1. The appellants Guloo, Masoo, Dilmurad and Talib have preferred this appeal against their conviction for offences punishable under section 302 read with section 34 and section 307 read with section 34, P.P.C. And sentence of life imprisonment and fine of Rs.5,000 or rigorous imprisonment for one year in default for the first offence; and that of rigorous imprisonment for ten years and fine of Rs.2,000 or rigorous imprisonment for six months more in default for the second offence; awarded by the learned First Additional Sessions Judge, Shikarpur, by his judgment, dated 5-2-1985 in Sessions Case No. 236 of 1975.
2. The appellants are alleged to have murdered Rasool Bux son of Elahi Bux and also made murderous assault on Ghulam Haider son of Elahi Bux, both Kandhiras by caste, on 10-6-1975, at about 5-00 p.m. The report of the incident was made by Ghulam Haider at Police Station Sultan Kote in District Shikarpur on the same day at about 7-45 p.m. He alleged that he and his brother were returning to their village after reducing flow of water at the head of their watercourse, ex- Begari Canal, when they were waylaid by the appellants Guloo, Masoo, Dilmurad and Talib and all the four attacked Rasool Bux and belaboured him with hatchets blows, accusing him that he was 'Karol with the were of Talib from amongst them. He also alleged that he too was given hatchet blows with blunt side. He disclosed that the incident was witnessed also by his brother Ghulam Qadir and his companion Kaloo, who reached there on hearing cries. Police registered the crime and investigated it. Initially the investigation was conducted by A.S.I.P. Rahmatullah. The investigation was completed by Jamil Hussain Shah S.H.O. He arrested appellants Guloo, Masoo and Dilmurad on 15-6-1975. He recovered hatchets from them. The appellant Talib was arrested later. After completion of investigation, they were sent up for trial.
3. The appellants were tried on charge of offences punishable under sections 302 and 307 read with section 34, P.P.C. By the learned Additional Sessions Judge, Shikarpur. Prosecution examined complainant Ghulam Haider P.W.1, Pathan Mashir P.W.2, Ealoo P.W. 3, Hameer Mashir P.W. 4, Zamir Hussain Shah P.W. 5, Allah Warayo Tapedar P.W. 6, Rab-nawaz P.C. P.W. 7, and Medical Officer Dr. Gul Hassan P.W. 8.
4. All the four appellants denied their involvement in commission for the offence and alleged false implication on account of enmity.
5. The learned trial Judge chalked out three points for determination:- (1)Whether Rasool Bux son of Illahi Bux Khandhro was murdered and attempt was made to murder complainant Ghulam Hailer''
6. (2)Whether accused Guloo and three others committed the murder of Rasool Bux son of Illahi Bux and attempted murder of complainant Ghulam Haider?
7. (3)What will be the sentence if points Nos. 1 and 2 are proved in the affirmation."
8. Findings on points Nos. 1 and 2 were recorded in affirmative and the appellants were held guilty of offences punishable under sections 302 and 307 read with section 34, P.P.C. And were awarded the sentence appealed against.
9. The case involved determination of cause of death of deceased Rasool Bux; injuries to complainant Ghulam Haider; identity of the assailants; extent of their liability; nature of offence; and the quantum of sentence.
10. The factum of homicidal death of the deceased Rasool Bux has not been disputed. It is established by the medical evidence and other evidence adduced by the prosecution. Autopsy on the deceased was conducted at R.B.U.T. Hospital, Shikarpur, by Duty Medical Officer Dr. Gul Hassan Chachar (Exh. 30). His evidence reveals that the deceased Rasul Bux had sustained seven ante- mortem incised injuries of different dimensions spread over head and neck, cutting brain, trachea, oesophagus, three cervical vertebra and spinal cord, and causing death of the deceased. Next is the evidence of complainant Ghulam Haider (Exh. 5) and Kalu (Exh. 9) that the deceased had suffered hatchet injuries resulting in his death. There is also evidence of Mashir Hameer (Exh. 10) that the deceased was seen by him lying murdered. Evidently, the deceased Rasool Bux was done to death by causing him hatchet injuries.
11. The second point for determination is that of injures sustained by the complainant Ghulam Haider.
12. He has himself alleged that he was caused injuries by blunt side of hatchets. He has been supported by P.W. Kalu (Exh. 9) that he had been struck by means of blunt side of hatchets. Next is evidence of Mashir Pathan (Exh. 7) that the complainant was found having injuries when he visited the Police Station for lodging report. Lastly, there is evidence of the same Medical Officer Dr. Gul Hassan Chachar (Exh. 30) that the complainant had sustained three injuries viz. (1) an abrasion 1" x 1" on the back of left writ joint; (2) swelling of the left elbow joint; and (3) a lacerated wound 1" x 1/4" x skin deep on the left temporal region. But the learned counsel for the appellant has contended that the injuries alleged to have been sustained by the complainant must have been manipulated in order to lend confirmation to his claiming that he was with the deceased at the time of incident.
13. This contention would be dealt with later while discussing the ocular evidence. The medical evidence thus bears out that the complainant Ghulam Haider had injuries on his person when he was examined.
14. The most crucial question to resolve is whether the appellants caused death of the deceased. On this point, prosecution case mainly rests on the ocular evidence of complainant Ghulam Haider (Exh. 5) and Kalu (Exh. 9); and corroboration is sought from circumstantial evidence in the form of medical evidence, recovery of crime weapons, motive and abscondence of the appellants.
15. Complainant Ghulam Haider's evidence is that he and the deceased had gone to the head of their watercourse to reduce flow of water and they were returning from there when they were waylaid by the appellants and were assaulted. He has alleged that the appellants accused the deceased of having developed illicit connection with the were of appellant Talib and gave him hatchet blows.
16. He has further alleged that he too was struck by the appellants but with blunt side of hatchets on his venturing to invergence. He has stated that the incident was witnessed also by his brother Ghulam Qadir and Kalu who reached there on hearing alarm. These facts were disclosed in the F.I.R. (Exh. 6). Next is the evidence of eye-witness Kalu (Exh. 9). He has stated that he and Ghulam Qadir were going to a village, known as Mai-jo-goth, when they were attracted by cries near Azim Wah and they rushed to the spot and saw that the appellants were given hatchet blows to the deceased Rasul Bux and the complainant Ghulam Haider. The third eye-witness Ghulam Qadir, a brother of the deceased Rasul Bux and the complainant Ghulam Haider, was not examined. Thus, there is ocular evidence of two eye-witnesses, namely the complainant Ghulam Haider and Kalu.
17. Their evidence has been assailed on several grounds firstly, that both of them are interested witnesses, the complainant Ghulam Haider who is not only one of the victim, as alleged, but is also a brother of the deceased, and Kalu is a friend of their brother Ghulam Qadir. Secondly, that presence of both of them at the opportune time was not only improbable but was also unnatural as for reducing flow of water at the head of the watercourse, it was job of only one person and there was no purpose in both the brothers having gone together, and, if at all, it was job of more than one person, they would have taken spades or any other implement for doing the task; but both of them are said to have gone empty handed. Thirdly, that the complainant and the deceased Rasul Bux used to reside in one village, their brother Ghulam Qadir was living in another village, and P.W. Kalu was residing in a third village, all the three villages situated more than a mile apart from one another and their getting together was nothing but an unnatural event. Fourthly, that the third eye-witness Ghulam Qadir, who is a brother of the victims, was not examined although an application was moved on behalf of the appellants for examining him and, mysteriously, the application was opposed by the prosecutor, and the only inference deducibie therefrom would be that he would not have supported the prosecution case if he were examined.
18. According to the learned counsel it was an unwitnessed incident. On the other hand, the learned Assistant Advocate-General has argued that presence of all the three eye-witnesses was not unnatural and that relationship of two of them with the deceased and the third one being their friend did not necessarily make them interested witnesses. He has further argued that it is quality and not the quantity of evidence that counts, and since two eye-witnesses Ghulam Haider and Kalu had testified to the occurrence, production of Ghulam Qadir was not necessary, particularly in the circumstances that it is inconceivable that he, being a brother of the deceased and complainant, would not have supported the prosecution case; and, even if he had been examined and he had supported the prosecution case, which he must have done as a brother of the victims, his evidence would have been subjected to the same criticism that he was an interested witness.
19. The ocular evidence comprises of two witnesses Ghulam Haider and Kalu out of three named in the F.I.R. The third eye-witness Ghulam Qadir, although another brother of the deceased, was not examined despite an application having been made on behalf of the appellants that he should be examined. Ghulam Haider complainant is to brother of the deceased. P.W. Kalu has friendly terms with P.W. Ghulam Qadir. Complainant Ghulam Haider's presence may not be doubted as he had sustained three injuries, although minor in nature. But Kalu is a chance witness as the purpose of his going in that direction alongwith Ghulam Qadir seems to be a made up affair. Ghulam Qadir was not examined to support that fact. Withholding of evidence of eye-witness Ghulam Qadir has further shaken the ocular evidence. As many as four persons have been involved in causing death of the deceased, who had sustained in all seven injuries. Had he been struck by all the four appellants, as alleged, he would have suffered considerably more harm. Thus there is greater probability of exaggeration in number of the assailants. Since there is evidence of one eye-witness Ghulam Haider, a brother of the deceased, and Kalu was, undoubtedly, a chance witness, and the third eye-witness Ghulam Qadir has not been examined, the ocular evidence needs corroboration to inspire confidence.
20. Three pieces of corroborative evidence have been relied upon. They are: recoveries of crime weapons abscondence of the appellants and motive. The incident took place on 10-6-1975. The appellants Guloo, Masoo and Dilmurad were arrested from the locality on 15-6-1975 and they are alleged to have produced a hatchet each, without stains, from their respective houses. Appellant Talib was arrested on 27-6-1975 and nothing was recovered from him. Scaring away of the appellants from apprehension by police for few days could be due to fear of humiliation and it did not necessarily tend to create an evidence circumstantial piece of evidence. Moreover, no evidence was adduced as to what efforts were put for apprehending the appellants. Accordingly, the alleged disappearance of the appellants from their village for some day did not amount to their abscondence particularly in the circumstances that they were found in the locality within few days of the incident. Moreover, they were not asked any question about their disappearance. The learned Assistant Advocate-General has cited a case Gul Hussain and another v. The State PLD 1969 SC 89 wherein abscondence of accused was considered an incriminating circumstance affording corroboration to direct evidence. But in the instant case, disappearance of the appellants for few days to avoid apprehension did not amount to abscondence. On the other hand, the learned counsel for the appellants had relied upon two cases reported in 1969 SCMR 383 and PLD 1978 CLC 164, where alleged abscondence was not considered as incriminating evidence. The alleged recovery of hatchets also did not constitute substantial corroborative evidence in absence of human blood-stains on them. As regards motive, there is a word of complainant Ghulam Haider that the appellants suspected that the deceased was in toe with the were of appellant Talib. The learned Assistant Advocate-General has contended that it is not necessary that there should be motive behind commission of every criminal offence; and he has cited cases reported in PLD 1954 Lah. 710 and PLD 1965 Kar. 31 as supporting authorities. On the other hand, the learned counsel for the appellant has contended that in case motive is alleged and it is not established, that fact weighs against the prosecution. He has relied upon the cases reported in PLD 1969 SC 127; 1971 SCMR 432; and PLD 1974 Kar. 274. The evidence on the alleged motive rests on the testimony of complainant Ghulam Haider, and no other witness was examined on this aspect of the case.
21. Evidence of the complainant Ghulam Haider alone is not sufficient to prove the motive, but what he has alleged is not altogether a false accusations in view of the fact that the appellants also have alleged that they have been involved due to enmity and they have not disclosed any other enmity.
22. In any case, there is no doubt that there existed some discord between them. But the allegations of the said motive were not put to the appellants in their statements under section 342, Cr.P.C. To disclose their defence. Thus, alleged motive does not make out incriminating evidence.
23. As observed above, the ocular evidence is not sufficient by itself to sustain conviction of the appellants and the corroborative evidence does not have probative incriminating substance as to hold four persons guilty of having assaulted the deceased to death.
24. As regards assault on the complainant Ghulam Haider, he had sustained three minor injuries caused by means of a blunt weapon. It is surprising that he, being brother of the deceased, was dealt with so sparingly. Alleged assault on him goes the same way as that on the deceased as not proved beyond reasonable doubt. It is further surprising that such assault on him has been considered by the learned trial Judge as an attempt or, his life.
25. For the reasons recorded above, the appeal is allowed, the judgment of the trial Court and the conviction of the appellants and the sentence awarded on them thereunder are set aside and they are acquitted. They shall be set at liberty forthwith unless required to be detained in any other case.