' AJMAL MIAN, J.-- The appellant has been convicted under section 302, P.P.C. By the learned Sessions Judge, Badin in Sessions Case No, 35 of 1982 by judgment, dated 24-4-1984 and has been sentenced to death subject to confirmation of the sentence by this Court. The appellant has filed the above appeal against the above conviction and sentence, whereas the learned Sessions Judge, Badin has made reference for the confirmation of the death sentence.
2. The brief facts leading to the filing of the above appeal and the reference are that P.W.1 Muhammad Siddique lodged F.I.R. At 2-30 pan. On 12-6-1982 at the Police Station Badin stating therein, that he was informed by Jan Muhammad Junejo that in the morning at 10-00 hours he and Abdul Ghani were planting sapling of mango trees when appellant Abdullah son of Suleman Halepoto came and stood under the mango tree. Abdul Ghani was applying honey to the mango sapling in survey No, 131 in Deh Jhole Kasi, in the meantime appellant went to him alongwith hatchet and caused injuries with sharp side of the hatchet on the neck of Abdul Ghani with the result he died there. The appellant alongwith hatchet went away. It was also stated by him that the complainant and his brother owned 30 Acres of land in Deh Jhole Kasi, Taluka Badin, of which applicant and his two brothers Momin son of Suleman and Abdul Rahim son of Suleman were Haris and that about a year ago they had a dispute with those Haris over the land but the Nekmard had settled the matter. It was further stated that Abdul Ghani went to look after the said land of Deh Jhole Kasi three days ago on 10-6-1982. It was also stated that the complainant who was working as a Clerk in the Office of Bawani Sugar Mills. Talhar, was informed at 11-30 a.m. By Haji Tayeb son of Nasarullah Halepoto about the above incident. Thereupon he went to the land along with Allandino son of Qabil Halepoto and from there he came to lodge the F.I.R.
3. The prosecution in support of the case examined P.W.1 Muhammad Siddique Exh.5, the real brother of the deceased and the complainant, P.W.2 Haji Tayab Exh.7, who had allegedly informed about the incident to P.W.1 Muhammad Siddique at Talhar in Bawani Sugar Mills, P.W.3 Jan Muhammad Exh.8, the only eye-witness who was allegedly the Hari on the land and was with the deceased at the time of the incident, P.W.4 Abdul Wahid, Exh.10, Lecturer in Islamia College before whom the appellant allegedly made extra-judicial confession and who brought the appellant to the police station for arrest. P.W.5 Abdul Karim Exh.12. Tapedar of the area in question who prepared the sketch of Wardat Exh.13, P.W.6 Muhammad Hashim, Exh.14 one of the Mashirs to the Mashirnama of arrest Exh.15. Mashirnama of recovery of hatchet Exh.16, Mashirnama of recovery of blood- stained clothes from the appellant Exh.17, Mashirnama of place of Wardat Exh.18, inquest report Exh.19, P.W.7 Dr. Muhammad Yousuf Exh.20 who carried out post-mortem and prepared the post- mortem report Exh.21. P.W.9 Ali Nawaz Exh.23, a police constable who carried the dead body to the hospital for postmortem, P.W.9 Imam Bux Exh.24 S.I.P. Police Station Badin who carried out the investigation, arrested the accused, prepared the above Mashirnamas and submitted the challan.
The prosecution has also relied upon the above documents and also on Chemical Analyser's report which was in the positive. The prosecution has also relied upon the above alleged extra-judicial confession and motive.
4. The appellant in his 342, Cr.P.C. Statement denied the factum of having committed the offence.
He has stated that he had a dispute with P.W. Abdul Wahid over the land who had falsely involved him in the case and that he was arrested at Bus-stand Tando Bago at Badin by the police in presence of Allah Bachayo Khoso and Shahoo Jamali. He also produced copies of certain applications made by Abdul Wahid to S.M.L.A., Badin and application of Abdul Wahid against his relations and also deposition recorded in the above case. He has also examined four witnesses in defence namely, P.W.1 Shaho Khan to prove that he was arrested at the Bus-stand, D.W.2 Jan Muhammad son of Muhammad Uris to prove that Abdul Wahid was friendly with deceased Abdul Ghani and also to prove that P.W. Jan Muhammad was Hari of Mubin Junejo in the year 1981-82 and 1982-83 for the survey numbers mentioned in Exh.36. D.W. 3 Muhammad Ashraf Exh.37 to prove that P.W. Abdul Wahid was on visiting terms with the witnesses and deceased Abdul Ghani and D.W.4 Abdul Karim Exh.39, Supervising Tapedar Badin to produce Khasra Girdawri of the survey numbers in question for the years' 1982-83 and 1983-84.
5.(a) Mr. Muhammad Hayat Junejo learned counsel for the appellant has urged as follows:-
(i) That the ocular evidence on record is not sufficient to sustain the conviction.
(ii) That the recoveries are liable to the ignored.
(iii) That no reliance can be placed on the alleged extra-judicial confession.
(iv) That the motive has not been sufficiently proved.
(b) On the other hand Mr. Ghulam All Agha for the State and Mr. Azizullah K. Shaikh for the complainant party has urged as follows:
(i) That it was a broad daylight murder and there was no likelihood of substitution of the accused.
(ii) That the complainant has implicated only the appellant and not his two brothers which indicates that there is no false implication.
(iii) That the extra-judicial confession, recoveries and the motive can be used as corroborative pieces of evidence as they do not suffer from any infirmity.
6. Adverting to the first contention, it may be observed that the ocular evidence comprises of one eye-witness, namely P.W.3 Jan Muhammad and the corroborative evidence of P.W.1 Muhammad Siddique, the complainant, P.W.3 Haji Tayab and P.W.4 Abdul Wahid. P.W.3 Jan Muhammad has supported the prosecution and corroborated the contents of the F.I.R. Alongwith P.W.1 Muhammad Siddique. P.W.3 Jan Muhammad has deposed that he was with the deceased Abdul Ghani helping him in planting mango sapling when he was attacked by the appellant with sharp side of the hatchet, who inflicted first blow on the neck and thereafter gave three more blows from the sharp side of the hatchet to deceased and went away to village Mataro Halepoto. He further deposed that he was waiting at the Wardat when P.W. Abdul Wahid Halepoto and the accused came at the place of Wardat. He narrated the facts to P.W. Abdul Wahid in presence of the accused. He also deposed that after sometime complainant Siddique came at the Wardat accompanied by one Allandino, whom he had informed that the appellant had murdered his brother Abdul Ghani, thereupon complainant left for Badin to lodge report at police station and he remained at the Wardat. In his cross-examination he has stated that he did not know where the deceased had passed the night before coming to the land in the morning and that he does not know the survey number in which the incident had taken place. He was suggested that he was a labourer working in the town and not a Hari but he has denied the above suggestion and stated that he was Hari of the land where there was sugarcane cultivation. He also denied the suggestion that Mubeen was his relation and that (Mubeen) had lodged a case against the appellant.
' P.W.2 Haji Tayab has deposed that he came to know about the murder of Abdul Ghani because the ladies in the house were crying and wailing over the murder of deceased Abdul Ghani. In reply to a Court question he has stated that he does not remember the name of any particular person who informed him about the murder of deceased Abdul Ghani by accused Abdullah. He further deposed that he went to inform complainant Siddique at Bawani Sugar Mills from where he, the complainant and one Allandino came to the place of Wardat and saw the dead body of Abdul Ghani lying in the land belonging to Muhammad Siddique where P.W. Jan Muhammad was present. He also deposed that Jan Muhammad had informed the complainant about the above murder by the appellant. He and Jan Muhammad remained at the Wardat but complainant went to lodge the report and brought the police at the place of Wardat. He has also stated that police had not examined him. In his cross-examination he denied the suggestion that P.W. Jan Muhammad was not Hari of complainant Muhammad Siddique and was a labourer.
' P.W.1 Muhammad Siddique has reiterated the contents of the F.I.R. With certain additions and modifications. He has deposed that the accused wanted them to sell their land to him because his own land was also situated near their land. He has further deposed that upon refusal to sell of the land to the accused he developed grouse against them and it was continuing since about a year before the incident, and that Nekmard tried to bring about settlement between them but could not succeed. He has also stated that P.W. Haji Tayab had informed him at the Mill that the appellant had killed his brother. In his cross-examination, he has admitted that Haji Tayab was his Masat. He has denied the suggestion that P.W. Jan Muhammad was a labourer and was not a Hari. He has also stated that when he reached the Wardat he did not see Abdul Wahid nor he saw him at the police station. He has further stated that Mashir Muhammad Hasim resides in village Abdul Karim Halepoto at a distance of about 20 miles from the Wardat.
' P.W. Abdul Wahid has deposed that on 12-6-1982 he was standing on bus stand of Badin from where a Suzuki van passed and some people got down and informed him that murder had taken place in the village of Mataro Halepoto and that actually he was informed that quite a few murders had taken place, thereupon he went to the village on his motor cycle and near the village he found accused Abdullah, now present in Court standing over a ditch with blood-stained hatchet in his hand and also with blood-stained clothes. He has further deposed that he enquired from the accused what he had done, thereupon he told him "uncle I have killed deceased Abdul Ghani". He has also deposed that accused called him uncle as he was related to him. He has further deposed that after leaving his motorcycle, he alongwith the accused went to the place of Wardat which was about two furlongs from the ditch which was pointed out to him by the accused. He has also deposed that the accused thereafter told him to take him to the police station and produce him before the police, and that he took the appellant in Suzuki van and produced him before the ASTP Imam Bux of Badin Police Station and then left the police station. He has further deposed that the police recorded his statement on the next day. In cross-examination, his attention was invited to the omission of mentioning certain relevant facts in his 164, Cr.P.C. Statement. It may be pertinent to reproduce the relevant portion of the cross-examination which reads as follows:-- "I have not stated in my 164, Cr.P.C. Statement that the clothes of the accused were blood-stained. I was not asked to state that. I do not remember whether I stated in my 164, Cr.P.C. Statement that accused called me uncle and then told me, that he had killed deceased Abdul Ghani.
' Note:- It is mentioned therein that accused told him that he had murdered Abdul Ghani. Only word 'uncle' is not there.
' I have not stated in my 164, Cr.P.C. Statement that accused had taken me to the Wardat because I was not asked such question. I have not stated in my 164, Cr.P.C. Statement that P.W. Jan Muhammad was present at the Wardat because I was not asked such question by the Court. I have omitted to state in 164, Cr.P.C. Statement that P.W. Jan Muhammad narrated the entire story regarding the incident to me at the Wardat because I was not asked such question."
' He has denied the suggestion that Mooso son of Allandino was related to him. He has stated that he knows that survey No, 171 and 172 of Deh Thole Khasi were granted to the uncle of the accused against which Mooso had appealed but his brother Zaman was not involved in that appeal. He has also stated that Mooso had only two Acres of land in which there are four partners namely Mooso's brother Umar, his mother and his aunt and that he has nothing to do with this land but only he helped them in paying the land revenue.
7. Mr. Muhammad Hayat Junejo learned counsel for the appellant has vehemently urged that the alleged eye-witness P.W.2 Jan Muhammad was in fact a labourer in the town and not a Hari of the complainant party. In furtherance of the above submission, he has invited our attention to the statement of D.W. 4 Exh. 39 who had produced Khasra Girdawari in respect of survey Nos. 131 and 230 (Exh. 40) to indicate that P.W. Jan Muhammad was not the Hari of either of the two survey numbers and that survey No, 230 on which survey number the murder was committed was not in cultivation of any Hari. He has further invited our attention to the F.I.R. In which P.W. Jan Muhammad has not been described as a Hari but wherein it has been stated that Jan Muhammad son of Deeno Junejo and other villagers were present at the dead body. It was further urged by him that in any case, he being the Hari of the deceased cannot be relied upon without having corroborative piece of evidence.
We are inclined to hold that P.W. Jan Muhammad was in fact a Hari of deceased Abdul Ghani as admittedly there was sugarcane cultivation on a portion of above survey Nos. 230 and nothing substantial has been brought out in the cross-examination to show that he was not a Hari. The only point which requires consideration is, whether implicit reliance can be placed on his testimony. Mr. Hayat Junejo has referred to the case of Ali Khan v. The State reported in PLD 1980 SC 109 in furtherance of his above contention that P.W. Jan Muhammad being Hari is an interested witness.
In the above case the Honourable Supreme Court concurred with the view taken by the High Court that one Maharban who was working with the deceased Advocate since 1959 i.e, about 13 years as a Court Clerk was an interested witness in view of the existence of the above relationship between him and the deceased. In our view, the above case has no application. It has not been brought on record that P.W. Jan Muhammad had been associated with the deceased for a number of years as to create relationship which may warrant the inference of his being interested witness. However, for the reason that the above witness P.W. Jan Muhammad has apparently improved upon the prosecution case for providing corroboration to P.W. Abdul Wahid stated that P.W. Abdul Wahid visited the Wardat alongwith the accused immediately after the incident before P.W. 1 complainant came at the place of ,Wardat. This improvement, in our view, has necessitated that there should be some independent corroborative piece of evidence.
8. Before dealing with the question, whether there is any independent corroborative piece of evidence on record, it may be appropriate to take up the question whether factually P.W. Abdul Wahid had visited the Wardat in the company of the accused, and whether he produced the accused at the police station. There are more than one reasons to hold that P.W. Abdul Wahid has not stated the truth and he had not in fact visited the place of Wardat with the accused namely:
(i) That if P.W. Abdul Wahid would have visited the place of Wardat alongwith the accused prior to P.W.1 Muhammad Siddique P.W. Jan Muhammad would have informed the complainant Muhammad Siddique about the fact of the above visit and also about the factum that P.W. Abdul Wahid had taken the accused to the police station and this fact would have been mentioned in the F.I.R. It is evident that P.W. Muhammad Siddiq has not mentioned this fact in the F.I.R.
(ii) It is significant to point out that P.W. Abdul Wahid in his 164 statement had not stated that he visited the place of Wardat before coming to the police station.
(iii) That if P.W. Abdul Wahid would have left the place of Wardat alongwith the accused for the police station Badin before the arrival of P.W. Muhammad Siddiq, he would have been present at the police station alongwith the accused by the time P.W. Muhammad Siddiq reached the police station for lodging the F.I.R. In the F.I.R. There is no reference either of the presence of P.W. Abdul Wahid or of the accused, on the contrary P.W.1 Muhammad Siddique has stated that he did not see Abdul Wahid at the police station, whereas P.W. Imam Bux has stated that P.W. Abdul Wahid alongwith the accused reached at the police station at the time when he had already recorded the F.I.R.
(iv) That none of the Mashirnamas indicated the presence of P.W. Abdul Wahid at the time of the arrest of the accused.
(v) That according to P.W. Abdul Wahid he left the accused with P.W. S.I.P. Imam Bux at the Police Station and went away and that his statement was recorded by the police on the following day.
This statement is not consistent with the normal conduct of a person who would have caused the arrest of a murder. However it is submitted by Mr. Azizullah K. Shaikh learned counsel for the complainant party that the above conduct of P.W. Abdul Wahid is not abnormal as he would not have liked to be involved in the case. In our view this submission is based on surmises and conjectures.
(vi) That according to P.W.5 Abdul Karim the village of P.W. .Abdul Wahid was situated about a mile from the place of Wardat. He was allegedly informed about the murder at the bus-stand at Badin.
He was not related to the deceased and therefore there was no valid reason for him to rush to the place of Wardat after coming to know about the above murder.
(vii) That his statement that he was informed by some people at the bus-stand that a murder had taken place and then stating that actually he was informed quite a few murders had taken place, does not inspire confidence.
(viii) That it is highly improbable that in the month of June from about 10-00 a.m. Upto about 2-00 p.m. The appellant would have waited over a ditch two furlongs from the place of Wardat with blood-stained clothes and blood-stained hatchet to be escorted to the police station by P.W.
Abdul Wahid.
(ix) That there is a lot of improvement made by P.W. Abdul Wahid in his statement before the Sessions Court as compared to his 164, Cr.P.C. Statement as pointed out hereinabove in para. 6 It was urged by Mr. Azizullah K. Shaikh that P.W. Abdul Wahid has no reason to falsely implicate the appellant and that nothing has been brought out in the cross-examination to shake his testimony.
It is true that the defence has not been able to bring out anything in the cross-examination to indicate that he had any motive to falsely implicate the appellant though certain suggestions were made in the cross-examination which have already been referred to hereinabove but this fact alone will not be sufficient to base the conviction on his testimony if otherwise his testimony suffers from inherent improbabilities which have been highlighted hereinabove. We are inclined to hold that the testimony of P.W. Abdul Wahid is not reliable at all and is liable to be ignored.
9 After having held that the testimony of P.W. Abdul Wahid is not reliable, it must follow that the alleged extra-judicial confession allegedly made by the appellant to the above witness is also not reliable.
10As regards the recoveries, it may be stated that P.W. 6 Muhammad Hashim one of the Mashirs was the resident of village Abdul Karim Halepoto which was about 20 miles from the place of Wardat as per P.W. Muhammad Siddiq. His statement was that he went himself to the police station after coming to know about the murder though not related to the complainant, does not inspire confidence. The above Mashir seems to be a chance witness and therefore the recoveries cannot be relied upon particularly in view of the fact that the alleged arrest was made at the Badin police station where there was no dearth of respectable persons of the locality. The defence plea that actually the appellant was arrested at the Badin Bus-stand may be true for the reason that we have already held that Abdul Wahid was not the person who had escorted the appellant to the police station. It is true that in some cases even the solitary evidence of the Investigating Officer has been relied upon for the purpose of proving recovery but this cannot be done when there are attending circumstances casting doubt as to the genuineness of the recovery.
11 Adverting to the question of motive, it may be stated that in the F.I.R. It has been stated that the appellant and his brothers had raised dispute about the land as they wanted to purchase it but the same was settled by the Nekmard but P.W. 1 Muhammad Siddique in his testimony before the Sessions Court has stated that the dispute was not settled. The alleged dispute had taken place about one year back prior to the incident. Nothing has been brought on record as to the reason which prompted the appellant to commit murder after about a year. However it was urged by Mr. Azizullah K. Shaikh learned counsel for the complainant party that as the deceased was planting mango sapling on the land that might have motivated the appellant to commit murder. It seems that mango trees were already there on some portion of the land which fact is reflected in the testimony of P.W.3 Jan Muhammad and therefore planting of two or three mango sapling would not have infuriated the appellant to the extent of impelling him to commit murder.
12. There also seems to be discrepancy between the number of injuries described by the eye- witness P.W. Jan Muhammad according to whom the appellant had given first blow on the neck and thereafter he inflicted three more blows thus making a total of four, whereas the medical evidence of P.W. 7 Dr. Muhammad Yousaf and post-mortem report Exh. 21 indicate that deceased had five incised wounds and two abrasions.
13. After having appraised the evidence we are of the view that the evidence brought on record by the prosecution is not sufficient to maintain the conviction. The testimony of P.W. 3 Jan Muhammad for the reasons already referred to hereinabove requires corroboration by an independent piece of evidence which is lacking in the instant case. It is true that the murder might have been committed by the appellant but he cannot be convicted unless the evidence brought on record by the prosecution proves the guilt of the appellant beyond reasonable doubt.
14. For the foregoing reasons, we allow the appeal and set aside the conviction and sentence awarded by the learned Sessions Judge. NI The appellant shall be set at liberty henceforth unless he is required in some other case. The reference is rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.