The appellants Ghulam Nabi, Kauro, Abdul Karim and Ali Nawaz, all sons of Dost Muhammad Chandio were tried alongwith acquitted accused Gul Hassan, Isso and Usman under sections 302 etc. For committing the murder of three brothers namely Ghulam Kadir, Bilawal and Bahawal and causing injuries to their fourth brother, Ghulam Hussain and one girl Manzooran. The appellants were convicted by the learned First Additional Sessions Judge, Nawabshah by the judgment, dated 19-8-1985, and they were sentenced as under:- (i)Under section 148, P.P.C., one year R.I. Each; (ii)Under section 452, P.P.C., each to suffer 2 years' R.I. And fine of Rs.1,000 and in default of payment of fine one month R. I. More.
(i.e)Under section 302, P.P.C., imprisonment for life and fine of Rs.10,000 each in default of payment of fine 6 months' R.I. More; (iv)Under section 307, P.P.C., 3 years' R.I. And fine of Rs.5,000 each in default of payment of fine, 3 months' R.I. More.
All the sentences of imprisonment were directed to run concurrently and the sentences of fine in default of payment of fine to run consecutively. The accused were also directed to deposit amount of Rs.10,000 each for compensation to the heirs of the deceased and injured Ghulam Hussain and in default of deposit of this amount they will suffer six months' R.I. More. Out of this amount of compensation, if deposited. Rs.4,000 will be given to injured Ghulam Hussain and Rs.12,000 to the heirs of each deceased.
2. The prosecution case in brief is that on 14-8-1978 at about 5-00 a.m. In Deh Dingo, Taluka Naushero Feroze deceased Ghulam Kadir, Bilawal and Bahawal were at their house. The complainant was also there. All the culprits entered their house. Accused Gul Hassan, Ghulam Nabi and Ali Nawaz were armed with guns and rest had hatchets. Gul Hassan, Ali Nawaz, Kauro, Abdul Karim and Isso were identified and two persons were not identified by the complainant and the witnesses. During the course of investigation the acquitted accused Usman was arrested and he was identified by the witnesses. It is alleged that the accused persons declared that they had come to avenge the murder of their brother Ghulam Nabi and escape of Sahib Khatoon. The accused with their respective weapons caused the death of Ghulam Kadir, Bilawal and Bahawal and injured Mst. Manzooran within the enclosure of their house. While going out they also caused fire-arm injuries to Ghulam Hussain who was sleeping at the 'WAR' outside the surrounding hedge.
It is also alleged that P.W. Hameer had also witnessed the incident and P.Ws Maroof and Ghulam Sarwar were also attracted to the scene and they had identified the culprits. The motive alleged in the F.I.R. Was that Ghulam Nabi brother of Gul Hassan and others was murdered about 35 years back and deceased Bahawal and Ghulam Kadir were convicted. It is also alleged that Mst. Sahib Khatoon, sister of P.W. Ghulam Sarwar was abducted and married with accused Kauro but later on she succeeded in running away from his house to her brother Ghulam Kadir. The first information report was lodged by complainant Mahboob Ali. The Investigating Officer during investigation secured blood-stained clothes from accused Abdul Karim and Ali Nawaz. Accused Ali Nawaz and Ghulam Nabi produced guns from their house. Accused Kauro, Abdul Karim and Usman produced blood-stained hatchets. After usual investigation the accused were sent up for trial before the Court.
3. At the trial the prosecution examined P.W.1 Mohram Ali Tapedar, P.S. 2 Mehboob Ali complainant, P.W.3 injured Ghulam Hussain, P.W. 4 Ghulam Sarwar, P.W.5 Mashir, Muhammad Saleh, P.W.6 Allah Bux Police Constable, P. W.7 Mashir Mir Muhammad, P.W.8 Ayaz Ahmed Soomro, Investigating Officer, P.W.9 Dr. Illahi Bux, P.W.10 Habibullah, Mukhtiarkar and F.C.M.
The statements of the accused were recorded and they denied the allegations. The prosecution was also given opportunity to cross-examine the accused under Article 44 of the Qanune Shahadat and the accused were also provided opportunity to give evidence under section 340 (2), Cr.P.C. However, the accused did not lead any evidence in defence.
4. The death of the deceased is not denied and it has been established through the ocular and medical evidence.
Deceased Bahawal, Ghulam Kadir and Bilawal had received the following injuries: BAHAWAL (1)An incised wound 3" x -- " bone deep over left side of chest.
(2)An incised wound 5" x 2" x bone deep x structures cut in continuation to injury No.1 (heart and left lung were ruptured).
(3)An incised wound 6" x 2" x bone deep over left side of neck.
(4)An incised wound 2" x -- " x skin deep, below chin.
(5)An incised wound 3" x -- " x skin deep 'over right shoulder.
6. An incised wound 4" x 1 --" bone deep below left knee joint.
GHULAM KADIR (1)Incised wound 8" x 3" bone deep over left cheek, cutting all the structures.
(2)An incised wound 8" x 2 -- " x bone deep over left side of neck.
(3)An incised wound 6" x 2" x bone deep over left tempromandi bular region, cutting left ear also.
(4)An incised wound 5" x 2" x bone deep over left scapular region.
(5)An incised wound 6" x 2 -- " x bone deep over right scapula.
(6)An incised wound 8" x 4" x bone deep over back of neck.
(7)Lacerated fire-arm wounds five in number as entry wounds measuring about --" x 8" in diameter over left hypogastries.
The doctor opined that death of the deceased occurred due to shock and haemorrhage in consequence of external injuries. Injuries Nos.1 to 6 were caused with sharp cutting weapon such as hatchet whereas injury No.7 was caused by discharge from fire-arm.
BILAWAL (1)An incised wound 6" x 2" x bone deep over right side of chest, upturing right lung.
(2)An incised wound 7" x 2 --" x bone deep over right shoulder.
(3)An incised wound 8" x 3" x bone deep over right side of the neck.
(4)An incised wound 10" x 3" x bone deep over right forearm cutting right wrist joint.
(5)An incised wound 5" x 2 -- " x bone deep over left scapula.
According to the doctor the death of the deceased was caused due to shock and haemorrhage on account of external injuries which were caused by sharp-cutting weapon such as hatchet.
5. The learned trial Judge after analysing the evidence acquitted accused Usman, Isso and Gul Hassan and convicted the present appellants as stated above. The conviction of the appellants rests on the ocular testimony of P.Ws. Ghulam Hussain injured and Ghulam Sarwar, coupled with the recoveries of incriminating articles from their possession. The trial Judge disbelieved the complainant and discarded his evidence. In this case two alleged eye-witnesses Hameer and Maroof have not been examined. Mst. Manzooran an inmate of the house was also not examined though she had received injuries but her name and the injuries received by her have not been mentioned in the first information report.
6. Before I refer to the salient parts of the judgment it .Is necessary to refer to the statements of Ghulam Hussain and Ghulam Sarwar on whose testimony the learned trial Judge made much emphasis. The complainant in the first information report has not mentioned the name of Ghulam Hussain. He has also not mentioned the injuries received by this witness though in the deposition the complainant had stated that he had, seen the injuries on the person of Ghulam Hussain. Then the complainant has stated that the accused persons had raised slogans but Ghulam Hussain in.
His deposition has not stated that he heard any slogans. Ghulam Hussain has stated in his evidence that he had told the complainant that he had identified the accused but in spite of such disclosure the complainant had not given the name of this important witness in the first information report who has received injuries. Ghulam Hussain has stated that his statement was recorded by the police. He is residing at a distance of about 16 feet from the Wardat and he had identified the accused on the light of the lantern and on their voice. So far as evidence of Ghulam Sarwar is concerned, according to him when he had come to the Wardat he had seen Ghulam Hussain having injuries on his person. He has admitted that he had not seen the accused persons causing injuries to the deceased but this witness in his 164 statement has not mentioned about the injuries received by P.W. Ghulam Hussain. Even he has not mentioned his name as the alleged witness of incident. This witness was attracted to the scene on commotion. According to him he was present in his sugarcane cultivation which was at s distance of about 2 jirebs from the Wardat.
This witness has also stated that Gul Hassan gave 'hakals' saying that they were taking the revenge of the murder of their brother Ghulam Nabi but Gul Hassan had been acquitted by the trial Court and the statement of this witness so far as it connects Gul Hassan has been disbelieved.
P.W. Ghulam Hussain in his deposition has stated that when he regained consciousness he went inside the house and saw his brothers lying dead. Complainant Mehboob was there and he had seen injuries on his person and he had also seen the girl Manzooran who had also sustained injuries. If the statement of Ghulam Hussain he accepted then there was no reason not to mention his name in the first information report.
The learned trial Judge accepted the statements of Ghulam Hussain and Ghulam Sarwar and came to the conclusion that the statements of these witnesses are corroborated by the recoveries of crime weapons and the reports of the Ballistic Expert and the Chemical Examiner. I will, therefore, advert to the point of recovery.
7. Mir Muhammad acted as Mashir and according to him in his presence the police arrested accused Gul Hassan, Ghulam Nabi, Kauro, Abdul Karim and Ali Nawaz. It is in the evidence of this witness that at the time of arrest the police secured blood-stained shirt from the person of accused Abdul Karim and blood-stained potro of Godi and blood-stained shirt from the person of accused Ali Nawaz after they had been arrested. This witness has also deposed that accused Ali Nawaz led the police to his house and produced gun and bandolier containing four live cartridges from the hedge of his house. Accused Ghulam Nabi led the police to his house and produced gun and three live cartridges from the hadge of his house. Accused Kauro produced blood-stained hatchet from the Chapar of his house. Accused Abdul Karim produced blood-stained hatchet from the Chapar of his house. He had also identified accused Usman. This witness is related to the prosecution witnesses. In his presence identification of Usman was made by P.Ws. Hameer, Sarwar and Maroof. This witness was residing at a distance of 20 miles away from the village of the accused. According to this witness the complainant and P.Ws. Told him that Mashirs are required, therefore, he should go to the Police Station for that purpose, and complainant had also gone with him to the Police Station. None from the village had come there at the time when they had gone to the village of the accused. Otaq of all the accused brothers is same. Accused had come out of the house one after other. First accused Gul Hassan had come and thereafter, the other accused had followed him. Each accused had produced articles separately. Besides him no other person was made to sign on the Mashirnamas. The date of incident is 14-8-1978 and the recoveries tad been made on 16-8-1978 that is two days after the occurrence. It is, therefore, unbelievable that the accused persons were wearing blood-stained clothes at the time of their arrest. The Mashir was residing at a distance of 20 miles away from the place of recoveries. The Investigating Officer has stated that Mashir Mir Muhammad was going on path and passing by the side of the house of accused when he was called to act as Mashir. This statement of the Investigating Officer contradicts the Mashir who had stated that he had' been sent by' the complainant to the police station to act as Mashir. Apart from, the fact that the recoveries of hatchets have been made from the hedge, it has not been mentioned that the said hedge was in the exclusive possession of the accused persons and no other person had access to the hedge. So also the recoveries of guns are also doubtful, because apart from the accused who had produced the guns there are other inmates of the house and the house was not in the exclusive possession of the accused persons. It is also not believable that the accused who had concealed their hatchets in the hedge would keep them in the same position as alleged to have been used by them --in the commission of the offence. The accused had sufficient opportunity to wash the hatchets but the case of the prosecution that the hatchets were stained with blood becomes doubtful. In these circumstances the recoveries have become doubtful and, therefore, the reports of the experts carry little weight.
8. As regards the reports of the Ballistic Expert and the Chemical Examiner, it is pertinent to note that the articles were sent to the Ballistic Expert on 21-11-1978 and the articles were sent to the Chemical Examiner on 16-6-1979 that is after considerable delay. The Ballistic. Expert's report is Exh.
50 and this report is dated 23-7-1984. It has not been mentioned when the expert had- examined these articles. The report of the Chemical Examiner is Exh.
49. It. Is dated 8-12-1979. This report also does not indicate when these articles had been examined but in view of the fact that the articles were sent after considerable delay and the articles have been examined by the experts at the time of their own convenience much after they had received these articles the reports have little evidentiary value. The learned trial Judge has referred to 1980 SCMR 575 wherein it has been mentioned that the delay in submission of crime articles to the Chemical Examiner when no specific question was put to I.O. As to the reason for this delay and it appeared from the record that as one of the accused persons had not been arrested until 14-6-1970 it is possible that the delay might have been on that account. In this case the recoveries were effected an 11-5-1970 and the articles were sent to Chemical Examiner on 19-6-1970. The authority is inapt as the circumstances are quite different.
Keeping in view the way in which the recoveries have been effected the reports of the experts cannot be considered as a corroborative piece of evidence connecting the accused with the offence. The principal eye-witness that is the complainant has not been believed and his evidence has been discarded. Accused Isso and Gul Hassan who have been named by the witnesses have been acquitted. Accused Usman from whom the blood-stained hatchet is stated to have been recovered had been acquitted, but on the same set of evidence the present appellants have been convicted.
P.W. Ghulam Sarwar came after Ghulam Hussain had received injuries but Ghulam Hussain has not heard any slogans whereas P.W. Ghulam Sarwar has stated that he had heard Gul Hassan giving 'hakal' to him saying that they were taking revenge of their brother Ghulam Nabi, therefore, there is inconsistency between the statements of the two witnesses.
9. Now the identification of the accused have been made on the voice and in the light of the lantern. It is stated by P.W. Ghulam Hussain that the night was dark. The lantern was burning in the house and P.Ws. Ghulam Hussain and Sarwar had identified the accused in the light when they were returning after committing the incident. The P.Ws. Had seen them outside the house and.
Therefore, the identification even if the accused were known to the witnesses prior to the incident, in the dim light, of the lantern was doubtful. The identification of the accused on the voice is still more doubtful because it cannot be said with certainty that the voice of particular accused is not distinguishable from the voice of another person. As such the identification of the accused by these P.Ws. Has become very doubtful.
It has been held in the case of Ghazi and others v. The State reported in 1982 SCMR 49 that it is highly unsafe to rely upon opinion of experts when the other pieces of evidence have been discarded.
PLD 1961 Kar. 707 it has been observed by a Division Bench that identification of accused in the Hurricane Lamp under shed was not satisfactory when the accused was at a distance of 12 feet.
The other infirmity in the prosecution case is that according to the complainant the incident took place at about 5-00 a.m. After the deceased had taken their 'Sehri' as it was the month of Ramazan, but according to the doctor the stomachs of all the three deceased persons were empty. According to the Doctor the deceased persons might have taken last meals at least about 5-00 hours before their death. The medical evidence is thus in conflict with the ocular evidence.
10. Having discussed the evidence of the two witnesses on which the reliance has been placed by the learned trial Judge, it is also material to refer to the reasoning advanced by the learned trial Judge in convicting the appellants.
If the learned Judge has discarded the evidence of the complainant on the ground that his evidence is contradicted by medical evidence then there is no sound reason to convict the appellant on the same infirmity which is apparent in their evidence which is in conflict with medical evidence.
11. First of all it has hot been stated by P.W. Ghulam Hussain that accused persons have raised any slogan and secondly the learned trial Judge has himself stated that the light was dim and there was only probability of identification in the dim light of the lantern or when the accused persons had raised slogan. The observations recorded by the learned trial Judge itself creates doubt and as such the safer course for dispensation of justice is to discard the evidence of such witnesses.
The reasons on which the statement of P.W. Ghulam Hussain has been discarded equally apply to the case of P. W. Ghulam Sarwar.
The prosecution witnesses are closely related inter se and the enmity of P.W. Ghulam Hussain and Ghulam Sarwar with the accused has also been borne out from the record. This fact would further put the Court to caution in relying upon the evidence of such interested witnesses.
12. For the reasons discussed above the prosecution has not been able to prove the case against the appellants beyond all reasonable doubt, consequently the appeal is accepted and the convictions and sentences recorded against the appellants are set aside and they are acquitted of the charge. The appeal was accepted by a short order and aforesaid are the reasons in support of such order.