AHMED ALI U. QURESHIJ.- This appeal is directed against the judgment dated 10-11-1987 passed by the learned 1st Additional Sessions Judge, Dadu, whereby he convicted the appellant under Section 302 PPC and sentenced him to death subject to confirmation by the High Court and imposed a fine of Rs. 1000/- or in defauIt of payment of fine further ordered the appellant to undergo R.I. For six months. The learned Addl. Sessions Judge has also referred the case for confirmation of the death sentence.
2. Brief facts of the case are that the appellant was Hari of the deceased Ghulam Rasool. He used to cuItivate five Jircbs of land of the deceased, while four Jirebs from the same survey number were cuItivated by the deceased and his brother complainant Lai Bux. The complainant used to ask the accused to leave the land which infuriated the accused/appellant. On 19-12-1983 at about 10.00 A.M. The complainant Lai Bux along with his brother Ghulam Rasool and P.W. Kauro went to Tonga Stand near the Hotel of Najmuddin Halu to catch a Tonga for going to Mehar. The complainant and P.W. Kauro were standing outside the Hotel when Ghulam Rasool went to make water and then sat under the Khabbar tree. Waris Chandio, whose village was nearby, armed with hatchet came there and gave hatchat blows to the deceased. The complainant and P.W., Kauro saw the incident and went there, but the accused/appellant on seeing them ran away to the Otaq of Wadero Iqbal Thebo. The deceased died of the injuries. The complainant left P.W. Kauro over the dead body and went to lodge the F.I.R, at Police Station Thariri Mohabat at 11.30 A.M. On the same day. P.W. No.7 ASIP.
Karim Bux registered the F.I.R., proceeded to the scene of offence', prepared various Mashir-namas and examined the witnesses. On the next day i.e. 20-12-1983, he arrested the appellant/accused from his house in presence of Khuda Bux and Usman and secured from his person blood-stained shirt. He also secured one blood-stained hatchet produced by the appellant from the hedge of his house. He sealed both the articles separately and prepared Mashirnamas viz. Ex.14 and 15 respectively. After usual investigation the appellant was sent up in the Court where he was convicted as above.
3. The case of the appellant is total denial. He alleges to have been implicated due to enmity and falsely at the instance of Wadero Iqbal Thebo. The appellant had pleaded not guiIty to the charge under Sec. 302 PPC.
4. The prosecution case rests on the following pieces of evidences- 1) Ocular cividence of complainant Lai Bux and P.W. Kauro.
2) Motive.
3) Medical evidence.
4) Recovery of blood-stained shirt and hatchet from the possession of the appellant.
5. It is not disputed that deceased Ghulam Rasool died of hatchet injuries on his person. His post- mortem examination was conducted by Dr.Ghulam Umer P.W. No.6 on 19-12-1983 at 4.00 P.M. He found the following five external injuries on the person of the deceased :- 1) An icised wound 15 cm x 4 cm x cutting the vertibrac, spinal cord, trachea and main nerves and blood vessels and the neck at the base posteriorly and horizontally :- 2) An incised wound 15 cm x 5 cm x cutting occupital bone and brain marrow.
3) An incised wound 15 cm x 4cm x 3 cm back at the abdomcnal region vertically.
4) An incised wound 7 cm x 3 cm x 2 cm on right shoulder posteriorly.
5) An incised wound 5 cm x 1 cm x 1/2 cm on right shoulder posteriorly. (The space between the injuries No.4 and 5 was only 1 cm)."
In his opinion injuries No.1 and 2 were collectively and individually sufficient to cause death in the ordinary course of nature. He has produced the post-mortem examination note Ex.21. He has further opined that the time between the death and post-mortem examination was about 4 to 6 hours. In the cross-examination he has admitted that rigor-mortis was complete when he started autopsy. He has also admitted that rigor-mortis takes about 12 to 24 hours for completion.
6. The main evidence against the appellant is that of eyewitnesses complainant Lai Bux and Kauro.
Both of them state, that they had gone to Tonga Stand to catch Tonga, when the deceased went to pass water and was sitting under a Khabbar tree, when he was attacked by the accused/appellant, who gave him hatchet injuries and then ran away and that the deceased died of hatchet injuries. The motive of the murder is said to be the dispute over the land of the complainant which was cuItivated by the appellant/accused and the complainant had asked him to vacate the land.
7. Mr. A.Q. Halepota learned counsel for the appellant has assailed this ocular evidence on the ground that it is evidence of interested and inimical witnesses and as such it cannot be relied upon without any independent corroboration. With regard to the motive, it is submitted that though the appellant/accused in his statement under Section 342 as well as 340 (2) Cr.P.C, states to have left the land, which was being cuItivated by his brother, but even if he is not believed, still his rights of cuItivation were protected by the Tenancy Act and the complainant could not have ejected him by asking to leave the land. It is submitted, that the appellant was on a stronger ground and the fact, that the complainant party was interested in ejecting himv provided a strong motive for the complainant party to falsely implicate him. It is submitted that the incident was unwitnessed and because of this dispute the complainant has falsely implicated the appellant. In support of his contention that the murder was unwitnessed, the learned counsel has pointed to various contradictions in the evidence of the two witnesses which indicate improbability of their presence at the spot. It is submitted, that according to the complainant, they were standing outside the Hotel of Najmmuddin, whereas according to P.W. Kauro, they were sitting inside the Hotel. According to the complainant, no Tonga was available on the stand and hence they waited for the Tonga, whereas according to P.W. Kauro, Tonga was standing there but Tongawala was not present. The complainant states that no body else was present in the Hotel except the owner of the Hotel and the bearer, whereas according to P.W. Kauro, some other persons were also sitting at the Hotel.
8. While dilating on the contradictions between the evidence of witnesses, reference may also be made to the evidence of P.W. Usman, who is also a very material witness as he is witness of the recovery. This Usman is admittedly son of P.W. Kauro. P.W. Kauro states, that P.W. Usman was also with them at the Hotel. If that be so and if the complainant and P.W. Kauro had witnessed the incident, witness P.W. Usman would have also witnessed the incident, but he does not state to have witnessed the incident. He, however, states, that he received information about the murder when he was at his village. The complainant states, that he went in a Jeep to the Police Station along with P.W. Usman which Jeep was provided by Wadcro Iqbal Thcbo, who had come to the place of Vardat. However, A.S.I.P. Karim Bux denies that P.W. Usman was in the Jeep with him.
9. It is submitted by Mr. A.Q. Halepoto that there is no independent evidence with regard to the motive, except that of interested witnesses. He further submits that in dispute with regard to tenancy rights and evictions the matter falls within the competence of Revenue Authorities and the Tapedar Abdul Rehman (P.W.-4), who was examined to prove the sketch of Vardat Ex.17, has stated that he did not know, if there was any dispute over the land between the accused and the complainant. He has relied upon the case of Rasol Bux and another vs. The State (1980 S.C.M.R. 225) wherein their Lordships have held 'The trial Court had relied, for the purpose of corroboration, on the evidence produced by the prosecqtion about the motive for the murder, but this evidence has no corroborative value, because it comes from the mouths of the very witnesses whose evidence requires corroboration."
10 In the case of Nawaz Ali and another vs. The State (1981 S.C.M.R. 132) at page- 136 their Lordships have observed "It is true that the eye-witnesses gave evidence of motive, but as the question was of the corroboration of their evidence, their own statements about the motive for the crime could not furnish corroboration of their evidence about the identity of the assailants."
11. In the case of Ismail and Others vs. The State (1983 P.Cr.L.J. 823) a learned single Judge of this Court has observed "Motive emanating from enmity could not be used as corroboration of tainted evidence when no other evidence was available for corroboration."
12. Thus the evidence of the two eye-witnesses cannot seek corroboration from their own evidence as to motive for the murder, which, as already pointed, does not provide strong motive for the appellant to commit the murder, but rather it does provide a motive for the complainant party, if the murder was un-witnessed, to implicate the accused in order to get him ejected from the land.
13. There is no law that conviction cannot be based upon the uncorroborated evidence of interested witnesses, through the rule of prudence, as laid down in a string of rulings, provides that conviction in capital offences should not be based on uncorroborated evidence of the interested witnesses.
14. In the case of Roshan and others vs. The State (P.L.D. 1977 S.C. 557) their Lordships have observed that "In case where the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would resuIt in a grave miscarriage of justice to insist upon independent corroboration."
15. In the instant case the presence of the two eye-witnesses at the scene of offence does not appear to have been proved beyond doubt.The witnesses do not belong to the Village where the Tonga Stand is situated where the incident is alleged to have taken place. We have already pointed to the contradictions in evidence of the witnesses which also cast doubt about their presence at the spot.
Besides, admittedly there were other witnesses present in the Hotel where the incident took place.
As pointed above, according to the complainant, Najmuddin and a Bearer were present in the Hotel, whereas according to the other witness Kauro, there we're other persons also sitting in the Hotel. It may also be pointed that from the F.I.R, it appears that the owner of the Hotel Najmuddin is Halu by caste. The complainant and the deceased are also Haloo by caste, whereas the appellant is Chandio by caste. However, none of the other witnesses, who were present at the Hotel, including Najmuddin, has been examined by the prosecution and there is no explanation coming from prosecution as to why they were not examined. Under such circumstances the conviction cannot be based upon the ocular evidence without any independent corroboration coming from some unimpeachable source.
16. The only other piece of evidence against the appellant is the alleged recovery of the blood- stained shirt and blood-stained hatchet from his possession. ASIP. Karim Bux (P.W. No.7) states, that on 20-12-1983 he arrested the appellant from his house in presence of Mashirs Khuda Bux and Usman and secured a blood-stained shirt from the person of accused. He also state . That the appellant voluntarily produced one blood-stained hatchet from the hedge of the house, which was secured and sealed. He prepared such Mashirnamas Exh. 14 and 15 respectively. Mashir Usman (P.W.-3) has been examined. He supports the A.S.I.P. And has proved the Mashirnamas. It may be pointed that P.W. Usman is admittedly son of P.W. Kauro. The complainant has denied the fact that P.W. Kauro is son of his cousin, but states that he might be a distant relative. Admittedly he is caste fellow of the complainant and also co-villager of the complainant. Under the circumstances, his son Usman cannot be considered as an independent witness. If the evidence of this witness is discarded we have to consider if any reliance can be placed upon the evidence of the Police Officer. According to these two witnesses, even on the next day when the appellant is alleged to have been arrested, he was wearing the same blood-stained shirt. It does not appeal to any reason, that even if the appellant had committed murder and his shirt was blood-stained, he would have continued to wear the same and waited for the Police to secure from his person the blood-stained shirt on the next day, though he had ample opportunity to change, wash or destory the shirt. The same can be said with regard to the hatchet allegedly produced by the appellant on the next day and which is also said to be blood-stained. It may also be pointed that though the shirt is alleged to be blood-stained and was secured and sealed by the Investigating Officer, still it was not sent to the Chemical Analyser for examination and report for the reasons best known to the Investigating Officer. The fact, that the shirt was not sent to the Chemical Analyser, raises presumption, that it was not blood-stained and the Police Officer and the Mashir are not speaking truth at least with respect to the blood-stains on this shirt.
17. Mr. Karim Bux has produced the Chemical Analyser's report Ex. 20, which shows, that the hatchet was blood-stained. The bloodstained earth recovered from the scene of offence was also sent for chemical analysis, but the report shows, that the blood-stains on the said article were dis- integrated and its origin could not be determined. This report is dated 28- 4-1985. It shows that the said articles were sent by the Police to the Chemical Analyser vide letter No.795 dated 13-3-1985 and was received in the office of the Chemical Analyser on 16-3-1985. It may be pointed that the recoveries are alleged to have been made on 20-12-1983. There is no explanation as to why the articles were not sent for chemical analysis for nearly 15 months. Though there is no suggestion in the cross-examination of the witnesses that these articles were tampered with by the Police, still it reflects upon the conduct of the Investigating Officer. In the case of Allah Rakha vs. The State (1985 S.C.M.R. 453) their Lordships have held that "Where the evidence on record showed conduct of the Investigating Officer to be not above board, the testimony of such witness could not be relied upon without further evidence in support."
18. The complainant has stated that after committing the murder, the appellant went to the Otaq of Wadero Iqbal Thebo. P.W. Kauro also states that after the incident Wadero Iqbal Thebo had confined the appellant. The appellant alleges, that he has been implicated at the instance of Wadero Iqbal Thebo. This Wadero Iqbal has not been examined. No explanation has come on the record from the Investigating Offider as to why he did not try to arrest the appellant on the same day, though the incident had taken place in the earlier hours of the day. The fact, that the appellant is alleged to have been arrested on the next day from his house indicates, that he had not absconded. Keeping all these admissions and facts in view, the possibility cannot be ruled out that the appellant may have been produced before the Police by Wadero Iqbal Thebo on the same day.
This also finds support from the admission of the complainant in his cross-examination that accused Waris was arrested by the Police on the day of incident in the evening. The evidence of the Investigating Officer and P.W. Usman with regard to the arrest and recovery of the articles from the appellant on the next day, therefore, is not free from doubt. This piece of evidence, which is doubtful, cannot corroborate the ocular evidence which is also not free from doubt in view of the afore-mentioned discrepancies and contradictions in their evidence. It is settled law that one piece of tainted evidence cannot corroborate another piece of tainted evidence.
19. Mr. Tariq Rashid learned counsel for the State has placed reliance on the case of Mohammad Aslam vs. The State (1973 S.C.M.R. 569) wherein their Lordships upheld the conviction, where the evidence of prosecution witness, related to deceased, was corroborated by recovery. As already pointed the recoveries in this case are not beyond doubt.
20. Similarly the case of Ghulam Rasul vs. Ali Akbar and Others (P.L.D. 1965 S.C.363) is distinguishable from the instant case, as in the reported case the was evidence of eye-witnesses of unimpeachable character supported by recoveries of blood-stained clothes and hatchet, though the Serologist was unable to analyse stains due to disintegration of blood.
21. It is submitted by the learned counsel for the State that the F.I.R, was lodged without delay within i\ hours of the incident and the name of the appellant appears in the F.I.R, and the specific role is assigned to him which is corroborated by medical evidence. It is further submitted that the name of the eye-witness also transpires in the F.I.R.
22. Admittedly P.W. Usman accompanied the complainant from the scene of offence to the Police Station. It is stated by P.W. Usman that on receiving information in his village, he came to the scene of offence from where he accompanied the complainant to the Police Station. If that be so, the contention of the defence, that the complainant as well as P.W. Kauro were in the Village and on receiving information about the murder, they came to the scene of offence, does not appear to be improbable as even in that case the complainant could have gone to the Police Station and lodged the complaint at the time it was lodged.
23. Mr. A.Q. Halcpota learned counsel for the appellant has relied upon the case of Bachai vs. The Stale (PLD 1978 Kar. 710) wherein a Division Bench of this Court extended benefit of doubt to the accused, when the interested eye-witnesses of occurrancc had improved upon their Police Statements to implicate the accused and though the incident took place in a busy Hotel, but none of the witnesses from locality, including owner of Hotel was examined by the Police as eye-witness.
Further more the contradictions and conduct of eye-witnesses suggested that the witnesses have been introduced by the complainant being his confederates.
24. In the case of Bagh Ali and others vs. The State (P.L.D. 1973 S.C. 321) their Lordships observed as under: "The apporaisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to over-come the inherent doubt which such evidence must necessarily create."
25. In support of his contention that the incident was unwitnessed, Mr. A.Q. Halepota has relied upon the admission of Medical Officer Dr. Ghulam Umer in his cross-examination wherein he states that rigor-mortis were complete when he started autopsy. He further stated that rigor-mortis in winter season takes about 12 to 24 hours for completion. He conducted the post-mortem examination at 4.00 P.M. On 19-12-1983. If his statement is believed the murder would have taken place at 4.00 A.M. Or even earlier to thatT It is submitted by Mr. Rashced Tariq learned counsel for the State that this Medical Officer has stated in his deposition that the time between the death and post-mortem examination was about 4 to 6 hours which statement tallies with the evidence of P.Ws, that the murder took place at 10.00 AM. However, the statement of the Medical Officer that rigor mortis takes about to 24 hours for completion gets support from Moodi according to whom, "in general rigor-mortis sets in one to two hours after death as well develop from head to foot in about 12 hours" (Medical Jurisprudence by Moodi 18th Edn at P-121). It is also settled law that when there are two versions of incident the one favourable to the accused is to be accepted.
26. As already pointed the incident did not take place in the Village of the complainant and eye- witness Kauro. There are no reasons for them to be present at the scene of offence at the alleged time of incident unless their statement that they were waiting at Tonga Stand to catch Tonga for Mehar is believed. I have already pointed to the discrepancies in their evidence. If, according to the medical evidence, the death is accepted to have occurred at 4.00 A.M. Or earlier to that, then certainly these two witnesses could not have been present there. It was winter time and the incident had taken place in the month of December. According to the Tapedar Abdul Rehman, who prepared the sketch of Vardat (Ex.17), the place where the murder is alleged to have taken place is at a distance of 190 Ft. To the North of the Hotel of Najmuddin. The appellant in his statement under Section 340 (2) Cr.P.C, on oath, has stated that the northern portion of the Hotel of Najmuddin was closed due to winter season, so also the western portion. . Though this statement of the appellant is challenged in the cross-/ examination, but it. Does not look unnatural or unbelievable, In this part of the country the winds blow from North in Winter time. As such the statement of the appellant on oath that the northern portion of the Hotel of Najmuddin was closed during that time does not look unbelievable. If P.W. Kauro is believed that they were sitting inside the Hotel, they could not have seen the incident while sitting in the Hotel. The deceased is said to be sitting under Khabbar tree after making water apparently for no reason and it does not look probable as his two other companions viz. The complainant and P.W. Kauro were sitting in the Hotel. There does not appear to be any reason for him to have sat at a distance of I0O ft. From his two companions.
27. All this discussion leads to the conclusion that the alleged recovery of the weapon of offence from the appellant on the next day is a very doubtful piece of evidence and cannot be used to corroborate the evidence of the two eye-witnesses whose presence at the spot looks doubtful due to the aforesaid mentioned circumstances and the contradictions in their statement. The evidence of Medical Officer cannot be considered as corroboration of the evidence of eye-witnesses because admittedly they did see the deceased and injuries on his person before sending of dead- body for post-mortem examination. Conviction in capital offences cannot be based on such doubtful and un-corroborated pieces of evidence.
28. For the aforesaid reasons and discussion, we are of the opinion that the prosecution evidence is not free from doubt and suffers from serious infirmaties and improbabilities. In our opinion the prosecution has failed to prove guiIt of the appellant beyond reasonable doubt. We are, therefore, inclined to accept this appeal, to give benefit of doubt to the appellant and acquit him. The appellant is ordered to be released forthwith, if not required in any other case.