ABDUL HAFEEZ MEMON, J.----The appellants Ghulam Hussain and Nazir Muhammad alias Nazir Ahmed have filed these appeals against their conviction under section 302, P. P. C. And sentence of death passed on them by the Sessions Judge, Khairpur for the murder of Mahmood son of Bachal.
The case is also before us on reference under section 374, Cr. P. C. For confirmation of the sentences of death. By this judgment we propose to dispose of both the appeal as well as the reference.
2. Complainant Faiz Bux and P. W. Shahnawaz reside in the adjoin--ing huts at the brick kiln of one Shahbazi near Ranipur town, about 200 paces away------..From Ranipur Railway Station.
Deceased Mahmood who is said to be `puphaht' of the complainant (complainant's father's sister's son) resided at Uch Sharif in Bahawalpur. He had come to visit the complainant one day before he was killed near the brick kiln of Shah Bazi within the sight of the complainant and the P. W. Shah Nawaz who were present and working at the kiln. Complainant Faiz Bux reported the incident at Gambat Police Station, about 7 miles away from the scene of offence, on 14-10-1971 at 9 a.m. Where his F.
1. R. Was recorded by S. H. O. Bahar A.I. The version of the incident given by the complainant Faiz Bux in the F. I. R. Is reproduced as under :- "That since last 3 years I am working on the brick kiln of Shahbazi Chahwan near Ranipur. Others namely Nazir Muhammad son of Ghaus Bux, Ghulam Husain, Ibrahim, Ghulam Sadik son of Faiz Bux Machhi alongwith their families are working at the brick-kiln of Dhani Bux. That kiln and our kiln are at the distance of about J, 3/4 mile away from each other. Rohri canal is flowing between them.
Mahmood son of Bachal Machhi is my Phupat who resides at Uch Sharif. He had illicit terms with Mst. Sakina wife of Ibrahim. He was caught red-handed with Mst. Sakina at his village Uch Sharif.
Yesterday in the morning Mahmood came to me at kiln. I paid Mahmood Rs. 100 and asked him to leave immediately, from here as you are on illicit terms with Mst. Sakina, so that you may not be harmed. But Mahmood said that he will stay the night and will leave tomorrow. Today in the morning I and Shah Nawaz son of unknown were working at the kiln when Mahmood came to me at the kiln at about 6-15 a.m. And told me that he will go back to his village Uch Sharif today as he had stayed night in our house. Thereafter he (Mahmood) went to jungle to ease himself. After a while he came running from jungle crying murder murder. We saw that Nazir Muhammad who was armed with a big knife (Chhura) and Ghulam Hussain who had a hatchet in his hand were chasing him. We, I and Shah Nawaz went running there to rescue Mahmood but before we could reach there, the above accused reached Mahmood before us and gave hatchet and big knife blows to Mahmood who fell down. They challenged us not to go near them else they will kill us. We did not go near them due to fear. Thereafter the above accused after giving hatchet and big knife injuries to Mahmood went away to their houses by raising slogans, we went there and found that Mahmood was lying dead on the ground. ,He had hatchet and big knife injuries on the head, neck and sides. The injuries were bleeding. After leaving Shah Nawaz over the dead body I have come to lodge report that the above accused have murdered Mahmood as he was on illicit terms with Mst.
Sakina wife of Ibrahim. I am complainant. Action may be taken.
Note.-The above F. I. R. Is read over to the complainant who admitted it to be correct and put his L.
T. I. Which is attested by me."
3. S. H. O. Bahar A.I after recording the F. I. R. Reached the scene of offence where after recording the statements of Shah Nawaz, Ghulam Abbas and Khuda Bux, he arrested the appellants at the brick kiln of Dhani Bux, at a distance of one mile from the scene of offence, on 14-10-71 at 4 p.m. And also secured blood-stained shirts from the person of both the appellants. He then recovered a blood- stained knife and a hatchet respectively at the instance of appellants Nazir and Ghulam Hussain.
After completing the investigation, the appellants were finally sent up to stand their trial in the Sessions Court, Khairpur where they were convicted and sentenced as stated above. The defence of the appellants was one of denial and false implication at the instance of Shahbazi, the employer of complainant Faiz Bux and other prosecution witnesses. Appel--lant Ghulam Hussain gave the reason for his implication in his statement under section 342 in the following words "We were working at the kiln of Shahbazi first. Where he had worked on wages. We left his kiln and went out to that of Dhani Bux. There was competition between the kilns. Shahbazi demanded us so many times, but we refused to return to his kiln. On this he was annoyed with us and threatened us to implicate us - in false case. We had complained against him to Wadera Shah Nawaz Khan and to Mistri Allah Bux. This case has been concocted by Shahbazi. Ibrahim is my brother. He lives with his wife Mst. Sakina at Mehrabpur. He never suspected the deceased of illicit intimacy with Mst.
Sakina. Co-accused Nazir Ahmed is my cousin."
4. At the trial, the prosecution led the evidence consisting of:
(a) The ocular testimony of P. Ws. Faiz Bux, Shah Nawaz and Shahzado corroborated by the evidence of P. W. Khuda Bux.
(b) The recovery of blood-stained knife and hatchet at the instance of the appellants and securing of blood-stained shirts from the person of the appellants found to be stained with human blood by the chemical analyser.
(c) The motive which was to the effect that the deceased was on terms of illicit intimacy with Mst.
Sakina wife of Ibrahim, brother of appellant Ghulam Hussain. He had been previously caught in com--promising position with Mst. Sakina in Uch Sharif on account of which the appellants along with Ibrahim and Mst. Sakina leaving Uch Sharif had come away to Ranipur where the appellants finding opportunity had killed the deceased Mahmood.
5. The learned trial Judge did not rely on the evidence relating to the alleged recoveries. He also held that no motive had been established in this case but this according to him was of no consequence as he considered the ocular evidence to be reliable.
6. The learned A. A.-G. Appearing for the State conceded that in view of the fact that names of P.
Ws. Shahzado and Khuda Bux do not appear in the F. I. R. Which on the contrary clearly showed that the inci--dent was witnessed by none else apart from the complainant himself and P. W. Shah Nawaz, the evidence of P. Ws. Shabzado and Khuda Bux ought to be excluded from consideration and that he would accordingly not place any reliance thereon. He, however, contended that there was no reason as to why the evidence of the complainant and P. W. Shah Nawaz should not be relied upon, specially, when, they had no apparent motive to falsely implicate either of the two appellants. It may, however, be observed that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate an accused person should be accepted at its face value or that, conversely, the evidence of a person who is interested should be completely discarded. Indeed such an approach to the question of assessing the oral evidence of witnesses would be rather artificial and has been repeatedly disapproved by the superior Courts. Reference may here be made to a case reported as Pir Mui ammad Khan v. State (PLD 1970 Kar. 399), wherein a Division Bench of this Court while dealing with a similar contention observed at page 404 as follows "With regard to the evidence of these witnesses the learned Additional Sessions Judge observed that they bad no grouse against the appel--lants and their evidence was substantially corroborated by circum--stances and independent evidence and, therefore, they could not be disbelieved. We feel no hesitation in saying that the treatment of the evidence of the witnesses was rather artificial. Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue. Indeed the' absence of malice is a factor which assumes importance in assessing the credit of the witness and places him in a favourable position but by no means it is the sole criterion. The truth or falsity of the statement of the witness largely depends upon the circumstances, which provide the guideline. To accept the evidence without consi--dering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief."
Similarly in the case reported as Bashir Ahmed v. Muhammad Azam (PLD 1969 SC 469), it was pointed out by their Lordships of the Supreme Court at page 474 that even if witnesses are not related to the deceased, "it does not mean that they are witnesses of truth. Ultimately, the said test of the veracity of a witness is the inherent merit of his own statement."
7. It will, therefore, have to be seen whether the evidence of these two witnesses namely, complainant Faiz Bux and Shah Nawaz is of such a quality as can be implicitly relied upon on a capital charge.
Although in the F. I. R. The complainant alleged that the murder was committed on account of the previous illicit intimacy of the deceased with Mst. Sakina sister-in-law of appellant Ghulam Husain, he did not stick to this position at the trial. When questioned further, he stated that he did not know why the accused killed deceased Mahmood. Not only this, but he went to the extent of denying that he had stated about the motive either in the F. I. R. Or the Court of Enquiry. The learned trial Judge, how--ever disposed of this question by observing that "even if there is no motive, the factum of murder still remains there" and that "even if there is no evidence as to the motive, it will not affect the credibility of the eye-witnesses". It is difficult to agree with the views of the learned trial Judge as this is admittedly not a case where no motive was at all suggested. On the contrary, the com-- plainant alleged a strong motive in his F. I. R. And even in the Court of Enquiry but denied having made any such statement when examined at the trial. These two contradictory statements on oath certainly detract from the value to be given to the testimony of such a witness and the fact that the motive alleged in the F. I. R. Was not only not proved but completely abandoned at the trial would no doubt have an impact on the credibility of the evidence of the complainant. Reference may here be made to the following observations of his Lordship Sajjad Ahmed, J. Made in the case reported as Habibullah and others v. State (PLD 1963 SC 127) at p. 130: "In ordinary human conduct where killing takes place by design, it is not without a motive strong or weak. This is not to say that murders are not committed without any motive whatsoever. Motiveless murders do occur owing to mad or reckless acts of inhuman nature. Sometimes a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface. But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence direct or indirect speak about D the guilt of an accused person on the premises of a false motive. In the present case the alleged motive being absent and found to be untrue, the Courts should have been very much-on their guard to accept the story of the prosecution of which the motive was an important constituent and which depended for its acceptance on the state--ment of a single witness who supported that story including the motive."
8. The complete absence of any allegation as to the motive was how--ever not the only variation introduced in the evidence of the complain--ant Faiz Bux. While in his F. I. R. He stated that he gave Rs. 100 to the deceased and asked him to leave immediately, he stated at the trial that the deceased had come to recover his dues of Rs. 250 from him but he paid him Rs.
100. No such amount was, however, recovered from the person of the deceased.
9. Besides, it is not understandable as to why the deceased would come all the way from Uch Sharif in Bahawalpur just to get Rs. 250 and quietly leave after receiving Rs. 100 unless there was a dispute over the payment. The complainant also denied at the trial that the deceased was a history sheeter or had remained in jail at Montgomery but his admission in the Court of Enquiry was brought on record as Exh. 10 to prove that he had stated there that the deceased had remained in jail at Montgomery. This was perhaps done to deny the suggestion of the defence that the deceased had several enemies. Be that as it may, the testimony of such a witness who had made so many contradictory statements on oath can hardly be implicitly relied upon.
10. Mr. Junejo, the learned counsel for the appellants, contended that this was not a witnessed crime and that it had been committed by some unknown persons at night and the appellants had been falsely implicated on account of suspicion or enmity of Shahbazi, employer of the complainant and the other prosecution witnesses. In this respect he relied very strongly on the evidence of Dr. Rasool Bux Medical Officer, Ranipur who had conducted the post-mortem and had stated both in the post-mortem notes as well as in his deposition before the Court of enquiry that when he started the post-mortem of the deceased at 2-15 p.m. Decomposition had already started. Reference to rigor mortis being present was however conspicuous by its absence thereby showing that it had disappeared. This according to the learned counsel, was not consistent with the prosecu--petition case that the incident took place at 6-15 a.m. Precisely, the contention of Mr. Junejo was that according to Medical jurisprudence decomposition sets in after the disappearance of rigor mortis which takes a minimum time of 18 to 24 hours and since the post- mortem conducted at 2-15 p.m. On 14-10-1971 showed that rigor mortis was not present, the deceased was- killed not at sunrise time as alleged by the prosecution witnesses but previously in the night. In support of his contention he sought to place reliance on Taylor's Principles and Practice of Medical Jurisprudence and Lyon's Medical Jurisprudence.
11. As there appeared to be prima facie force in the contention of the learned counsel, Dr. Rasool Bux was examined in this Court under section 375, Cr. P. C. As a Court witness and his evidence was recorded on 6-12-1973. The relevant portions of his evidence are as under :- "In conditions such as would be present in that area at about time rigor mortis would probably start 2 to 3 hours after death and should be over about 12 to 14 hours from the time of the death. One of the factors which I took into consideration in assessing the time of death was the factor of rigor mortis . . . . . Decomposition can start even while rigor mortis still exists. In the present case rigor mortis was still present. I have not noted in the post-mortem notes that rigor was present. Rigor was present however, only in the legs: When I say that the rigor was present in the leg I mean that it was present below the knee. When I say that rigor was present I say so from memory apart from the post-mortem notes I have no other notes to that effect . . . . . In the present case the injuries were not likely to cause instantaneous death. The injuries in question had cut no major arteries but were confined to muscles. The death could not therefore have been instantaneous and I think it should have taken two hours for death to ensue. Tlie statement in my deposition that the time between injury and post--mortem was about 8 hours is an obvious mistake; I meant the time between death and the post-mortem. I agree with the statement in the textbook of Modi which states: "It is said that putrifaction follows the disappearance of rigor mortis, but this is not always the case; since, in Northern India, rigor mortis had completely passed off from the lower extremities" that is to say that although "purtrifaction normally follows rigor, occasionally it might happen that the final stage of the off set and the initial stage of putrifaction might over lap. I cannot from my personal recollection say when rigor was finally over in this case . . . . ." I detected no faceal matter in the large of small intestine. This might be an indication that he had passed a motion. The statement in Lyons that putrifaction commences when rigor mortis ends I do not agree with.
Q. To Court.-But you do agree that is normal and what hus happened in this case is the exceptional case ?
Ans.--That is correct in sense I have explained myself more carefully earlier.
I agree with the statement made in the same book that in tropics where temperature is between 80-- and 100-- F. Rigor begins and disappears in 18 to 24 hours. I agree with the passage in Modi quoted to me" in Northern India, the usual duration of rigor mortis is twenty---four to forty-eight hours in winter and eighteen to thirty-six hours in summer.
12. It will be seen that the Doctor's assertion from his memory that rigor mortis had not completely disappeared -is believed by his post--mortem notes and his evidence recorded earlier where in no reference was made to the rigor mortis being detected. Indeed, if this was one of the unusual cases it was all the more necessary and expected that such an unusual feature of the post-mortem should have been expressly mentioned.
13. It will further be appreciated that in the exceptional cases the time of death is known with certainty and indeed it is why such cases become exceptional. In the instant case, however, what is being ascertained is the lime of the death of the deceased.
14. There appears to be force in the contention that rigor mortis had disappeared when the doctor examined the dead body at 2-15 p. m. And this being the middle of October when the season is neither hot nor cold, as deposed to by P. W. Shahzado, it is reasonable to infer that murder must have been committed at least 12-18 hours before the doctor started conducting post-mortem. The position would hardly be different even if the doctor's evidence that rigor mortis was present only in the leg below the knees were to be accepted for a moment. On his own showing, it was in its last stage and about to disappear and even that would not be consistent with death having taken place at sunrise.
15. The version of all the witnesses that the deceased was killed within their sight and died instantaneously while he was going to the jungle to ease himself is also completely belied by the evidence of Dr. Rasool Bux who stated categorically that there was, no faceal matter in the large or small intestines of the deceased and that death must have taken place about 2 hours after the injuries and in no case less than 1i hours after the injuries. This being so, neither the deceased could be going to ease himself nor could he have been killed instantaneously with--in the view of the eye-witnesses, as alleged by the prosecution.
16. It appears, this murder had taken place much earlier when deceased may have gone to the jungle to ease himself and he may have been done to death there. This inference gets further support from the admission of Mashir Jumo in the Court of Enquiry that wardat was inside the jungle where trees were above men's height and blood-stained knife and hatchet were also lying there. It is true that at the trial he tried to wriggle out of these admissions but the same were duly proved and brought on record as Exh.
18. If this was so, the wardat would not be visible from the brick kiln. It appears it was to get over this difficulty that the witnesses stated that deceased was followed immediately by the assailant. This is false on the face of it for in view of the motive alleged, deceased would not dare to proceed further in that case. To overcome this difficulty, the allegation of motive was also abandoned at the trial. Be that as it may, all these improvements and false details put the Court on guard against accepting the version of these witnesses on its face value.
17. The F. I. R. Lodged at 9 a.m. Is also belated. Ranipur is a fairly big town consisting of about 400 houses and shops. The complainant should have therefore lodged his F. I. R. Much earlier than 9 a.m. If he had witnessed the incident, but it appears all this time was taken to manipulate a plausible version of an unwitnessed crime and create evidence of eye-witness. The fact that two witnesses were introduced even after the lodging of the F. I. R. To support the prosecution case is a further pointer in that direction. Besides, the fact that F. I. R. Was not lodged at Ranipur Police Post nearby but at Gambat, about 6-7 miles away is, consistent only with the anxiety of the complainant to gain more time. There is no explanation as to why the complainant chose to proceed to Gambat although admittedly he was aware of the Ranipur Police Post nearby. It was argued that Gambat Police had foisted the blood-stained weapons on the accused as according to admission of Jumo these were recovered from the jungle. This, according to the learned counsel, showed that the complainant had more convenient police officers at Gambat and the entire evidence had been fabricated by them. The contention is not without force.
18. The scene of offence is only 200 paces away from the railway station where people would be found round the clock. It has come in the evidence that the alleged scene of offence would be visible to people waiting at the railway station, yet no independent witness has been examined even to establish that the incident took place at the alleged spot or at the alleged time. Even if the allegation of the appellants that this case was filed against them on account "of grievance of Shahbazi is ignored, there is no reason on record as to why P. W. Jumo should have made such admissions in the Court of Enquiry if they had not been true. In any case benefit of doubt on such vital aspects of the case has to be given to the defence and not to the prosecution.
19. The evidence of prosecution witnesses is also inherently incredible. The deceased had passed the preceding day and the night with the complainant and could have obtained the money and bid good-bye to the complainant when the latter left his home for work. Even if the deceased had to go to the kiln he could have first eased himself and met the complainant while on his way to the station. There was no sense in first going to tell him that he was going to the jungle to ease himself.
Even assuming that this was so, how would the appellants know that at sun--rise time the deceased would be proceeding to the jungle so that they would follow him from the jungle, within the view of all the people, to the kiln. Reference to the sketch prepared by the Tapedar P. W. Ghulam Abbas would then show that the houses of the appellants were on the other side of Rohri Canal and beside the Canal there was a jungle, where deceased was proceeding. The assailants could have waited in the jungle where there was ample cover of the trees and could have caught the deceased, when he was sitting on his haunches to ease himself and would not follow him to the kiln. The version of the eye-witnesses is so artificial that it cannot be relied upon at all. Indeed in order to support such an improbable story, the complainant had to go back on his earlier position and had to deny having advanced motive of illicit intimacy alleged in the F. I. R.
20. Then, the deceased was given as many as fourteen injuries on various parts of his body with knife and hatchet. The nature of injuries would suggest that they were caused at leisure when assailants had the deceased to themselves. This is also inconsistent with the ocular evidence which on the other hand is to the effect that these injuries were caused simultaneously. Then, the number of injuries further suggest that sometime must have been taken in causing them, yet the complainant, who is none else than the cousin of the deceased, did nothing to rescue but stood away quietly to watch so many injuries being inflicted in the deceased.
21. Although the learned Assistant A.-G. Has rightly not relied upon the evidence of Shahzado and Khuda Bux, the fact that these witnesses were introduced later is not without significance to the rest of the evidence. This circumstance will have its impact on the rest of the evidence as well, particularly in view of the fact that the F. I. R. Is belated and has been lodged at Gambat, six or seven miles away from the police post at Ranipur where the incident took place. If two witnesses could be brought forward later in this manner to support the prosecution case where is the guarantee that P. W. Shahnawaz has not been procured in the same manner. After all he is admittedly case-fellow and co-worker of complainant just as 5ha4ado and Khuda Bux and lived with the complainant.
22. The evidence of recovery is not relied upon either by the trial Court or in this Court by learned Assistant A.-G. And rightly so. P. W. Jumo in the Court of Enquiry stated that blood-stained knife and a hatchet were recovered from the wardat which was in the jungle. This would mean that assailants had left their weapons of offence at wardat but the same weapons were thereafter foisted on the appellants. It is also difficult to accept the claim that appellant Ghulam Hussain if he wanted to destroy the evidence would not throw the hatchet in the canal nearby but would conceal it about a mile away. Besides the only mashir examined on the point of recovery namely P.
W. Quwat A.I is a resident of Bhella village, 4 miles away from Ranipur. He in his evidence has stated as under: --- "Ranipur is a big town where Dargah of Pir is also situated. It consists of 3 to 4 hundred houses.
There are many shops, hotels in this town. Only shopkeepers reside in this town. There is also Zamindar. Pir Allah Wadbayo Shah M. N. A. Is a big Zamindar."
He also admitted that he had served as a mashir in seven or eight other cases and Sain Bux, the other mashir, was also mashir with him in other cases. The evidence of recovery coming from the mouth of such a person can hardly inspire confidence.
23. All the above circumstances create genuine doubts regarding the truth of the prosecution evidence which apart from being contradictory and being inherently incredible is also belied by the medical evidence as well P. W. Jumo, mashir of the wardat, who is none else than the son of Shahbazi, the owner of the kiln where the prosecution witnesses worked and it would be extremely unsafe to place reliance thereon on capital charge.
24. For the reasons given above, we have formed the view that the prosecution has failed to prove its case against the appellants and the conviction of the appellants cannot therefore be sustained.
We accordingly, reject the reference and allow the appeal and set aside the conviction and the sentence passed on the appellants and order that they be released forthwith unless required in any other case.
K. B. A.