' Appellant Umar was tried along with Ismail and Noor Muhammad for the offence under section 302/34, P.P.C. And 13-E of the Arms Ordinance, 1965, by Mr. Muneer Ahmed Khawaja, 1st Additional Sessions Judge, Kandhkot. Accused Ismail died during the pendency of the case and consequently the case against him abated. Appellant Umar was found guilty for the offence under section 302, P.P.C. And was sentenced to imprisonment, for life. He was also convicted for the offence under section 13-E of the Arms Ordinance, 1965, and sentenced to suffer R.I. For two years. Both the sentences were to run concurrently. Co-accused Noor Muhammad was extended benefit of doubt and acquitted under section 265-H, Cr.P.C. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence awarded on 19-2-1987.
2. Appellant Umar was having an affair with Mst. Noor Khatoon wife of Pheeri Mazari. She was also in toe with one Faizo Kosh. She was murdered about 13 days prior to this incident by Kasim and Ali Nawaz Kosh. Appellant Umar suspected deceased Sachlo to have hand in this murder. It is alleged that on 30-8-1982 at about Asur (morning prayer) time complainant Gulsher had gone to the house of Sachlo who was his brother to assist him for sloughing the land for ' the purpose of cultivation. P.W. Ladho who is their nephew (sister's son) was also with Gulsher.
Deceased Sachlo was having a talk with Gulsher and Ladho, when all of a sudden appellant Umar armed with a gun, co-accused Ismail (since dead) armed with a gun and Noor Muhammad (since acquitted) armed with hatchet emerged there. Appellant Umar challenged deceased Sachlo. Mst.
Saindini wife of deceased Sachlo who was busy in domestic work tried to intervene, but with no success. Appellant Umar then fired at deceased Sachlo which hit him on his abdomen. Co- accused Ismail then fired a shot from his gun, but it missed. All the three culprits then decamped.
Sachlo died on the spot. On the same day at 8-30 a.m. The report of this incident was lodged by Gulsher at Kashmore Police Station. Dilbar Yar Khan S.H.O. Took up the investigation. He proceeded to the Wardat and found the dead body of Sachlo lying there. He secured one empty cartridge of .12 bore lying there and sealed it in presence of Mashirs Attur and Mouladino. The dead body of Sachlo was then dispatched to Medical Officer, R.H.C. Centre Kashmore for post-mortem examination. The Police Officer then examined Mst. Sandino and Ladho. On 4-9-1982 the present appellant and co-accused Noor Muhammad were arrested. On 5-9-1982 the appellant produced the gun from the corn bin of his cattle shed. Since he had no license for this gun, a separate case under section 13-E of the Arms Ordinance, 1965, was registered against him. The gun and empty cartridge were sent to Ballistic Expert, Karachi, for examination and report. After usual investigation the case was challenged.
3. At the trial the prosecution examined Saadullah Tapedar (P.W.1) Dr. Agha 'Noor Ahmed (P.W.2), Gulsher (P.W.3), Ladho (P.W.4), Mst. Saindini (P.W.5), Attur, (P.W.6), Dilbar Yar Khan S.H.O. (P.W.7), Gul Bahar H.C. (P.W.8), Muhammad Farhad P.C. (P.W.9), Muhammad Arab H.C. (P.W.10) 'and Idan (P.W.11).
4. The appellant met the charge with a bare denial. He examined himself on oath and made the following statement:-- "That I have not committed murder of Scholl by firing upon him. I also do not know any woman by name Mst. Noor Khatoon. I have not produced any unlicensed gun before police. I am innocent and have been involved in this case due to enmity over land."
' The appellant, however, led no defense.
5. On the assessm ent of the evidence available on record, the learned Additional Sessions Judge convicted the appellant and sentenced him for the terms indicated above. He awarded the lesser punishment to appellant for the following reasons:-- "As regards the sentence to accused, no doubt the accused Umar acted in brute and heartless manner having murdered the deceased without any cogent cause and hence he is not entitled to any leniency in the punishment, but since he was accompanied by late accused Ismail who was also armed with a gun and his fire missed the deceased and hence I think these are the extenuating circumstances and alternative punishment of imprisonment for life would meet the ends of justice.
6. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Awan Rehmatullah Nadeem, learned counsel for appellant and Mr. Zawar Hussain Jafferi, learned AA.-G. For State. The latter has supported the impugned judgment.
8. The case of the prosecution rests upon the following items of evidence:--
(i) Direct testimony consisting of Gulsher (P.W.3), Ladho (P.W.4), and Mst. Saindini (P.W.5).
(ii) Recovery of gun at the instance of appellant which according to the opinion of Ballistic Expert was used in this crime.
(iii) Motive.
9. Admittedly both Gulsher (P.W.3) and Ladho (P.W.4) did not reside in the village of Sachlo.
Complainant Gulsher (P.W.3) resided at a distance of about six survey number from the house of his brother deceased Scholl, while Ladho (P.W.4) resided about one mile away from there. They had come to the house of deceased Sachlo to assist him for preparing the land for the purpose of cultivation. Thus, at their own showing they arc chance witnesses. Their arrival at the house of Scholl at the very moment when deceased Scholl was fired at by present appellant and co- accused Ismail is a pretext which is easy to invent and is always found in the mouth of witnesses who bring themselves to the scene of occurrence. Gusher (P.W.3) brother of deceased Scholl stated that when they reached the house of Scholl they found him still sleeping and before they could have any talk with him the culprits forced their entry in the house of Scholl who was first challenged by the present appellant and was then fired at by him followed by the shot fired by co- accused Ismail (since dead), and both the shots hit him resulting into the death of Sachlo on the spot. Ladho (P.W.4) who claims to be an eye-witness contradicts Gusher (P.W.3) in the following words:- "When we entered the house of Scholl he was sleeping in the courtyard of the house on a cot. Mst.
Saindini wife of Sachalo was busy in domestic work. We then sat on a separate cot in the courtyard.
After about 5/10 minutes we saw accused Umar Ismail armed with guns and Noor Muhammad armed with a hatchet entered the house of Scholl. Accused Umar gave Hakal (cnallenge) to Scholl that he has got murdered his `keep' Mst. Noor Khatoon, hence he would not be spared. On Hakal Sachlo tried to get up from the cot but in the meantime Umar reached him and fired at Scholl which hit him. Ismail also fired a gun shot at Scholl but it did not hit him..."
10. Mst. Saindini (P.W.5) who is wife of deceased Scholl gives a totally different story. She testified that complainant Gulsher and P.W. Ladho had reached their house before sunrise time and they were sitting on a cot with deceased Sachlo and were talking to him when the appellant and co- accused emerged there and committed the murder of Sachlo. Her evidence also shows that the shot fired by co-accused Ismail did not hit deceased Sachlo.
11. Complainant Gulsher (P.W.3) and Ladho (P.W.4) who had come to the house of deceased Sachlo for assisting him in preparing the lands for cultivation had only brought Wahcla (instrument used for digging and cutting) and spade respectively. There is, however, no indication on record that they had shown these implements to the Police Officer who had investigated the case.
12. Dr. Agha Noor Ahmed (P.W.2) who had conducted the autopsy on the dead body of Sachlo found the following injury on his person:-- "Lacerated punctured type of wound over the right side of abdomen anteriorly 2.5" x 2.5" x cavity deep, charring and blackening present over the wound."
The cross-examination made to Dr. Agha Noor Ahmed (P.W.2) further shows that the shot was fired point blank while deceased Sachlo was still lying on the cot as the injury was from down to upward side. The evidence of Dr. Agha Noor Ahmed (P.W.2), therefore, belies the version of all the three witnesses who claimed to have witnessed the incident. Dr. Agha Noor Ahmed (P.W.2) found only one injury on the person of deceased Sachlo, which contradicts complainant Gulsher (P.W.3) who speaks of two shots and both hitting deceased Sachlo. The medical evidence also makes the presence of Ladho (P.W.4) doubtful who stated in clear terms that the shot at deceased Sachlo was fired from a distance of about 5/6 paces, as against the medical evidence that it was fired point blank, which fact is further confirmed by the presence of charring and blackening around the injury. This evidence of the expert is again at variance with the evidence of Mst. Saindini (P.W.5) who admits as follows:-- "I have stated before police that Sachlo was already sitting on the cot and accused came inside the house and fired at him in standing position."
13. It appears from the evidence available on record that deceased Sachlo was murdered while he was sleeping on the cot. It was an witnessed crime. Complainant Gulsher (P.W.3) and Ladho (P.W.4) were obviously set up after the dead body of Sachlo was found and this explains the cause of delay in lodging F.I.R. After about 3-1/2 hours when police station is hardly five miles away. Both Gulsher (P.W.3) and Ladho (P.W.4) besides being. Chance witnesses are highly interested with deceased Sachlo who had strained relations with the appellant on account of the murder of Mst.
Noor Khaloon, with whom the appellant had an affair.
14. It may be added that deceased Sachlo had enmity with others also. He was declared as Karo while he was residing in village Azim Kash, which fact stands proved from the following admission made by Mst. Saindini (P.W.5) in the following words:-- "It is correct that previously we were residing in the village of Azim Kosh where Sachlo was declared as Karo and we had left the village and started living in the present house due to fear of Sachlo's murder."
' The enmity of deceased Sachlo with Usman Mazari over lands is also not in dispute. Therefore, the culprits or the culprit, whoever he may be, had purposely selected dark hours .Of night to conceal identity. They could not have waited for the arrival of Gulsher (P.W.3) and Ladho (P.W.4) just to become witnesses against them.
15. There can be no doubt about the presence of Mst. Saindini (P.W.5) in the house of deceased Sachlo, but mere presence in the house is not sufficient to hold that she actually saw the murder. It may be noted that deceased Sachlo had another wife by name of Mst. Sharifan, who quite admittedly was present in the house. In fact nobody except Mst. Saindini speaks about her presence at that time. It is interesting to note that leaving a natural witness the prosecution took pains to bring witnesses who admittedly resided at a distance of about one mile from the wardat.
The evidence of Mst. Saindini (P.W.5) is at variance with the medical, evidence and consequently it is highly risky to rely upon such evidence in forming basis of the conviction of appellant. On these facts learned counsel for appellant has contended that the accused cannot be held guilty of the murder of Sachlo, which I think is well-founded.
16. The recovery of gun at the instance of appellant is not proved satisfactorily. Idan (P.W.11) has acted as Mashir of recovery of gun. Admittedly he is nephew of deceased Sachlo. The evidence of this witness shows beyond any shadow of doubt that the place from where the gun was secured was in joint possession of the appellant and co-accused Ismail. The firing of shot is also attributed to Ismail (since dead) and, therefore, it cannot be said that the appellant was in exclusive possession of the gun. The recovery of empty cartridge from the Wardat is again doubtful. There is no mention of empty cartridge in F.I.R. (Exh.9) Attur (P.W.6) who has acted Mashir of Wardat admits in cross-examination that the empty cartridge was taken to police station by Gulsher when he went to lodge F.I.R. Therefore, the report of Ballistic Expert (Exh.27) that crime empty was fired from the gun alleged to have been recovered from the possession of appellant has got no evidentiary value.
17. We are now left with the evidence of motive. Ladho (P.W.4) speaks of the motive in the following words:-- "Sachlo was pimp of Faiz Kosh, who was on illicit terms with Mst. Noor Khatoon. Accused Umar was also on illicit terms with the same woman. Both Faizo and Umar used to visit the house of deceased Sachlo frequently to meet Mst. Noor Khatoon. About 15/16 days before this incident deceased Sachlo asked accused Umar not to visit the house, on which accused had got annoyed. Mst. Noor Khatoon was murdered after 3/4 days when deceased stopped Umar from going to his house. Mst.
Noor Khatoon was Mazari by caste and she was murdered by Kosh by caste in which All Nawaz and Kasim Kosh were challaned. I do not know if Sachlo had his hand in the murder of Mst. Noor Khatoon. Neither Kosh nor Mazari had demanded any compensation or explanation from Sachlo about the murder of Mst. Noor Khatoon."
18. Thus, the evidence of motive is self-contradictory. Since an action without a motive is in a sense an effect without a cause, the absence of evidence of an inducing cause may in many cases afford a strong presumption of innocence.
19. For all the above reasons the case against the appellant is not free from doubt. I would, therefore, set aside the conviction recorded against the appellant and acquit him. The appellant who is in custody be released forthwith, if not required in any other case. The appeal is allowed.
20. Before I take leave, I would like to record my disapproval about the reasons assigned by learned Additional Sessions Judge in awarding lesser punishment to appellant. Such an attitude in the words of Muhammad Munir, C.J. Reproduced with approval in Shaikh Hussan v. Bashir Ahmed and another reported in PLD 1966 Pesh. 97, is a serious dereliction of duty and a Judge who is mentally incapable of awarding capital punishment where law and facts demand it is a complete misfit in judicial machinery. The Additional Sessions Judge also failed to award sentence of fine and compensation under section 544-A, Cr.P.C. Which are mandatory in nature, but since I am allowing the appeal no further action in this behalf is called for.