' TANZIL-UR-REHMAN, J.--This is an appeal under section 410, Cr.P.C. Against the judgment dated 29-2-1988 passed by learned Additional Sessions Judge, Kandiaro in Sessions Case No,20 of 1984 whereby the learned Judge convicted the appellant under Section 302, P.P.C. And sentenced him to death. The above criminal appeal is fixed alongwith Confirmation Case No,7 of 1988.
2. The incident took place on 19th December, 1983 at about 6-30 p.m. Within the precinct of Kandiaro Police Station, District Nawabshah. An F.I.R. Was lodged at about 7-30 p.m. On the same date at Kandiaro Police Station by one Sojhro Khan who is uncle of the deceased, on receipt of information, through his son Muhammad Uris. The conviction is based on the evidence of two eye- witnesses, P.W. Muhammad Uris (Exh.10) and Shafi Muhammad (Exh.11) as well as the medical evidence, besides the evidence of A.S.I. And Mashir of the Wardat, injuries, inquest report, arrest of the appellant and recovery of hatchets.
3. According to the F.I.R. The complainant's son Muhammad Uris, Pathan (deceased) and Shafi Muhammad were sitting in the hotel of Hafiz Shah Mir Ali and witnessing the Television programme, when at about 6-30 p.m. The appellant, Ghulam Murtaza came over there armed with hatchet. No sooner he came there, he gave hatchet blow to Pathan on his head who, then, fell down on the ground. The P.Ws. And other persons stood up but the culprit, ran away. Immediately on receipt of such information, through his song Cris, the complainant rushed to the place of Wardat and saw that the injured Pathan was lying unconscious and was bleeding. Then, the complainant, his son and some other persons of the village brought the injured to Taluka Hospital, Kandiaro wherefrom the complainant then went to the Police Station to lodge the first information report. It was further stated by the complainant in his first information report that Ghulam Murtaza (appellant) had altercation with the injured Pathan about a month back and the said Ghulam Murtaza used to say that he will not spare Pathan and will kill him and that with that motive, Ghulam Murtaza inflicted hatchet blow to the complainant's nephew, Pathan, with intention to kill him.
4. According to prosecution on receipt of the first information report, Abdul Rahman, A.S.I. Incharge Police Station, Kandiaro proceeded to the Hospital, prepared Mashirnama of injuries on the person of the injured Pathan in presence of Mashirs, namely Sawan and Janan. On the following morning the A.S.I. Received information from the Hospital that the injured Pathan has succumbed to his injuries. The A.S.I., then, preceded to the hospital where the dead body of injured Pathan was lying and prepared Mashirnama in the presence of Mashirs, namely, Inayatullah and Sawan. The A.S.I.
Also prepared inquest report in presence of Mashirs, Jan Muhammad and Sawan. He then issued a letter to Head Constable, Muhammad Jumman to hand over the dead body of Pathan for post- mortem examination and proceeded to the place of occurance (wardat), secured the blood- stained earth, sealed it in a tin and prepared such Mashirnama in presence of the same Mashirs.
He arrested the accused on 21-12-1983 from Morath bus-stand in presence of the same Mashirs.
The accused, while in custody, volunteered to produce crime weapon, viz. The hatchet, and led the police and the Mashirs to his house and voluntarily produced blood-stained hatchet from the hedge of his cattle pan. The A.S.I. Secured the blood-stained hatchet and prepared such Mashirnama in presence of the said Mashirs. The A.S.I. Recorded statements of P.Ws. Uris and Shafi Muhammad under section 161, Cr.P.C. And later got their 164, Cr.P.C. Statements recorded before Mukhtiarlcar and F.0 .M. , Kandiaro. The case papers were then handed over by him to the Station House Officer who submitted the challan against the accused in the trial Court. The report of the Chemical Examiner and Serologist was positive, showing that the hatchet and earth were stained with human blood. A charge under section 302, P.P.C. Was framed against the accused to which he pleaded not guilty.
5. In support of the case, the prosecution examined the complainant Sojhro Khan (Ex.8), the two eye-witnesses Muhammad Uris (Ex.10) and Shafi Muhammad (Ex.11), the Tapedar, Yar Muhammad (Ex.12) who prepared sketch of the place of wardat Mashir, Sawan (Ex.15), Medical Officer, Dr. Khaliq Zaman (Ex.23) and lastly the Investigating Officer, Abdul Rahman (Ex.26). The A .P.P., however, gave up other co-mashirs and P.W. Ibrahim (Ex.14) and P.W. Muhammad Jumman (Ex.22) and closed his side (Ex.29).
6. The statement of the appellant was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegation against him and pleaded his innocence and giving his own story, he stated as under:-- "Deceased Pathan was on illicit terms with Mst. Zarina wife of Razu, brother-in-law of complainant.
Razu had complained to complainant, complainant had restrained Pathan from visiting house of Razu, but Pathan did not abstain from visiting her. My father has 4 acres of agricultural land near the house of complainant, who wants to purchase the land from my father. On his refusal he was annoyed and I have been falsely implicated in this case. I was lying ill prior to the incident, and was admitted to hospital from where police brought me and implicated in this false case. He had produced admission slip."
7. The appellant in his statement under section 340(2), Cr.P.C. Also denied on oath the prosecution allegations and stated the same facts on oath as stated by him in his statement under section 342, Cr.P.C. No defence witness was examined by him.
8. We have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellant and Mr. Jalaluddin Baloch, counsel for the State and have also gone through the record and proceedings of the case.
9. Learned counsel for the appellant submitted that the statement under section 161, Cr.P.C. Of the eye-witness Muhammad Uris was recorded after 2-3 days of the incident as admitted by him in cross-examination. Both the eye-witnesses stated that they and the deceased were sitting, on the benches, but according to P.W. Sojhro there was no blood on the bench. In fact as per Mashirnama Ex.19, there were no benches. The eye-witnesses are close relations of the complainant. No independent witness was produced though present at the Wardat. The only Mashir produced in Court, namely, Sawan, is also a close relation of the deceased. The recovery of hatchet is doubtful.
The entire evidence, in fact, lacks independent corroboration and it is a case for acquittal.
10. Learned counsel for the State supported the conviction but suggested reduction in sentence.
11. In the above case, two eye-witnesses have been produced, namely, Muhammad Uris (Ex.10) and Muhammad Shafi (Ex.11). Muhammad Uris is the son of Sojhro Khan, the complainant. Muhammad Uris at the time of recording the deposition on 16-1-1988, is stated to be of 18 years of age. Thus, at the time of incident he was minor, aged about 13 years, studying in 8th class. Admittedly, he is a real cousin of deceased. The other witness, Muhammad Shafi is also a relation of the complainant as admitted by him. The incident took place at about 6-30 p.m. In a hotel, where 15-20 persons have been said to be witnessing the Television programme. The owner of the hotel and the bearers were also stated to be present at the time A of the incident. When the complainant reached the place of occurrence at about 7-00 p.m. He stated that about 40-50 persons had gethered there, but no other witness was produced by the prosecution. It is also noticeable that the statements of two bearers, namely, Muhammad Ibrahim and Allandino were recorded by the Police under section 161, Cr.P.C. But they were neither produced before the Magistrate for recording their statements under section 164, Cr.P.C. Nor examined in the Court. The presumption will, therefore, be that, perhaps, these two witnesses would not have supported the prosecution case and had they been produced in the Court, their evidence would not have been favourable to the prosecution. Although a large number of persons (15-20) were present at the time of incident and just after the incident about 40-50 persons had gathered there, the prosecution has failed to produce even a single independent witness in support of the case. The only evidence produced is that of one major witness, who is related to the complainant, and a minor who is the son of the complainant and real cousin of the deceased, whose statement, too, according to his own admission, was recorded after 2/3 days of the incident. The evidence so produced does not inspire confidence, specially when the relations between the parties were strained due to altercation between the deceased and the appellant, over weekly rotation of water from the same water-course. It also seems improbable that the appellant would kill the deceased in a hotel where 15-20 persons were present. Perhaps opportunity of quietly finishing the deceased who vould have come for watering his fields on his weekly turn, three or four times in a month, might be safely available. For non-production of any other, witness present at the time of incident, who could be a natural witness and could be the best available evidence, no implicit reliance can be placed on evidence of the interested eye-witnesses in the absence of corroboration. Reliance is placed 'on the cases of Muhammad Sharif v. Tahir-ur- Rahman 1972 SCM R 144 and Qabil Shah v. The State PLD 1960 Kar.
697.
12. It may also be added that in a case of murder to award death sentence i.e, life for life (Qisas: - retaliation), it is necessary under the Qur'an and Sunnah that two adult male witnesses of unquestioned integrity be produced in evidence for proof of the offence. Reference may be made to the Qur'anic verses: ' And get two witnesses out of your own men (II: 282)
' And take for witness two persons from among you, ' and a tradition of the Holy Prophet:(ARABIC TEXT) i.e, two witnesses of yours (complainant) or (otherwise) the oath (of. The accused will be decisive). Although it is proyided in Article 170 of the Qanun-i-Shahadat Order 1984 (without examining the provision from Islamic point of view as it is not required here, the Court may act on the evidence, of one male or female witness, but in the present case, it does not seem proper to act on the evidence of one man only as there were other men present and available at the time and place _ of the incident, who could be produced in evidence.
13. The stroy of recovery of hatchet on the pointation of the appellant also seems to be doubtful.
Inasmuch as the recovery is shown to have been made on 21-12-1983 at 14.10 hours (Ex.21), whereas the order for remand of the appellant was obtained on 22-12-1983 on the ground that hatchet used in the crime was to be secured from the accused on his pointation. (see para. 2 of the application for remand Ex.28). All this makes the recovery of hatchet unreliable and is thus ruled out of consideration.
13-A. It is also noticeable that Mashir Sawan Ex.15 is a common Mashir for all times and purposes viz. Injuries, Wardat, inquest, G arrest of the appellant and recovery of hatchet. The name of other different co-Mashirs have been stated in the mashirnamas, but only Sawan Ex.15 was examined in the Court. Although these Mashirnamas are shown to have been prepared on different dates but they seem to have been prepared on the same day. For example, the first Mashirnama Ex.16 is dated 19-12-1983 at 19.35 hours, but it mentions crime No,160/83 under section 302, P.P.C., whereas it should have mentioned section 307 or 326 P.P.C. As the deceased has been shown to be alive on 19-12-1983, having died on 20th December, 1983 in early hours of the day. This Mashir Sawan, too, who is a mashir of the recovery as well, is a close relation of the deceased and every time whenever the Mashirnama is prepared he was present. It has also been admitted by the Investigating Officer that the Mashir was made available by complainant himself. There were other independent persons present at the Wardat in the hotel at the time of arrest, at bus-stand, and so also could be of recovery, but none is picked up for making him as Mashier. This goes a long way to show that the mashir so selected could support any story set up by the Investigating Officer and, is therefore, not reliable.
14. As regards the place of Wardat and the presence of benches and absence of blood thereon, it has been stated by both the eyewitnesses that they as well as Pathan, the deceased and other 15- 20 persons were viewing Television programme in the hotel while sitting on benches. In fact, the two PWs gave a detailed description of benchses as to their number and sitting arrangement, but according to PW. Sojhro, the complainant there was no blood on the bench. (refer page 43 of the paper book). The Mashirnama of Ex.19 does not show that there was any bench lying in the hotel. In fact there is no mention of the benches. It has been stated by the Investigating Officer that there were four cots and four tables (and so no benches).
15. It is regretable that the Investigating Officer on receipt of information about the incident, after the F.I.R. Was lodged by the complainant at about 7.30 p.m., failed to visit the place of wardat then and there. His execuse that it was night time and so he did not go to the place of Wardat is hardly acceptable as the incident had taken place in the hotel having electricity and it was situated on main road at a distance of about 5 k.m. According to the admiss of the Investigating Officer himself, he visited the place of Wardat only on the following day after information of the death of the injured Pathan was received by him from the hospital. It appears that the Investigating Officer acted carelessly if not dishonestly. It makes the prosecution case doubtful. (Reliance is placed on Anwar v. State 1975 PCr.LJ Lah.750).
16. In result, the prosecution has failed to prove its case beyond reasonable doubt and thus the benefit should go to the appellant. We, therefore, allow this appeal, set aside the conviction and sentence and acquit him of the charge. He will be released forthwith if not required in any other case.