Khuda Bakhsh Marri, J.--This appeal under section 410, Cr. P. C. has been filed by Hamzo, Azrnat and Wadho who have been convicted under section 302/34, P. P. C. and sentenced to transportation for life and ,a line of Rs. 509 each or in default of payment of fine a further six months' R. I. by Mr. Ghulam Kadir N. Qadri, Sessions Judge, Larkana vide his judgment dated 19-1-1971, for the murders of Mitero and Shadu. The fourth accused in this case Sodho son of Saifal however, was given the benefit of doubt and acquitted.
2. Briefly the facts of this case are that on 18-7-1970 at about 7-30 a. m. one Alisher caste Jatoi filed an F. I. R. at Police Station Kamber District Larkana to the effect that on 17-7-1970 his brother Mitero and Shadu by castes Totasir, Faizu Brohi and Amb in the evening at about sunset time attended the charity feast of Rais Hassan Ali Khan Isran at his village Khairpur Josa at his invitation situated at a distance of 8 miles south-east of Police Station Kamber. After taking their meals they went to sleep on four cots in the open ground near the house of one Allah Warayo Khokhar, the cots were put side by side. The complainant slept alone on one cot. In the west of his cot Faizu Brohi slept alone, and further west adjacent to Faizu Brohi was the cot of deceased Mitero and Shado who slept together on one cot and on east of the complainant's cot was the cot of Amb Shar. At about 2 a.m. on 18-7-1970 on awaking due to the talks he found 7 persons standing around the cot of Mitero and Shado, as it was moonlit night, he claimed to have identified four persons in the moon light namely, Wadho, Sodho, Azinat and Hamzo all Jatois by caste and resident of Jalab Jatoi Taluka Larkana and three unknown persons. All were armed with hatchets and at once they started giving hatchet blows to his brother Mitero and Shado. In the meanwhile it is stated, that Amb and Faizu Brohi also got up. Seeing them the accused challenged and threatened them to "keep quiet sit down otherwise they will be cut into pieces." After giving the blows all 7 accused ran away towards north. The complainant party raised cries on finding Mitero and Shado injured by hatchet blows on their head, feet and neck who died in their presence. In the meanwhile Nckmard Zulfiqar Ali Isran and many other persons came there. The complainant claims that he, Faizu and Amb Shar told them that they also identified the four accused and the remaining three were not identified by them. They will identify them if see them. Thereafter the complainant on advise of Nekmard Zulfiqar Ali went to lodge the report leaving Faizu and Amb Shar with the dead bodies. He, however, goes on to indicate the motive for the murders of his brother Mitero, as he had abducted three months ago one Mst. Umedan daughter of Mohammad Murad Jatoi, who was relative of the accused persons. She is said to have stayed with his brother Budhal Khan Cartigo. He further stated that he intervened and got back Mst. Umedan to the accused from his brother. Thereafter the accused declared Mitero as 'Karo' and for the above reason the accused were after his brother, getting opportunity they killed his brother and Shado who was his close friend. A request for action against the accused therefore, was made.
3. S. H. O. Khalilur Rehman, the Investigating Officer recorded the F. I. R. and proceeded to the vardat and saw the dead bodies of Mitero and Shado lying on the cot who had hatchet injuries and lot of blood had come from the wounds. Fie secured the blood-stained shirt of Hamzo accused and sealed it and also one cut of finger and a portion of thumb from the vardat, a hatchet with broken handle was also secured. These were packed and sealed. Mashinmma of injuries Exh, 15 was prepared in the presence of Mashirs Atta Muhammad and Haji Muhammad Bux. Inquest reports Exhs. 16 and 17 of the dead body were prepared and the bodies were sent for post-mortem examination and ntashirnama of vardat Exh. 8 was also prepared. He recorded the statements of witnesses Faizu, Amb, Zulfiqar Ali and others.
4. On 20th July 1970, except Azmat, Hamzo, Wadho and Sodho were arrested. From possession of Hamzo a blood-stained shirt was secured which was packed and sealed, from the person of Wadho blood-stained Ganji was secured and sealed. These things along with hatchet and earth were sent to Chemical Examiner for examination. According to the Chemical Examiner's report Exh.
23, the articles, earth, hatchet with handle blue shirt and white banyan (Ganji) were stained with human blood. The mashirs of these articles are Illahi Bux and Khair Muhammad.
5. P. W. Dr. Khudadad performed the post-mortem exami nation on the dead bodies on 19-7-1971 and found the following injuries on the dead body of Shado : "(1) One incised wound 6" x 2" x 2" cutting the left hand at metacarpal bone with index middle ring and little lingers cut through and through.
(2) An incised wound 6" x 2" x 4" at lower l/3rd of left fore arm, cutting both bones of left fore-ann.
(3) One incised wound 10"x4"x6" cutting the left maxilla bone, reaching the frontal bone of the skull, with left eye cut.
(4) One incised wound 12"x4"x8" on forehead in the median plain, reaching top of head cutting the frontal and parietal bones.
(5) One incised wound 2" x x muscle deep, on front of the chest on right side.
(6) One incised wound 10" x 4" x abdominal wall deep, below the right costal margins, with intestines protruding cut of the abdomen."
According to the doctor the cause of death was shock and haemorrhage which was due to incised wounds caused by sharp- cutting weapon such as hatchet. Injuries Nos. 3 and 4 were individually sufficient to cause death in the ordinary course of nature. "
6. As regards to deceased Mitero the following injuries were noticed by the Doctor : "(1) One incised wound 8" x 4'x muscle deep, cutting the right side of the neck and cutting the big vessels of the right side of neck.
(2) One incised wound 10' x 4" * 8"cutting the right shoulder- joint resulting in the fracture of clavicle land humerus bones of the right shoulder-joint
(3) One incised wound 8" x 2" x 3/4" on the left side of the chest, causing fracture of 4th, 5th, 6th and 7th ribs.
(4) One incised wound 8" x 2" x 6" on the right side of neck, reaching the right angle of the mouth, cutting the massct er muscles and the muscles of the neck and the big vessels," and he was of the opinion that the cause of death was shock and haemorrhage due to the injuries which appear to have been caused with hatchet. Injuries Nos. 1, 3 and 4 were individually sufficient to cause death in the ordinary course of nature.
7. The prosecution case is based on the evidence of alleged eye-witnesses P. W. 3 Alisher (the complainant) P. W. 4 Amb Shar and P. W. 5 Faizu. The statements of these witnesses are sought to be corroborated by deposition of Nekmard Zulfiqar Ali P. W. 6, lllahi Bux P. W. 8, the Mashir of. recoveries and Khalilur Rehman P. W. 9, the Investigating Officer (S. 1. P.) and one Atta Muhammad P. W. 7, a Mashir also. Further support to the statements of these witnesses is sought from /the report of Chemical Examiner as well as post-mortem examination report of Dr. Khudadad, Medical Officer.
8. The learned trial Judge however, believed the eye-witnesses P. Ws. Alisher, Faizu and Amb Shar'and convicted the appellants as stated above. He however, acquitted co-accuspd Sodho on the ground that the complainant Alisher has said before him in clear terms that he did not identify accused Sodho. The learned trial Judge although found the appellants guilty of murdering Mitero and Shado but avoided to give death sentence on a very short ground which in his own words is '('death sentence is not being given because murders have been committed on account of woman affair."
9. We have heard Mr. Muhammad Hayat Junejo, . the learned counsel for the appellants and Mr. Usman Ghani counsel for the State. The learned counsel for appellant vehemently argued that the eye-witnesses could not definitely identify the appellants having committed the offence mainly due to darkness of the night and also due to large number of assailants who in such circumstances must have. finished the job, in a span of minutes and disappeared due to fear of being identified. He developed this argument by pointing out glaring contradictions in the statements of these eye-witnesses before the trial Court, We are of the opinion that there is sufficient force in his arguments. P. W. 3 Alisher the complainant who is brother of deceased Mitero apart from being an interested witness is not supported by P. W.
Zulfiqar Ali Nektnard as regards to identi fication of the accused persons who according to him, also arrived at the scene of offence and was told by him the names of the appellants and he saw the accused running away after committing the murders. It is pertinent to note that in his F. I. R. he clearly implicated accused Sodho as well, while before the trial Court he left the name of Sodho deliberately out. In his examination-in-chief he stated that after "midnight, 1 woke up on the sound of hatchet blows and saw about 7 persons, giving hatchet blows to shadu and Mitero. It was a moonlit night and I identified 3 of those persons as Wadho, Azmat and Hemzo and could not identify the others," while in his F. I. R. he states "it was moonlit night and I identified four persons in the moon light. They were namely, Wadho, Sodho, Azmat and Hamzo." In his examination-in-chief he states that on their cries and commotion Zulfiqar Ali and others came to the vardat and they gave facts to them. However, in his F. I. R. he clearly states that "on our cries Nektnard Zulfiqar Ali Isran and other so many persons came there. I, Faizu and Amb Shar also told them that they also identified the four accused." Now this witness has not been supported whatsoever in his statement by P. W. Zulfiqar Ali who stated in his examination-in-chief that, he had invited certain persons for the charity including Mitero, Shado, Alisher, Faizu and Amb Shar. On the night following, these four persons slept near the otak of Allah Warayo. After midnight there were cries coming from the place where Mitero, Shado, Alisher and others were sleeping. I got up and went down out of my house, and Alisher, Faizu and Amb met me there and informed me that some unknown persons had killed Mitero and Shado. I told Alisher to go and lodge the report. This witness was not cross-examined by the defence for the apparent reason that his statement was harmful to it. However, an application was moved by the D. P. P. during the cross-examination of this witness which in verbatim is as under : "It is submitted to this Honourable Court on behalf of the State that P. W. Zulfiqar Ali is in the witness-box and he appeared to be drunk as clear from his talk and smell. He has been tampered with."
On this application instead of getting the witness examined tirst by a doctor or otherwise adjourning the case for that purpose, the learned trial Judge proceeded to ask him certain questions, the replies are:-- "I do not drink alcohol. At present I am not drunk. I an not addicted to intoxicant."
The learned counsel for the appellants has taken strong exceptioi to the procedure adopted not only by the D. P. P. but also b tbe learned trial Judge. He submitted that if the witness was wot over by the defence, the proper procedure for the prosecution wa to declare him hostile and cross-examine him but this was apparently not done, and instead an application was moved that from the talk and smell the witness was drunk. There is another point also which raised a doubt as regards to varacity of this witness i.e., he claims to have identified the appellants due to proximity of his cot near the cot of the deceased persons but the report or Tapedar Ali Nawaz who made the sketch of the incident (Exh. 4) shows that it was not the complainant who was sleeping next to the deceased persons but was P. W. Faizu whose cot was nearest while the complainant was sleeping next to P. W. Faizu and the distance between the cot of complainant and that of deceased persons (Points 'A' and 'C') is about 11 feet. It will be natural to think that the first person who woke up at the time of commotion and have a proper chance of identifying the accused should be Faizu whose cot was nearest to that of the deceased and not the complainant Ali Sher. But P. W. Faizu however, did not specifically support the complainant to the point of definitely identifying the appellants because Faizu in his cross-examination states that he identified the present three appellants as well as the acquitted Sodho. Again this P. W. Faizu does not agree with P.W. Alisher to the effect that he in his cross-examination states that "there was moon light and there were some clouds also. It was dim moon light. I identified accused on voice also. First I suspected them on the light of moon and later on I became sure about the identity of accused when they gave "hakals" to us. Zulfiqar and others had seen the accused running away."
This statement of P. W. Faizu who claims to be an eye-witness in fact sheds doubt to the statement of eye-witness Ali Sher. We are quite clear in our mind that this witness according to his own statement first was not sure about the clear visibility of moon light, sufficient to identify the appellants because he says that there were some clouds also and the moon light was dim.
Secondly he is not very sure about the identification of the appellants because he states that he identified the accused on voice also and that first he suspected them on the light of moon and later on he became sure about the identity of the accused when they gave hakals to us. Therefore, no value can be attached to the statement of this witness whose identification appears to be only that on voice. The identification on voice is a very weak piece of evidence and it has been repeatedly held that without other strong circumstantial evidence an accused cannot be held guilty on the ground of having been identified by voice, therefore, we do not attach any value to the statement of this witness. Over and above, this witness has been equally contradicted by P. W.
Zulfiqar Ali because he states that he has given the names and faces of the appellants to P. W.
Zulfiqar Ali who in his statement stated that the eye-witnesses informed him at the vardat that "some unknown persons had killed Mitero and Shadu". Had Zulfiqar Ali seen the incident who is an independent person and in fact the P. Ws. were his guests and they have attended the charity on his invitation there was no reason for Zulfiqar Ali not to give the names of the accused persons, during his examination before the trial Court.
10. The result is that the names of the appellants were not given by them to Zulfiqar Ali at the time of vardat because it appears that they have not been identified by the witnesses. Now we come to the statement of next eye witness Amb P. W. 4, general theme of the statement of this witness is in accord with that of P Ws. Faizu and Alisher, as regards to their sleeping in the open space adjacent to house of Allah Warayo and the moon light and identification by him as well of four persons and not three as stated by P. W. Alisher in the lower Court. An interesting feature is that this witness says that Zulfiqar Ali and other people of the village came to the vardat. Faizu and Alisher had identified the accused, while earlier in his cross-examination he himself claims to have identified the four accused persons but later on he states that it was Faizu and Alisher who had identified the accused persons, therefore it will not be wrong to infer that this witness was also not very sure about the identifica tion of the appellants by him. That is why he shifted the burden on P. Ws. Faizu arid Alisher. Again this witness states that he came to know that accused suspected Mitero to be on illicit terms with one Tunia lady and admits in cross-examination that accused are Jatois by caste and not Tunias. This statement also is very material because it is the prosecution case as regards to motive that deceased Mitero was declared 'karo' with the relative of the accused persons who are Jatois by caste but according to this witness the lady was not a Jatoi but a Tunia by caste therefore, the appellants had no reason to kill Mitero for his illicit relations with a woman of different caste, the very motive set up by the prosecution for killing the deceased by the appellants seems to us seriously doubtful. This witness also appears to be not very sure with regards to identification of the accused persons because in his cross-examination he states that "I had identified the accused on the voice as well as I saw their faces." His identifying the accused on voice is in accord with the statement of P. W. Faizu. The sort of idetification by voice as stated above is very weak piece of evidence to bring home definite guilt in a serious offence of murder to the appellants. He also makes another damaging statement to the prosecution case and to the statements made by Faizu and Alisher because he states in cross-examination that "Zulfiqar had not seen the accused" while the other witnesses categorically stated that Zulfiqar Ali had come at the vardat and saw the accused running. The statement of this witness became more doubtful when" it is compared with the statement made before the committing Magistrate wherein he clearly stated in his examination-in-chief that the "accused had their backs towards us but we identified them on their voice," and in his cross- examination there he is very clear by stating that "I identified the accused as aforesaid, on the voice of their hakafs. 1 did not see the faces of the accused till at least they ran away." To us this statement read with the statement made before the trial Court as regards to identification of the accused leaves no room for doubt that he has not' identified the accused persons. Specifically naming the appellants with some unknown persons is an after thought which cannot be relied upon.
11. As regards to the recovery of incriminating articles from accused Wadho and Hamzo by the Police, we have serious doubt in our mind about this as well because, out of two mashirs Illahi Bux and Khair Muhammad, although Khair Muhammad was examined in the Court he was given up by the prosecution before the trial Court. Therefore, we are left only with the statement of mashir Illahi Bux as regards to the recovery but this witness also does not support the case of the prosecution because he admits the securing of the shirt article "B" from person of Hamzo but denies the securing of Ganji from the person of Wadho. Tn his statement before the learned Sessions Judge even with regards to recovery of Ganji i.e, Banyan from Wadho, this witness states that this was not secured in his presence yet mashimama was prepared by the Police which he had to sign. Not only this he goes on to state in his cross-examination that both the mashlmamas had been prepared at Thana and also that the shirt had been sealed at Thana. This cannot be called therefore, a recovery in the eye of law particularly when mashirnamas are prepared at Police Station and the articles are sealed and packed not at the spot at the time of recovery but later on at the Police Station, we do not give any credence to the allegation of the prosecution that the recoveries have been properly made of the incriminating articles. The rest of the witnesses i.e., Khalilur Rehman P. W. the Investigating Officer is of not much value to the prosecution because first he was not an eye- witness of the occurrence, secondly the mashirs even contradicted his statements and also the eye-witnesses contradicted themselves In all material facts.
12. During the course of argument our attention has been drawn by the learned counsel for the appellants to certain uncalled for observations made by the learned trial Judge with regards to the veracity or otherwise of the witnesses particularly contained in paragraphs Nos. 29 and 30 of the judgment wherein it was observed: "29. In lower Court some favourable answers have been taken from witnesses and they are partly due to the witnesses being simpleton. The learned D.P.P. has suggested that accused are dangerous Jatois of Larkana and every body would not dare to depose against them.
30 I have read the deposition of above witnesses given in lower Court and to me it appears that witnesses have been misguided and some meaningless sentences have been extracted."
It was submitted, that the learned trial Judge seems to have depended mostly on the suggestions of the learned D. P. P. he therefore, did not apply his mind independently to the guilt, or otherwise of the appellants. There was no occasion to cast aspersion on the accused persons on the suggestion of the D.P.P. that they are dangerous Jatois of Larkana and everybody would not dare to depose against them simply because the prosecution failed to prove its case through its own witnesses. Also exception was taken to the observation made in paragraph 30 of the judgment wherein it was stated that the deposition of witnesses in the lower Court appeared to have been taken due to their being misguided and meaningless sentences have been extracted from them. There is sufficient force in this argument of the learned counsel for the appellants and we do not approve these observations made by the learned trial Judge.
13. It also appears to us that the learned trial Judge fell into fatal error by stating in paragraph 38 of his judgment that "accused have not alleged enmity with witnesses". But the accused in their statements have clearly stated that the P. Ws. have deposed against them due to enmity and this was not difficult for the learned trial Judge to find out, had he given little more attention to the statements of the accused.
14. For the reasons given above we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. We therefore, put no reliance on the statements of three eye- witnesses of the incident and also find that there is no sufficient direct or circumstantial evidence to hold the appellants guilty of the offences alleged. The result is we accept this appeal set aside the judgment of the learned Sessions Judge, Larkana dated 19-1-1971 and acquit the appellants. We had announced the order of acquitial on the date of hearing and here are the reasons of it. We may however add here that Mr. Usman Ghani learned counsel for the State from the very outset showed his inability to support the case of prosecution in view of scarcity evidence. .