' Appellant Soomar and Zamir were tried by Mr. Ghulam Nauman Shaikh, IIIrd Additional Sessions Judge, Larkana, for the offence under section 302/34, PPC, who found them guilty for the said offence and vide judgment dated 30-9-1986 sentenced each of them to imprisonment for life and to pay a fine of Rs,5,000 or in default to suffer R.I. For one year more. The fine, if recovered was to be paid to legal heirs of deceased Kadan as compensation under section 544-A, Cr.P.C. The appellants were also extended the benefit of section 382-B, Cr.P.C. By this appeal filed under section 410, Cr.P.C, the appellants have challenged their conviction and sentence.
2. Deceased Kadan was married to Mst. Razul, sister of appellant Soomar and mother of appellant Zamir born from her first husband. Out of this wedlock Mst. Razul had two sons, namely, Imam Bux and Amir Bux. The relations between the spouse were not cordial and it is alleged that they were leading cat and dog life. Consequently Mst. Razul was detained in village Sadik Ghawas by the appellants who did not allow her to go to the house of deceased Kadan situated in village Boohar.
There was a private FAISLA made by wadero Alimuddin Ghawas, whereafter deceased Kadan shifted to village of appellants and started residing there with his wife Mst. Razul. It is the case of the prosecution that on the day of incident, viz. 21-7-1982, deceased Kadan wanted to take his two minor sons to village Boohar to celebrate EID with his brothers, but the appellants did not permit him to do so. Deceased Kadan, however, did not listen to them and took away his sons towards village Boohar. At about 4-00 P.M. When he reached on the road near Dangiwah both the appellants who were armed with hatchet overtook him and showered hatchet blows upon him causing his immediate death. Kaloo, brother of deceased Kadan who was proceeding towards village Sadik Ghawas after making Eid purchases from Nasirabad saw the incident. Ahmed and Deedar Ali, residents of village Sadik Ghawas who were also returning to the village with complainant Kaloo after doing purchases from Nasirabad also witnessed the incident. Ahmed and Deedar Ali waited over the dead body of Kadan and complainant Kaloo proceeded to Nasirabad P.S. And lodged HR which was recorded at 7-00 P.M. Manzoor Hussain S.H.O. Went to the WARDAT and inspected it in presence of mashirs Ghulam Hyder and Jaro. He despatched the dead body of Kadan to Medical Officer, Nasirabad for post- mortem examination. The police officer then examined Deedar Ali, Ahmed, Wadero Alimuddin and Mst. Razul. On 27-2-1982 Manzoor Ahmed S.H.O. Arrested both the appellants in presence of same mashirs. Appellant Soomar then led the police party to the hedge of his house and produced blood-stained shirt and hatchet from there.
Both these articles were sealed on the spot. Appellant Zamir then led the police party to the hedge of his house and from there he produced one blood-stained hatchet and ANGOCHA which were secured and sealed on the spot. Such mashirnamas were prepared in presence of same mashirs.
The blood-stained articles were sent to Chemical Examiner, Karachi for examination and report.
After usual investigation the appellants were sent up.
3. At the trial the prosecution examined Kaloo (P.W. 1), Ahmed (P.W. 2), Deedar All (P.W. 3), Abdul Ghafoor Tapedar (P.W. 4), Manzoor Hussain S.H.O. (P.W. 5), and Dr. Nooruddin (P.W. 6).
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4. The appellants have disputed the case of the prosecution. They have alleged enmity with prosecution witnesses over the marriage of Mst. Ajeeban who was first married to P.W. Deedar Ali and was then given in marriage to Kifayat son of appellant Soomar. The appellants did not examine themselves on oath. They also led no defence.
5. On the assessm ent of evidence available on record, the learned Additional Sessions Judge found the appellants guilty and convicted them accordingly, giving rise to this appeal.
6. I have heard Mr. Gul Bahar Korai, learned counsel for appellants and Mr. Zawar Hussain Jafferi, learned A.A.-G. For State. I have also gone through the record of this case carefully.
7. The fact that Kadan died an unnatural death on account of hatchet injuries is not open to any controversy. He was virtually slaughtered and his head was attached with rest of the body with a piece of skin only. The evidence of Dr. Nooruddin (P.W. 6) is self-explanatory.
8. The prosecution has tried to prove the charge against the appellants through the following items of evidence:--
(i) Direct testimony consisting of ICaloo (P.W. 1), Ahmed (P.W. 2), and Deedar Ali (P.W. 3).
(ii) Recovery of blood-stained hatchet and blood-stained shirt from the possession of appellant Soomar and recovery of bloodstained shirt and ANGOCHA from the possession of appellant Zamir, which on examination by the Chemical Examiner were found stained with human blood.
(iii) Motive.
9. Admittedly all the three eye-witnesses upon whom the prosecution has placed reliance are chance witnesses. Complainant Kaloo (P.W. 1) resides in village Boohar and on the day of incident he had gone to Nasirabad to make purchases for EID, where he happened to meet P.Ws. Ahmed and Deedar Ali, his close relatives who had also come to make purchases. After making purchases all of them proceeded to village Sadik Ghawas where deceased Kadan resided during those days as complainant Kaloo (P.W-1) wanted to meet him on the eve of EID day. They were on foot and when at about 4-00 P.M. They reached at Dangi Wah bridge they noticed. Appellants Soonmr and Zamir showering hatchet blows to deceased Kadan who fell down and died. Imam Bux and Amir Bux, minor sons of deceased Kadan were also present there at that time. The place of occurrence is situated near village Sadik Ghawas where deceased Kadan resided during those days. According to complainant Kaloo this village is about 100 paces away from the place where deceased Kadan was axed to death. Ahmed (P.W. 2) gives the distance between village Sadik Ghawas and the Wardat to be about 300 paces. Deedar Ali (P.W. 3) has testified that the Wardat was at a call's distance away from village Sadik Ghawas. None from this village was, however, attracted to the cries. Complainant Kaloo (P.W. 1) makes it clear by stating in cross-examination that no body was attracted to the Wardat on cries. Ahmed (P.W. 2) who is resident of village Sadik Ghawas, however, admits that on cries some people had gathered. He was, however, unable to say if any one out of them had the occasion to witness the incident. Deedar Ali (P.W-3) also supports his father Ahmed (P.W-2) in this behalf. Admittedly the incident took place on metalled road leading to Nasirabad from Larkana which is a busy road. Deedar Ali (P.W-3) further admits that there are about 200 houses in village Sadik Ghawas, where persons of different castes reside. It is, therefore, beyond imagination that none else except the three interested and chance witnesses had seen the actual incident. None from the adjoining fields and nearby villages was, however, examined in this case, which factor seriously creates doubt about the manner in which the incident took place.
10. Admittedly the place of Wardat is only four furlongs away fr6m Nasirabad P.S. The FIR (Ex. 7) is clear in this behalf. According to complainant Kaloo (P.W-1) the incident took place at about 4-00 P.M and he proceeded to police station immediately after the incident. The FIR was, however, recorded at 7-00 p.m., which creates grave doubt about the presence of complainant Kaloo at the place of occurrence at the time of incident. The observation made by learned counsel for appellants that this time was consumed to locate the complainant and bring him to WARDAT is, therefore, not without foundation. All the three alleged eye-witnesses have again contradicted each other about the visit of police officer at the Wardat. Complainant Kaloo (P.W. 1) states that the police reached at the wardat at about 5-00 p.m. Ahmed (P.W. 2) contradicts him by stating that police reached at the wardat when there was darkness. Deedar Ali (P.W. 3) however, does not agree with his father and he states that police reached there after 1/2 hour of the incident.
According to complainant Kaloo (P.W. 1) the police officer reached at the wardat in a taxi car.
Ahmed (P.W. 2) again does not agree with him and he states that the police came in a tonga. Deedar All (P.W-3) contradicts both the above witnesses by stating that the police came in jeep. Again there is disagreement about the manner in which complainant Kaloo rushed to the police station. Complainant Kaloo (P.W-1) and Ahmed (P.W-2) state that Kaloo had gone to lodge report on foot. Deedar All (P.W-3) again contradicts these witnesses by stating that Kaloo had gone to police station in a tonga.
11. The visit of complainant Kaloo (P.W-1), Ahmed (P.W-2) and Deedar Ali (P.W-3), to Nasirabad for making purchases is again not borne out from the record. The police officer did not find any such bundles with these witnesses. The mashirnama of Wardat (Ex. 15/A) is silent about it. There is again disagreement between all the above witnesses about place of their meeting at Nasirabad which quite admittedly was not pre-arranged. All these factors coupled with the abnormal delay in taking recourse to law, therefore, indicate that none of these three witnesses had actually seen the incident and they were set up after the dead body of Kadan was found at the Wardat.
12. A chance witness is a witness who should not be normally be where and when he professes to have been. There is no magic in the comment "chance witnesses". Though this is the usual argument, its implication is hardly understood. However, when a witness is mainly a chance witness and is highly D interested in deceased person, his evidence cannot be considered to be worthy of credit.
13. In considering the question as to whether evidence given by the witnesses should be accepted or not, the Court has, no doubt to take the surrounding circumstances attending to each case into consideration and the circumstances which are detailed above by me leave no room of doubt in my mind to hold that none of them had actually seen the incident.
14. The recovery of blood-stained articles from the possession of both the appellants is again not proved satisfactorily. Both Ghulam Hyder and Jaro who acted as mashirs throughout the investigation were given up by A.P.P. On the ground that their whereabouts are not known. The process-server was, however, not examined to substantiate it. In the absence of the evidence of both the mashers, I consider it highly risky to rely upon the sole testimony of Manzoor Hussain S.H.O.
(P.W. 5) on this point. The recoveries of incriminating articles E at the instance of both the appellants are, therefore, not proved.
15. Motive by itself is again not sufficient to prove guilt of the accused. It may provide strong suspicion against the accused. The suspicion, however, strong it may cannot be taken as substitute of legal evidence.
16. For all the above reasons I am of the view that the case against the appellants is not free from doubt. The benefit of doubt is extended to them and they are acquitted from the charge. The appellants who are in custody be released forthwith, if not required in any other case.
17. In the result the judgment recorded by the IIIrd Additional Sessions I Judge is set aside and the appeal is accepted.