' HAIDER ALI PIRZADA, J.-- These criminal appeals have been filed by 8 appellants/accused who were tried for the murder of Aman and Shafi Muhammad in Sessions Case No,1 of 1981 and convicted by the learned Sessions Judge, Thatta, by judgment dated 9-3-1983 under section 302/149 and 148, P.P.C. The following sentences were awarded to the appellants:-
(i) Appellants Gul Muhammad, Muhammad Arif and Piaro have been sentenced to death and the other five appellants to imprisonment for life under section 302/149, P.P.C. And to pay a fine of Rs,5,000 each or to suffer R.I. For one year.
(ii) All the 8 appellants have also been sentenced to R.I. For one year each under section 148, P.P.C.
' There is also the reference under section 374, Cr.P.C. Made by the trial Court for confirmation of the death sentence awarded to appellants Gul Muhammad, Muhammad Arif and Piaro. By a short order dated 2-11-1983 we allowed these appeals and set aside the conviction and sentence of all the appellants. Reasons for our short order dated 2-11-1983 are contained in this judgment.
2. The incident in this case, according to the prosecution, had taken place at about 2.45 p.m. On 12- 12-1980 on a road near Makro Mori, Deh Buhara, Taluka Mirpur Sakro, District Thatta. The F.I.R. Was lodged by the complainant Haji Talib (P.W.1) brother of Shafi Muhammad, one of the two deceased, at Police Station Mirpur Sakro at 4.05 p.m. The same day. The F.I.R. Is reporduced hereunder: "The complainant has made complaint that he is landlord transporter and he owns a truck.
Yesterday I went to Karachi taking bananas and other vegetables in my truck and left the bananas and vegetables at Karachi and today at about 11.00 hours, I was returning from Karachi in my truck.
My driver named Khudo Shidi was also with me. We offered Juma prayers at Mirpur Sakro and afterwards we proceeded for my village in the same truck. When we reached' near Makro Mori, we saw a bus coming towards Buhara, was standing at the side, and we heard commotion from it. I asked my driver to stop the truck on the side and see that whose commotions of? We got down from the truck after stopping the truck and the passengers were seen by us running out from the bus. Meanwhile, we saw Gul Muhammad Gabol giving hatchet blows to a running person, who fell down on the back gate of the bus.We saw the running man and identified that he was resident of my village named Aman Mundhiar and then I reached the back side of the bus and saw Alam Khan armed with Lathi, Jhamoon armed with Lathi. Gul Muhammad armed with hatchet, Piaro armed with hatchet, Muhammad Arif armed with hatchet, Fakir Muhammad armed with dagger/Karo armed with dagger and Issa armed with Lathi, all by caste Gabols were running towards the village of Alam Khan Gabol whom I identified. Then I returned towards the bus, where Dad Kapurani Baloch, Aboo Kapurani Baluch and Sulleman Khaskheli informed after my interrogation that after offering the Juma prayers they sat down in the bus and saw deceased Shafi Muhammad and deceased Aman sitting on front seat before us and on the behind seat we also sat down. But proceeded Harnings and when it reached Makro Mori, then suddenly hatchet blows were sustained by the deceased Shafi Muhammad on his head, and another hatchet blow was given by accused Muhammad Arif on the head of deceased Shafi Muhammad and then deceased Aman got down and whom hatchet blow was given by accused Gul Muhammad with his hatchet near neck at the shoulder and who started running outside from the bus but Gul Muhammad followed him and thereafter accused Fakiro and Karo Gabols gave injuries with daggers on the person of deceased Shafi Muhammad, and Fakir Muhammad got down from the bus from the side door of the bus and afterwards we saw accused Alam Khan Jamu, and Issa armed with Lathis gave further injuries to deceased Shafi Muhammad, on his head and left the bus and went away from it. Deceased Shafi Muhammad fell down in between the gate and mashire and died at the spot. After hearing this fact, the above witnesses, left them on the dead bodies and complained that due to antagonism with Alam Bux Gabol, the above accused by conspiring have murdered my brother Shafi Muhammad and Aman with the injuries caused by sharp weapons and blunt weapons i.e, hatchets, Lathis and daggers."
3. The case of the prosecution comprises the ocular testimony of three witnesses namely complainant P.W.1 Haji Talib, P.W.2 Dad son of Moosa and P.W.4 Sulleman son of Rabdino, the recovery of weapons, not blood-stained, by the accused, medical evidence of P.W.3 Dr.Ghulam Ahmad, who had performed the post-mortem of the two deceased persons and motive which was alleged to be enmity due to blood feud between the complainant and the accused party and evidence to which effect has been given in the statement of the complainant Haji Talib. P.W.7 Abdul Karim son of Adam is the common Mashir. P.W.9 is I.O. Syed Jafar Raza, who had carried out the investigation. Apart from these witnesses, P.W.5 Muhammad Shafi, driver of the bus in question also appeared as a witness on behalf of the prosecution. He has stated in his evidence that the incident had taken place but he does not implicate any of the accused on the ground that he did not see the faces of the actual culprits as they were running away from the scene of the incident. The appellants examined two witnesses namely D.W.1 Abdul Majeed, conductor of the bus in question, and D.W.2 Khuda Bux, driver of the bus of complainant Haji Talib. According to the evidence of these two defence witnesses, they were present at the place of the incident but they do not name any of the accused as having committed the crime in question.
4. The complainant P.W.1 Haji Talib claims to be an eye-witness of the incident in question'on the basis of the contents of the F.I.R. And also from his evidence. He stated in his evidence that he saw appellant Gul Muhammad giving hatchet blows with sharp side to one person who fell down outside the bus and the victim was then identified by the complainant to be deceased Aman. He further stated in his evidence that he saw appellants Alam Khan, Jaman and Piaro armed with hatchets and Fakir Muhammad and Karo armed with daggers running away towards their villages.
According to the testimony of the complainant, the culprits were known to him. According to his evidence, the complainant is a witness to the information of hatchet blows by appellant Gul Muhammad on the person of deceased Aman and that he saw the appellants running away from the scene of the incident, but not an eye-witness to the injuries inflicted upon his deceased brother Shafi Muhammad. The complainant Haji Talib had come near the scene of the incident in his truck which was being driven by his driver D.W.2 Khuda Bux. Khuda Bux was in the employment of Haji Talib and had himself later on taken the complainant towards Police Station in the said truck. But Khuda Bux does not implicate any of the appellants and on the other hand, the complainant not only witnesses the infliction of the fatal blows by the appellant Gul Muhammad upon deceased Aman but also identifies all the 8 appellants while they were running away and also notices what weapon was carried by each of the appellants while they were running away. If complainant Haji Talib had seen the incident as described by him, his driver D.W. Khuda Bux also must have seen some part of the incident, if not the entire incident, as alleged to have been witnessed by the complainant. But as observed earlier, in his evidence D.W. Khuda Bux does not implicate any of the appellants and does not claim to have seen there incident. There is no reason why D.W.Khuda Bux, an employee of complainant Haji Talib, should give false testimony to support the case of the appellants. In our view, the evidence of D.W. Khuda Bux adversely affects the testimony of complainant Haji Talib where he claims to be an eye-witness.
' Then there is evidence of P.W.5 Muhammad Shafi, driver of the bus in question. He is a prosecution witness and while sitting inside the bus, he was definitely in a better position to see the incident than complainant Haji Talib, who had arrived at the scene in a truck apparently after the incident had started. In his evidence he does not say that he saw any one inflicting any blow to any person.
He was the driver of the bus and the incident had taken place inside the bus as alleged by the prosecution case, he must have seen the faces of one or more of the appellants. He has, however, not implicated any of the appellants. He has stated in his evidence that he heard commotion in the bus and, therefore, he stopped the bus at Makro Mori and then some people started running away and some broke the windows of the bus and ran away from there. He saw one person falling down near the gear of the bus and he had injuries on his person. Then he got down from the bus and saw a collection of persons who were talking to each other and that he had seen 7/8 persons armed with hatchets and Lathis running from the bus. He further stated that he did not see the faces of the persons who were running away as their backs were towards the witnesses. If the bus driver, a prosecution witness, could not see the persons, who were running away, it is difficult to believe that complainant Haji Talib had seen the faces of the culprits who were running away from the scene of the incident. The complainant has in his evidence stated that froni outside the bus he was able to see appellant Gul Muhammad giving hatchet blows to Aman but the driver of the bus who was sitting inside the bus and who must have turned his head to the rear on hearing the commotion must have seen the incident but he has stated that he did not see any one inflicting the blowF. The evidence of P.W.5 Muhammad Shafi, driver of the bus in question, who has not implicated any of the appellants, also reflects adversely on the evidence of the complainant Haji Talib claiming to be an eye-witness. Then there is the evidence of D.W.1 Abdul Majeed, who was the conductor of the bus in question and who was also definitely placed in a better position than the complainant Haji Talib as he was inside the bus when the incident must have taken place. But the bus conductor also does not implicate any of the appellants. This witness also did not see any one inflicting any blows on the victims. If neither P.W.5 Muhammad Shafi, driver of the bus, nor D.W.1 Abdul Majeed, conductor of the bus in question, nor D.W.2 Khuda Bux, driver of the truck of complainant Haji Talib, were able to see the appellants inflicting any blows on the deceased or could have seen the faces of the culprits, it appears to be doubtful whether the incident had been witnessed by Haji Talib, complainant, as deposed by him in his evidence before the trial Court. From the evidence it appears that the complainant Haji Talib reached the scene of incident after the incident had taken place and the culprits had run away. In the circumstances, it appears that being closely related to one of the deceaseds, the complainant improved his status to that of an eye-witness. The evidence of the complainant Ilaji Talib as an eye-witness does not inspire confidence.
5. The other two eye-witnesses examined by the prosecution are P.W.2 Dad and P.W.4 Sulleman.
These two witnesses are not related to any of the deceased persons but their testimony has been attacked by the learned counsel for the appellants inter alia on the ground that from the facts that have been brought on record they appear to be chance witnesses. It is an admitted position that neither P.W.2 Dad nor P.W.4 Sulleman resided near the place where the incident had taken place.
Both these witnesses have stated that they boarded the bus in question at Buhara Bus Stand.
According to P.W. Dad, he had gone to Buhara Town for his personal work and after offering Juma prayers he boarded the bus. P.W. Sulleman has given evidence that he had gone to village Buhara to buy seeds and after offering Juma prayers he boarded a bus for coming back to his village.
These two witnesses alongwith one Aboo sat on a seat immediately behind the seat in the bus on which deceased Shafi Muhammad and Aman were sitting. These two witnesses saw the hatchet blows being given to Shafi Muhammad. Each of these two witnesses with minute details have given the evidence that they saw the blows being inflicted by each of the appellants on the deceased persons. The bus was full and it appears to be strange that these two witnesses only knew the two deceased and the eight appellants and Aboo, who was sitting with them and that neither of them knew any one else amongst the large number of other passengers in the bus. We have found it difficult to rely upon the evidence of these two witnesses as having seen the incident for the following reasons:-
(a) From the evidence they appear to be chance witnesses.
(b) Both these witnesses have given a detailed account of the weapons carried by each of the appellants and the blows given by them. From their evidence it appears that these witnesses stayed on to witness the incident in its entirety which action on the part of these two witnesses appears to be unnatural as they like other passengers as also the bus driver and the bus conductor would have run away to save their lives. The graphic and detailed account given of the actions of each accused by these two witnesses appears to be artificial.
(c) It has already been noticed that neither the bus driver nor the bus conductor was able to witness the actual incident. If these two persons i.e, the bus conductor and the bus driver were not able to witness the incident and had rain away to save their lives, it is unsafe to rely upon the evidence of P.W. Dad and P.W. Sulleman in view of the conflict between their testimony and the testimony of the bus conductor and bus driver.
(d) It has also been found strange, as noted earlier, that these two eye-witnesses personally knew all the eight appellants as well as the two deceased and Aboo who was sitting with them but did not know or recognize any other person in the crowded bus.
(e) According to these two witnesses, complainant Haji Talib, was also an eye-witness. We have already observed that in our view complainant Haji Talib was not an eye-witness and the testimony of the P.W. Dad and P.W. Sulleman that Haji Talib was an eye-witness adversely reacts upon the testimony of these two eye-witnesses.
' For the reasons mentioned above, in our view, it would be unsafe to base the conviction of the appellants on the testimony of Haji Talib, P.W.Dad and P.W. Sulleman.
' The recovery of the weapons has not been relied upon by the trial Court and we agree with the view taken by the trial Court in this regard. The incident is alleged to have taken place on 12-12-1980 whereas eight appellants are alleged to have produced the weapons employed in the attack of the two deceased on 15-12-1980 i.e, three days after the incident in the "Autaq" of Nekmard Ata Muhammad Gabole. None of the weapons produced was blood-stained. We may additionally observe that in this case each of the eight accused produced a weapon in the "Autaq" of Nekmard Ata Muhammad Gabole. In the circumstances, the examination of Nekmard Ata Muhammad Gabole would have given credence to the version of the prosecution that the appellants had produced the weapons or the Nekmard Ata Muhammad Gabole could have been made a Mashir.
For reasons best known to the prosecution, Nekmard Ata Muhammad Gabole was neither made a Mashir nor he was examined as a witness to support the evidence regarding recovery. As observed earlier, the evidence as regards recovery of weapons was rightly rejected by the trial Court.
' There is hardly any other evidence on record, on the basis of which convictions of the appellants could have been maintained. For the reasons given in this judgment we had, by a short order dated 2-11-1983, set aside the conviction and sentence of the appellants.