie about several other material particulars, they could as well lie about this dying declaration. In the circumstances we do not propose to rely upon the dying declaration.
18. So far circumstantial evidence is concerned the prosecution case is that incident took place on 22nd March, 1976 and two appellants namely Khalil and Dawood and acquitted co-accused Gulsher were arrested on 24th March, 1976 at 8 a.m. Clothes of Gulsher were found to be stained with blood but clothes of appellants Khalil and Dawood were found to be stains without washed and were seized and put into sealed parcel. Appel:ant Khalil while in custody led to the recovery of hatchet from the heap of manure lying in front of his house, which was found to be washed but was put into a sealed parcel. Similarly appellant Dawood while in custody led to the recovery of hatchet concealed in wheat crop behind his house. This hatchet appeared to be washed but was put into a sealed parcel. It may be mentioned here that hatchet of appellant Khalil was in manure which was in front of his house and hatchet of appellant Dawood was in wheat crop which was behind his house. Both these pleas were accessible to all and exclusive possession could not be attributed to the appellants. Any way although acquitted accused Gulsher was arrested on the same day alongwith appellants Khalil and Dawood but recovery of hatchet was made from him after two days i,e, 26th March, 1976. It is stated that Gulsher led to the recovery of his hatchet from the bushes of Khanpur road near "Chorai Dhori". It is stated that there were slight stains of blood which appeared to be washed but even than the hatchet was put into a sealed parcel. So far the other set of assailants is concerned it is the case of the prosecution that appellants Abdul Jabbar and co-accused Abdul Haque were arrested on 24th March, 1976 at 12 noon and on the same day appellant Abdul Jabbar while in custody led to the recovery of his hatchet from the eastern porch of his house which was taken in custody and put into a sealed parcel. It may be mentioned here that it is stated in the Mashirnama Exh. 28 that house of appellant is Kothha-type consisting of three rooms side by side and in one room appellant Abdul Jabbar resided while in the other resided Abdul Rafique. The courtyard is in the front of the house. Acquitted accused Abdul Hague while in custody led to the recovery of hatchet which he dug out from the ground under culvert of Dingro canal. The hatchet had stains of blood and was put into sealed parcel. Date of arrest of acquitted accused Haji Bhutto is not clear but Mashirnama Exh. 30 shows that while in custody he led to the recovery of hatchet from below the railway bund and it was found to be stained with blood and put into a sealed parcel.
19. Report of Chemical Examiner Exh. 32 is to the effect that contents of all parcels from No, 1 to No, 5 including all the hatchets were found to be stained with human blood. It may be mentioned here that S.H.O. While deposing before the trial Court became very much confused about the recovery of crime weapons and had to consult Mashirnamas and police diaries. It also transpired in the trial Court that Exh. 20 and Exh. 22 were in two different handwritings and the S.H.O. Was not able to say whether Exhs. 22, 23 and 26 were in the handwriting of Head Constable Moula Bux or some body else. S.H.O. Was not able to identify the ascribe of exhibits mentioned above. On a Court question as to why he did not himself write these Mashirnamas. S.H.O. Replied that his Index finger of right hand had got fractured hence he was unable to write the documents. S.H.O. Had admitted that he had made no such note in the police diary about injury on his finger nor did he mention as to who was scribe of these documents.
20. Prosecution has examined P.W.7 Rao Muhammad Zafaryab as Mashir who has attested and produced in the Court Mashirnama of Vardat Exh. 20, Inquest Report Exh. 21, Mashirnama of recovery of blood-stained clothes of P.W. Abdul Sattar Exh. 22, Mashirnama of recovery of bloodstained clothes of P.W. Zaheer Ahmad Exh.
23. It may be mentioned here that recovery of blood-stained clothes of witnesses and putting them into sealed parcel was not necessary and this was done perhaps for the reason that Investigating Officer S.H.O. Raja Muhammad Akram was over enthusiastic in the investigation. Mashir Rao Muhammad Zafaryab has further produced Mashirnama Exh. 24 whereby appellant Khalil and Daood and acquitted accused Gulsher were arrested and blood-stained clothes of Khalil and Dawood were recovered. He produced Exh. 25 showing recovery of hatchet from Khalil, Exh. 26 showing recovery of hatchet from Dawood, Exh. 27 showing arrest of Abdul Jabbar, Abdul Haque and Haji and Exh: 28 showing recovery of hatchet from Abdul Jabbar.
' In the Mashirnama mentioned above co-Mashir is Ch. Shah Muhammad who is mentioned by the eye-witnesses in their evidence as shop-keeper at whose shop deceased went before going to the house of the complainant Zaheer Ahmad. Mashir Rao Muhammad Zafaryab has deposed before the trial Court that police joined him and co-Mashir Shah Muhammad in the investigation of this case. He fruther stated that on 24th March, 1976 he and co-Mashir went again to police station as S.H.O. Raja Muhammad Akram had inquired about the driver of his tractor. S.H.O. Took them with him as he had to arrest some of the accused in this case. During cross-examination before the trial Court this Mashir stated that he knew deceased Ashraf very well since 1968 or 1969. He came to know him because both had purchased land in auction. He further committed that he was on greeting and visiting terms with deceased since 1968. He further stated that his shop is next to the shop of Ch. Shah Muhammad co-Mashir. On hearing the news of the incident he rushed to the police station on account of sympathy with the deceased and co-Mashir Shah Muhammad also went with him. There police party was ready to proceed to the Vardat and both Mashirs accompanied them. After reaching Vardat they found 10-12 persons present there. He and Shah Muhammad were joined in the investigation by police. On 24th March, 1976 he and co-Mashir Shah Muhammad again went to the police station on their own and on that day they were not called by the police. He has tried to explain that second time when he went to the police station he did so to complain to the S.H.O. As tractor driver of Ch. Abdul Rashid had complained to him against some policeman who was harassing him. He has further explained that co-Mashir Shah Muhammad accompanied him to police station as the driver had complained to him also. He further stated that driver had complained to them in the evening of 23rd March, 1976. Choudhry Abdul Rashid was alive and living in Ghotki. Ch. Shah Muhammad co-Mashir has a telephone in his shop. Name of policeman was not disclosed to them. They did not complain to the S.H.O. About the policeman. He further stated that S.H.O. Was ready to go to arrest the accused and he asked them to go with him.
Mashir Rao Muhammad Zafaryab further admitted in his cross-examination that he was office- bearer of the 'Abadgar Board of Sind and deceased Ashraf was also member of this Abadgar Board. He further stated that he came from East Punjab after partition and deceased Ashraf belonged to West Punjab. Friendship of this Mashir with deceased is admitted by P.W. Sajid All also.
It is apparent from the evidence of this witness that he was eager to help. Co-Mashir Ch. Shah Muhammad is also friend of deceased. Both these Mashirs went voluntarily to the police station and participated in the investigation. On the second occasion i,e, 24th March, 1976 both these Mashirs again went to the police station voluntarily to continue to assist the police in the investigation of this case. This Mashir has given lame excuses to show that on the second occasion he and co-Mashir went to the police station in connection with complaint of driver of tractor. On this point there are contrary versions of this witnesss as stated above. It is obvious that he was interested in the deceased and was interested in the investigation and wanted to assist. The Investigating Officer could have done better by using Mashirs who are independent' and unconnected with either party to the case. There was no dearth of such witnesses, as the incident took place in the town of Ghotki and there is no dispute about the fact that other persons from the different communities were available at each stage and could have been used as Mashirs.
21. P.W,8 Amanullah Mashir is by caste Jat Waraich. He has stated before the trial Court that deceased Ashraf was known to him from 1966 or 1967 and was on visiting terms with him. He visited him on ceremonial occasions. This Mashir has admitted that Mr. Ashfaq Advocate appearing from complainant in the trial Court is his younger brother. It is further stated by the Mashir that he is running a shop as well as looking after lands. Adjoining his shop at the back there is shop of Ch. Shah Muhammad co-Mashir. He further stated that it was possible that might have acted as Mashir in another case filed Abaidullah against Bhuttos one year prior to this incident. He stated that on coming to know of this incident he came to the scene of offence without knowing as to who was murdered. Three or four days after the incident he was going to Ghota market when he was called by the police. Place from where he was called by the police was crowded and so many persons were available there. This Mashir further stated that he did not know if his brother was persuing the case with the police at the investigation stage. He found S.H.O. Standing in the police station when he was called by the policeman. As soon as he reached there police party and three accused persons who were present there took him and proceeded in the jeep and then recovery of weapons was made. He has stated that the place from where recovery of hatchet of Haji was made was 1 miles away from police station and the place from where recovery of weapon of Gulsher was recovered was one mile from the place from where recovery of hatchet of Haji was made. The place from where recovery of hatchet of Abdul Haque was made was 4-5 furlongs away from the place of Gulsher. This witness further admitted that the place from where recoveries were made were open and accessible. Documents of recovery were prepared by Head Constable in presence of S.H.O. It is apparent that this Mashir is also interested, and he has admitted that the places from where weapons were recovered in his presence were open and accessible as such no reliance can be placed on these recoveries. In the result we hold that evidence of recovery of weapons from the appellants as well as acquitted accused is not such which inspires confidence and is open to doubt. We are not inclined to rely upon such evidence.
22. So far motive is concerned prosecution case is not clear. Motive initially stated in F.I.R. Is incomprehensible and extremely vague. In F.I.R. It is stated that about 7 or 8 months prior to the occurrence a quarrel had occurred between Kalwars and Muhammad Ashraf over possession of land and the cases in that context are pending. At the end of narration in F.I.R. It is stated that Ashraf Khan has been got murdered at the instigation of Muhammad Ibrahim and Masu Khan Kalwars. Both the persons specifically named in the F.I.R. Were not present at the spot as the names of culprits have been specifically given in F.I.R. F.I.R. Was lodged by eye-witness Zaheer Ahmad. It appears from the deposition of Zaheer Ahmad that on the day of incident deceased Ashraf came to him in the company of other two eye-witnesses Sajid Ali and Abdul Sattar and informed him that Kalwars have threatened him with dire consequences. Deceased did not specify further as to what those Kalwars were. In the cross-examination complainant improved upon this story and stated that on the occasions previously deceased expressed to him apprehension from Ka!Wars. Again deceased did not specify as to who those Kalwars were. Complainant further admitted that he did not advise the deceased to report the matter to the police. In the cross-examination of the complainant there is no clear cut version of the motive. On the other hand he has admitted that prior to this incident there was an agreement of sale between him and Haji Muhammad Ibrahim in respect of agricultural land. He denied the suggestion that there was dispute between him and Haji Ibrahim in the result of which agreement was not finalised. Complainant has admitted that Haji Muhammad Ibrahim did not pay money to him in time so he refunded the earnest money to him. It, therefore, appears from the evidence of the complainant that he could have a grievance against Haji Muhammad Ibrahim but there is no such evidence with regard to motive which is alleged by the prosecution. Likewise the evidence of other two eye-witnesses is also not helpful on this point.
On the other hand it appears from the evidence of Sajid Ali that deceased had lands at several places and there could be disputes about them. He has admitted that Obaidullah is his cousin and Obaidullah has filed a case against Ghulam Qadir and others in which he was a witness. He has further stated that Amanullah and Shah Muhammad were not witnesses in that case. At another place he has stated that Amanullah Mashir in this case is Zamindar and his brother Mr. Ashfaq is Advocate who is assisting the prosecution in this case. In this way neither Sajid Ali nor Abdul Sattar have thrown any light on the question of motive. Prosecution has failed to prove motive. On the other hand defence has produced a number of documents including judgment in a case State v.
Ghulam Qadir and others under section 324/323/148, P.P.C. In which Sajid Ali figures as a witness.
Accused pesons in this case are Bhuttos by caste. There are about 8 accused persons who are all Bhuttos including Ghulam Qadir. Defence evidence also decreases intrinsic value of the evidence of prosecution. Even apart from the defence evidence prosecution has failed in its duty to prove the case against the appellants beyond doubt. All the pieces of evidence produced by the prosecution are tainted and one tainted place cannot support another tainted piece. On the same evidence the trial Court has already acquitted three accused persons. In the circumstances and for the facts and reasons stated above we hold that prosecution case is not free from doubt and we give benefit of doubt to the appellants and set aside their conviction and sentence. In the result appeal is allowed and if the appellants are in custody they be released forthwith if not wanted in any other