'MISER AHMED HAMIDI, J.-- Appellant Shadoo alias Shahzado and Gulo alias Ghulam Rasool were tried on a charge under section 302/34, P.P.C. By 1st Additional Sessions Judge Shikarpur, who vide judgment dated 7-5-1985, found appellant Sandoo guilty for the offence under section 302, P.P.C.
And sentenced him to death, subject to confirmation of this Court. The appellant was also sentenced to pay a fine of Rs,5,000 or in default to suffer R.I. For one year. Co-accused Gulo alias Ghulam Rasool was extended benefit of doubt and was consequently acquitted. Aggrieved by the judgment, the appellant has filed an appeal under section 410 of the Code of Criminal Procedure, 1898. The Additional Sessions Judge, Shikarpur has also made a reference under section 374 of the Code of Criminal Procedure, 1898, for confirmation of the sentence of death awarded to the appellant. We have heard both the criminal appeal as well as reference for confirmation, together.
Upon hearing Mr. Muhammad Ibrahim Memon, learned counsel for the appellant and Mr. Muhammad Akmal Wasim, learned counsel representing the State, we had, by a short order, dated 23-111988, allowed the appeal and declined to confirm sentence of death. The reasons for such short order presently follow.
2. Complainant Mst. Jannat resided at Haq Nawaz Street, Shikarpur. Deceased Mst. Hidayat Khatoon who was her sister was abducted by P.W. Haji about 8 or 10 years prior to this occurrence.
Mst. Hidayat Khatoon then married P.W. Haji. Accused Shadoo son of complainant Mst. Jannat and co-accused Gulo, nephew of Mst. Jannat, since acquitted were annoyed with deceased Mst.
Hidayat Khatoon on account of this affair. On 2-1-1976, deceased Mst. Hidayat Khatoon had visited the house of her sister Mst. Jannat. At about 1 p.m., complainant Mst. Jannat was sitting in her house with her daughter Mst. Waziran, father Gul Bahar and sister deceased Mst. Hidayat Khatoon when the appellant armed with a hatchet and Gulo armed with a pistol arrived there. They declared Mst. Hidayat Khatoon as Kari and saying so Gulo fired at her with his pistol, but the shot missed the target. Deceased Mst. Hidayat Khatoon tried to run away but she was overpowered by appellant Sandoo who caused her hatchet injuries. She fell down and died on the spot. The appellant then decamped. The cries raised by Mst. Jannat and others attracted Juman Khan Pathan and others who saw the appellant and co-accused Gulo running away. On the same day at 2 p.m. The report of this incident was registered at Stuart Ganj P.S. The F.I.R. Was recorded by Shafi Muhamrr ad Abro, S.H.O., who then proceeded to the scene of occurrence and prepared such memo in presence of Mashirs Jawan and Muhammad Umer. He then saw the dead body of Mst.
Hidayat Khatoon and despatched it to M.O. Civil Hospital Shikarpur for post-mortem examination.
He then recorded the statements of Gul Bahar, Mst. Waziran, Aman Khan and Nazar Muhammad.
On 4-1-1976, the police officer examined Haji, the husband of deceased Mst. Hidayat Khatoon. On 7- 1-1976 co-accused Gulo was arrested. On 10-1-1976 the S.H.O. Got 164, Cr.P.C. Statements of Haji, Gul Bahar and Nazar Muhammad recorded before Mukhtarkar and F.C.M. Shikarpur. Appellant Shadoo could not be arrested. On 22-1-1976 charge-sheet against co-accused Gulo showing the present appellant as absconder was submitted before the Court. On 27-8-1978, the present appellant was arrested.
3. The prosecution has examined in all nine witnesses. Complainant Mst. Jannat could not be examined as she was murdered before her evidence could be recorded. The F.I.R. Was, therefore, brought on record through Shafi Muhammad S.H.O.
4. The appellant met the charge by denial professing ignorance. His defence in his own words is as follows:- "Previously Hadoo and Mozo Mehar who were my relatives had killed Shadoo and Ibrahim Bhaya, who were relatives of P.W. Haji and ' Nazar Muhammad. Due to above enmity I am falsely implicated by them in this case."
5. The fact that Mst. Hidayat Khatoon died an unnatural death is hardly open to any controversy. Dr. Ghous Bux (P.W.9) who had conducted the autopsy on the dead body of Mst. Hidayat Khatoon found the following external injuries on her person:-
(1) An incised wound 7" x I" x bone deep on left parietal region.
(2) Multiple incised wounds 7" x 1" x bone deep, brain matter cut on occipital region.
(3) Right index finger was cut at its root.
6. From external as well as internal examination of the dead body of Mst. Hidayat Khatoon, the Medical Officer is of the opinion that the cause of death of Mst. Hidayat Khatoon was due to shock as a result of injuries caused by some sharp cutting weapon like hatchet. The injuries were ante- mortem in nature and were sufficient in ordinary course of nature to cause death. The appellant has also not disputed this position.
7. The case of the prosecution hinges solely upon the direct evidence consisting of Haji (P.W.4) and Nazar Muhammad (P.W.5). One of the eyewitnesses, namely, Mst. Jannat, who had lodged the F.I.R.
(Exh.19) had died) during the pendency of the case before her evidence could be recorded. Mst. Waziran (P.W.1), who is real sister of the present appellant and Gul Bahar (P.W.2), who is his maternal-grandfather, have not supported the case of the prosecution for obvious reason, that they are closely related to appellant. The incident took place in their house in broad daylight and still according to them they were not able to identify the culprits. Gul Bahar (P.W.2) has resiled, although there was compulsive force of 164, Cr.P.C. Statement (Exh.9), which was recorded during the course of investigation. None of the above witnesses was, however, declared hostile by the learned A.P.P., who represented the State, why? Nobody knows.
8. An attempt was then made to place reliance upon 164, Cr.P.C. Statement of Gul Bahar (P.W.2).
Quite admittedly this statement (Exh.9) was not recorded in presence of the appellant or co- accused Gulo (since acquitted). The provisions of section 265-J of the Code of Criminal Procedure, 1898, cannot be invoked in such an exigency. The cases reported as Abdul Hakeem and another v.
The State PLD 1982 Kar. 975 Roshan v. The State 1985 P Cr. L J 2312 and Muhammad Ismail v. The State 1985 P Cr. L J 713 are relevant in this behalf.
9. Now we are left with the evidence of Haji (P.W.4), who is the husband of deceased Mst. Hidayat Khatoon. He resided in village Karan and had come to Shikarpur to attend a marriage alongwith his wife deceased Mst. Hidayat Khatoon. He denies the motive of this incident which was unfolded in F.I.R. (Exh.19). According to him, he had married with Mst. Hidayat Khatoon with the consent of her parents. The manner in which deceased Mst. Hidayat Khatoon was done to death is narrated by this witness in the following words:- "Before this incident, the accused had compromised with us and they used to visit us. 10 or 12 days prior to incident, present accused Shadoo came to me along with Eido Bhutta and purchased three buffaloes from me on credit basis. They promised to pay Rs,9,000 on the 1st of coming month. On the night of 30th of the month in which the incident took place on the next day morning, I had come to Shikarpur to attend marriage ceremony of son of Bahadur Bhayo. Next morning, accused Shadoo met me at the house of Bahadur and told me that he had kept my amount ready and I should go to him to take it away. At about 12-00 noon time on the same day, I along with my wife Mst. Hidayat and a minor baby Mst. Zakia went to the house of the present accused Shadoo to take our money. It was 1st day of that month. Deceased Mst. Hidayat was aunt of present accused Shadoo. When we reached the house of accused Shadoo, we found accused Shadoo absent and his mother Mst. Jannat informed us that he was coming very soon and that we should wait there for him. P.W. Haji Gul Bahar was also sitting there waiting for accused to take his dues from him. I then leaving my wife and daughter in the house of accused Shadoo went with my work to Shikarpur Bazar. At about 1 p.m. I came back to the house of accused Shadoo and I was still outside the house of accused, when I heard firing shot inside the house of accused Shadoo. I rushed inside the house and saw present accused Gulo having a revolver with him and accused Shadoo armed with hatchet there. I further saw accused Shadoo giving hatchet blows to my wife and my wife fell down due to receiving of hatchet injuries. I also saw P.W. Haji Gul Bahar raising cries there. Mst.
Jannat seeing me going inside the house of accused, informed accused that I had also arrived there. I then ran back from the house of accused and both the accused namely Gulo and Shadoo followed us to kill me."
10. Admittedly Haji (P.W.4) did not go to police station to lodge report. The record shows that his statement was recorded by the S.H.O. After two days of the occurrence. The story which is unfolded by him before the Court again appears to be improbable. The probability of the facts deposed to in the evidence is also an important consideration in judging the worth of the evidence and even this consideration is so important that it may at times write off the entire effect of volume and weight of the evidence. The story that is being deposed to by the witness or the version of the opportunity which the wintess had to observe the facts connected with it must be credible and in keeping with the ordinary course of human affairs. According to the version of this witness he was followed by the appellant and co-accused Gulo who was armed with a pistol and still he was allowed to go unhurt, so that he might appear as a witness against them. This statement appears to be absurd on the face of it.
11. On close examination of the evidence of Haji (P.W.4) we are of the view that he did not witness the incident. He waited for two days before going to police with a totally different motive. When considered from this point of view, his evidence should be ruled out as a tissue of lies not deserving any notice.
12. The brunt of facing the skepticism of the defence has fallen on the shoulder of Nazar Muhammad (P.W.5), who is admittedly a chance witness. He resides at a distance of about four miles from the scene of incident and had come to the spot to recover price of Palal grass sold by him to Jumo, father of appellant Shadoo. When he reached near the Wardat, he noticed Haji (P.W.4), running, who was being followed by the appellant and co-accused Gulo. Nazar Muhammad (P.W.5) has tried to improve the case when examined in Court. He has assigned different reason for his presence near the scene of occurrence by contradicting his own statement made before police. His arrival at the scene of occurrence exactly at the time when Haji (P.W.4) was being chased by the appellant could be a very lucky coincidence, and perhaps one beyond belief.
13. The appellant had absconded after this incident. No question about his absconsion was, however, put to him in his statement recorded under section 342, 11 Cr.P.C., to explain this position.
No reliance, therefore, can be placed upon this circumstance.
14. The presence of independent persons from the locality at the relevant time cannot be doubted.
The incident took place in a populated area in broad daylight but nobody was cited or produced as witness for the prosecution. This factor, coupled with the circumstances stated above, creates doubt about the case of the prosecution.
15. On overall appraisement of the entire evidence in the case and on considering all the surrounding circumstances, we are of the view that the prosecution has failed to prove charge against the appellant beyond any reasonable doubt. The appellant is, therefore, acquitted. He shall be released forthwith, if not required in any other case. The appeal is allowed. The reference for confirmation of the sentence of death is not accepted.