ABDUL HAYEE KURESHI, J.---The three appellants namely Bilawal son of Naboo, Muhammad Sharif son of Naboo and Dur Muhammad son of Hote all Chachars by caste were tried before the Additional Sessions Judge, Sukkur for an offence under section 302/34, P. P. C. The Additional Sessions Judge by a judgment dated 30-9-1971 convicted appellant Bilawal under section 302, P. P.
C. And sentenced him to death, sentence being subject to confirmation by this Court. By the same judgment appellant Muhammad Sharif and Dur Muhammad were convicted under section 302/34, P. P. C. And sentenced to transportation for life and also a fine of Rs. 1,000.00, in default of the payment of which further R. I. For one year. All the three appellants filed an appeal though Mr. Muhammad Hayat Junejo and the Additional Sessions Judge has also referred the case to this Court under section 374, Cr. P. C. For confirmation of the sentence of death. Mr. Abdul Karim Lakhan has appeared for the State.
2. Briefly stated the facts of the prosecution case are that appellant Bilawal and Muhammad Sharif are real brothers whereas the wife of appellant Dur Muhammad is said to be a cousin of the other two appellants. It is said that the appellants suspected that one Sahban, a nephew of deceased Habib Khan was on terms of illicit intimacy with Mst. Zainab, the wife of appellant Muhammad Sharif. In order to settle this dispute in regard to illicit intimacy a Jirga was held on 26-6-1969 at about 6 p.m. In the house of deceased Habib Khan. Such Jirgas are often held in mofussil when suspicions regarding illicit intimacy arise and in such Jirgas decisions are generally taken on Oaths of parties. In this case also it is said that deceased Habib Khan went and called P. Ws. Rahim Bux, Ellahi Bux and Sabar to attend the Jirga and settle the question regarding illicit intimacy of Mst.
Zainab and Sahban.
3. The prosecution story then it that deceased Habib Khan denied the allegations of intimacy between Sahban and Zainab and offered to take an Oath. He further, expressed that if the party of the accused/appellant was not satisfied with his Oath, he was prepared to give his daughter in marriage and. Also pay a fine as compensa--tion. On this Dur Muhammad is said to have become enraged and caught hold of deceased Habib Khan by his shirt collar. While Dur Muhammad was holding Habib Khan he asked his companions Bilawal and Muhammad Sharif appellants to attack Habib Khan on which Sharif gave a latht blow on the face of Habib Khan and Bilawal gave a hatchet blow on his head. After receiving injuries Habib Khan fell down and was held in the lap by Ellahi Bux.
4. P. W. Rahim Bux then went and brought Budho, the brother of Habib Khan and Sahban, the nephew of Habib Khan and thereafter the party carried H abib Khan on a cot towards the Reti Police Station, both for the purpose of lodging report and obtaining medical assistance for Habib Khan who was still alive. The prosecution witnesses state that when the party reached near Reti Police Out-post at about 7-30 p.m. Habib Khan died. Rahim Bux, the complainant left the dead body of Habib Khan in the house of one Muhammad Azim Chachar and proceeded to Reti Police Out-post. No report was lodged at this outpost but constable --Muhammad Ismail accompanied Rahim Bux to Daharki Police Station where the F. I. R. Was lodged at 3 a.m. This report was recorded by Sub-Inspector Hazar Khan.
5. The police officer then started investigation and reached Reti where he examined the dead body and prepared an inquest report. He also sent the dead body of Habib Khan for post--mortem examination to Medical Officer, Ubauro where the same was examined by Dr. Muhammad Yousuf on the next morning at 8-30 a.m. The police officer thereafter came to the scene of offence where he prepared a Mashirnama of the same. No blood was seen at the Wardat. The police officer also recorded the statement of the witnesses. The three appellants were arrested by the same police officer on 3-7-1969 viz. After a week of the incident. Appellant Bilawal is said to have produced a hatchet which was lying in a corn-bin in his house. The blade of the hatchet was stained with blood and the same was sent to the chemical analyser on 28-4-1970 viz. After 10 months and it was found to be stained with human blood. The chemical analyser's report has been produced on record as Exh. 12/2. Appellant Muhammad Sharif also produced a lathis before the police and the same was secured. This lathi however was not found to be stained with blood and was not sent to the chemical analyser. P. W. Qadir Bux bad assisted the police by acting as a Mashir in respect of the aforesaid recoveries. --This Mashir is the nephew of Muhammad Azim e hoax the dead body had been kept by Rahim Bux before going to Daharki Police Station. After usual investiga--tions the three appellants were sent up to stand their trial which has resulted in their conviction and sentence as aforesaid.
6. At the trial the prosecution examined Rahim Bux (P.W.1), a cousin of the deceased who is also the complainant in the case ; and Ellahi Bux (P. W. 2) and Sabar (P. W. 6) as eye-witnesses of the occurrence. The prosecution also examined Police Constable Muhammad Ismail who had escorted the complainant to Daharki Police Station. Besides the above witnesses, Kadir Bux (P. W. 5) was examined as a Mashir. The prosecution also examined Khadim Hussain, the Tapedar who prepared the sketch of the scene of occurrence. Investigating Officer S. I. P. Hazar Khan (P. W. 7) gave evidence and produced the Mashirnama of the scene of occurrence and the chemical report. Dr. Muhammad Yousuf who had performed the post-mortem on the dead body of the deceased and had been examined in the Court of the committing Magistrate was not examined in the Sessions Court but his evidence recorded by committing Magistrate was brought on record as Exh. 13.
7. The three appellants did not examine any defence witness but they bad denied the prosecution case. Appellant Bilawal further stated that the allegation with regard to Mst. Zainab having illicit terms with Sahban was false. He also denied having produced any hatchet before Police Officer. He however, -alleged enmity with complainant party on account of some disputes over land. He also produced a copy of an application made by one Sabzal, a brother-in-law of appellant Muhammad Sharif challenging the grant of some land to P. W. Ellahi Bux. He further alleged that his cousin Dil Murad had some dispute with P. W. Sabar over land. The remaining two appellants Muhammad Sharif and Dur Muhammad also denied the entire prosecution case and substantially adopted the statement of appellant Bilawal.
8. Appellant Bilawal is said to have died during the pendency of his appeal and for that reason his appeal had abated. However, since the evidence against each one of the three appellants is common and similar, reference will necessarily have to be made to the evidence even against appellant Bilawal.
9. The prosecution evidence in this case consists of the testimony of the three eye-witnesses Rahim Bux, Ellahi Bux and Sabar. Of these witnesses Rahim Bux is a brother of the deceased whereas the two remaining witnesses are his caste-fellows these witnesses are also distant relatives of the appellants. The learned Sessions Judge was impressed by the evidence of these three eye-- witnesses. In his judgment the learned Sessions Judge has stated that none of these witnesses has been shown to be inimical to the appellants. He considered the impact of the allegations of enmity over land and concluded that on account of this enmity the party of the appellants may be having a grievance against the prosecution witnesses; and therefore, the prosecution witnesses could not be said to be inimical to the appellants. Since he came to the conclusion that the prosecution witnesses did not bear any enmity with the appellants, he was of the view that no corroboration was necessary to advance the credibility of the evidence of these witnesses. The learned Sessions Judge doubted the allegation of w recovery of blood-stained hatchet and laths from appellants Bilawal and Muhammad Sharif respectively. In short the approach of the learned Additional Sessions Judge was that the evidence of eye-witnesses was completely reliable and begged no corroboration. On this process of reasoning he convicted the appellants.
10. Coming to the ocular evidence in this case I will first take up the evidence of Rahim Bux, who lodged the F. I. R. This witness is admittedly a brother of the deceased. In the F. I. R. That he lodged he has not stated that any of the appellants used a hatchet or any one of them was even armed with a hatchet. When he came to give evidence he stated that the report was correctly recorded except for the fact he had not stated that appellant Bilawal was armed with a laths but he had stated that he was armed with a hatchet. This was indeed a very serious matter in view of medical and ocular evidence, and would normally call for questions from the Investigating Officer, but Investigating Officer was not at all examined on that aspect of the case. He was, however, cross- examined on that point when he clearly stated that complainant Rahim Bux did not state before him that Bilawal had a hatchet and caused injury with it. Moreover, the F. I. R. Is also belated.
Incident is said to have occurred at 6 p.m. And the report was lodged at 3 a.m. Viz. After nine hours when the police station is only nine miles away. While the complainant in his evidence gave no explanation about this delay, curiously Police Constable Muhammad Ismail stated that there was water on the way and, therefore, they had to take a detour by covering a distance of 10 or 12 miles in order to reach Daharki Police Station. The statement is absolutely vague and if it is to be believed one has to assume that there must have been a flood and if that were so, some other witness should have mentioned such a fact. More--over, what is most surprising is that no document was prepared a Red Police Out-post. Normally one would expect some entry in some document at Police Out-post in regard to a complainant having appeared and given information. In this case no document from Ked Police Out-post has been produced. All that Constable Muhammad Ismail has stated in his evidence is that no F. I. R. Book is kept at the Police Out-post. Even if I believe that such book is not maintained at the Out-post still I cannot possibly believe that there must be total absence of any documents where informations may be recorded. In the present case it appears that all that Constable Muhammad Ismail had to perform at Red Police Out-post was to escort the complainant to Daharki Police. Station. Such assistance is hardly of any avail. Moreover, Muhammad Ismail has not stated that he even went to see the dead body. If Muhammad Ismail had been contacted by Rahim Bux the least that was expected of Muhammad Ismail was a visit to the house of Muhammad Azim Chachar where the dead body was lying. Moreover, even the F. I. R.
Makes no mention of the complainant having contacted Constable Muhammad Ismail nor does the F. I. R. Show that Muhammad Ismail Constable had accompanied the complainant. In the report complainant states as follows :-- "Then we were taking Habib Khan towards Reti Police-post for report and treatment and when we reached near Red Habib died. Then we kept the dead body of Habib Khan in the house of Muhammad Azim Khan Chachar and I have come for report that the accused have killed my uncle Habib Khan."
The above-quoted passage clearly and conspicuously omits mention of the name of Muhammad Ismail. It is not even stated that complainant had gone to Reti Police Out-post. I am of the view that this evidence has been brought in the case in order to provide a blanket for the delay in lodging F. I.
R.
11. Even in regard to the evidence of three eye-witness there are some material discrepancies. The prosecution story that appellant Dur Muhammad caught hold of deceased Habib Khan and thereafter instigated appellants Bilawal and Muhammad Sharif to kill Habib Khan. With regard to this instigation, 6 evidence of Ellahi Bux is silent. Complainant Rahim Bux in hl evidence has stated that Dur Muhammad caught hold of the shirt of Habib Khan and asked his companions why they were still waiting. In his F. I. R. However, he had stated that Dur Muhammad after catching Habib Khan asked Bilawal and Muhammad Sharif that Habib Khan will give no decision and, therefore, he had held him and they should kill him. Sabar gave an entirely different story and he said that when Habib Khan undertook to take Oath, Dur Muhammad stated that they had slot come for an Oath but they had come to kill him. He, however, did not state that Dur Muhammad instigated the remaining appellants.
12. The learned Additional Sessions Judge in paras. 17 and 18 of the .Judgment has stated that the witnesses had no enmity with the appellants. He proceeded to say so in spite of adverting to the dispute existing between the pasties in regard to land. P. W, Ellahi Bux had obtained some land and Sabzal a brother-in-law of appellant Bilawal had made an application for cancellation of his grant.
It was also in evidence that Dil Murad , a cousin of appellant Bilawal had a dispute with P. W. Sabar over land. P. W. Sabar had stated in cross-examination that Dil Murad had made an application against grant of land to him but the application had been rejected. This would show that relations between tile two parties were not happy on account of disputes over land. The learned Additional Sessions Judge proceeded on the reasoning that since Sabzal and Dil Murad had not been deprived of the land to spite of the appellants making applications against them, the witnesses had no grievance against the appellant. To say the least these are hypothetical and far-fetched reasons. When it is established in a criminal case that a dispute exists between the parties it will not matter in whose favour the dispute is decided. Relations become strained immediately when a person tries to trample over the rights of others and if by due care a person it able to retain his rights and keep the property to himself, it would not show by itself that the parties had forgiven each other. Deep and lasting rancours get seated in the minds of persons when disputes regarding property take place anti such rancour do not get obliterated merely because the rightful owner retains his rights. The question is not with regard to result of litigation but the mere existence of litigation can and will embitter relations between the parties. The question then will be whether with this background the witnesses could be expected to remain truthful so as to inspire confidence in Courts in regard to their evidence. I am clearly of the view that on account of these disputes regarding land the rela--tions between the parties were far from cordial. In that case it would mot be in accord with the principles of safe dispensation of justice in criminal cases to act without corroboration.
13. In the present case the evidence of Ellahi Bux shows that after the injuries were cause to Habib Khan he held his head in his laps. His clothes therefore became bloodstained. Normally this circumstance would have lent very strong corroboration as to the presence of Ellahi Bux at the scene but strangely enough Ellahi Bux became anxious to wash his clothes and did wash the same before proceeding with Habib Khan to Reti.
14. P. W. Sabar has tried to show that he was an independent witness and in that attempt even concealed his relationship with Ellahi Bux and Rahim Bux. The evidence discloses that Sabar is related to one Khabar. The daughter of Khabar is married to Budho who is in turn related both to Ellahi Bux and Rahim Bux. Sabar, therefore, cannot be considered to be an independent witness. He also has a dispute on land with the cousin of appellant Bilawal.
15. There is till another significant circumstance to cast a doubt on the prosecution story. Although the witnesses state the there was blood at the wardat when police came and examined the same, the police officer has clearly stated that there was no blood nor were struggle marks visible at the scene of occurrence when he visited the same. Normally the blood marks and struggle marks at the scene of occurrence are not removed or destroyed before the police arrives, but in the present case no precuations have been taken by prosecution with regard to such valuable piece of evidence. Besides, the evidence clearly shows that immediately after the incident Budho and Sabban had come to the scene and they were even informed about occurrence. These two witnesses have not been examined. It is also in evidence that deceased was wearing a turban on his head. Since he received a hatchet blow on the head, the turban must have been cut but even this turban has not beep produced before the Court nor has any explanation been given with regard to its disappearance. Moreover, there appears to be no reasonable explanation for the dead body being kept in the house of Muhammad Azim Chachar. The dead body was kept in that house and a relative of Muhammad Azim even acted as a Masher in this case.
16. Coming to the motive, I have entertained serious suspicion with regard to the same. The, motive according to prosecution was to settle the question of illicit intimacy of Mst. Zainab with Sahban, a nephew of Habib Khan, The three appellants .Are related to Mst. Zainab and in fact appellant Muhammad Sharif is her husband. Under these circumstances it is highly improbable that even Muhammad Sharif, the husband of the flouted woman would walk up to the house of Habib Khan for a settlement. Moreover, Sahban's father was living and in that case he would have been the proper person to attend the Jirga. What is more improbable is that in spite of a very reasonable offer having been made by Habib Khan, the appellants should still have committed his murder. The evidence is absolutely unconvincing and becomes ridiculous when it is considered along with the evidence of Ellahi Bux. This witness was confronted with a statement contained in his statement under section 164. Cr. P. C. And he admitted having stated therein that the appellants were already sitting in. The house of Habib Khan deceased when the latter came to call them (the witnesses).
This would show that perhaps no Jirga ways fixed on that day and the story about this Jirga has been introduced in the case to suit the prosecution.
17. The trial Court has disbelieved the evidence with regard to recovery of hatchet from appellant Bilawal. I agree with the trial Court. However, the recovery of the hatchet under the circumstances stated in the prosecution case will necessarily react against the entire prosecution case. In this case S. I. P. Hazar Khan had stated in the committal Court that on the very first day of his investigation he searched the house of accused "but nothing incriminating was recovered." While the English record showed that the Investigating Officer had searched the house of the deceased, the Sindhi record showed that he had searched the house of the accused. The learned Sessions Judge considered that question 'while recording the evidence of the Sub-Inspector and came to the conclusion that the Investigating Officer had searched the house of the deceased. Under such circumstances an extract from the evidence of the Investigating Officer in the committal Court was placed on record as Exh. 12/3. This extract reads "I searched the house of deceased on the day I visited wardat, but nothing incriminating was found." To my mind the word "deceased" has been wrongly mentioned. When the entire sentence is read, it would show that the Investigating Officer visited the house for the purpose of making incriminating recoveries. Surely no incriminating recoveries were expected from the house of the deceased, the same were expected from the house of the accused. In that case the Investigating Officer must have searched the house of they accused and did not find anything incriminating. But in spite of that and curiously a hatchet was found from the possession of appellant Dilawal in his house after a week of the murder. The Mashir also is relative of Muhammad Azim Chachar the person in whose house the dead body was kept arc Reti. What is more fantastic is that this hatchet was with the police for a period exceeding 10 months before being sent to chemical analyser and was found to be stained with human blood. No explanation has been given for the delay in sending the hatchet to the chemical analyser.
18. This hatchet which hag been recovered had a broken handle. Each of the witnesses was cross- examined on the point whether the handle of the hatchet had been broken at the time of incident and each one of them had denied the same. It would, therefore, appear that this handle was broken subsequent to the day of incident. In that case it hardly appears to be reasonable that the appellant should not have washed the blood on that hatchet. The prosecution evidence also discloses that the appellant had handed over this hatchet to one Arbi after the incident. Arbi was examined by the police but has not been produced in Court to give evidence. On a consideration of all these circumstances. I am of the view that this has been planted on appellant Biliawal.
Although the Sessions Court disbelieved the evidence in regard to recovery of this hatchet, it only kept this piece of evidence out of its consideration. I am of the view that if the prosecution had gone to the extent of planting a blood-stained hatchet on the appellant, the circumstance should have clearly put the Court on guard. In that case it was patently the duty of the Court to have deeply scrutinized the ocular evidence and refrained from convicting the appellant without some corroboration. In the instant case there is no corroboration whatsoever of ocular, testimony, which also according to me is not free from doubt.
19. In the result, I allow this appeal and acquit the appellants Muhammad Sharif and Dur Muhammad. They shall be released forthwith if not required in any other case. The reference for confirmation of the sentence of death passed on appellant Bilawal has also abated on account of his death.