I. MAHMOUD, J.-This is an appeal filed by Muhammad Rahim son of Soomar Pusio aged 25 years who, together with his brother Babli alias Hussain son of Soomar Pusio aged 30 years, was tried by the Additional Sessions Judge, Hyderabad, on a charge of murder of one Wahyoon by intentionally and knowingly giving him hatchet blows in furtherance of the common intention of both accused.
The appellant was convicted of the substantive offence under section 302, P. P. C. And sentenced to death. The other co-accused, Babli alias Hussain son of Soomar Pusio was acquitted. The case was also come up to us for confirmation of the death sentence under section 374, Cr. P. C. This common judgment will dispose of both matters.
2. The case of the prosecution was that the deceased Wahyoon, resided with his wife Mst. Haws and his daughter Mst. Raji aged 17 years and 3 minor sons including Mooso aged 13 years in Dehlacki Tapo Mullan, Taluka Sujawal, District Thatta. Mst. Baehan, sister of the deceased Wahyoon, also lived with her daughter Mst. Husna in a separate house within the same hedge enclosure. The deceased Wahyoon was the paternal uncle of the complainant Muhammad Hassan who also lived nearby outside the hedge enclosure. The two accused Muhammad Rahim (the appellant) and Babli, lived at a call's distance from the deceased's village. Mst. Raji daughter of the deceased Wahyoon was married and sometimes came to live with her father, where she resided on the night of the incident. Mst. Husna had a dispute with her husband and therefore lived with her mother `Mst. Bachan. The complainant stated in his F. I. R. That Mst. Raji was on illicit terms with accused Muhammad Rahim, the appellant, while Mst. Husna was on illicit terms with the co-accused. Babli.
About 5 or 6 days prior to the incident, the deceased Wahyoon bad seen the two accused chit- chatting in an objectional manner with Mst. Husna and Mst. Raji. He had therefore beaten the women and informed about this to the com--plainant, his nephew, both of whom later reprimanded the accused for their intrigue with the women. On the night between the 30th and 31st August 1969, at about 1 a.m., the complainant was sleeping in his house, when he heard cries of "Ghora" "Ghora" coming" from the direction of the deceased's house. The com--plainant got up and rushed towards the hedge of the deceased---s house. It was a moonlit night, being the 16th night of the lunar month of Jamadi-ul-Sani when the moon is full in the horizon after midnight. The complainant said that when he went inside the hedge enclosure on the back side of the deceased's house, he saw the two accused Muhammad Rahim (the appellant) and Babli giving hatchet blows to Wahyoon, who on receiving injuries fell down. On seeing the complainant, the accused threatened him not to come, near and then jumped over the fence and ran away. The complainant said that at that time beside him, were also present Mooso, Mst. Haws, Mst. Raji and Mst. Husna who had witnessed the incident. The deceased went unconscious and was removed and placed on a cot but died after a short while. The complainant then sent for Jaffer Shah (P. W..
6) to whom he narrated the facts, on his arrival. The complainant further stated in the F. I. R. That he was informed by Mst. Haws, that she and the deceased were asleep, when she heard some noise within the hedge, on the backside of the houses, and that she awakened her deceased husband who challenged and tried to catch the accused. That she and the others present there, identified the accused Muhammad Rahim and Babli, in the moon--light, and they saw the accused giving hatchet blows to the deceased, whereupon they raised cries of "ghora" "gbora" when the complainant arrived.
3. The F. I. R. Was lodged at 8 o'clock the following morning at Jati Police Station about 17 miles away and it wasrecorded by S. H. O., Muhammad Yousif, who soon thereafter went to the vardat which was shown to him by the complainant. He secured blood-stained earth and also prepared inquest report Story in the presence of mashdrs, Sulleman and Hashim. He then sent --the dead body through Constable Muhammad Bashir to the Medical Officer Sujawal for examination and report. He then examined the witnesses and other persons and arrested both the accused ors the same day at 6 p.m. He noticed that the appellant Muhammad Rahim had an injury on the back of his shoulder, which was bandaged, and there was also a swelling on his chest. These injuries have been mentioned in the mashirnama of his arrest (Exh. 19). After his arrest, the appellant led the police officer to his house and from the back side of his house, by the side of his hedge, be dug out and produced a blood-stained hatchet, which was sealed then and there under mashirnama (Exh.
20). The other accused Babli also after his arrest, led the police' to his house, where he produced his hatchet, which had no blood stains on it. These articles were sent to the Chemical Examiner, who reported that the hatchet and the earth recovered were stained with human blood. Statements of the witnesses were recorded under section 164, Cr. P. C. And the accused were challaned in the Court of First Class Magistrate, Sujawal, for enquiry.
4. The Medical evidence shows that the following injuries werefound on the deceased :--
(1) Contusion 1 --" x 1" x of the outer aspect of right shoulder.
(2) An abrasion 1/2" x 1 /2" x over the right side of nose.
(3) A contusion 2" x 1--" x over the left supra clavicula fosa medial aspect.
(4) An incised wound 6' x 1' x brain deep cutting the scalp, skull and extending into the brain over the trop of scalp extending from midline backward and towards the right side of occipital region.
The brain was exposed and brain matter was cut in the wound.
In the opinion of the Medical Officer the death was caused by Injury No. 4 resulting in haemorrhage and that it was sufficient to cause death, in the ordinary course of nature. Further, that injury No. 4 was caused by some sharp cutting weapon, and the rest, were caused by some blunt weapon ; and that all the injuries were ante-mortem.
5. The defence set up by the accused in their statements before the committal Court as well as the Sessions Court, was a denial of the prosecution case and their false implication in the case due to standing enmity with Gul Muhammad Lighari and Khojas who owned lands adjoining those of the accused and who wanted to purchase them but the accused refused to oblige. When questioned about the injuries on the person of the appellant, he explained that two days prior to the incident some thieves bad entered into his cattle-pond and in the resistance, the thieves inflicted injuries on his person.
6. In support of its case, the prosecution relied on the ocular evidence of Muhammad Hussain (P. W.
2), the com--plainant, Mst. Hawa (-P. W. 4) the widow, and Moosa (P. W. 5) the deceased's son. The salient features of the ocular evidence regarding identity of the deceased's assailants, the part played by them and the story of the injuries on the person of the appellant are as follows: The complainant deposed that he identified both the accused in the moonlight as they were his neighbors and he knew them since their birth. However, he admitted in cross-examination that the incident took place under the shade of a babul tree inside the hedge enclosure where there were lai bushes. As to the part played by the two accused in the murder, he stated that he saw the appellant grappling with the deceased while Babli was giving hatchet blows. He was more specific and stated that it was Babli who had given 3-4 hatchet blows from the blunt side and one hatchet blow from the sharp side. It appears from his evidence that all the injuries on the deceased were inflicted by Babli and not by the appellant. He also stated that the deceased was empty-handed.
The injury on the back of the appellant cannot therefore have been inflicted by the deceased. On the other hand, the other two ocular witnesses Mst. Hawa the widow, and Moosa the son of the deceased, both say that the deceased rushed out of the house with hatchet in handand they saw him giving hatches blows to the appellant on his back. Both witnesses were con-- fronted with their-164, Cr. P. C. Statements and the lower Court depositions in which no such statements appeared. We believe that this improved version has been belatedly introduced in order to explain the injury on the person of the appellant and to connect him with the crime. The deceased's hatchet was also not produced during the investigation: However, both these witnesses support the story that the appellant grappled with the deceased while Babli gave the hatchet blows to the deceased. The prosecution also relied on the evidence of recovery of the blood-- stained hatchet which the appellant produced to the police as, well as the fact of injuries on the person of the appellant. Themotive for the accused to go to the house of deceased was their allegedintimacy with the two ladies.
7. The learned Additional Sessions Judge believed the three ocular witnesses as to the identification of the appellant in the moonlight and in view of the injuries on his person as well as the recovery of the blood-stained hatchet produced by him, he felt no doubt that the appellant had participated in the murder, and had given fatal injuries with his hatchet to the deceased, some from the back side and one from the sharp side, which resulted in his death and, accordingly he found him guilty of murder. On the other hand, as far as the co-accused Babli was concerned, he found that he had no motive to be present in the house of the deceased since, Mst. Husna, with whom he was alleged to be on illicit terms, lived in a separate house of her mother, Mst. Bachan, that there was no other evidence to connect him with the crime except the ocular evidence of tile three witnesses which he dis--believed in his case. He felt that the co-accused had been falsely implicated on account of suspicion and enmity by the complainant party and concluded that, he was not present at the scene of the offence. He therefore acquitted him.
8. We have considered the evidence in this case carefully, land do not agree with the trial Court. We are of the opinion that the conviction of the appellant under section 302, P. P. C. Is not sustainable on the basis of the evidence for the following reasons. We are not convinced that the ocular witnesses, who were clearly interested witnesses, had sufficient opportunity to identify the assailants of the deceased Wahyoon. The incident had taken place in the moonlight under the shade of a Babu tree and it is highly improbable that the identity of the two accused could be established beyond any shadow of doubt. If the ocular evidence establishing the identity of Babli in the moon--light could not be believed 'by the learned Additional. Session Judge, there is no reason to accept the same evidence as to th identity of the appellant except on the basis of other independent pieces of evidence.
9. We also believe that the learned Sessions Judge was wrong in believing that the injuries on the person of the appellant left no doubt that he had participated in the caime at the time of the incident. In the first place, it was the duty of the prosecution to have proved that these injuries were received by the appellant at the time of the commission of the offence. The appellant was not examined by a Medical Officer to show that the injuries were fresh and/or appeared to have been caused on the night of the incident. Nor was the hatchet allegedly used by tire deceased produced before the police. Secondly, the appellant had put forward a plausible explanation for the injuries on his person' which he stated he had received two days prior to the incident at the hands of thieves. And again, there is nothing in the F. I. R. To indicate that the deceased himself had rushed out of his house with hatchet in hand, and that the deceased gave hatchet blow to the appellant on his back. In fact, Mst. Hawa and Mooso were positively confronted with the omission of these statements in their section 164, Cr. P. C. Statements and those in the committal Court. We are therefore not inclined to accept the improved version on this point of the evidence of ocular witnesses, Mst. Hawa P. W. 4, and Mooso P. W. 5.
10. We also do not agree with the trial Court that the recovery of the blood-stained hatchet, proved to be stained with human blood, alone was sufficient to connect the appellant wit the guilt of the appellant, and that the appellant had used this blood-stained hatchet at the time of the incident.
On the contrary, we find that all the ocular witnesses deposed that it was the co-accused Babli who gave all the hatchet blows from blunt side and one hatchet blow from sharp side, while the appellant himself was grappling with the deceased. Therefore it cannot be inferred that the hatchet was used in this offence. It is also probable that the hatchet may have belonged to Babli who has been acquitted.
11. The learned counsel for the appellant Mr. Hayat Juuejo also submitted that there is no iota of evidence that the appellant was guilty of the criminal act as a participant in furtherance of the common intention to murder the deceased. He referred us to 1969 SCMR 454 which held that there must be proof of some overt act on the part of each accused done in the further--ance of the common intention and that common intention cannot be inferred from the mere presence of the accused. It is well-- established law that common intention within the meaning of section 34, P.
P. C. Implies a pre arranged plan and that the criminal act was done pursuant to the pre-arranged plan. The said plan may also develop on the spot during the course of the commission of the offence, as was alleged in this case, in that the appellant grappled the deceased to enable Babli to give blatchet blows and in order to rescue the appellant. But when the trial Court had acquitted Babli on the ground that his identity could not be established and therefore he could not be held to be connected with the crime and did not conjointly act with the appellant, it stands to reason that the appellant could not have conjointly acted with Babli. There was no evidence that the appellant acted conjointly with some other unnamed person.
12. Learned counsel for the State, frankly admitted that unless common intention is proved by the prosecution in order to make section 34 applicable, there cannot be a proper conviction under section 302 read with section 34, P. P. C. In other words, where one of two named accused has been acquitted of the charge under section 302, P. P. C. Read with section 34, P. P. C., the Court cannot convict the other on the 'basis of constructive liability, because for all intents and purposes, it is as if the acquitted accused was not present at the incident. However, his case was that section 34 could be applied on the ocular evidence of Mst. Haws P. W. 4 and Mooso P. W. 5 to the effect that the appellant was grappling with the deceased with the intention of enabling Babli to give hatchet blows, and that therefore common intention was formed on the spur of the moment. We do not agree because, in the first place, this story with regard to grappl--ing of the deceased does not appear in the F. I. R., nor is it supported in the section l64, Cr. P. C. Statements but appears to be an afterthought. The evidence of the ocular witnesses, as far as Babli is concerned, has been disbelieved by the trial Court as stated earlier. On the contrary, the trial Court has gone to the extent of saying that it was possible that these four injuries could have been caused by one man having a hatchet in his hands, by using both sides of the hatchet, and that it was therefore possible that only the appellant bad come to visit Mst. Raji and had given the fatal blows on being challenged. But this supposition is not consistent with the evidence and, in fact, is contrary to it. We believe that the complainant party had a motive to suspect the accused because of their alleged, intimacy with the ladies.
13. We are, therefore, of the view that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. Accordingly, we allow this appeal and set aside the conviction of the appellant under section 302, P. P. C. And order that he be acquitted forthwith unless required in some other case.