1. ' SAJJAD ALI SHAH, J.-- Four appellants named above jointly filed this appeal against judgment, dated 21-11-1984 of learned Sessions Judge, Sanghar, whereby they have been convicted under section 302/34, P.P.C. For offence of triple murder and sentenced each to death. There is also before us reference for confirmation of death sentence as contemplated under section 374, Cr.P.C.
2. We propose to dispose of the appeal and the reference by single judgment.
3. ' Briefly stated the prosecution case is that on 27-5-1982 at about 3-30 p.m. All the four appellants armed with guns and pistol came to the Otak of complainant Gul Muhammad in village Qabool Khan Bugti, Deh Bakar, Taluka and District Sanghar and fired at All Jan and Ghulam Ali, who became injured and died. Subsequently appellants also killed Umar in the grazing ground by firing at him at a distance of about one mile from Otak of complainant. Complainant Gul Muhammad who is son of deceased Ali Jan, cousin of deceased Umar and Phuphar of deceased Ghulam All filed F.I.R. At Police Station Sanghar at a distance of ten miles on the same day at 5 p.m. According to F.I.R., version of the complainant is that at 3-30 p.m. He, his father Haji Ali Jan, Marote Ghulam All and relatives Muhammad Hassan, Muhammad Rahim and Muhammad Shareef were sitting in the Otak when the appellants came there. Appellants namely Ali Bux son of Hussain Bux, Ahmad son of Ali Bux and Hyder son of Ali Bux were armed with guns while appellant Murad Ali was armed with pistol. Appellant Ali Bux abused Ali Jan and fired at him straightaway from his gun which hit him on his face and he fell down. Appellants Ahmad and Hyder fired at Ghulam All while appellant Murad All fired at Ghulam All and All Jan. Witnesses did not come near due to fear and appellants after wounding All Jan and Ghulam Ali went away firing in the air. After departure of appellants, witnesses went near and found Ali Jan and Ghulam Ali lying dead due to injuries. After a short while P.Ws. Noor Muhammad and Peroz Bugti came to the Otak of complainant and informed that while they were grazing goats along with Umar, when at 4 p.m. All the four appellants, named above duly armed came running from the side of the village and fired at Umar, who fell down injured and died.
4. Complainant left witnesses Muhammad Hassan and Muhammad Shareef to look after dead bodies in the Otak and Peroz and Noor Muhammad at the second Wardat to look after the dead body of Umar and himself repaired to the police station where he lodged F.I.R. In F.I.R. The motive is stated that there was dispute between the complainant party and appellants over lands which were taken by the complainant party from the Government and for the same lands appellants had moved Martial Law Authorities.
5. ' P.W. 13 Ghous Bux, S.H.O. After recording F.I.R. Came to the scene of offence. He saw three dead bodies lying in the Otak of complainant. Dead body of Umar was also brought from the grazing ground to the take of complainant. He secured blood-stained earth and put into sealed parcel. He secured three crime empties at a distance of 20 or 25 paces from the scene of offence, which he put into sealed parcel. He prepared Mashirnamas of dead bodies and inquest reports and sent the dead bodies to hospital for post-mortem examinations. He found P.W. Khair Muhammad (witness of second incident) with injuries and prepared his Mashirnama of injuries and sent him to the hospital. S.H.O. Visited second Wardat where Umar was killed. The second Wardat was pointed out by complainant Gul Muhammad and P.W. Khair Muhammad.
6. ' He prepared Mashirnama and also secured blood-stained earth and one crime empty which he put into sealed parcels. He recorded statements of witnesses namely Hassan, Muhammad Shareef, Muhammad Rahim, Noor Muhammad and Peroz. On the following day S.H.O. Arrested appellants Murad Ali and Ali Bux. Appellant Ali Bux produced his licensed gun alongwith licence which were secured under a Mashirnama. The gun was put into a sealed parcel. On 30-5-1982 S.H.O. Arrested appellant Ryder alias Ismail, who produced his gun from his house which was put into a sealed parcel. Appellant Hyder also produced licence of the gun. On the same day S.H.O. Arrested appellant Ahmad, who produced a hatchet from the hedge of his house. Hatchet was not blood- stained. On 31-5-1982 S.H.O. Got recorded statements under section 164, Cr.P.C. Of P.Ws. Before the Magistrate. He sent the guns and empties to Ballistic Expert for examination and report. Earth and other articles were sent to Chemical Examiner for report. After completing all steps of investigation, challan was presented.
7. ' Before the trial Court prosecution examined in all thirteen witnesses in support of its case. Out of them seven are eye-witnesses. Prosecution has examined two sets of eye-witnesses. The first set claims to have seen the first incident and second set claims to have seen the second incident. Four eye-witnesses in the first set are namely P.W.1 complainant Gul Muhammad, P.W.2 Muhammad Rahim, P.W.3 Muhammad Shareef and P.W.7 Muhammad Hassan. Three eye-witnesses in the second set are P.W.4 Peroz, P.W.5 Khair Muhammad and P.W.6 Noor Muhammad.
8. ' P.W. 11 Mir Hassan son of Muhammad Rahim has deposed about the motive and also stated that on the day of incident a few hours earlier he was beaten up in the Bazar by appellant All Bux and his son Ali Dino, who abused him and told him that they would not allow him to get water for the lands. Appellant Ali Bux had a stick while AU Dino had a hockey. Both gave him blows. Incident was seen by several persons in the Bazar of Sanghar and he went to police station and reported the matter which was entered in Roznamcha.
9. ' P.W. 8 Muhammad Al, Mashir attested and produced Mashirnamas of Wardats, inquest reports and Mashirnamas of injuries Exhs.23 to 28. P.W.9 Ibrahim is another Mashir, who has arrested and produced Mashirnamas of arrests of appellants and recoveries of their weapons Exhs. 32 to 35. P .W .10 is Doctor Imtiaz Ali who conducted the post-mortem examinations on the dead bodies and produced such reports Exhs. 37 to 39. He also examined P.W.5 Khair Muhammad and produced his medical certificate Exh.
40. P.W. 12 Nazar Muhammad, Tapedar prepared sketch of Wardat Exh.44. P.W.13 Ghous Bux is S.H.O., who investigated the case, deposed about the facts of the case as stated above and produced Chemical Examiner's report Exh. 46, according to which earth contained in three sealed parcels were found to be stained with human blood. He also produced report of Ballistic Expert Exh.47, according to which two .12 bore crime empties marked as C-3 and C-4 were fired from SBBL shot gun No, 35 C.P. And no opinion could be expressed about two other crime empties C-1 and C-2 whether they were fired from SBBL shot gun No, 35-CP or DBBL shot gun No, 5064.
10. ' Appellants in their statements under section 342, Cr.P.C. Before the trial Court denied prosecution allegations. Appellant Ali Bux admitted having produced his licensed gun which according to him was not used in the crime. He further stated that P.Ws. Muhammad Rahim, Shafi Muhammad and Ali Jan deceased were his Haries and they owed him Rs,22,000 which they did not pay and he complained before the Martial Law Authorities and on that account he was falsely implicated. P.W.
11. Mir Hassan had undertaken to pay the amount before the incident. Deceased Ali Jan and Umar had enmity with many other people. He further stated that appellants Murad Ali and Ahmad are his sons. Appellants Murad Ali and Ahmad have given similar statements as that of their father Ali Bux.
12. Appellant Hyder alias Ismail likewise denied prosecution allegations, admitted having produced licensed gun which was not used. In the crime according to him. He has further stated that P.Ws.
13. Had deposed against him because he had made applications before the Martial Law Authorities for recovery of his dues from them. He further stated that his name is Ismail and he has been also known as Hyder. In the first instance name of Hyder son of Bakho was given and subsequently his name Hyder alias Ismail was substituted. Appellants did not produce any witness in defence.
14. ' We have heard learned counsel for appellants and for State and have gone through the entire record. Before the trial Court, in order to prove its case, prosecution has produced ocular evidence circumstantial evidence of recovery of crime weapons and evidence of motive. We have very carefully considered each piece of evidence and other concomitant circumstances of this case.
15. ' We now take up first set of eye-witnesses, who claimed to have seen first incident in the Otak in which two persons namely Ali Jan and Ghulam All were killed. These four eye-witnesses are related to the deceased persons. P.W.1 complainant Gul Muhammad is son of deceased All Jan, cousin of deceased Umer and Phuphar of deceased Ghulam Ali. P.W.2 Muhammad Rahim is father of deceased Ghulam Ali and cousin of deceased Ali Jan. P.W.3 Muhammad Sharif is related to complainant Gul Muhammad and also to deceased Umer. P.W.7 Muhammad Hassan is brother of deceased Ali Jan, father of deceased Umer, maternal-uncle of deceased Ghulam Ali and uncle of complainant. Relationships described above clearly show how closely related witnesses are to the deceased persons.
16. ' All these four eye-witnesses claimed in their evidence before the trial Court that they were present in the Otak on the day of incident and saw with their own eyes how All Jan and Ghulam An were done to death by four appellants. Complainant Gul Muhammad went to Police Station Sanghar 10 miles away and filed F.I.R. At 5 p.m. It is the case of the prosecution that after the first incident in the Otak was over, P.Ws. Peroz and Noor Muhammad came and informed that all the four appellants came to the grazing ground one mile away from Otak and fired at Umer, who became injured and died. Complainant went to the second Wardat saw the dead body of Umer and then went to police station.
17. ' Now let us see what is the first version of both incidents as given in F.I.R. According to F.I.R. Four appellants came to the Otak and they were No, (1) All Bux son of Hussain Bux, (2) Ahmed son of All Bux (3) Hyder son of Ali Bux (incorrectly written in paper book as son of All Bux but correctly written in original F.I.R. As son of Bux Ali) and No, (4) Murad All son of Ali Bux. First three named appellants were armed with guns and last named Murad All was armed with pistol. Ali Bux abused All Jan and straightaway fired at him which hit him on his face and he fell down. Ahmad and Hyder had fired at Ghulam All while Murad Ali fired at Ghulam All and All Jan with pistol which hit them. Witnesses did not go near due to fear. Appellants went away firing in the air. Witnesses went near and found All Jan and Ghulam Ali lying dead. Now the above narration shows that All Jan was fired in the face and received second shot from the pistol while Ghulam All received three shots from Ahmed, Hyder and Murad Ali. Facts stated in F.I.R. Are belied by medical evidence which shows that All Jan did not receive any fire-arm injury on his face but received two entry wounds on the right shoulder and back side of the chest and one exit wound on the back of right shoulder. Deceased Ghulam Ali sustained only one fire-arm injury with wound of entry and exit, on the head. Post-mortem report of Muhammad Umer shows that he sustained one fire-arm injury on the head giving lie to the claim in F.I.R. That all the four appellants fired at Umer. This is how the beginning is made of the prosecution case.
18. ' When complainant Gui Muhammad appeared in the trial Court for giving his evidence, he changed version of the incident and cutting it short deposed that Ali Bux fired at All Jan and Ahmad had fired at Ghulam Ali. That was the end of the story with all those complicated details as to who fired at whom and how many shots were fired and a very simple and short story was given to bring it in conformity with medical evidence but even in that attempt the complainant has failed. Complainant also made poor attempt in changing the version of second incident to the extent that he confirmed again that P.Ws. Peroz and Noor Muhammad informed him that all the four appellants murdered Umer, who was grazing cattle in the North of Otak at a distance of 3 blocks but made two other modifications. Firstly that one Khair Muhammad tried to rescue Umer and he was given blows and secondly that Umer was shot at by means of pistol. No mention was made about injured eye-witness Khair Muhammad in F.I.R. This fact was specifically mentioned in the trial Court that Umer received injury by means o pistol because according to medical evidence Umer had sustained injury from one shot of fire-arm falsifying the claim in F.I.R. That all the four appellants fired at Umer. Complainant in his cross-examination before the trial Court was at pains in explaining inconsistencies in his evidence. He deposed that on the day of incident he arrived at Otak at 12 noon and was the last one to have arrived. All other eye-witnesse and deceased persons were already sitting there. About one hour after his arrival the incident took place which means that incident took place at about 1 p.m. But F.I.R. Shows that incident took place at 3-30 p.m.
19. Complainant further stated that he had given to P.S. In Datsun Car and brought police to the Wardat in Datsun Car. In that case even if police station was 10 miles away that distance could be covered in a car in less than one hour. Now if incident took place at 1 p.m. Then F.I.R. Should have been lodged before 2 p.m. And if incident took place at 3-30 p.m. Then F.I.R. Should have been registered before 4-30 p.m. When pressed further in this context in the cross-examination, complainant became more vague and stated that he did not remember how long police remained at the Wardat. Police went back from the Wardat in the evening. He could not say at what time, Ghulam All and All Jan came to the Otak. He could not say after how much time Muhammad Hassan, Muhammad Sharif and Muhammad Rahim came to the Otak after they arrived. Previously he had stated that he was the last one to arrive at the Otak. Complainant could not say at what time Ghulam All and Ali Jan took lunch prior to the incident. He further stated that he would not be able to say at what time he and others took lunch before the incident. It would be pertinent to mention here that post-mortem reports of All Jan and Ghulam All show that stomaches of deceased persons contained semi-digested food. Complainant is very closely related to the deceased persons and had stated in his evidence that at the time of incident they all lived together on their lands. Now if complainant was present at the time of incident he should be able to explain at what time he and deceased persons took lunch because as members of the family, they were supposed to have taken lunch together. Complainant is also not expected to be vague about other details. He further deposed that he and others were in the Otak when shots were fired at deceased persons from a distance 8/10 paces. He did not remember how many shots were fired at Ghulam Ali. He did not remember having stated in F.I.R. That three persons had fired at Ghulam Ali. He also did not remember if he had stated in F.I.R. That Peroz and Noor Muhammad had informed him that all the four appellants had fired at Elmer with guns and pistol. Complainant further stated in his cross-examination before the trial Court that dead bodies were buried on the next day at 11 a.m. And thereafter police called him at the police station and took his signature on that day. From this admission, an inference can be drawn that F.I.R. Was drawn up subsequently and signed by the complainant on the following day of the incident. Complainant also stated in his evidence that on the day of incident P.Ws. Muhammad Hassan, Muhammad Rahim and Sharif had come to the Otak for chit-chat and they had talked about holding Khairat in respect of his uncle Muhammad Shafi who had died.
20. ' P.W. 2 Muhammad Rahim is second eye-witness of the first incident. He has given evidence in the trial Court exactly on the same lines as evidence of complainant with same improvements on previous version. He deposed that Ali Bux fired at Ali Jan and Ahmad fired at Ghulam All and both Ali Jan and Ghulam Ali died at the spot. He did not state about firing in the air, he could not explain how Ali Jan sustained injuries from two shots of fire-arm. This witness further deposed that P.Ws.
21. Peroz and Noor Muhammad came to the Otak and informed that appellants had murdered timer.
22. He further deposed that he heard that a blow was given to Khair Muhammad at the time of second incident. In the cross-examination this witness stated that complainant brought police to the Wardat at sunset time. About 20 persons had arrived at the Otak before arrival of police. Persons residing near Wardat came on reports gunfire, while others might have come after hearing the news of incident. This witness further informed that he informed those persons about the incident and gave names of assailants. He did not know whether police enquired from those persons about the incident. Police only saw dead bodies and took them away. Police went back after sunset. This witness further deposed that be, Sharif, Gul Muhammad, Hashim, Noor Muhammad, Khair Muhammad and all other P.Ws. Were called by police to the police station on the next day and their signatures were obtained. Police also recorded and read over statements to them. This witness further categorically stated that F.I.R. Was read over to the complainant on the next day. This witness admitted having stated in his 161 and 164, Cr.P.C. Statements that three persons fired straight at Ghulam Ali (first version of first incident). He further stated that he had come to the Otak about 21 hours prior to the incident. They did not take meals in the Otak. He had gone to the Otak to take rest and have chit-chat. They did not talk about anything in particular Peroz and Noor Muhammad came to the Otak and informed about death of Umer about one hour after the first incident. All Jan and Ghulam Ali were fired at from the distance of 10 paces. There were two or three cots in the Otak. Some of them were sitting on the cots and others on the mat. This witness further stated that Ali Jan was sitting on the cot and for others he could not say. During the cross- examination of this witness learned trial Judge appended an observation that in spite of repeated warnings this witness was not prepared to answer the question put to him by the learned counsel.
23. ' P.W. 3 Muhammad Sharif is eye-witness of the first part of the incident and he gave evidence in the Court on the same lines as that of complainant, to the extent of near perfection. He deposed before the trial Court that he came to the Otak on the day of incident at 12 noon and at that time all were sitting excepting complainant, who was the last one to arrive. He contradicted complainant by saying that there was no special talk on that day. Complainant had stated before , the trial Court that they had talked about holding Khairat in respect of his uncle Shafi Muhammad who had died. This witness Muhammad Sharif further deposed before the trial Court that he could not say who were sitting on the cots, and who were sitting on the mat. All of them were sitting 10/12 feet away from each other, none of the witnesses was hit by any pellet. Ali Jan was fired at twice, Ghulam All was fired at twice but he had received only one fire-arm injury. This witness admitted having stated in police and 164, Cr.P.C. Statements that deceased All Jan was fired at only once whereas three persons had fired at deceased Ghulam Ali. He further stated that they had also taken lunch but did not clarify further as to where and with whom. He had earlier stated in his deposition that he had come to the Otak on the day of incident at 12 noon. He deposed that Peroz and Noor Muhammad informed them that in the second incident Khair Muhammad was given blow with back side of hatchet. At the very outset of his examination-inchief this witness stated that all appellants had guns except Ahmad who had country made pistol. To this extent he had contradicted all other eye-witnesses of the first incident who claimed that all appellants had guns except Murad Ali who was armed with country made pistol. In the evidence of this witness there is observation of the trial Court with regard to his demeanour that in spite of repeated warnings, this witness was not answering questions and was not telling the truth and was indulging in cross- arguments with counsel as well as trial Court.
24. ' The last eye-witness of the first incident is P.W.7 Muhammad Hassan. In the very examination-in- chief this witness before the trial Court made a starting disclosure and contradicted all other eye- witnesses of the first incident by stating that all appellants were armed with guns except Murad Ali who was armed with a pistol and further appellant Ahmad was armed with .Gun as well as hatchet.
25. Now this claim on the face of it appears to be absurd for the reason that if Ahmad had gun in one hand and hatchet in the other then he could not fire the gun unless it is claimed that he put aside the hatchet and used both hands to fire the gun and then took back the hatchet in hand but nobody says so. The anxiety of this witness is understandable for the reaso as stated above that he is very closely related to all the three decease persons and wanted to bring his evidence in conformity with the lates c version of incident agreed upon. This witness was examined as P.W. ' when before him P.W. 3 Muhammad Sharif eye-witness of the first part of incident introduced hatchet in his evidence and stated that Khair Muhammad was given blow with hatchet in the second incident. Not only this but three eye-witnesses of the second incident were examined in the trial Court prior to the examination of this witness and they had specifically mentioned this fact that Ahmad was armed with a gun and hatchet. In these circumstances this witness felt emboldened to make improvement on his own first ocular version of the first incident. Like other three eye-witnesses he deposed that All Bux fired at Ali Jan and Ahmad had fired at Ghulam Ali. In the cross-examination this witness admitted having stated in his 161 and 164, Cr.P.C. Statements that three persons had fired at Ghulam Ali. He testified before the trial Court that after the incident 30/40 persons had come to the place of Wardat on hearing reports of gun fire. Appellants had fired 20/25 shots, there were two or three cots lying in the Otak. He could not say who were sitting on the cots. Noor Muhammad Peroz and complainant Gui muhammad brought dead body of his son Umer at the Otak after li hours of the first incident. This witness denied having stated in his 161 and 164, Cr.P.C. Statements that P.Ws. Peroz and Noor Muhammad had informed them that all the four assailants fired with their guns and pistol at Umer. P.W. 13 S.H.O. Ghous Bux has confirmed contradiction in the police statement of this witness. 164, Cr.P.C. Statement on the record shows that first Ahmad gave hatchet blow to Khair Muhammad and then all the four assailants took away Umer towards land of Ali Bux where all fired at him and ran away.
26. Now we pause here to assess the evidence of these four most important wit.-4esses, who claim to have been first incident in the Otak. It is very clear from the narration in their evidence that they have failed to give convincing story of incident inspiring confidence to say that they have seen the incident and have spoken the truth. These witnesses have improved upon the first version of incident, which was inconsistent with medical reports, and tried in vain to make additions and alterations in the story of incident, which instead of helping them has further exposed them as persons who have not seen the incident or who have no sanctity for truth. They have spoken lies with impunity. They have contradicted each other and admitted having made discrepant statements. Apart from what is stated by these eye-witnesses there are other inherent improbabilities, which render these eye-witnesses as not worthy of reliance.
27. ' Firstly medical evidence is in direct conflict with the every first 11Eversion of incident reflected in F.I.R. P.W. 10 Doctor Imtiaz Al" performed post-mortem examinations on the dead bodies of Ali Jan, Ghulam All and Umer. According to doctor, deceased All Jan sustained four injuries. First was abrasion 5 c.m. x 5 c.m. On the back of abdomen. This injury is not explained by the complainant nor by other eye-witnesses, who claimed to have seen the incident in the Otak. Apart from that All Jan sustained two entry wounds and one exit wound. Eye-witnesses have not been able to explain the infliction of these injuries. On the other hand in the Court eye-witnesses have stated that Ali Bux fired at Ali Jan and further did not describe as to where the shot was hit. In the first version in F.I.R.
28. Complainant stated that All Bux fired at Ali Jan in the face and All Jan was injured in the face and fell down. Doctor has found no injury on the face of All Jan but stated in the post-mortem report of All Jan that the dead body was bleeding from both nostrils, mouth and left ear as a result of injuries sustained on the other parts of the body. Perhaps after the incident complainant saw bleeding from the face of deceased Ali Jan as stated above and speculated that Ali Jan must have sustained injury from the fire-arm in the face. About deceased Ghulam Ali initial version was that he was fired at by three appellants. Post-mortem report of Ghulam Ali shows that he sustained injuries as a result of only one fire-arm shot. About timer the first version of incident was that all the four appellants fired at him but his post-mortem report shows that he received injury only from one shot of fire-arm.
29. ' Secondly as per story in F.I.R. In all five shots were fired at deceased persons in first incident in the Otak plus shots were fired in the air. Complainant in the trial Court stated that Ali Bux fired at Ali Jan and Ahmed fired at Ghulam Ali and the appellants firing in the air ran away. P.W.2 Muhammad Rahim deposed before the trial Court that All Bux fired at Ali Jan and Ahmad had fired at Ghulam Ali then appellants ran away. He did not say about firing in the air. P.W.3 Muhammad Sharif deposed before the trial Court that Ali Bux fired at All Jan and Ahmad fired with pistol at Ghulam Ali.
30. In the cross-examination he stated that Ali Jan was fired at twice and Ghulam Ali was fired at twice but received one injury. So he has spoken about four shots having been fired. P.W.7 Muhammad Hassan stated before the trial Court that Ali Bux had fired at All Jan and Ahmad had fired at Ghulam Ali and then appellants went away firing in the air. In cross-examination he stated that appellants had fired 20/25 shots at the time of first incident. As against this Mashirnama of Wardat Exh.23 on the record shows that the Investigating Officer recovered three crime empties of red colour from the ground near the first Wardat. About the Otak, description is given in the same Mashirnama to the effect that the Otak is straw-hut in front of which there is thatch facing towards south in open ground where three dead bodies were lying separately on three cots. At another place in the Mashirnama it is stated that there are marks of pellets in the but in the north side which means that the pellets also went astray. Now the questions which cause us anxiety are firstly that why only three crime empties were found when more than three shots were fired according to eye-witnesses and also some in the air. Secondly that if there was volly of shots as claimed, why four witnesses who were present in the Otak could not get killed or injured because there was no escape for them and they were directly in the range of appellants standing in front of them. P.W.12 Tapedar Nazar Muhammad deposed before the trial Court that the Otak was small room where only four or five cots could be accommodated. Southern side of the room was open. In the circumstance we treat the claim of eye-witnesses to be present at the spot at the time of incident with doubt, because had they been present in such small room and the attack was made from such a short distance by fou appellants who were duly armed, it was not likely that the witnesse F could have escaped unhurt during the course of attack. Reference can be made to the case of Abdul Ghafoor v. State 1982 SCMR 162 with relevant portion at page 164 paragraphs A.
31. ' Thirdly four eye-witnesses who claimed to be present at the Otak at the time of incident were very closely related to the deceased persons and in such circumstances when the assailants were so strictly motivated to have gone for killing spree and killed three persona, theycould have as well not spared four eye-witnesses who were related to the deceased persons and against whom the assailants had grudge. Reference can be made to the case of Allah Yar v. Rajba and others 1979 SCMR 557 with relevant page at 564 para. F. Some of the eye-witnesses have stated that 20/30 or 30/40 persons came to the spot ' after the incident and were given names of the assailants. Those were persons from different castes and were independent but none of them has been examined for the purpose of corroboration.
32. It is for these reasons and circumstances stated above we feel inclined to hold that these eye- witnesses were not present or in any case the first incident has not taken place in the manner which is stated by these four eye-witnesses, who have no respect for truth and who have changed the version and have made improvements by speaking lies.
33. ' Now we take up second set of eye-witnesses, who claimed to have seen second incident in which Umer was done to death on the grazing ground. According to F.I.R. P.Ws. Peroz and Noor Muhammad came and informed eye-witnesses of the first incident at Otak that all the four appellants fired at Umer and killed him. Complainant went with them to the second Wardat saw the dead body of Umer and then went to the police station where report was lodged. In the report factum of murder of Umer is stated the same way as stated above. Subsequently this version was also changed because post-mortem report of deceased Umer showed that he sustained only one fire-arm injury giving a lie to the claim of eye-witnesses that four appellants jointly fired at Umer and killed him. Eye-witnesses of the first incident changed the version of the second incident in their depositions before the trial Court. Complainant Gul Muhammad deposed before the trial Court that P.Ws. Peroz and Noor Muhammad informed him at the Otak that all the four appellants murdered Umer and one Khair Muhammad who came to rescue was also given blows. Further complainant specifically stated that Umer Din was shot at by means of pistol to bring this in conformity with medical evidence showing that Umer died by the one shot from fire-arm.
34. ' Likewise P.W.2 Muhammad Rahim eye-witness of the first incident deposed that P.Ws. Peroz and Noor Muhammad came and informed that appellants had also murdered Umer and further he heard that a blow was given to Khair Muhammad. P.W. 3 Muhammad Sharif eye-witness of the first incident stated before the trial Court that other appellants were armed with guns except Ahmad who was armed with country made pistol. P.W. Noor Muhammad came and informed them (he does not take the name of other P.W. Peroz) that appellants had murdered Umer and Khair Muhammad was given blow with hatchet. This witness has added hatchet also.
35. ' P.W. 7 Muhammad Hassan eye-witness of the first incident deposed before the trial Court that Ali Bux, Hyder and Ahmad were armed with guns while Murad Ali had pistol and Ahmad was armed with gun as well as with hatchet. He further stated that P.Ws. Peroz and Noor Muhammad came and informed that all the four appellants murdered Umer. All these four eye-witnesses were confronted with their 161 and 164, Cr.P.C. Statements in which they had stated that P.Ws. Peroz and Noor Muhammad had informed them that all the four assailants had fired with their guns and pistol at deceased Umer. It is clear from the evidence of these witnesses that name of Khair Muhammad was not given to these witnesses by P.Ws. Peroz and Noor Muhammad when they first came and informed eye-witnesses of the first incident at the Otak. Khair Muhammad was not present at the spot when complainant went there. Name of Khair Muhammad was not given in the F.I.R.
36. ' In this context P.W.4 Peroz deposed before the trial Court that he, Khair Muhammad, Umer and Noor Muhammad were grazing cattle together when from southern side he saw All Bux, Murad Ali, Ahmad and fourth assailant whom he did not identify. All Bux and Ahmad were armed with guns.
37. Murad All had a pistol and Ahmad was armed with gun as well as with hatchet. This witness could not say whether fourth assailant was armed with gun or Lathi. Murad Ali shot at Umer over his head with revolver and he fell down. Murad Ali gave hatchet blow to Khairo (this witness foregot that a little while ago he had stated that Ahmad was armed with gun as well as with hatchet). This witness admitted having not stated in his police statement that Murad Ali had given hatchet blow to Khair Muhammad. This witness further stated that he did not give the name of fourth assailant in his 161 as well as 164, Cr.P.C. Statements and fourth asserted that he had not stated in his 164, Cr.P.C.
38. Statement that four persons fired at Umer directly. It was so recorded in both the statements.
39. ' P.W. 6 Noor Muhammad is eye-witness of second incident and deposed that he identified AU Bux, Murad Ali and Ahmad but did not identify the fourth person. All Bux had gun and Murad All had pistol and Ahmad was armed with gun and hatchet. They caught hold of Umer and Murad Ali shot at him over his head. Somehow this witness forgot to mention that Khair Muhammad also sustained injuries during the incident. He has shown presence of Khair Muhammad at the spot but said nothing about injuries given to Khair Muhammad. This witness admitted that he had given names of four assailants in his 161 and 164 as well as 164, Cr.P.C. Statements, but in fact three persons had come and he had given the name of fourth man falsely. This witness admitted that he had not stated in his 161, Cr.P.C. Statements that Murad All had fired at deceased. He stated that he did not remember if he had stated in 164, Cr.P.C. Statement that four persons had fired at deceased Umer.
40. ' The question which arises for consideration is that why these two witnesses namely Peroz and Noor Muhammad, did not inform, eye-witnesses of the first incident about Khair Muhammad as the third eye-witness of second incident and the fact that he was also injured. Secondly why Khair Muhammad was not present at the spot when complainant came with P.Ws. Peroz and Khair Muhammad to the second Wardat. In such circumstances name of Khair Muhammad did not appea in F.I.R. And his subsequent appearance in the second incident a injured eye-witness is not free from suspicion.
41. ' There are so many flaws in the evidence of P.W. Khair Muhammad, who claims to be injured eye- witness of the second incident. He deposed before the trial Court that Ahmad, Murad Ali and All Bux came there. All Bux was armed with gun, Ahmad was armed with gun and hatchet while Murad Ali was armed with pistol. There was nobody else present there. Murad AU gave this witness blow with sharp side of the hatchet. Murad Ali tied Umer with towel and fired at him with pistol. Appellants ran away. Now this version is entirely different from the version of the other two eye-witnesses of the second incident. This witness dpes not talk about the fourth assailant and says that there were only three., assailants. This witness having stated that Ahmad was armed with gun and hatchet and Murad Ali armed with pistol, further stated that Murad All gave him blow with sharp side of the hatchet. P.W. Peroz has stated that Murad All gave hatchet blow to Khairo while P.W. Noor Muhammad did not say about anybody causing injury to Khair Muhammad. P.W.5 Khair Muhammad has made a new claim that he was given blow with sharp side of the hatchet. This claim is falsified by medical report and according to P.W. 10 Dr. Imtiaz Ali, P.W. Khair Muhammad sustained three injuries out of which two were lacerated wounds and one was contusion on the left side of neck. Doctor stated that these injuries were caused by hard and blunt substance. According to medical certificate there was no injury with sharp side of the hatchet. No other eye-witness of the second incident said that Murad All tied Umer with towel and fired at him with pistol. In inquest report of deceased Umer Exh. 26 on the record, there is no mention about the towel or injury through towel. In Mashirnama of Wardat of deceased Umer Exh.27 on the record there is no mention about the towel or injury through towel. There appears to be a slight mistake about the injuries of Khair Muhammad for the reason that in Mashirnama of injury Exh.28 it is shown that Khair Muhammad sustained two incised wounds over left ear. This was prepared on 27-5-1982 by S.H.O.
42. Who was investigating the case. This Exh.28 in the paper book is translation of original Mashirnama which is written in Sindhi. In Sindhi record about injury No, 1 it is stated that it is like a cut and for injury No, 2 it is stated that it is a swelling. It is very obvious that description of injuries was given by the S.H.O. Who was a layman. As against this Khair Muhammad was medically examined by the doctor and P.W. 10 Dr. Imtiaz Ali has deposed that he had examined Khair Muhammad and found two lacerated wounds and contusion which were caused by hard and blunt substance. Opinion of the doctor should end the controversy. Khair Muhammad cannot be said to have sustained incised wounds. Other defects in his evidence are that his name does not appear in F.I.R. He had admitted that his 161 statement was recorded by police after 2/3 days. In his police statement as well as 164 statement he stated that all the four assailants fired at Umer. He gave the name of Hyder but subsequently at the trial denied knowing Hyder. He falsely took the name of Muhammad Hassan to be present at the second Wardat at the time of incident grazing cattle. Muhammad Hassan does not say so and is only eye-witness of first Wardat. In these circumstances when the name of this injured eye-witness does not appear in F.I.R., was not given by P.Ws. Peroz and Noor Muhammad to the eye-witnesses of the first incident, he was not seen at the Wardat when the complainant went there, and his police statement according to his own admission was recorded after 2/3 days, we don't feel inclined to accept him as eye-witness just because he happens to have injuries on his person. There is no guarantee that injured witness is not capable of speaking lies. We do not know when and how he got the injuries. He has contradicted other witnesses. He has spoken lies with impunity. He stands falsified by medical evidence. For these reasons we are not prepared to rely upon injured Khair Muhammad and for that matter even those other two eye-witnesses Peroz and Noor Muhammad. All these witnesses have indulged in speaking lies.
43. ' Now so for recoveries are concerned from the first Wardat near the Otak three crime empties were secured and put into a sealed parcel. The description given in Mashirnama of Wardat Exh.23 is that three crime empties were of red colour of ELEY Company. These three crime empties were put into a sealed parcel. In Mashirnama of Wardat of deceased Umer Exh.27 it is mentioned that one crime empty of .12 bore of ELEY Company of red colour was secured and put into a sealed parcel, P.W.13 S.H.O. Ghous Bux deposed before the trial Court that on 28-5-1982 he arrested appellants Murad and Ali Bux. Appellant Ali Bux produced his licensed gun with the licence which he secured vide Mashirnama Exh.35. The said gun was sealed. On 30-5-1982 he arrested appellant Hyder, who produced his gun from his house alongwith licence. The gun was sealed. On the same day he arrested appellant Ahmad who produced hatchet from the hedge of his house. Hatchet was not stained with blood. Investigating Officer produced in the Court report of Chemical Examiner Exh.46 and report of Ballistic Expert Exh.47. According to report of Chemical Examiner earth in three parcels was found to be stained with human blood. According to the report of Ballistic Expert crime empties marked as C-3 and C-4 were fired from SBBL shot gun No, 35CP. No definite opinion could be given on crime empties marked C-1 and C-2 whether they were fired from SBBL shot gun No, 35-CP or DBBL shot gun No,5064 due to lack of sufficient identifiable data. Now gun SBBL shot gun No, 35CP was recovered from appellant Ali Bux. So the positive finding is with regard to the gun of Ali Bux connecting only two crime empties C3 and C4. Now three crime empties were recovered from first Wardat and put into a sealed parcel. That parcel was made earlier in point of time. Second Wardat was visited subsequently and one crime empty was secured and put into a separate sealed parcel. Ballistic Expert report Ex.47 shows that in parcel Serial No, 3 there were three crime empties marked C-1 to C-3 and in parcel at Serial No, 4 there was one crime empty marked at C-4. Now the finding of the expert is that C-3 and C-4 were fired from the gun of Ali Bux which means one shot in the first incident and one shot in the second incident are attributed to All Bux. Whole story about killing of Umer with a pistol shot from a close range is a fabrication. Even evidence with regard to the recoveries of weapons and empties is not free from criticism. All these recoveries are made in presence of PW.9 Ibrahim Mashir who has admitted in his evidence before the trial Court that deceased Ali Jan was his cousin and both of them were brothers-in-law inter se. He also admitted that he resided in a village which was four miles away from the place of incident where Ali Jan was murdered. He further stated that he was all alongwith police throughout the investigation. He admitted that police had fired the gun of Ali Bux to test whether it was in working order. Again said that police did not fire the gun of Ali Bux. This Mashir admitted that there were villages of people belonging to different castes which were situated near the place where Ali Bux and Murad Ali were arrested. It was admitted by this Mashir that daughter of his brother is married with co-Mashir Abdul Ghani who also resided at a distance of four miles from the first Wardat. In these circumstances it can be said that both Mashirs are not only related to the complainant party but are residing four miles away as such provisions of section 103, Cr.P.0 have been disregarded. It is in the evidence that so many persons of other castes and independent in character were available but no attempt was made to use them as MashiRs, Investigating Officer has admitted that whenever he needed Mashirs he always sent for Ibrahim and Abdul Ghani. In these circumstances these Mashirs cannot be treated as independent Mashirs because they are interested, biased and resided four miles away and further they are closely related to the complainant party as such they are capable of saying anything in favour of complainant hence no implicit reliance can be placed upon them. In any case finding of the Ballistic Expert is positive in respect of gun of All Bux only and that gun is a licensed gun but even then it cannot be, said that prosecution has produced evidence of satisfactory and] conclusive nature to connect appellant Ali Bux with crime. Ocular evidence is so defective and full of lies that it is utterly unreliable. It cannot be said with certainty whether Ali Bux was carrying his own gun or somebody else was carrying it. From the ocular evidence it does not appear to us convincingly as to how many assailants were there and who fired at whom. On the contrary defence theory appears to be plausible that Ali Jan and Ghulam Ali were sleeping in the Otak when the assailant/assailants went there and fired at them from close range. Nobody was present in the Otak. In the same way in the jungle assailant/assailants found Umer alone grazing cattle and he was fired from close range. Both incidents were unwitnessed that is why eye-witnesses were confused and could not stick to one particular version. Prosecution has not established as to how P.W. Khair Muhammad has received injuries. It is doubtful whether he received injuries at the time of second incident as claimed by them.
44. ' The last part of the prosecution case is motive. In F.I.R. Motive is stated that there was dispute between the parties over the lands which were taken from Government by the complainant party and for the same appellants had moved Martial Law Authorities. On account of this enmity appellants committed these murdeRs, In cross-examination before the trial Court complainant stated that their land was situated on water-course No,4 while appellant Ali Bux owned 48 Acres of land on the same water-course. The entire land stood in his Khata. Land of complainant on water- course No, 4 was their ancestral property. Both parties had strained relations since 11 years prior to the incident. Complainant party not making any claim over the land of All Bux. Ali Bux was also not making any claim over the land of complainant party. The dispute started only on the rotation of water since 11 years before the incident. Complainant party moved an application for water to Irrigation Department. The matter was ultimately settled by the Councillor and Nekmards.
45. Complainant further stated that he had stated in F.I.R. That they had dispute with appellants over rotation of water. Complainant denied that Ali Bux had a shop. He denied that P.W. Muhammad Rahim was Hari of All Bux. Complainant denied having taken wheat and cotton seeds from Ali Bux on loan. Complainant admitted that Ali Bux had made applications against him. Muhammad Rahim and Shafi Muhammad complaining that they were not returning his loan. Complainant further stated that Mir Hassan is son of P.W. Muhammad Rahim. He had executed an agreement that he would pay dues for Shafi Muhammad to appellant Ali Bux but not for Muhammad Rahim or himself. Complainant did not know if appellant Ali Bux had sold away his land of 24 Acres situated on water-course No, 4 to one Abdul Rehman Bughti on 16-5-1981. P.W.2 Muhammad Rahim stated in cross-examination before the trial Court that appellant All Bux had no land on water-course No,4. All Bux had already sold away his land on water-course No, 4 before this incident to one Khair Muhammad Behan. Appellant Ali Bux did not have any other land on his Khata on his water-course No,
4. P.W.3 Muhammad Sharif also admitted that Ali Bux had sold away his entire land situated on water-course No,
4. Mashir Noor Muhammad stated that murders were committed because of dispute between the parties over the land P.W.7 Muhammad Hassan has stated in his evidence before the trial Court that Mashir Muhammad Ibrahim in this case is his cousin and it is fact that his son Kaiser Bux and Mashir Muhammad Ibrahim were implicated in murder case of one Ameer Bux.
46. He could not say whether Ameer Bux was also killed during the day time and in the Otak. It may be mentioned here that P.W. Muhammad Hassan is brother of deceased All Jan, father of deceased Umer and maternal-uncle of deceased Ghulam Ali. He further stated that he did not know whether Ameer Bux has brothers and cousins. He further stated that appellants had only dispute with deceased Ghulam Ali over land. They had no dispute with All Jan and Umer. This witness Muhammad Hassan further stated that there was dispute over land between Ghulam Ali and appellants but he could not give details.
47. ' P.W. 11 Mir Hassan has deposed about motive. He deposed in the trial Court that on the day of incident he went to Sanghar Bazar where he met appellant All Bux and his son All Dino, who abused him and told him to give up the land else they would not allow him to take water. It was 11-30 a.m.
48. Appellant All Bux had a stick in his hand while All Dino had a hockey in his hand. They gave him blows with hockey and stick and he was rescued by people in the Bazar. He went to the police station and filed report and such entry was made in daily diary. In the cross-examination this witness admitted that he was working as Chowkidar at a distance of 11 mile from Sanghar town. He admitted that his deceased uncle, brother Ghulam All and Umer used to go to land some time during night and some time during the day for water. Land was granted to Ghulam Ali brother of this witness from Barrage department. This witness had no share in that land. This witness admitted that All Bux and his sons did not file any appeal against the grant of land in favour of Ghulam Ali. This witness admitted that he did not go to the doctor for treatment. He admitted having stated before the police that All Bux and All Dino gave him blows with kicks and fists. This witness further stated before the trial Court that name of his father is Muhammad Rahim. Shafi Muhammad was his uncle. All Bux made application before the Martial Law Authorities against Muhammad Rahim, Shafi Muhammad and complainant Gul Muhammad that they were not returning amount of Rs,22,000. This witness further stated that this application was forwarded to Captain Sardar Khan, Chairman, Taluka Council and Rais Ali Nawaz Guti, Chairman Union Council. It was admitted by this witness that he gave undertaking before the Chairman that he would return the amount on behalf of his father and uncle. Only one case was filed by All Bux prior to this incident on dispute over land.
49. Motive put forward by prosecution for triple murder is very weak and also is very vague. In fact it appears that the complainant party is not sure as to what is the motive whether it is dispute over land or over water or over return of money. Evidence produced on this point is not clear and is confusing. It can be said that prosecution has failed to prove the motive and this point also goes against the prosecution.
50. Our general conclusion after the full appraisal of evidence produced by prosecution is that prosecution has failed in its duty to R prove the case against the appellants beyond doubt. Each piece of evidence Ooduced by prosecution is defective and tainted. One tainted piece of evidence cannot corroborate another tainted piece of evidence. On the charge of triple murder to sustain death sentence of four appellants, prosecution could have produced better evidence of better quality free from inherent infirmities defects and improbabilities. That kind of evidence satisfactory and conclusive evidence, which proves case beyond doubt is wanting in this case. Mr. Imam Bux for A.-G. For State conceded and did not support the impugned judgment. We, therefore, give benefit of doubt to the appellants and set aside their conviction and sentence and acquit them.
51. Appeal is allovied. Reference for confirmation of death sentence is rejected. Appellants be set free if not wanted in any other case.