1. ' The appellants have challenged their conviction and sentences recorded by the learned Additional Sessions Judge, Sanghar whereby he found them guilty under section 452/302/307/34, P.P.C. They were sentenced under section 302 to life imprisonment and fine of Rs,5,000 in default of payment of fine six months' R.I. More. They have been sentenced under section 307 to suffer R.I. For four years and fine of Rs,2,000 in dafault three months' R.I. More. They have also been convicted under section 452 to suffer R.I. For one year and fine of Rs, 1,000 in default to suffer one month R.I. It was further ordered that the substantive sentences are to run concurrently whereas the sentences in default of payment of fine are to run consecutively. In case the amount of fine is recovered it was ordered that half of that be given to the heirs of the deceased and the remaining half to three injured in equal share. Benefit of section 382-B, Cr.P.C. Was also given to the appellants. One of the accused namely Imdad Hussain died during the trial.
2. Thefts of the case are that complainant Farman Ali and his brother Arbab All were residing at Tando Adam. Two days before the incident their Masat Inayatullah and his wife Mst. Bhawal came and were staying there as guests. On 20-9-1981 at about 6-00 a.m. Complainant Farman All went to bring milk for tea and on return saw all the accused having Chhuris in their hands. Accused Ghulam Nabi was carrying pistol in addition to Churis. Accused Imdad Hussain, Eid Mohammad and Ghulam Baqar were standing at the entrance whereas rest came inside the house and caused injuries to Inayatullah and his wife Mst. Bhawal. They also started killing deceased Aftab Ali.
2. Complainant raised cries which attracted some neighbours whereafter the accused ran away from the Wardat. Motive as stated in the first information report is that accused persons were annoyed over the marriage of Mst. Bhawal with Inayatullah, therefore, they caused injuries to them and killed Aftab Ali. Accused Ghazanfar Ali and Ghulam Mehdi were arrested on the same day with blood-stained clothes on their Persons. They also produced blood-staind Churis. Dr. Rafiq Ahmed conducted autopsy on the dead body of. Aftab Ali and found the following injuries on his person: "(1) Incised wound 10 c.m. x 4 c.m. x 2 c.m. On anterior of neck with trachea-cut seen through and through.
(2) Incised wound 10 c.m. x 2 c.m. x c.m. On right temporal region with fracture of skull seen. The brain was visible from the injury.
(3) Incised wound B.C.M. C:3 c.m x c.m. On right mandible.
(4) Incised wound 2 c.m. x 1 c.m. x 1 c.m. On right little finger.
3. ' In the opinion of the doctor death was due to severe haemorrhage and ashy because of trachea was fully cut through and through. Injuries Nos.1 and 2 were individually sufficient to cause death in the ordinary course of nature and all injuries collectively were sufficient to cause death.
4. ' Dr. Rafiq Ahmed also examined the three injured and found the following injuries on their person: ' Injured Inyatullah son of Umed Ali
(1) Incised wound 6 c.m. x 2 c.m. x 11 c.m. On mid region of chest.
(2) Incised wound 11 c.m. x li c.m. x 1 c.m. On left upper arm.
(3) Incised wound 5 c.m. x 1 c.m. Xscalp deep on left forehead.
(4) Incised wound 4 c.m. x 1 c.m. x 1 c.m. On left loin.
(5) Abrasion 12 c.m. x 1 c.m. On left loin.
(6) Abrasion 10 c.m. x 1/3 c.m.On right loin. Injured Mst. Bhawal wife of Inayatullah
(1) Incised wound 12 c.m. x 5 c.m. x 5 c.m. On back side of neck.
(2) Incised wound a c.m. x 1 c.m. x 1 c.m. On right middle finger with bone cut.
(3) Incised wound 5 c.m. x 11 c.m. x 1 c.m. On left forearm.
(4) Incised wound 4 c.m. x 1 c.m. x 1 c.m. On near left ear.Injured Farman Ali alias Rang Ali son of Khan Mohammad
(1) Incised wound 5 c.m.x 1 c.m. x scalp deep on head.
5. ( 2) Incised wound 6 on 1 c.m.' x 1 c.m. On mid-head parallel to No,1 injury.
(3) Incised wound 71 c.m. x 1 c.m. x 1 c. m. On left side of anterior neck.
3. After usual investigation the accused were sent up to face their trial. At the trial the prosecution examined complainant Farman All as P.W.1, Mst. Bhawal as P.W. 2, Inayatullah as P.W. 3, Mashir Soomar as P.W.4, Naseer Ahmed Tapedar as P.W.5, Dr. Rafiq Ahmed as P.W.6, H.C. Ali Baknsh as P.W.7 and Inspector Abdul Jabber as P.W.8. After close of the prosecution side the accused have their evidence under section 340(ii), Cr.P.C. They also examined Ghulam Akbar in their defence, in addition to certificate and attendance sheet produced by accused Eid Mohammad. The learned 'trial Judge after assessing the evidence convicted, and sentenced the appellants as stated above.
4. I have heard learned counsel for the Appellants and Mr. Muzaffar Hassan for the State. Learned counsel for the appellants has submitted that the prosecution has absolutely failed to bring home the charge against the appellants. The learned trial Judge has implicitly placed reliance on the evidence of interested witnesses who have given different versions about the occurrence of the crime. I have given by anxious consideration to the facts of the case and I am of the opinion that the prosecution has not been able to prove the case against the appellants beyond all reasonable doubt. The prosecution evidence is clouded with improbabilities and the material witnesses have contradicted' each other on the material parts of the prosecution evidence. The main evidence relied upon by the prosecution consists of P.Ws.Farman Ali, Inayatullah and Mst. Bhawal complainant Farman All implicated as many as seven accused but he was disbelieved by the trial Court in respect of three who have been acquitted. Mst. Bhawal supported the case only against one accused Ghazanfar All and has exonerated the other accused. The third prosecution witness P.W, Inayatullah had involved four appellants. The learned trial Judge was impressed by the evidence of P.W. Inayatullah. The evidence of P.W. Inayatullah could not be relied upon as he had ascribed the role of firing a revolver and causing fire-arm injuries to accused Ghulam Nabi but his statements stood belied by the medical evidence.
6. ' The complainant Farman Ali in his first information report has stated that he opened the door for going out to fetch milk but in his statement he was stated that he came back after purchasing milk. In the first information report the complainant has stated that all the seven accused entered simultaneously whereas in his deposition the complainant has stated that three acquitted accused were standing outside the house. In the first information report complainant has stated that Ghulam Nabi fired at him which hit him but at the trial he has stated that Ghulam Nabi and Ghulam Abid had revolvers. In the first information report it is stated by the complainant that Ghulam Abid and Imdad Hussain gave knife blows to him but at the trial he has not stated such facts. In the first information report he has stated that Ghulam Nabi fired pistol and hit Aftab All who fell down on account of receiving shot, but at the trial he has stated that Ghulam Abid and Ghulam Mehdi had caught hold of Aftab Ali while Ghazanfar was butchering him and there is no mention of Ghulam Nabi making pistol shot at deceased Aftab All who fell down on account of receiving shot.
7. It is stated in the first information report that Ghulam Mehdi, Ghazanfar All and Ghulam Baqar gave knife blows to deceased which is contrary to what he has stated at the trial. He has stated at the trial that Ghulam Nabi was firing at Aftab Ali and he fired 4-5 shots whereas in the first information report he stated that Af tab Ali fell down on receiving the shot. In the first information report complainant has stated that Imdad Hussain, Edo and Ghulam Abid gave knife blows to Inayatullah.
8. Ghulam Ali, Ghazanfar Ali and Ghulam Baqar gave knife blows to Bhawal but at the trial he has stated that Inayatullah and Bhawal were already lying injured when he came.
9. ' Mst. Bhawal has deposed that she was sleeping and Ghazanfar AU alone caused injuries to her.
10. She did not see any other accused at all. She was present in the house at the time of occurrence and she has not implicated the persons who are involved by the complainant.
11. ' P.W. Inayatullah has deposed that only four applicants entered the house and he did not see others. Thus, he has contradicted the complainant. The trial Court has relied upon the evidence of this witness. The reasoning given by the trial Court is accepting the statement of this witness cannot be affirmed in view of inherent defects in the case itself. Entire facts have to be examined.
12. This witness has also stated that Ghulam Nabi had Revolver as well as dagger and Ghulam Nabi fired at him which hit him on arm. He has further stated that seven empties were lying at the Wardat. He also stated that Ghulam Nabi was sitting on chest of deceased and Ghazanfar was cutting his neck. Ghulam Mehdi and Ghulam Abid were holding legs and hands respectively of the deceased. Thus, this witness has given an altogether different version of the incident. Complainant and this witness have contradicted each other with regard to the injuries received by deceased. It is the prosecution case that accused Ghulam Nabi was armed with pistol and he had fired at the injured and deceased and they had received injuries but the medical evidence has contradicted the statements of these two witnesses. There was no injury by means of fire-arm either on the deceased or on the witnesses. P.W. Inayat has stated that empty was lying at the Wardat but no empty was recovered from the Wardat.
13. ' The complainant had implicated all the accused and specific role has been assigned. There is no distinction between the acquitted accused and the appellants but the trial Court discarded the statement of the complainant with regard to three persons.
14. ' In the case of Illahi Bux v. The State reported in 1982 SCM R 57; it has been observed that no doubt Court can sift grain from chaff yet before relying only on certain portions of statements of prosecution witnesses deliberately perjuring themselves with regard to another portion of prosecution story, Court must of necessity seek unimpeachable and wholly independent evidence to corroborate portion of their statement on which reliance sought.
15. ' In Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 it has been observed that where a witness is interested and also inimical and is thus likely to falsely implicate one or the other accused, it is essential to seek independent corroboration.
16. ' In Akhtar and others v. The State PLD 1960 (W.F.) Kar. 821 it has been observed that if the eye- witnesses tried to exaggerate the incident by falsely attributing certain grave and serious acts to the accused, their testimony could not be accepted' without corroboration from an independent source.
17. ' In the present case the witnesses are interested and they had given different version about the number of the accused. Therefore, it is not safe to rely upon the evidence of these witnesses.
18. ' It is also to be noted that the complainant has not accepted the material facts of the first information report. He has stated that the F.I.R. Was not read over to him. He has given certain additional facts in his deposition at the trial and not accepted certain material facts which he has given in the first information report. Even the Court has discarded the first information report and accepted the statement of P.W. Inayat Ali.
19. ' It has been observed in Wazir and others v . The. State PLD 1960 (W.P.) Kar. 674 that although an F.I.R. Is not a piece of substantive evidence and any omission or contradictions found therein can only be used to discredit the maker thereof and not other witnesses, yet it is a very valuable, and important document, and if the case set up at the very earliest moment, that is, at the time of giving the first information, is completely contradicted by the witnesses appearing at the trial, a grave doubt is created in the mind of the Court which needs to be cleared up and explained satisfactorily.
20. ' In the above-stated facts it is, therefore, dangerous to accept the prosecution story as given by the witnesses at the trial. It is alleged by the complainant in the first information report that the accused persons were annoyed with Inayatullah over the marriage with Mst. Bhawal. It is thus clear that the accused persons if at all they had any motive to take the life of the injured persons they should, have caused the death of Inayatullah who had received only simple injuries. There was no grievance against the deceased. Thus, the motive stated by the prosecution cannot be accepted.
21. Even otherwise motive cuts both ways and it is also possible that the accused persons have been implicated due to false motive. In this context reliance has been placed on the case of Janib and 2 others v. The State reported in 1986 PCr.LJ 583, wherein it has been observed that motive is another name of enmity. If it is advanced by the prosecution as reason for the accused to commit the murder of the deceased it can equally be used by the accused side as a reason for complainant party for their false implication. Motive has invariably been held as double-edged weapon which cuts both ways.
22. ' Apart from the above facts it is also established principle of law that once the prosecution alleges motive then the burden is upon the prosecution to prove it beyond all reasonable doubt. In the present case motive had been alleged by the prosecution but it has not been established. There is evidence on record that Mst. Bhawal was married to Inayatullah with the consent of father of Mst.
23. Bhawal, who is also an accused person. The motive is thus not established and it cannot be acted upon.
24. ' Then the recovery of blood-stained clothes from.The persons of the accused at 6-30 p.m. Could not be accepted because the incident had occurred in the morning and it cannot be believed that the accused persons were wearing the clothes at the time of their arrest after about 12 hours of the occurrence. Then D.W. Ghulam Akbar has falsified the arrest of Ghulam Baqar.
25. ' I have already stated that part assigned to Ghulam Nabi has been falsified by the medical evidence as there was no injury on any person by means of fire-arm. There is another aspect of the case. In the first information report the complainant has stated that Abdul Rashid, Muhammad and Ali Bux came to the Wardat but these witnesses have not been examined at the trial. It has also been stated in the first information report that Mst. Sakina was also present in the house but she has also not been examined. No reason has been given by the prosecution for not producing her as the prosecution witness.
26. ' For all the aforesaid reasons the prosecution has not been able to prove the case beyond all reasonable doubt. Case of the prosecution suffers from infirmities and improbabilities. The appeal is, therefore accepted. Conviction and sentences recorded against the appellants are set aside.
27. They be released forthwith if not required in any other case. The appeal was accepted by short order dated 5-8-1986. The above are the reasons for the same.