TUFAIL ALI A. RAHMAN, C. J.-----The deceased, the appellants, all the witnesses including the mashir but with the exception of one Imam Bux Shaikh, who is not an eye-witness, and the Investigating Officer are all Phulpotas by case and the deceased, eye-witnesses and the corroboratory witnesses used to reside at the material time at the village of Kouro Phulpoto which is about six miles away from the Tando Masti Khan Police Station in District Khairpur. The incident itself took place near the Faiz Wab Bridge which appears to be very near the village. The scene of the incident probably about a call's distance which is the usual phrase by which villagers in Sind describe the distance of about half a mile. It is the prosecution story that on the 26th of October 1971. The deceased Ahmed Bux, was on his land which was just adjacent to the bridge of Faiz Wah when at about 4-30 p.m. To the witness Zawar Mubbarak who also is a Zamindar, and who was then coming from his land on his bullock cart saw when he was about 30 paces away from the bridge the three appellants causing hatchet blows to Ahmad Bux. At about the same time the witness Wali Dad, who also saw the incident, came up to the scene and soon thereafter came Imam Bux Shaikh but the last named only came on account of the cries and did not actually see anything. This Imam Bux Shaikh is a harri of one Jadhal who is the brother of witness Wali Dad and he was dispatched to the village where he found Wali Muhammad, an uncle of the deceased, whom he informed. Wali Muhammad then came up to the scene and, after hearing the story from Zawar Mubbarak and Wali Dad, went to lodge the first information report which was recorded at 6 p. m. At the Tando Masti Khan Police Station which, as 1 have already, stated, is about six miles from the scene. The first information report was recorded by the Head Constable Bashir Ahmad but this evidence is confined to stating that he recorded the report and handed over case to another Head Constable named Jamal Din for further investigation. This Jamal Din has not been examined and, although it does appear that some police constables went to the scene during the night there is no very clear evidence led by the prosecution upon the point and the story of investigation is narrated by the Assistant Sub-Inspector of Police, Ishtiaq Ahmad who claims to have come to know of the lodging of the first information report on the next morning, that is to say the 27th October 1971, when at about 6 a.m. He proceeded to the village. He conducted an investigation, and of this investigation, a few facts only are worthy of mention. All the three appellants, who were of course known to the prosecution party and who also lived close by were arrested by him on the 27th at 10 a.m. And certain recoveries are said to have been made from two of them, namely Bajoo and A.I Dino. It would be convenient to mention here that Bajoo and A.I Dino are brothers and while the other appellant is their nephew and that all three of them lived together in the same house. From the persons of Bajoo a loin-cloth and a "sadri" (a kind of jacket or waist coat) and from A.I Dino a loin-cloth and a white mmlmal kurta were recovered as these were suspected of being blood-- stained. Bajoo however is said to have led the police party to his house and produced a hatchet; the house was also searched and another hatchet was recovered said to be that of the appellant A.I Dino. Regard being had to the fact that this hatchet was recovered from the house by means of a search it is difficult to see by what process it is being attributed to A.I Dino and to this aspect of the matter I shall return in due course. Against the appellant Shaman no recovery was alleged.
2. On the 26th that is the day after the arrest of the appellants, they were all sent to the City Magistrate, Khairpur for the purpose of recording their confession but Bajoo alone made a confession. It would be necessary to refer to this confession again later but it would suffice at the moment to say that, in this confession, the appellant takes the blame of the crime soley upon himself and that in circumstances which would exonerate him from liability by reason of the right of private defence. In due course all the appellants were sent up to Court and eventually tried by the learned Sessions Judge, Khairpur who has convicted there all under section 302 read with section 34 of the Pakistan Penal Code and sentenced them all to death. They have appealed against the conviction and sentences and the sentence of death is also before us for confirmation.
3. The motive that was suggested for this crime and which is stated in the first information report is that the appellants were cattle grazers and that they used to damage the crop of deceased Ahmed Bux who used to prohibit them from damaging his crop and that on that account there had been a quarrel before. In itself it does not appear to be so strong a motive unless of a course some thing took place upon that day itself arising out of a trespass by the cattle, which gave rise to the incident. Nothing of that kind however is suggested and, it is, on the contrary, in evidence that there was no trace upon the scene of crime of any cattle at all. There is a witness, namely Abdul Nabi, who was examined in regard to this motive and curiously enough, he is a massat of the deceased while none of the other witnesses except Wali Muhammad, the first informant is said to be related to the deceased. The evidence of Abdul- Nabi. Gives a somewhat stronger version of the motive inasmuch as lie claims to be the naikmard of the parties and says that this trouble about the damage caused to the crop of Ahmed Bux by the cattle of the appellants had been referred to him for a faisla and that he did in fact decide the matter but that the appellants did not accept this. It is remarkable that this Abdul Nabi is one of five brothers of whom he is the youngest but one. While it is not impossible of course it will be unusual to find any body but the eldest acting as a naikmard in these cases. The- witness himself in cross-examination says that when the appellants did not accept his decision he did not ask the deceased or any of his party to take any further action as he did not attach much importance to this dispute; by this I suppose he means that he did not regard the dispute as being very serious. The first informant Wali Muhammad does of course mention this motive in the, deposition that he gave but he gives it in language that does not suggest that this was really a strong enough motive for the murder. I myself do not feel too greatly impressed by the motive but, after all evidence of motive is not of very great importance in a case where there are eye-witnesses for, if it can be established that the testimony of the eye-witnesses is acceptable without any doubt, then the absence (if a motive obviously will not matter. Conversely if it is not the mere presence of a motive will not carry the case of the prosecution much further.
4. The case of the prosecution therefore rested essentially upon the Ocular testimony of Zawar Mubbarak and Wali Dad and the corroboratory evidence of Wali Muhammad and Imam Bux Shaikh. There was also, Of course, the corroboration afforded by the recovery of blood-stained clothes and hatchets from two of the appellants namely Bajoo and A.I Dino and finally the confession of Bajoo.
5. Now it is true that the eye-witnesses are not related to the deceased and are only their case- fellows and of course also the case-fellows of the appellants. There is therefore no reason to doubt their testimony merely upon the score of interest though I do not think I can agree with the learned Judge who seems so greatly impressed by the ties of case as to think it quite impossible that a case-fellow would give, evidence merely against a member of his own case. The learned Judge, observed: "It may be stated here that the wounds of castes are very strong in this part of the country. Caste- fellows residing in the same village or in neighbouring villages are bound by very strong ties of homogeniety and interconnections and a member of a case would-- not try to implicate another member of his own case oven in, a true case, much less in a false case. They will not give evidence against their case fellows unless they are truthful witnesses."
The word "wounds" is an obvious printing mistake of "bond". The learned Judge was quite new to the district and I don't think that these remarks are really quite justified.
5. The witnesses were also natural witnesses in the sense that their presence at the scene was explainable. Zawar Mubbarak it is said, was a zamindar who was in the habit of visiting his lands every day and coming back in the evening and Wali Dad also has land nearby and his presence therefore can b; accounted for. On the other hand their reason for being present at the scene was not of that conclusive character that one could say that it virtually guaranteed their presence there. There are besides in the evidence of both these witnesses some infirmities which have led me to the conclusion that although it would be wrong to dub them necessarily as false witnesses they cannot be regarded as witnesses being witnesses of that high character about whom it can be said that their evidence is so unimpeachable that even without corroboration it may safely be accepted.
6. To take up the case of Zawar Mubbarak first he is admittedly a man of about 70 years of age and admittedly also has grown up sons who look after his land. While it is not impossible therefore that he used to visit his land every day it does seem curious that a man of that age who obviously was not able to walk easily since he himself says that he was coming in a bullock cart, had made a practice of going to the land every day. The other curious feature however of the' case is that the driver of this bullock cart according to the witness himself was a boy called Naboo and he has not been examined at all and in fact the witness admits that he never gave the name to the police or in the course of his statement under section 164, Criminal Procedure Code. The learned Judge explains this by saying that the evidence discloses that the cart driver was a boy of only 7 or 8 years of age. That may be true but a boy of that age is not necessarily incapacitated from being a witness and the least that the learned Judge could have done was to have called the boy and seen that he was capable of giving evidence. On the other hand the witness Wali Dad describes the name of the cart-driver as Samo and it does seem carious that these two eye-witnesses living in the same village should not be consistent even as to the name of the boy in question, The absence of this boy from the prosecution witness and the absence of an explanation as to why he was not examined therefore does leave me with a somewhat uneasy feeling about this evidence altogether.
7. It will be recalled that the evidence of Bashir Ahmed, who recorded the first information report was to the affect that he handed it over the same day, i.e. On 26-10-71 to Head Constable Jamaldin and the latter has not been examined. Ishtiaq Hussain, the Assistant Sub-Inspector, went to the scene only the next morning and we are left guessing whether any investigation took place during the intervening night. Yet Zawar Mubarak does say that "police arrived at the wardat the same day". (The underlining, is mine). Although he did not say so in the Sessions Court he also had to admit that before the Committing Magistrate he said that he had been examined by the police at night when it had- grown dark". This night could be the night between the 26th and 27th. Was there, then some kind of reconstruction of the crime or an informal investigation preliminary to the formal investigation commenced on the 27th? If so, the implications are obvious.
8. Yet another feature of the evidence of the eye-witness is the coincidence that, on their way home, they should both reach the scene simultaneously and exactly when the crime was being committed. It is true that the spot lay on their different ways home but it is not the kind of case when the two witnesses were already, for some time, at or near the place. This could happen but the probability is rather against it.
9. There is of course the corroboratory evidence of Wali Muhammad and Imam Bux Shah and while I would not necessarily discount the evidence of Wali Muhammad merely on the ground that he is an uncle of the deceased when I am unable to place great reliance upon the eye--witnesses themselves, oral corroboratory evidence does not, in my view, enhance the quality of the evidence very greatly.
10. I come next to a consideration of the recoveries. Now it is a remarkable thing, noticed in case after case, that no very great care is taken to identify the various articles secured from different accused persons so as to be able definitely to say at the trial as to which article was recovered from which accused person so that in the event that they are not tall blood-stained the Court could be certain as to the person against whom the evidence is available and against whom it is not. I should have thought that the simplest thing would have been for the police to have made a parcel of each article separately and giving it an identifying number. Perhaps it would be dangerous to mention the names of accused person on the parcel for fear that the evidence might be later tempered with surely the assigning of a number which the police officer could make a note of and from which he could later say at the trial as to the person from whom the article was recovered should be a simple matter. Instead we find a loose description given in the mashirnamas and very rarely indeed in the deposition either of the mashir or the police officer the description repeated. In the present case neither the police officer nor the mashir tells us any thing more than this that clothes were recovered from each of the two appellants Bajoo and A.I Dino without specifying the colour and the other details of the clothes. These descriptions are to be found only in the mashirnamas. The mashirnama of course is - not substantive evidence but., overlooking that techanicality, the position is that in regard to Bajoo it was alleged that a green silken loin clothes with square stripes and a light blue sadri was recovered while from A.I Dino a yellowish black loin cloth with squares and one white malmal kurta was recovered. Each of these article was stated to bear only one spot of blood. The Chemical Exanuner's report is in these terms :- DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL
(1) Earth Parcel No. 1.
(2) Blue striped open shirt.
Parcel No. 2.
(3) Checked loin-cloth.
(4) Checked loin-cloth.
Parcel No. 3.
(5) White shirt.
(6) Hatchet with handle Parcel No. 4.
(7) Hatchet with handle.
Parcel No. 5.
RESULT OF CHEMICAL ANALYSIS The blood-stains on Article No. 4 noted above are disintegrated and their origin cannot be determined. Articles Nos. 1 to 3 and Nos: 5 to 7 noted above are stained with human blood.
Orally we were told that the parcel No. 2 was of the clothes taken from Bajoo aid while parcel No. 3 was of the clothes taken from A.I Dino' at is clear however that descriptions do not coincide; there is for instance no mention of a Sadri at all and, for my part, I am quite unable to accept the contention of learned counsel for the State that "blue striped open shirt" is a substantially correct description of a Sadri. Of these it is to be noticed that item No. 4 said to belong to A.I Dino was blood-stained but the origin of the blood could not be determined. I think when one is stealing with blood-stained clothes the size and the number of the bloodstains is an important factor to be considered-and our attention has been drawn to a passage in an unreported judgment of the Supreme Court of Pakistan in Ibrahim v. The State (Criminal Appeal No. 58 of 1959) which is reproduced in the Judgment reported as Mariam v. State (PLD 1961 Kar. 731) at p. 734 "The observation of the Sessions Judge that he noticed that the Chemical Examiner had cut four portions of this cloth led Waheedu--din, J. To the conclusion `that at four places blood spots were found on it. But unless the report of the Chemical Examiner states that every such portion disclosed a bloodstain, it cannot be said that it was stained with blood, for, portions that appear to be so stained are cut for examination, and it is possible that the analysis may disclose that only one or no portion is so stained."
Their lordships do not expressly say so but I do think that there is soiree implication here that the number and the size of the bloodstains is a relevant matter. I have long .Felt, besides, that in these days when it is possible not only to differentiate between human and other blood but even to differentiate between -groups of human blood unless the police, through the forensic laboratory at their control use these means of identifying the groups they themselves must be held responsible for any failure of justice which may arise by reason of refusal of Courts to draw an inference fro ~1i the mere report that blood is human without knowing its grouping. In point of fact modern science has advanced so far that there are many more classifications and sub-classifications which would take matter to a greater degree of accuracy. After all in a given case if the group of the blood found is that of the appellant himself and definitely a group other than that of the deceased there would no incriminatory value in the circumstance at all. I however do not dilate upon this nor do I use it as a conclusive matter in this particular case as by reason of the description in the clothes themselves I am unable to fix responsibility in regard to these items as against any of the appellants.
11. There was finally the evidence of the confession and some thing was stated at the bar before us against its admissibility. I am not going into this either because on the case of prosecution itself, it was a false confession inasmuch as it attributed only to the maker the crime while the eye- witnesses, stated that there were as many as three culprits.
12. It is necessary finally I think to refer to the medical evidence for the purpose of seeing whether the possibility of exaggeration in this case can safely be ruled out or not. The injuries on the deceased wore described by the doctor thus: `Incised wound 4" x 1/2" x 2 .x bone deep on the frontal parietal region.
(2) Incised wound 5" X 2" x tissue deep on the right side of the neck, cutting the muscles and blood vessels.
(3) Incised wound 4" x 1/2" x bone deep on the left parietal aspect of skull. .
(4) Incised wound 8" x 3" x bone deep on the occipital part.
(5) Amputated index and middle fingers of right hand:
(7) Incised wound 1" x 1/4" x muscles deep on the left thumb"
There were no doubt as many as six injuries but it does not, I think, follow that there were as many as six blows; injury No. 5 particularly might well have been the result of the deceased putting up his hand for warding off the blow. The injuries themselves therefore, although compatible with au attack by three persons, are also compatible with an attack by only two. This is one more factor which has led me to the conclusion that it would be unsafe to record a conviction in this case upon the oral evidence alone without corroboration. I have already dealt with the corroboration as to blood-stained clothes and, as to the hatchets, it suffices to say that they were found from the house of all the appellants who lived together and it is difficult therefore to attribute any of them to any one amongst ft the appellants. I have therefore come to the conclusion that there is not sufficient reliable evidence in this case to justify the convictions and, although I am conscious that the case against one or more of the appellants might well be true, any possible miscarriage of justice is at least partly clue, I think to the careless investigation conducted by the police.
13. I would therefore allow this appeal, set aside lire convictions and sentences of all the appellants and acquit then.
ABDUL HAFFFZ MFMON, J.----I agree.
S. A. H.