MUHAMMAD HALEEM, J.---Appellants A.I Nawaz Shah Mohammad, Loung, Bachoo, Ahmed Nawaz, Mitho, son of Zaman, Saleh, and Mitho Son of Muhammad were tried for the murder of Sher Muhammad and for causing simple injuries to Haji Tooh, Ghulam Hussain and Muhammad and for being in possession of deadly weapons, convicted under sections 302/149, 323/149, and 148, P. P. C.
Mitao Mochi was sentenced to death on the first count while the others to transportation for life; on the second count all of them were sentenced to suffer rigorous imprisonment for o months and on the 3rd to suffer rigorous imprisonment for 2 years. They have appealed to impugn their conviction and sentence, while the learned Sessions Judge, Nawabshah, has referred the case for the confirmation of death sentence passed on Mitno Mochi. This judgment will dispose of both the matters.
2. According to the prosecution case, the incident occurred on 16 November 1970, at RD. No. 11 of Puran Minor in Deb Jamano, Taluka Moro. The deceased and Haji Tooh resided in the same house and jointly cultivated their land. On the night preceding the occurrence the deceased slept in his house while Haji Tooh slept at his dera. At 6 a. m. Haji Tooh went to the minor for ablution and there he saw the appellants. Out of them A.I Nawaz was armed with a gun, while Mitho Mocili had a pistol, Loung, Bachoo and Saleh were armed with lathies, and the remaining three had hatchets. A.I Nawaz told Haji Tooh that they had come to kill him as he and the deceased were filing complaints against them whereupon Haji Tooh while raising cries ran towards his house which not only attracted the deceased but also Ghulam Hussain, Muhammad, Khair Muhammad and others from Haji Din Muhammad village. Shaboo alias Shah Muhammad gave a hatchet blow to Muhammad which struck him on his hand: The deceased and Haji Tooh advanced to rescue him and seeingth them near Muhammad, A.I Nawaz instigated others not to spare them, upon which Mitho Mochi fired his pistol at the deceased as a result of which the deceased fell down. Mitho Son of Zaman inflicted a hatchet blow on the head of Haji Tooh while Saleh gave a lathi blow on his left arm. The appellants thereafter left and proceeded towards their village. The deceased expired at the spot.
Leaving Muhammad, Ghulam Hussain and Khair Muhammad near the dead body, 'Haji Tooh proceeded to police station Moro, which is 10 miles away, where he lodged the F. I. R. The same day at 9 a. m. The motive that is attributed was that some 3 months back a bullock of the deceased was stolen and it later transpired that it was A.I Nawaz and Mitho Mochi who had stolen it. They were asked to return the bullock, upon which there was a fight in which Loung and Shahoo received injuries. A.I Nawaz and Mitho Mochi thereupon threatened to "see" them.
3. After recording the report Muhammad Bux, S. H. O. Repaired to the wardat which was on the bank of Puran Minor, close to the fence by the side of the cultivation. The dead body was lying on a cot.
From the wardat one crime empty, two dandas and blood-stained earth were secured vide mashirnama Exh.
25. The. S. H. G. Sent the dead body for post-mortem examination to the Medical Officer, Moro. He noticed injuries on Ghulam Hussain and Muhammad for which he prepared mashirnama and sent them for examination and treatment to the Medical Officer. Moro. He also recorded statements of Khair Muhammad and Gullan. He then went to the village of the appellants and from there he arrested A.I Nawaz who produced his licensed gun which was secured vide mashirnama Exh.
28. Ahmed was arrested and he produced a hatchet which was not stained with blood. It was secured vide mashirnama Exh.
29. Shahoo also was arrested and he too produced a hatchet which was not blood-stained. It was secured vide mashirnama Exh.
30. Loung was arrested and be produced a lathi which also did not have any blood marks. It was secured vide mashirnama Exh. 3 1. Shahoo and Loung had some minor injuries. 7 hey were accordingly referred to the Medical Officer for examination and treatment. Bachoo and Mitho Sons of Zaman were thereafter arrested. The former produced a laths which was not blood-stained and the latter, a hatchet which appeared to be washed. Both these articles were secured. Saleh was arrested and he produced a laths which was also without blood marks. It was also secured. Lastly Mitho Mochi was arrested and he produced a pistol from bushes about 100 paces away from the Otak of wadero A.I Nawaz Sohu in Deb Lalia and 2 live-cartridges. These articles were secured vide mashirnama Exit. 34.
4. The crime empties secured from the wardat and the pistol were sent to the forensic laboratory for matching but the expert has not been examined. Only earth was sent for chemical analysis and it was reported to be stained with human blood.
5. The autopsy on the dead body of the deceased was performed by Dr. Muhammad Azeem who noticed the following injuries:-
(1) One circular lacerated gunshot wound -- ' x in diameter tissue deep at the right side of neck sear right clavicular fossa. Margins inverted and charring present.
(2) Eight circular lacerated wounds each situated J" apart from one another grain size into tissue deep. The margins averted out. No. Charring. which, in his opinion were caused by a fire-arm. As, for injury No. 1 he further stated that it was sufficient in the ordinary course to cause death individually or collectively. He also opined that the injury could be as a result of a gun--shot also examined Haji Tooh, Ghulam Hussain and Muhammad. On Haji Tooh he noticed the following injuries:
(1) One lacerated wound 2' x -- ' x scalp deep at right occipital region.
(2) One lacerated wound 1' x -- ' x scalp deep at the mid occipital, region.
On Ghulam Hussain he noticed the following injury:-
(1) One abrasion 1-- x -- " at the left shoulder.
On Muhammad he noticed the following injury:-
(1) One lacerated wound 1' x-- ' x -- " at the lower part of little finger of the left hand.
All these injuries in his opinion were simple in nature and appeared to have been caused by a blunt substance.
6. When examined, the appellants denied the prosecution case. A.I Nawaz admitted having produced his licensed gun but stated that he was implicated on account of enmity. He further stated that the P. Ws. Ere `Murids' and "men of Ismail Shah" with whom be has enmity and that his brother had filed a case of dacoity against the sub-Inspector of Police Station. Moro, 2 constables and 4 other persons including Ismail Shah, which ended in their conviction. He filed a copy of the judgment, Exh.
42. This Ismail Shah according to him was instrumental in getting him and his other rela--tions, except Mitho Mochi with whom he had no connection, implicated in this case. Shah Murad, Loung, Bachoo, Ahmad Nawaz, Mitho son of Zaman and Saleh adopted the same defence and pleaded their implication on account of their relationship with A.I Nawaz. Mitho Mochi took another stand. He stated that before the incident, he was a servant of Ismail Shah and has been implicated because he left his service. He denied the production of the pistol and his involvement in the crime.
7. The conviction of the appellants rests on the ocular testimony of Haji Tooh, Ghulam Hussain, Muhammad, Khair Muhammad and Gullan. Muhammad and Khair Muhammad are sons-in-law of Ghulam Hussain while Gullan is his distant grand-son. Though Ghulam Hussain has denied his relationship with Haji Tooh yet it has come on record. While scrutinising their evidence, we have come across features which reflect on the veracity of these witnesses but before we advert to those features, it will be of advantage to refer to the evidence of the tapedar Faiz Muhammad, who prepared sketch at the instance of Haji Tooh. According to it, the house of Haji Tooh where the deceased also resided and his dera are on one side of the minor while the wardat is on the other side 350 feet away from the house of P. W. Ghulam Hussain and others. The house of Haji Tooh from that place is 330 feet while his dera. 250 feet. Haji Tooh gave out in the F. I. R. That while he was at the bank of the minor on his side he saw the appellants; and on being challenged by A.I Nawaz he ran towards his house raising cries which attracted not only the deceased but also the other witnesses; and it was then that the incident occurred. However, in his testimony Le has shifted the wardat to a place across the minor, while deposing, he thus stated:- "On account of fear I raised cries of murder, which attracted Sher Muhammad, accused tried to encircle us and we attempted to run to southern direction. They had blocked our way leading to our house so we had tried to run in the opposite direction. We crossed the water course."
He also for the first time introduced in his evidence having used the log for crossing the minor. He was confronted with the omission; nonetheless he stated that he had said so. The other four witnesses have also moulded their evidence in this fashion. Ghulam Hussain stated that while he was proceeding towards the minor to attend the call of nature, he heard cries and saw Haji Tooh and the deceased running towards hint followed by the appellants. Muhammad's evidence is also on the same footing as that of Halt Tooh. He has also stated about the deceased and Haji Tooh having crossed the minor, using the log. Both Khair Muhammad and Gullan stated that when they first saw the deceased, Haji Tooh and the appellants, they were on his side of the minor. The significant feature however, is that no blood was seen at the place where it is said that the incident had occurred. Gullan stated that he brought a cot from his house but this is also not true, for if the deceased was killed at that place there would have been blood on the ground. It is also unlikely that his body would have been removed if he had been killed there. No reason also appears to us as to why it should have been removed. On the contrary, the S. H. O. And the masher Noor Muhammad, have stated that the deceased was lying on a cot about 150 paces away from the house of Haji Tooh on his side of the minor by the side of the fence near the cotton cultivation.
There was blood on the ground at that place only. One crime empty and two dandas were also secured from there. It was there that the deceased was killed as the circumstantial evidence points to it. Therefore, the shifting of the wardat was not without purpose for otherwise it would not have been possible for P. Ws Ghulam Hussain, Muhammad, Khair Muhammad, Gullan to witness the occurrence. In the circumstances, it leaves room for believing that there as an element of fabrication.
8. While giving out facts in the F. I. R. Haji Tooh has not referred to any injury having been caused to Ghulam Hussain. How did he then receive an injury is again suspicious. Haji Tooh stated in the F. I. R.
That be was given two blows, one with hatchet by Mitho son of Zaman on his head and the other with a lathi by Saleh on his left arm. It is, however, significant to note that the S. H. O. While preparing the mashirnama of injuries noted three injuries. The doctor however found two, but none of them was an incised injury. In the first instance the number is discrepant, and in the second the assertion of Haji Tooh that one such injury was caused with hatchet is false. About Muhammad, Haji Tooh gave out that it was Shah Muhammad who inflicted a hatchet blow on his hand, while the medical evidence shows that Muhammad had only one 'lacerated wound at the lower part of the little finger of his left hand. In this cast too, the S. H. O. Noted five injuries in the mashirnama on different parts of his body but none on his finger.
9. There is no explanation about one extra injury on Haji Tooh and four extra injuries on Muhammad. If at all, they were noticed by S. H. O. How is it thin that they were not found by the doctor? This feature leaves room for doubt as to whether the injuries were sustained by the P. Ws.
At all in an assault for they are not only trivial but some of them have been fabricated.
10. Again two gunshot injuries were noticed on the deceased. About injury No. 1, the doctor has stated that it was caused by keeping the weapon `'on the skin" as "the presence of charring shows that it was fired from very small distance." The other gunshot injury had no charring. It could not therefore be caused from a close distance. In this context, the other gunshot injuries could not be the result of one shot though the doctor has given such opinion, since the distance from which the shots were fired is not the same. It is, therefore, not possible to accept the ocular testimony that only one shot was fired at the deceased.
11. Again on each of the two appellants namely, Lounge and Shah Muhammad, the S. H. O. Noticed two injuries for which he prepared a mashirnama Exh. 36, but none of them were found by the doctor. There is again an attempt to show injuries on the two appellants to make their presence probable which reflects on the bona fides of the investigation.
12. The manner in which the incident occurred is also not consistent with what is given out in the F. I.
R. Neither Ghulam Hussain nor the other three witnesses namely. Muhammad, Gullan and Khair Muhammad have stated in their 161 statements that Mitho Mochi was asked by A.I Nawaz to fire his pistol at the deceased and that it eras A.I Nawaz who had grappled with the deceased before he was fired at. The emissions hate been duly proved. It was therefore at the stage of trial that they has introduced the feature that A.I Nawaz had grappled with, the deceased, though it was not even disclosed in the F. I. R. Again not having mentioned that A.I Nawaz bad instigated others in their earlier statements, it is not possible to accept even Haji Tooh's version about it for this improvement gives an impression of assigning a part to A.I Nawaz in an attempt to implicate him.
Though Haji Tooh did not .Disclose in the F. I. R. That Ghulam Hussain was even injured, yet in his testimony he stated that it was appellant Bacnoo who had caused lathi blows to Ghulam Hussain.
This apparently shows that he wanted to implicate appellant Bachoo with reference to an injury found later on Ghulam Hussain. Whether it was intentionally caused is again doubtful in the context of the above background. . Again Haji Tooh stated at the trial that appellant Loung gave lathi blows to Muhammad but only one injury with the blunt weapon was noticed on Muhammad. This is however not consistent with the F. I. R. In which he stated that he was caused hatchet blow only by Shah Muhammad. About himself he stated at the trial that he was given a hatchet blow by Mitho, Shahoo and lathi blows by Saleb while none of the injuries or, his person was incised and though he suffered two injuries yet in the F. I. R. He disclosed that only one lathi blow was given to him by Saleh. The number of blows were apparently exaggerated to make them consistent with the injuries noted in the mashirnamas. The other witnesses have also towed the same line. Gullan stated that in self---defence he and others caused blows to appellants Shah Muhammad and Loung which fact again is false, for no injuries were found on both these appellants. In the circumstances it ii not possible to accept the ocular testimony as there are prevarications in an attempt to implicate as many persons as possible.
13. Appellant A.I Nawaz alleged enmity against Ismail Shah. This Ismail Shah, according to Muhammad, resided in village Bhook which is at about a call's distance from Muhammad's village.
Though it is denied that Ismail Shah was at the wardat yet the S. H. O. Has admitted that Haji Tooh had come alongwith one person for lodging the report. In the circumstances the complicity of Ismail Shah cannot be excluded in the context of the fact that earlier Ismail Shah and others were implicated in a dacoity case and convicted.
14. According to medical evidence the probable time between post---mortem and death was 10-12 hours which was conducted at 4 p.m. On 16th November, 1970. In the context of the fact that the deceased. Had urine in the bladder, it is not possible to exclude the possibility that he may have come out from the house at some time earlier than what is stated to ease himself and that he was shot at twice and killed at the spot by some one lying in wait for him and in that event it could not have been possible for any one to witness the occurrence. Lastly the crime empty that was recovered from the wardat was not connected with the pistol produced by Mitho Mochi nor were other articles established to be the crime weapons.
15. Cumulatively, therefore, the above features leave room for doubt as to the truthfulness of the prosecution case and so also about the participa--petition of the appellants. The investigation also does not inspire confidence as there is an attempt to fabricate injuries not only on the prosecution witnesses but also on two of the appellants. I he learned State counsel under the circumstances also conceded to the acquittal of the appellants. The prosecution leas accordingly faire: to establish its case against the appellants, While giving to them the benefit of doubt we accept the appeal and acquit them. They should be set at liberty forthwith unless waned in some other case. The death sentence passed on Mitho Mochi is not confirmed and the reference is rejected.