1. ' SAJJAD ALI SHAH, J.--In this appeal is impugned judgment dated 5-5-1988 passed by learned IInd Additional Sessions Judge, Sukkur whereby, both appellants named above have been convicted for offence under section 302/34 P.P.C. And are sentenced to death. Both appellants are further ordered to pay compensation of Rs,15,000 to the heirs of deceased or in default to suffer R.I. For six months. There is Reference before us under section 374 Cr.P. C. For confirmation of death sentence.
2. We propose to dispose of both appeal and Reference by this single judgment. On 13-12-1988 after hearing learned counsel for appellants and State, by a short order we had allowed the appeal, set aside conviction and sentence and rejected Reference for reasons to be recorded later, which follow now. Prosecution story briefly stated is that complainant Kadir Bakhsh is father of deceased Mst. Hanifan, who was married to appellant Hakim alias Kaku. After marriage the couple lived in the same village where complainant also lived. Mst. Hanifan used to complain to her father that her husband persistently taunted her on account of her weak eye-sight and expressed his disgust with her over her inability to do household work. Incident took place on 24-6-1980 at Tipahri time (late afternoon) in the land of Allandad Gabole near Lund Minor, Deh Sahib Khan Lund, Taluka Mirpur Mathelo. Complainant Kadir Bakhsh was standing in his land which was under cultivation.
3. Appellants Hakim alias Kaku and Badal were in their nearby land alongwith Mst. Hanifan. Suddenly cries were heard and complainant ran in that direction and found Mst. Hanifan lying down on the ground being held by Badal while her husband Hakim alias Kaku was giving hatchet blows to her.
4. Muhammad Alam and Ghulam Nabi witnesses also reached the spot and saw the incident. When witnesses arrived at the spot, appellants ran away giving threats to the witnesses not to come near and further they also declared that they have got rid of. Mst. Hanifan because she was unable to do the work. After escape of appellants, witnesses went near and found Mst. Hanifan lying dead due to hatchet injuries on her neck from which she had bled profusely. Complainant Kadir Bakhsh left other two witnesses near the dead body and repaired to Police Station Mirpur Mathelo which was at a distance of 10 miles, where he filed F.I.R. At 12.40 mid-night on 25-6-1980.
5. ' A.S.I. Ghulam Kabir after registering F.I.R. At the instance of complainant came to the scene of offence. He saw dead body of Mst. Hanifan lying in the abandoned water-course. He left one Constable with dead body and since it was night time, he left in search of culprits. He prepared mashirnama of wardat at 6 a.m. And secured blood-stained, earth and put it into a sealed parcel.
6. He prepared Inquest Report and sent the dead body to the hospital for post-mortem examination.
7. He recorded 161 Cr.P.C. Statements of Ghulam Nabi and Alam. On 22-7-1980 he arrested both appellants from Jawar and prepared such mashirnama. Appellant Hakim while in custody led to scene of offence and from under bushes took out and produced one hatchet which was blood- stained and was put into a sealed parcel. On 24-7-1980 Investigating Officer got recorded 164 Cr.P.C. Statements of witnesses Alam and Ghulam Nabi before Honorary Magistrate, Ghotki. S.H.O.
8. Sent sealed parcels to the Laboratory of Chemical Examiner and after completing other steps of investigation presented challan in the Court.
9. ' In the trial Court, prosecution examined nine witnesses in support of its case. P.W.1 complainant Kadir Bakhsh, P.W.2 Muhammad Alam and P.W.5 Ghulam Nabi have been examined as eye- witnesses of the incident. P.W.3 Abdul Razzak, Police Constable is corpse bearer. P.W.4 Muhammad Moosa is mashir, who attested and produced mashirnama of arrest Exh. 14 and mashirnama of recovery of bloodstained hatchet Exh.15. P.W.6 is Muhammad Saleh, mashir who has attested and produced Inquest Report Exh. 18 and mashirnama of wardat Exh.
19. P.W.7 Ghulam Shabbir is Tapedar, who prepared sketch of wardat Exh. 21 on 27-11-1984. P.W.8 is A.S.I., Ghulam Kabir, who has investigated the case. P.W.9 is Dr. Abdul Ghafoor, who conducted post-mortem examination and produced such report as Exh.
26. According to the Doctor deceased had sustained 4 injuries, out of which two were incised wounds on the back of neck and behind left ear. Injury No,3 was bruise below left ear lobe and injury No,4 was abrasion on the lower part of abdomen and upper front of right thigh. Cause of death was injury on the spinal cord causing shock and haemorrhage. Prosecution also produced report of Chemical Examiner Exh. 23 with positive finding that earth and hatchet were found to be stained with human blood.
10. ' In the trial Court, appellants were examined under section 342 Cr.P.C. In which they denied prosecution allegations and proclaimed to be innocent. Appellant Hakim alias Kaku stated that he did not know who killed his wife. Appellants first gave names of some defence witnesses but later declined to examine them.
11. ' We have heard at length Mr. Muhammad Hayat Junejo, Advocate for the appellants and Mr. Hayat Qureshi for A.G. Sind for State. In the trial Court prosecution produced and relied upon ocular evidence, circumstantial evidence and recovery of hatchet at the instance of appellant Hakim with positive finding of Chemical Examiner that it was stained with human blood, motive and medical evidence. For the purpose of appraisal, we first take up ocular evidence. P.W. 1 complainant Kadir Bakhsh claims to be an eye-witness of the incident. He is father of Mst. Hanifan. Incident took place on 24-6-1980 at Tipahri time and he lodged the report at P.S.Mirpur Mathelo at 12.40 midnight on 25-6-1980. Distance between spot and P.S. Is 10 miles. Reason for delay is stated in F.I.R.That complainant first went to inform Nekmard Hamzo s/o Sabzal who came there late in the night and after apprising him of the incident, complainant came to the Police Station as he was advised so to do by Nekmard. It may be mentioned that prosecution has not examined Hamzo s/o Sabzal. His name is not mentioned in evidence of Investigating Officer to the effect that he recorded his statement. Name of Hamzo also does not appear in Challan as witness. Explanation of complainant with regard to the delay in the registration of F.I.R. , as stated by him is not free from doubt.
12. ' Story of incident as depicted in F.I.R. Is that complainant was standing in this land which was under his cultivation and the other two witnesses namely Muhammad Alam and Ghulam Nabi were in the adjacent leased land and in the land in between deceased and two appellants were working. On cries complainant and the other two eye-witnesses ran to the spot and saw appellant Badal holding Mst. Hanifan who had fallen down on the ground while Hakim was giving her hatchet blows.
13. Witnesses cautioned appellants not to kill but appellants dragged dead body and threw it in the old water-course. Both appellants threatened witnesses not to come near and while running away declared that they had killed Mst. Hanifan as she was not doing work properly as such they had got rid of her. Leaving other two witnesses near the dead body complainant first went to nekmard Hamzo s/o Sabzal at his village and then to the P.S., where he lodged the report. Complainant has stated the same thing in his examination-in-chief so far the facts of incident are concerned as mentioned in F.I.R., with the exception of one improvement that in the trial Court he stated that he went on foot as no transport was available at that time. This fact he did not mention in F.I.R.
14. Complainant further stated in his cross-examination that house of Allandad was situated about two furlongs away from the place of incident. Houses of Haji Muhammad Bux, Murid and others were at a distance of two furlongs and there were about ten houses. On the day of incident he was working as Hari of Din Muhammad whose land was situated in Jarwar. Village of Jarwar was about 11 miles from the place of incident. Village of Jarwar is connected with Mirpur Mathelo and on that road taxies run upto 12 mid-night and buses and other vehicles also run during day time. Mirpur Mathelo was three miles from Jarwar. According to the complainant he did not inform anybody on the way but went to inform nekmard Hamzo Khan, who was not present in his village and came late at night. In cross-examination at one place complainant admitted that Hamzo Khan came at 8.30 p.m. And he reached Otak of Hamzo Khan at the time of sunset. Again said he reached Otak of Hamzo Khan when it was becoming dark. Again said Hamzo Khan met him on the way while he was going to lodge the report. Again said when he covered distance of 200 paces from his house Hamzo Khan met him all alone. Complainant in cross-examination has stated at another place that Hamzo had no Otak. He further stated that he did not meet anybody but again said that he met brother of Hamzo Khan but he did not narrate the facts of incident to him. In the cross- examination at one place complainant admitted that wives of Hamzo Khan and his brother Ghulam Nabi were sisters. Place of incident was situated in village Mir Khan Gabole. Wardat was situate at a distance of 'one mile from Mirkot. It was correct that in village Mir Khan there were about 100 houses. In the circumstances stated above, it can be expected that complainant would tell some persons about the facts of the incident and names of the culprits and some such persons could be examined to confirm the story of complainant by way of corroboration. Hamzo Khan was not examined in the trial Court and his name does not appear in Challan. Complainant was persisent in his evidence that he did not inform anybody else except Hamzo Khan.
15. ' Complainant also claimed in his evidence that at the time of incident he was cutting grass with "Wahola". He did not show "Wahola" to the police nor the grass cut by him. Complainant also claimed that at the time of incident appellants and Mst. Hanifan were cutting grass in their land. He further stated that he did not see any "Wahola" or any other instrument in the hands of any one of them. He further stated that he did not remember whether he had shown any grass cut by deceased and appellants to the police. At another place in cross-examination, complainant stated that he saw the dead body when appellants were putting it in "Wahi".
16. ' Second eye-witness is Muhammad Alam who is examined as P.W.2. He is Marote (maternal- cousin) of complainant. He has deposed before the tiral Court that on the day of incident he and Ghulam Nabi had gone to see land of appellant Badal. All of a sudden there were cries and they reached the place of incident where they saw Badal holding down on the ground Mst. Hanifan while Hakim alias Kaku was giving her hatchet blows. Mst. Hanifan was then dragged by appellants and put in "Kasi" and thereafter appellants ran away. Complainant Kadir Bakhsh went to the Police Station to lodge the report. In cross-examination, this witness has admitted that his wife and wives of complainant and Moosa are sisters. He was cultivating land of Din Muhammad in those days. He had come to Jarwar and from there had gone to the land of Ghulam Nabi. He also did labour work some times. He admitted that he gave his profession as "Paledar" (Labourer). He also claims that he saw complainant standing about 100 paces away from land of Ghulam Nabi. He and Ghulam Nabi did not speak with complainant. He saw complainant cutting grass. The place where he and Ghulam Nabi were standing was 80 paces away from Wardat. According to this witness some persons come to the place of occurrence after about two hours. In cross-examination, this witness P.W. Muhammad Alam has denied the suggestion that he was not present on the land of Ghulam Nabi and was called by complainant to give evidence and that he had not witnessed the crime.
17. This witness also claims that he saw one "Wahola" at the Wardat but he did not rememebr whether it was shown to the police or not.
18. ' Third eye-witness Ghulam Nabi who is examined as P.W. No,5 is brother of complainant. According to this witness at the time of incident he was walking on the land which he had taken on contract alongwith Alam. Complainant Kadir Bakhsh was standing in his land. Appellants and deceased Mst.
19. Hanifan were present in their land which they were cultivating. This witness deposed that he saw Badal holding arms of Mst. Hanifan while Hakim was giving her hatchet blows. Appellants threw dead body in the water-course and thereafter they ran away. In cross-examination, this witness admitted that his wife and the wife of Hamzo are sisters and their father-in-law is Mooso.
20. According to him village Jarwar was 1 or 11 miles away from the place of incident. Village Mir Khan was one mile away from place of incident. In village Mir Khan there were about 100 houses. This witness admitted that houses of Haji Muhammad Bux, Murid and Gabole were one mile away from the spot. This witness admitted in his cross-examination that he did not state in his 161 Cr.P.C.
21. Statement that H he went alongwith Alam to visit his land. He also admitted that police came at the spot at 6 a.m. And about 10 or 15 persons were present at the spot when police arrived. He narrated the facts to the persons who came to the spot.
22. ' Perusal of evidence of all these three witnesses mentioned above shows that they were unable to come to the rescue of Mst. Hanifan for the reason that at the time of incident appellant Hakim alias Kaku was armed with hatchet and was giving blows to the deceased. Both appellants dragged dead body and threw it in the water-course and also threatened witnesses not to come near.
23. Appellants then ran away. It is therefore clear that according to these witnesses they could not interfere or even attempt to catch hold of the appellants because appellant Hakim alias Kaku was armed with hatchet with which appellants threatened witnesses not to come near and appellants made good their escape. It is also the case of the prosecution that hatchet was recovered from the water-course near the wardat at the instance of appellant Hakim alias Kaku who J was arrested on 22-7-1980 when incident took place on 24-6-1980. Now how hatchet which is weapon of crime came to be recovered from near the wardat in the water-course where it was concealed is a mystery. Recovery of hatchet from wardat falsifies claim of eye-witnesses that they were threatened by appellants not to come near. Now if after the occurrence appellant threw the hatchet or concealed it in the water-course as is the prosecution case, then why eye-witnesses did not mention this fact in their evidence and why the complainant did not say so in F.I.R. If the eye- whnesses were really present at the spot and saw the incident as is claimed by them, then they are expected to see the incident from beginning to the end and the ending part was concealment of hatchet by the appellants. If they had seen the concealment of hatchet by appellants they could have pointed it out to the police after arrival of the police at the spot. The other version which is possible is that appellants after the incident went away with hatchet threatening the witnesses not to come near and subsequently came back to the spot and concealed the hatchet in the water- course. This is not possible for two reasons. Firstly., that there is absolutely no sense in the appellants to come back to the Wardat again just to conceal the weapon of crime. Secondly, immediately after the incident which took place at Tipahri time right upto the next morning eye- witnesses Muhammad Alam and Ghulam Nabi were present at the spot near the dead body and they did not see appellants coming back to the Wardat to conceal the hatchet. Third possibility is that because appellants were absconding so they waited for some days and then came to spot to conceal the hatchet. The last two presumptions as stated above are far fetched and do not appeal to the common sense. In the normal course of conduct it is not expected that appellants would come back to the spot to conceal the crime weapon when the lands adjoining the place of incident remained in occupation of relatives of deceased. Recovery of hatchet from place of Wardat throws doubt on the claim of the eye-witnesses that they saw the incident. If the eye- witnesses were present, there the culprits, who committed the crime would not have concealed the weapon at the place cf crime because it was necessary for them to carry that weapon in order to threaten the witnesses not to come near them and to prevent apprehension by them. Now if after the incident there was no hatchet with appellants then three eye-witnesses with normal health could have at least attempted to catch hold of the appellants and if not two could have overpowered at least one of them. Claim of these witnesses to have seen the incident is therefore not free from doubt.
24. ' If the appellants wanted to do away with Mst. Hanifan, then why would they kill her at the time when her relatives were around. They could have killed her in the house at night so that they should nct be seen by witnesses and particularly by relatives of the deceased.
25. ' Ocular version is inconsistent with medical evidence because according to Doctor who performed post-mortem examination injuries Nos.3 and 4 which were bruises below left ear lobe and abrasion at right lower part of abdomen and upper front of right thigh appeared to have been caused by hard and blunt substance such as Lathi. Doctor has also stated the time that elapsed between injury and death was within 15 minutes and time that elapsed between death and post-mortem examination was about 18 hours. From the version of eye-witnesses it appears that death was instantaneous and after hatchet blows, appellants dragged the dead body and threw it in the watercourse. Immediately after that appellants ran away and witnesses saw that Mst. Hanifan was already dead. In any case medical evidence cannot be relied upon as corroboration qua accused but it can be used only as corroboration in support of the fact that injuries were caused with what weapons. According to the prosecution case murder took place at Tipahri time. As per post- mortem report time of death was 5 p.m. Incident took place on 24th of the month of June, when it is supposed to be extremely hot. Post-mortem took place on the following day at 11 a.m. After murder dead body was lying openly in the abandoned water-course. Even then there is no mention in the post mortem report whether dead body had become decomposed or whether rigor mortis was present. In such circumstances, medical N evidence is not helpful in confirming the actual time of death, which is left open to guess work.
26. ' Next we come to sketch Exh. 21 which was prepared by P.W.No,7 Tapedar Ghulam Shabbir. Incident took place on 24-6-1980 0 and sketch was prepared after more than four years on 27-11-1984. Such belated preparation of sketch does not advance the case of the prosecution at all. Preparation of sketch after nearly 4 years cannot be approved by the Courts for the reason that such delay is inordinate in nature and does not help the case of the prosecution. Such sketch does not give correct picture of the scene of offence, which can change with the passage of time. Sketch is supposed to give picture of scene of offence as it was obtaining at the time when incident took place. If sketch is prepared after a long time then in the meantime, crop can be removed or fresh cultivation can grow up and the sketch may not depict exactly the same picture when the incident took place. Idea of sketch is to ascertain whether eye-witnesses could see the incident and there was no crop or obstacle in their way to block the vision. With passage of time environment can change. In the instant case, additional defect in the sketch is that even when it was prepared after a delay of 41 years, Wardat was not pointed out to tapedar by anyone of the three eye-witnesses but was pointed out by P.C. Jaro Khan and mashir Saleh Muhammad. Prosecution case is that dead body was thrown in the abandoned water-course. According to the sketch Ex-20 'A' is the place where dead body of Mst. Hanifan was thrown and when the sketch was prepared water was flowing in the minor. As against this, according to Exh. 19, which is mashirnama of wardat, place of occurrence was situated at Wahi and on both sides of it there were thickly bushes. Bushes were put aside and then dead body was seen. Description given in mashirnama of wardat shows that there was no water in the water-course at the time of incident; that is why it was being called abandoned water-course.
27. ' P.W.6 Muhammad Saleh is mashir who has attested Inquest Report Exh. 18 and mashirnama of wardat Exh.
19. This mashir is brother of complainant Kadir Bakhsh. He has also admitted that he resided in the village which was two miles away from the place of wardat. Another mashir examined by prosecution is P. W.4 Muhammad Moosa. He has attested and produced mashirnama of arrest Exh.
28. 14 and recovery of hatchet at the instance of appellant Hakim Exh.
15. He has admitted that Sher Muhammad who is co-mashir is brother of complainant. He has also admitted that Hamzo is his son-in-law. According to this mashir recovery of hatchet is Exh.
15. This recovery was made on 22-7-1980 when the incident took place on 24-6-1980. Even when the recovery was made after about one month, hatchet was found to be stained with blood. If prosecution case is correct that from the scene of offence appellants ran away with hatchet, then there was sufficient time available to appellant Hakim to wash the hatchet and then there was no point in his bringing back the hatchet for concealment at the place of wardat. Parcel containing hatchet was sent to Chemical Examiner on 2-8-1980 which was received in the office of Chemical Examiner on 21-8-1980. There is no explanation furnished by the prosecution as to how and why parcels took about 19 days to reach the Laboratory of Chemical Examiner when they were sent on 2-8-1980 by police. Trial Court has discarded report of Chemical Examiner on the grounds that there was inordinate P delay in sending the parcels containing the hatchet and it was not possible that blood could be detected on the blade of the hatchet when it was recovered after a delay of about one month. Likewise we also do not propose to 'put any reliance on the report of Chemical Examiner and we further hold that recovery cf hatchet at the instance of appellant Hakim as alleged by the prosecution is not free from doubt.
29. ' Motive is also very weak. According to the prosecution Mst. Hanifan was killed because her eye- sight was not good as such appellants were not satisfied with her work. This moth a is not convincing. If she was not fit for household work, then why she would be taken to the agricultural land. According to the complainant marriage took place about ten months before the incident.
30. According to the post-mortem report deceased Mst. Hanifan was found to be six weeks pregnant.
31. Motive has come through the mouths of eye-witnesses who are not reliable as eye-witnesses according to us. In such circumstances, when eye-witnesses are not so reliable and their evidence need corroboration, such corroboration even on the point of motive should come from independent source.
32. ' It was argued on behalf of the appellants that this was unwitnessed crime and the eye-witnesses who were close relatives of the deceased were set up subsequently. It is possible that since complainant and Mst. Hanifan lived in the same village and when she was not found at home in the evening' or at night on suspicion of foul play search was made and in consequence her dead body was found in the field in the abandoned water-course whereafter her father Kadir Bakhsh went and lodged the report. Story that incident was seen by the eye-witnesses as claimed by the prosecution was concocted subsequently. In view of the infirmities in evidence of the prosecution as pointed out earlier, we are of the considered view that possibility cannot be ruled out that it was unwitnessed crime and the story of the incident as alleged by the prosecution on the basis of claim of eye-witnesses is set up and concocted. Prosecution has failed in its duty to prove the case against appellants beyond doubt. We give benefit of doubt to the appellants and set aside their conviction and sentence. They may be released at once if not wanted in any other case. In the result, appeal is allowed and Reference for confirmation of death sentence is rejected.