This appeal is directed against the judgment, dated 20-2-1985 recorded by the learned Sessions Judge, Dadu by which he convicted the appellants under section 3021149, P.P.C. And sentenced them to imprisonment for life and to pay a fine of Rs.2,000 each or in default to undergo R.I. For one year. The half of the amount of fine it realised was ordered to be paid to the heirs of the deceased.
The appellants were also convicted under section 148, P.P.C. And sentenced to R.I. For one year. The substantive sentence awarded to the appellants were directed to run concurrently.
2. The facts in brief are that Abdul Sattar brother of appellant Abdul Ghani was murdered and Fazul was one of the accused facing trial for the murder of Abdul Sattar. On 29-11-1982 at about 8-15 a.m., while deceased Fazul was taking away his son Vakil Ahmed to scnool, Appellants Abdul Ghani, Abdul Qayoom, Abdul Karim, Illamuddin, Allah Varayo and Abdul Aziz all armed with knives appeared there. Appellant Abdul Ghani caught hold of Fazul and declared that he would not be spared as they would take revenge from him. Appellants Abdul Ghani and Abdul Qayoom caused knife injuries to Fazul on his scapular region whereas Illamuddin and Abdul Karim caused knife blows on his face. Allah Varayo and Abdul Aziz gave him knife blow on the other parts of the body.
Deceased Fazul after receiving the injuries fell down. In the meanwhile P.Ws. Nim and Ali Nawaz appeared there who also witnessed the incident and challenged the culprits. Appellants threatened the witnesses and ran away. Complainant went near Fazul and found him bleeding from injuries and was lying dead. Complainant went to the Police Station Kotri and lodged the first information report at about 8.25 a.m. Which was recorded by P.W.9 S.H.O. Ghulam Hussain. After recording the F.1.R. Exh.6 the Investigating Officer visited the Wardat situated in Shahi Bazar, Kotri where dead body of Fazul with 13 injuries was lying. Blood was available at the wardat and police secured and sealed the blood in presence of Mashirs Allah Bachayo and Ali Muhammad, vide Mashirnama Exh.17. He also prepared the Inquest Report of the dead body Exh. 18 in presence of same Kashirs and despatched the dead body through Police Constable Muhammad Sadiq to Medical Officer for post-mortem examination. The S.H.O. Recorded the statements of P.Ws. Nim, Vakil and All Nawaz. On 30-11-1982 appellants Abdul Qayoom and Abdul Aziz were arrested from Pathan Colony Kotri in presence of same Mashirs, vide Mashirnama Exh.19. On 4-12-1982 appellants Abdul Ghani, Illamuddin and Allah Warayo were arrested from Karo Khaho Kotri in presence of same Mashirs Ali Muhammad and Allah Bachayo. Abdul Ghani then led to Mashirs and Police to his house situated in Bhatti Mohalla, Kotri and he produced blood-stained knife lying adjacent to the wall of the house which was secured, vide Mashirnama Exh.21. Appellant Illamuddin also produced blood-stained knife from his bed from the same house in presence of same Mashirs which was secured, vide Mashirnama Exh.23. Appellant Allah Varayo then produced blood-stained knife from trunk lying in the same house which was secured, vide Mashirnama Exh.22 in presence of the same Mashirs. On 17-1-1983 the blood-stained articles were despatched to the Chemical Analyser for examination and his report is Exh.28. After usual investigation challan was submitted against the appellants. Charge under section 302/149/148, P.P.C. Was framed against the appellants to which they pleaded not guilty.
3. The prosecution in order to bring home the charge against the appellants examined P.W.1 complainant Ghulam Nabi P.W.2 Nim P.W.3. Dr. Gul Muhammad, P.W.4, Vakil Ahmad, P.W.5, Tapedar Noor Muhammad, P.W.6 Mashir Allah Bachayo, who did not support the prosecution and was declared hostile, P.W.7 Co-Mashir Ali Muhammad, p.W.8 P.C. Muhammad Siddiq, Corpse-Bearer, and P.W.9 S.H.O. Ghulam Hussain, Investigating Officer. The accused were then examined under section 342, Cr.P.C. And they denied the allegations and pleaded that they have been falsely implicated.
P.W.3 Dr. Gul Muhammad performed the post-mortem on the dead body of the deceased and found the following injuries on the person of the deceased: (1)Incised wound middle of chest 10 c.m. x 3 c.m. x thorasic cavity deep. There was fracture of the sternum right lung left lung heart ruptured. Thorasic cavity full of blood and blood clots.
(2)Incised wound over left nipple 3 c.m. x 3 c.m. x muscle deep.
(3)Incised would 3 c.m. x 2 c.m. Abdominal cavity deep left hypochondrium with the fracture of eleventh rib.
(4)Incised wound left hypochondrium 6 c.m. Medial and 4 c.m. Below injury No.3. It was 6 c. m. x 3 c. m. Abdomen cavity deep. Intestines and omentum was out.
(5)Incised wound 4 c.m. x 2 c.m. x muscle deep at lateral angle of right eye.
(6)Incised wound right cheek 2 c.m. x -- c.m. x muscle deep.
(7)Incised wound 5 c.m. x 2 c.m. x muscle deep lateral aspect of right side of angle of mouth.
(8)Incised wound 8 c.m. x 2 c.m. x muscle deep right side of neck adjacent to Pinna of right ear anteriorly downwards.
(9)Incised wound left elbow joint latero-posteriorly 2 c.m. x 1 c.m. x skin deep.
(10)Liner abrasion above left elbow posteriorly 3 c.m.
(11)Incised wound left rinal area (Posterio lumbar region) 5 c.m. x 2 c. m. x fracture of twelveth rib.
(12)Incised wound right renal area posteriorly 5 c.m. x 3 c.m. x muscle deep.
(13)Incised wound left scapular region 6 c. m. x 2 c. m. x muscle deep.
(14)incised wound left scapular region 2 c.m. x above injury No.13. It was 5 c.m. x 2 c.m. x muscle deep.
The doctor was of the opinion that the death was due to shock and haemorrhage as a result of injury No.1. This injury was individually sufficient in the ordinary course of nature to cause the death.
All the injuries were collectively sufficient to cause death. All the injuries were caused by sharp- cutting weapon such as knife, daggar. The death must have occurred instantaneously.
4. The death of the deceased has not been denied. It has been proved through medical as well as evidence of the witnesses who had seen the dead body of the deceased, including P.W.4 Vakil Ahmad, who is son of the deceased. The defence has also not disputed this fact.
5. Now I will deal one by one three pieces of evidence considered against the appellants by the prosecution.
The first informant is Ghulam Nabi who is related to the deceased. P.W. Vakil Ahmad is the son of his father's sister. According to him at the time of incident he was going to his office. Deceased and P.W. Vakil Ahmad were 30-40 paces ahead of him. When the deceased reached the scene of offence all the six appellants had appeared. They were armed with knives and all of them had caused knife injuries to the deceased. According to him he had witnessed the incident from a distance of 4-5 paces. He has further stated that P.Ws. Nim Khan and Ali Nawaz were also present at the scene of offence and have witnessed the incident. Many other persons had also witnessed the incident. He has admitted that all-round the scene of offence there are shops, cabins, houses etc. And the shopkeepers were present in their shops. He stated that his office is across the road on which his house is situated and his office is about 30-40 paces away from his house. The scene of offence is about 50-60 paces away from his office. He has admitted that while going from his house to his office the scene of offence does not fall in his way and at the scene of offence he had gone on the cries. The plan of the site of incident was prepared by the Tapedar but it does not indicate the place where the first informant was standing and had witnessed the incident. He has admitted that while going to office the place of occurrence did not come on his way. He has also not shown that he was in a position to witness the incident while going to his office as the incident had occurred on a busy road. The plan is also silent and the other witnesses have also not stated that it was possible for the first informant to witness the incident.
The P.W. Vakil and Nim do not state presence of Ghulam Nabi at the place of occurrence. P.W. Vakil Ahmad may be the natural witness as it is alleged that he was going alongwith the deceased when this incident had occurred. In his statement before the Court he has stated that P.Ws. Nim Khan and Ali Nawaz had witnessed the incident. The first informant Ghulam Nabi who is his maternal-cousin had also witnessed the incident but in cross-examination he stated that on the day of incident he did not talk to P.Ws. Nim Khan and Ali Nawaz. He had seen both the P.Ws. First time at the scene of occurrence. He has denied the relationship with P.W. Nim Khan. He has also not admitted that a day before the occurrence both the P.Ws. Nim Khan and Ali Nawaz had come to Kotri and stayed as a guest in their house. He has not stated in his 164 statement that P.W. Nim Khan and Ali Nawaz were present at the scene of occurrence and had witnessed the incident. He has not stated in his 164 statement that first informant Ghulam Nabi was present at the scene of occurrence and had seen the incident. He has, however stated that on the day of occurrence at about 8-30 or 9-00 a.m. He was called by the police at the police station and there police obtained his signatures on a blank white paper and since then till his 164 statement was recorded he was never summoned by the police. The overall conclusion from the statement of P.W. Vakil is that he had not given the names of Nim Khan and Ali Nawaz and the first informant in his previous statement as the persons who had witnessed the incident. He has also stated that the police had secured his signatures on a blank white paper.
The witnesses have made improvements in their statements at the trial as the complainant Ghulam Nabi has given his father's name and caste of the witnesses Nim and Ali Nawaz in the first information report P.W. Nim has stated in his 161 statement that Fazul was his cousin. He had stated in that statement that on 28-11-1982 he had come in Kotri in connection with his case and had passed the night in the house of deceased Fazul. He has also stated that P.W. Ali Nawaz was also with him, in the house of Fazul for that night. He has also stated that Ali Nawaz had come to attend the Court of S. D.M., Kotri In connection with their case. P.W. Vakil Ahmad has stated in his 161 Statement that his uncle Nim Khan and relative Ali Nawaz had come at Kotri to attend the Court of S.D.M. And stayed the night in his house but at the trial P.Ws. Vakil and Nim have not admitted that Nim had come to stay with them in night prior to the incident.
On the other hand P.W. Nim in his deposition has stated that he knew P.W. Vakil Ahmad since the day of occurrence. He is son of deceased Fazal Ahmad. Deceased Fazal Ahmad was known to him 6-7 years prior to the incident. He has further stated that on the day of incident he had come to the Court of S.D.M. Alongwith Ali Nawaz. He has also not admitted his relationship with the deceased Fazal Ahmad. So also P.W. Vakil Ahmad has made improvement in his deposition. He has stated that he knows P.Ws. Nim and Ali Nawaz since the day his father was murdered. He has stated that he has seen both Nim Khan and Ali Nawaz at the time of incident. In their previous statements both these witnesses have not only mentioned their relationship with each other but also that Nim Khan and Ali Nawaz had stayed with the deceased Fazul in his house. Thus, the conduct of these witnesses make their statements doubtful. They are not the truthful witnesses. Then P.Ws. Nim who had seen the appellants for the first time on the day of occurrence had identified the accused persons when his deposition was recorded in Court. No identification test was held by the police and identification of the accused at the trial after a long delay cannot be accepted as a corroborative piece of evidence because there would be chances of looking the accused in Court on various occasions before his deposition was recorded.
6. Next piece of evidence is the recovery of crime weapons at the instance of the accused. One Mashir has not supported and he was declared hostile. The other Mashir Ali Muhammad had stated that accused Abdul Qayoom and Abdul Aziz were not arrested by the police in his presence.
He has not admitted the Mashirnama of their arrest. He has stated that his L.T.I. Was taken on Mashirnama at the scene of offence. However, he has stated that focused Abdul Ghani and Illamuddin were arrested by the police in his presence from Village Karo Khaho, Taluka Kotri, District Dadu. Accused Abdul Ghani led the police to his house and from there produced a blood-stained knife which was secured by the police. Accused Allah Varayo was also arrested by the police alongwith Abdul Ghani and he produced a blood-stained knife from his house. Accused Illamuddin also produced blood-stained knife from his house. According to Investigating Officer accused Illamuddin produced knife from his bed and accused Allah Varayo produced blood-stained knife from a trunk lying in the same house and accused Abdul Ghani produced blood-stained knife lying adjacent to the house of his wall. According to the Investigating Officer he had arrested the accused from Jungle near Karo Khaho, on the other hand the Mashir has said that accused Abdul Ghani and Illamuddin were arrested from Village Karo Khaho. The statements of the Investigating Officer and the Mashir are contradictory. It is stated by the Investigating Officer that the accused persons produced crime weapons from their houses, on the other hand Mashirnama shows that the accused persons produced crime weapons from their respective houses and not from the same house. Thus, these recoveries have become doubtful.
7. As regards the motive; it can be used as a corroborative piece of evidence but no conviction can be recorded simply because prosecution M has been able to prove motive in a case. Even otherwise enmity is a double-edged we on. The defence has also taken the plea that they have been falsely implicated as there is strong motive for their implication. P.W. Vakil Ahmad has said nothing about the motive and if we accept the statement of the other eye-witnesses the motive has to be discarded.
8. In view of the aforesaid infirmities the prosecution has not been able to prove the case against the accused beyond all reasonable doubt. The appeal is accepted. The conviction and sentences recorded against the appellants are set aside. They be set at liberty forthwith if required in any other case.
The appeal was accepted by the short order, dated 6-4-1986. The above are the reasons in support of the same.