MUHAMMAD HALEEM, J.-Appellants Illahi Bux, Karim Bux, Allah Bachayo, Phog, and Khuda Bux were tried for the murder of Sadiq and for causing injuries with blunt and sharp weapons to Gulab, convicted under sections 302, 324 and 323, all read with sections 149, 147 and 148, P. P. C. And sentenced on the first count to transportation for life, on the second to 6 months' rigorous imprisonment, on the third to 3 months' rigorous imprisonment, on the fourth to 6 months' rigorous imprisonment and on the fifth again to 6 months' rigorous imprisonment by the learned Additional Sessions Judge, Nawabshah, vide judgment dated 31st January 1972. They have appealed against their conviction,
2. According to the prosecution case, at about 7 p. m. On 26th December 1968 while Sadiq was returning along with Gulab, his nephew and Dhani Bux to his village deh Yaktar along P. C. Road from Sakrand, the appellants emerged from under the bridge of the watercourse, of whom Phog was armed with lathi while the others with hatchets and those carrying hatchets caused blows to Sadiq which led him and the other two to raise cries, upon which Phog gave a Ialhi blow on the head of Gulab while Karim Bux inflicted a hatchet blow. The cries attracted Ibrahim, Ahsan and others who lived in village Miani close by, but before they could reach the wardat, the appellants made good their escape. Sadiq soon after receiving the injuries died. Gulab and Dhani Bux narrated the incident to Ibrahim.' Ahsan and others and while leaving Dhani Bux at the wardat he himself proceeded to his village to inform his uncle, Muhammad Hashim. Muhammad Hashim on being told about the death of his brother went to the wardat along with Gulab and thereat advised Gulab to lodge a report at Police Station Sakrand Gulab lodged the report at 9 p.m. The same night.
3. The motive for the murder was attributed to be the friendship of one Mead with the deceased. It was alleged that on the evening of Idd day while Gulab and tae deceased were taking tea at a cinema hotel in Sakrand, Murad also joined them and a little later appellants Khuda Bux and Phog, both Lasharis by case, arrived there and gave slaps to Murad and told the deceased that he was spoiling the habits of "their case-fellow" and that they would "show him the right path." Again on an evening earlier to the day of incident one Patasho Kerio had warned Gulab and the deceased that they should not continue their friendship with Murad otherwise it would lead to 'quarrel' and that as to what they had said was at the behest of Wahid Bux.
4. After recording the report Abdur Rahim A. S. I. Went to the wardat but commenced investigation on the following day. He noticed blood on the ground and secured the blood-stained earth under a mashirnama (Exh. 17) and sent the dead body for post-mortem examination. He recorded the statements of Dhani Bux; Ibrahim, Patasho, Ahsan, Murad and Muhammad Hashim. The appellants voluntarily appeared before him on 27th December 1968 and they were arrested in the presence of mashir Sunharo, vide mashirnama (Exh. 28). Appellant Karim Bux thereafter led him and the mashir to his house and from under the dung, which was lying outside the house, produced blood-stained hatchet and the shirt which were secured vide mashirnama (Exh. 20). Appellant Allah Bachayo led the police officer and the mashir and from the chaff lying outside the house produced one blood- stained hatchet and a shirt which were seized vide mashirnama (Exh. 21). Appellant Khuda Bux produced a blood-stained hatchet and the shirt from a Khabar bush near his house which were seized vide mashirnama (Exh. 22). All these recoveries were made on 27th December 1968.
Appellant Illahi Bux pro--duced a blood-stained hatchet and a shirt from the chaff stored in his house on 29th December, 1968 which were seized vide mashirnama (Exh. 23). Lastly, appellant Phog on the same day produced a lathi which was lying oil the thatched roof of the cattle-pen which was not blood-stained. It was seized vide mashirnama (Exh. 24). '
5. The autopsy on the dead body of the deceased was performed by Dr. Fazal Haq who noticed the following injuries:- "(1) Incised wound horizontally 3' x 2' into bone cutting on the left side of the neck.
(2) Incised wound 6-- ' x 3' into cutting of left mastoid maxillary bone on the left side of the face.
The brain was flowing out from the cut of mastoid wound.
(3) Incised wound 4-- ' x 2" sharing the cut of maxillary bone shown in injury No. 2.
(4) Incised wound 1"x 1' x muscle deep on the left shoulder tip."
And in his opinion these 'were caused by a sharp-cutting weapon and that injuries; 1 and 2 were individually and collectively sufficient in the ordinary course of nature to cause death, This doctor also examined Gulab on 26th December 1968 and noticed the following injuries:-- "(1)'Incised wound -- "x -- " x skin deep on the left shoulder joint posteriorly vertically.
(2) Abraded contusion 1" x 1" on the right parietal region." and in his opinion, injury No. 1 was caused with some sharp-cutting weapon while injury No. 2 with a blunt weapon. These were simple in nature and according to him, injury No. 1 appeared either to be self-inflicted or "by some friendly hand" and that both of these were simple in nature.
6. Except lathi, all the other articles were sent for chemical analysis and according to the opinion (Exh. 29) of the Chemical Analyst they were stained with human blood,
7. The appellants denied their involvement in the crime. Appellant Illahi Bux asserted that he had "no connection or relationship" with Murad and therefore had no reason to kill the deceased.
Against tae witnesses he alleged that they bad involved him at the behest of Muhammad Saleh Kario and Ghulam Muhammad Kario who were influential persons and related to the prosecution witnesses. He further alleged that Dhani Bux was related to Gulab and Hashim who had a dispute with him and the others over the allot--ment of revenue land. He also alleged enmity on the ground that his, brother Wahid Quit had contested the last B. D. Election against Muhammad Saleh and due to that reason he and Ghulam Muhammad got him implicated. He denied the production of the incriminating article. The other appellants also took the same defence. Appellant Allah Bachayo alleged that Illahi Bux was his "Masat" and therefore the prosecution witnesses had deposed against him. Appellant Khuda Bux also alleged relationship with Illahi Bux and so did Phog and Karim Bux.
8. The trial Court held that "the accused had failed to prove any motive either for complainant Gulab or for alleged eye-witnesses Dhani Bux to implicate the accused in this case." While considering the plea of enmity it has correctly reached this conclusion as the evidence, as it stands, does not lend support to such an inference. It has however accepted the motive assigned for the murder of the deceased. This conclusion needs reconsidera--petition. Two of the witnesses, namely Patasho and Misri have spoken that they had conveyed the warning to the deceased at the behest of Wahid Bux to sever his connection with Murad. There is nothing on record to suggest as to what was meant by severing connection. Murad, who is aged 25 years, has stated that he was a friend of the deceased and that while he was taking tea with him in a hotel at sunset time appellant Phog and Khuda Bux arrived there and asked him not to sit with the deceased "otherwise they would fight with him". On being threatened be left the place. On the face of it, it is list possible to assume that the mere friendship would be taken exception of whom nothing else is established oh raced, particularly lit the context of the fact that Murad disowned the suggestion that he had carnal relations with the deceased. On this plane what Patasho and Misri have testified loses its significance as it is not possible to conclude that mere friendship alone could provide a reason to impel the appellants, who had no particular reason to meddle with their friendship, to kill the deceased. Accordingly we hold that what is alleged is inconclusive to rest the foundation for the killing of the deceased. The trial Court erred in relying on it to provide a reason to impel the appellants to commit the crime.
9. Adverting now to the merit of the prosecution case it was alleged that Dhani Bux and Gulab had accompanied the deceased from Sakrand town and it is they who provide the direct evidence. It was urged by Mr. Azizullah K. Sheikh that these witnesses had not witnessed the, crime and therefore there is nothing to establish the identity of the appellants. In this context we propose to examine the evidence on record. Both of them are related to the deceased and they resided in different villages. Dhani Bux states that he met the deceased and Gulab per chance while he had gone to Sakrand to make purchases in a cinema hotel at 6 p. m. And had accom--panied them on the return journey. According to Gulab he had gone along with the deceased to Sakrand and confirms having met Dhani Bux who had also accompanied them on the return trip Gulab was examined by the Inquiry Magistrate but since he died thereafter he could not be examined in the trial Court. His earlier deposition was brought on the Sessions file under section 33 of the evidence Act. He had suffered two injuries one an incised wound and the other a contusion. There is nothing on record to suggest that the incised injury could be "self-suffered or inflicted by a friendly hand" and that the contused wound could be caused by "a fall" on the ground. It is too far-fetched to assume that Gulab would manipulate such injuries on his person to establish his presence in such a short time. In the face of the evidence of other witnesses that injuries were noticed, it is not possible to lay emphasis on the opinion of the doctor which at best is his own impression. His presence cannot, therefore, be doubted. There are, however, circumstances, which throw a doubt on the presence of Dhani Bux: Though Gulab acclaims it yet it is not apparent from the supporting testimony of Hashim to whom he had gone and narrated the incident. Hashim had come, to the wardat soon after, but while stating his (Dhani Bux's) presence in the trial Court he has omitted to mention it in his police statement and also in his lower Court .Deposition, .Which omissions have been proved. We fail to see how he could omit to mention. Such, a significant fact `as the presence of Dhani Bux if at all he figured as an eye--witness. In this light, the testimony of Muhammad Ibrahim and Ahsan, who was not examined by the prosecution in the trial Court but cross- examined by the defence counsel, also requires consideration. Muhammad Ibrahim while stating about the presence of Dhani Bux has said that he had do talk with Dhani Bux. Why would he only converse with Gulab and not with Dhani Bux, is not understandable of at all he was present and had seen the occurrence Ahsan was examined by the Inquiry Magistrate and while being cross- examined in the trial Court he admitted that both. Gulab and Dhani Bux were standing near the dead body and when confronted with his lower Court deposition where he had stated that he had not seen Dhani Bux, he replied that he did not remember whether he had made such a statement.
While Muhammad Ibrahim has spoken of the presence of Dhani Bux, it is not established from; the testimony of Ahsan for whatever worth his cross---examination is. It is not possible toy reconcile the above evidence and in this context the benefit of it will have to be resolved in favour of the appellants. There are other features which also point towards this end. The meeting of Dhani Bux was also per chance. According to Gulab, he had met him and the deceased while they were on the road proceeding towards their village but that according to Dhani Bux, it was at the cinema hotel that they had met at 6 p. m. Again Dhani Bux asserted that his village was on the way leading to the village of the deceased. He was confronted with his police statement, in which he had not so stated, to which he replied that he had said so. The omission has been proved. Assuming that his village was on the way still his statement does not clarify as to how far they had to go together.
Gulab in his cross-examination admitted that Dhani Bux lived in an adjacent village "with different way up to Miani". If from village Miani, the way parted and they had proceeded beyond it then there was no reason for Dhani Bux to still accompany Gulab and the deceased. The version as to where they met is discrepant and whether Dhani Bux would accompany them beyond village Miani, is doubtful. In this context, the chance meeting lacks assurance and leaves a room for doubt as to the presence of Dhani Bux.
10. The most significant feature about the case is that Muhammad Ibrahim and Ahsan, who resided in village Miani, had arrived at the wardat soon after the appellants had made good their escape, and none of them had supported the stand of the prosecution as to the identity of the, appellants.
Muhammad Ibrahim is Mirbahar by case and is a disinterested witness. According to him, while he asserts the presence of injuries on Gulab, he does not support him qua the fact that he (Gulab) had disclosed the identity of the appellants. In the trial Court he stated that Gulab had informed him that it were appellant Khuda Bux and other lasharies who had killed the deceased and caused injuries to him, but in cross-examination he was con--fronted with his section 164 statement where he omitted to mention the name of even appellant Khuda Bux to which he replied that he did not remember as to what he had stated. Thus the name of appellant Khuda Bux even did not transpire in his earlier version. Ahsan also has not supported Gulab and has stated that he only referred to Lasharies as the culprits but failed to give out their names. In this context, it may also be mentioned that the incident, according to Gulab, had occurred 1J hours after sunset and being the month of December it would be dark. It was the fifth of the Lunar month and it is doubtful whether the light of the moon was sufficient to facilitate identification, and if at all Gulab was able to identify the culprits it is not understandable why Muhammad Ibrahim and Ahsan, who are disinterested witnesses, would not support him if he had given out their names.
11. Another feature which casts a doubt is that according to the medical evidence, the deceased had suffered injuries on the left side which were closely located to each other. This circumstance by itself i3 suggestive Of, the fact that it may have been only one person who could be responsible for causing these injuries as it is highly improbable that as many as four appellants who were armed with hatchets would inflict the blows from the same side in a spur of the moment which is not even the prosecution case. It was more in the fitness of things that if so many persons had participated then the injuries would have been on other parts of the body as well. Cumulatively taking all the factors into consideration it is doubtful whether Gulab who was present had in fact identified the appellants and was able to 500 as to bow the injuries were caused. The trail Court while dealing with the evidence qua the Identity of the appellant's has explained away the non- disclosure of names to Ibrahim and Ahsan on the footing that Gulab was in is hurry and therefore was not able to disclose the names of the culprits. This amounts to resolving the doubt in favour of the prosecution which otherwise had to go to the appellants. It is not possible to conceive that this explanation could be justified when Gulab himself stated that he had disclosed the names of the appellants to these two witnesses. The trial Court has also accepted the presence of Dhani Bux, which again is a doubtful feature in the context of what has been observed above.
12. As to the recovery of incriminating articles at the instance of appellants Karim Bux, Allah Bachayo, khuda Bux; Illahi Bux and Phog, it is not possible to give credence to this piece of evidence as there are features which make it doubtful. While in the examination-in-chief mashir Sunharo has spoken of the recoveries, he has made other admission in his cross-examination which are not consistent with what is reposed to by Abdul Rahim A. S. I. Who had effected the recoveries.
According to Sunharo, he was called at the police station to act as a mashir where he saw all the appellants and from there the polite officer took appellants Khuda Bux, Karim Bux and Allah bachayo to village Manak and there ail the three jointly produced the incriminating articles. The joint production of the articles was not consistent with his earlier statement and was proved by way of contradiction; as he had said so in his lower Court deposition: He further stated that the appellants were brought to Sakrand after producing the articles: Again he testified that on 20th December, 1968 he had accompanied the; police and appellants Illahi Bux and Phog who produced the incriminating articles separately. Abdur Rahim A. S. I. When cross-examined stated that he had called the mashir not at the police station but at village Manak, from where the appellants were arrested and that they were not taken to the police station until they had produced the incriminating articles. He also stated that mashir Sunharo did not accompany him and the appellants when they were taken to the police station after the recoveries were effected. The inconsistent version not only detracts from assurance qua the acceptance of this piece of evidence but also there is a doubt on the bona fides of the individual recoveries made at the instance of appellants Khuda Bux, Karim Bux and Allah Bachayo, and when considered in the context of the doubt that we entertain as to the participation of the appellants qua their number and identity, it loses its weight. Appellant Phog had produced a lathi which was not blood-stained, which in any case has no, evidentiary value. It is, therefore, not possible to accept the view of the trial Court it), treating the recoveries as sufficient corroboration of the ocular testimony.
13. In the result, the prosecution has failed to establish its case beyond reasonable doubt.
Accordingly we would acquit the appellants. While accepting the appeal we would direct that they be set at liberty forth--with unless required in some other case.