Muhammad Haleem, J.--Appellant Aman was tried along with Allahwarayo, Khan Mohammad and Ahmad for the murder of Makhan, but was only convicted under section 30. read with section 34, P.
P. C. and sentenced to death by the learned Sessions Judge, Khairpur Mir's vide judgment, dated 16th June 1970. He has referred his case for the confirmation of the death sentence while the appellant has appealed against his conviction. This judgment wiil dispose of both the reference and the appeal.
2. The report of the incident was lodged by Muhammad Malook, brother of the deceased, at 11 p.m. on 9th June 1969, at Police Station Ahmad pur, which is 8 miles away and it was recorded by Muhammad Sharif, Head Constable.
3. The appellant, deceased and the prosecution witnesses resided in village Qabool Jagirani situated in Deh Mohal, taluka Khairpur. Acquitted accused, Allahwarayo, owned 12 or 13 Jareebs of land which was cultivated by Qadir Bux, uncle of the deceased. About 3 or 4 days before the day of incident, i.e., 9th June 1969, Allahwarayo asked Qadir Bux to vacate his land as he intended to give it for cultivation to the appellant and acquitted accused Khan Muhammad, but Qadir Bux refused to hand it over upon the ground that he had improved the land. On the day of occurrence at tipahri time the deceased and Qadir Bux went to the land to water the paddy seedlings and after having done so both of them proceeded towards their house and while they were ?ear it, appellant and Khan Muhammad armed with hatchets and Allahwarayo and Ahmed with lathis, emerged from their houses and on the instigation of Allahwarayo, Khan Mohammad and the appellant gave hatchet blows to the deceased on his head followed by two lathi blows each by Allahwarayo and Ahmad, whereupon the deceased fell down. Thereafter Allahwarayo and Ahmed also gave lathi blows to Qadir Bux and Muhammad Malook. On the cries being raised, Elahi Bux and Rahman also arrived at the place of incident and on seeing them approaching, the appellant and the others went back to their houses.
4. A copy of the report was brought to O.P. Machyoon by Muhammad Sharif, Head Constable, and handed over to Ali Hasan A.SI. of that out-post. Ali Hasan then repaired to the scene of offence and saw the dead body lying there. There was blood on the ground which he secured and sent the dead body to the Medical Officer, Pir-Jo-Goth for post-mortem examination. Qadir Bux was also sent to him for examination and treatment after recording his statement and that of Elahi Bux and Karam Khan. He searched the house of the appellant but nothing incriminating was found. He next searched the house of Khan Mohammad andtfrom there he secured one blood-stained hatchet which was lying under the bedding on a cradle under Mashirnama (Exh. 14). From the house of Allahwarayo and Ahmad he secured two lathis one of lai and the other of* bamboo under Mashirnama (Exh. 13). The appellant was arrested on 12th June 1969, from his village and Qabool Jagirani and he disclosed that he had concealed the hatchet in the heap of 'hhoosa' in the hut of Abbas Ali, father of Khan Muhammad and from there he produced it which was secured under Mashirnama (Exh. 16). The two hatchets, one secured from the house of Khan Mohammad and the other at the instance of the appellant and blood-stained earth were sent for chemical analysis and it was only the hatchet produced by the appellant which was found to be stained with human blood. Blood on the other hatchet had disintegrated and its origin could not be determined.
5. The autopsy on the dead body was performed by Dr. Ramchand and he observed one incised wound on the head and one abrasion causing blackening of right eye on the right side of the forehead. In his opinion, injury No. 1 was caused by a hatchet which was individually sufficient to cause death in the ordinary course of nature while injury No. 2 was simple in nature. The same doctor also examined Qadir Bux and noticed seven contused wounds on his person and one contused swelling on his right knee. All the injuries were simple in nature, and were caused by a weapon such as lathi.
6. The appellant denied the prosecution case and proclaimed his innocence. While explaining the injuries on Qadir Bux he stated that the prosecution witnesses had fought among themselves over land and water and -Qadir Bux had received injuries in that fight. He also pleaded that the witnesses were interested and relatedJnter se and because of his relationship with Khan Muhammad against whom Qadir Bux had filed the case, that he has been implicated. He also produced a copy of the complaint (Exh 52-A) filed by Jadal on 1st February 1969, against Jagir, his cousin. He denied to thave been given a promise to be engaged as harl of the disputed land and stated that he was a grazier and knew nothing about cultivation.
7. The trial Court did not place implicit reliance on the ocular testimony and observed that it was also inconsistent with the medical evidence. It thus concluded as under:-- " l'he above discussion of *the direct evidence of eye-witnesses would not, however, be complete without pointing out the inherent improbabilities and defects in the oral testimony of these eye-witnesses. All the witnesses have unanimously stated that Aman and Khan Muhammad were armed with hatchets while Allah Warayo and Ahmad were armed with lathis. That Aman gave first hatchet blow on the head of deceased Makhno and Khan Muhammad the second hatchet blow. Regarding Allah Warayo and Ahmed some of these witnesses have mentioned that Allah Warayo only - gave the lathi blows and other have stated that Allahwarayo and Ahmad both gave lathi blows to the deceased. Some have even stated that they could not say if Allahwarayo and Ahmad also gave blows to the deceased but they instigated Aman and Khan Muhammad to strike. This version of the eye- witnesses is inconsistent with the medical evidence, which shows that only one hatchet injury was caused on the head of deceased Makhno and there was only one other injury namely abrasion on the right eye and right side of the forehead which could be caused by blunt weapons such as lathi.
Thus according to the medical evidence, only two persons at the most could have actually taken part in causing injuries to deceased Makhno."
Again it reached the conclusion that "the evidence of these eye witnesses is of such a nature that possibility of exaggeration cannot be entirely excluded and their evidence cannot, therefore, be implicitly relied upon without material corroboration". In conclusion, it found no corroboration of the ocular testimony in so far as'"Allahwarayo, Khan Muhammad and Ahmed were concerned and held their participation as doubtful and thus acquitted them. As against the appellant, there was a confirmatory circumstance of the securing of a blood-stained hatchet at his instance. In the absence of any explanation from the appellant as to how he had gained knowledge"'of the place from where the hatchet was secured, the recovery at his instance was regarded as conclusive qua his' participation in the context of the ocular testimony.
8. We have examined the ocular testimony of Muhammad Malook, Qadir Bux, Ghulam Ali and Abdur Rahman. The name of Ghulam Ali does not ' transpire in the F.I.R. and it is not understandable why his name was omitted if he was present at the place of incident. One Elahi Bux is mentioned to have come on cries but he has not been examined in the case. In the F. T. R.
Muhammad Malook has ascribed two hatchet blows to the deceased, one each caused by the appellant and Khan Muhammad. In their testimony in Court the eye-witnesses have stuck to'this stand but the medical evidence shows only one hatchet injury on the head of the deceased."'Besides, in the F.T.R., it is also alleged that "Allahwarayo and1 Ahmed"had each inflicted two lathi blows on the deceased1 whereas the'Meceased had one injury, which is opined'to have'been caused by a blunt weapon. It may, however, be mentioned Tthat 'Qadir 'Bux/''who war himself injured, has omitted to^mention in his 164, Cr. P. C. statement about the appellant having inflicted'a hatchet"b1ow on the deceased though he asserted that he did'sayTso. Tths'not possible that he would omit to mention the name of the appellant in the statement which was recorded four days after the occurrence, particularly when he was the only likely person to have witnessed the attack according to the initial version as all the others had come from some distance. The assertion of Malook in the F. I. R. that he was injured with lathis is also not established on record.
9. In the context of the medical evidence only one of the two persons, namely the appellant and Khan Muhammad could have given the hatchet blow. It is not possible to assume that the incised injury could be the result of two blows. In the first instance, there is no foundation for it as no question was put to the doctor upon this surmise and in the second it is a possibility too remote to be taken into consideration. Again one other hatchet was secured from the house of acquitted accused Khan Muhammad and it was found to be stained with disintegrated blood. Tn the circumstances the possibility of this hatchet being used cannot be excluded. The trial Court did not consider this aspect while concluding at the guilt of the appellant. Equally Khan Muhammad was implicated for causing one blow. The ocular testimony in the circumstances could not lead to the only conclusion that the injury on the head of the deceased was caused by the appellant. The learned counsel for the State was also hesitant to support the stand that it could only be the appellant who had caused the blow in this state of evidence.
10. Adverting now to the recovery of the hatchet at the instance of the appellant Muhammad Malook has admitted in his cross-examination that the appellant and Khan Muhammad had produced their hatchets from their houses while the third one was secured from the heap of 'bhoosa' lying in the house of Abbas Ali, father of Khan Mohammad. Who produced this hatchet, has not been stated. Thus, the evidence of recovery of the hatchet at the instance of the appellant from the heap of 'bhoosa' is not consistent with this disclosure if, according to the prosecution case, only one hatchet was produced by him. Jadal, before whom the recovery was made, has even attempted to show that blood-stained clothes of the appellant were seized, which was not the case. The learned counsel for the appellant contended that this witness was biased and had even gone to the length of supporting the recovery of clothes, which in fact was never made.
According to him, the bias was further evident from the fact that he had filed a complaint against Jagirani Jagir, who is a relation of the appellant and while accepting that he had withdrawn the complaint as his claim had been satisfied he denied the relationship of the appellant with Jagirdar Jagir. He further contended that the name of the appellant transpired in the F. I. R. but surprisingly he was not arrested till 12th June 1969, and it was only on the day of his arrest that he disclosed the knowledge of the hatchet lying in the heap of 'bhoosa'. According to the learned counsel, this appears to be a suspicious feature when considered in the context of the circumstance that the place where 'bhoosa' was kept, was accessable to every one and the place was not in exclusive possession of the''appellant. Be that as it may, even if we were to accept the evidence of the'recovery of the hatchet the absence of the explanation as to how the appellant had gained knowledge of it could only result in drawing an adverse inference and the consideration would still remain whether it was the appellant who had caused the fatal blow with it.
In view of our discussion above the prosecution has failed to establish beyond reasonable doubt that it was the appellant who had caused the blow. The trial Court has not accepted the ocular testimony of Qadir Bux and the others and has even acquitted the other co-accused in so far as the part assigned to them of causing lahti blows to Qadir Bux is concerned. In the circumstances.als'o for this rtsasop it will not be safe to rely on the ocular test:M'b.nyrlT thtiho VitrifeSsfe's in so far as the causing of the fatal blow is attributed to the appellant.
II. We have ourselves noticed the exaggerations in the evidence, variations from the version given in the F. I. R. and the delay in lodging the report which has not been sufficiently explained.
Muhammad Malook stated that he reached the police station at sunset time yet the report was not lodged until 11 p.nt., but the interval has not been satisfactorily accounted for. In the oircurnstances the trial Court had correctly appraised the ocular testimony in not relying on it without corroboration.
12. In the result, the prosecution has failed to establish its case beyond reasonable doubt against the appellant. We would, therefore, give to him the benefit of doubt and acquit him. The sentence of death is not confirmed and the reference is rejected. The appeal is accepted and the appellant is ordered to be set at liberty unless required in some other case. .