QAISER AHMED HAMIDI, J.- Appellant Abdul Ghafoor and, co-accused Ismail were tried, by Sessions Judge .Badin, for the offence under section 302/34 P.P.C, who by his judgment dated 22.7.1990 acquitted co-accused Ismail, but convicted the appellant for the offence under section 302 P.P.C. and sentenced him1 to imprisonment for life and to pay a1 line of :Rs.20,000/-of in default to suffer R.I. For two years. Rs.10,000/- out of fine, if realized, were ordered to be given to legal heirs of deceased Pir Nazar-Muhammad. The benefit of section 382- B Cr.P.C, was also extended to the appellant. By this appeal filed under section 410 Cr.P.C., the appellant has challenged his conviction and sentence.
2. Complainant Pir Gul Muhammad and his brother deceased Pir Nazar Muhammad in village Pir Bahawal Bux Shah, Taluka Badin. About one year prior to this unfortunate incident they had married with the sisters of Jantan Mallah against the wishes of present appellant and other Mallah and it is alleged that the present appellant and co-accused Ismail (since acquitted) had threatened them with dire consequences. On 24.11.1987, complainant Pir Gul Muhammad and deceased Pir Nazar Muhammad had gone to Badin town with some work. After finishing the work they boarded a Datsun pick-up find got down at the bus stand of Haji Piniladho, from where they proceeded towards their village on foot. At ; about 8 P.M. When both the brothers reached at SIMNALI they were attacked by the appellant, who was armed with a hatchet and co-accused Ismail (since acquitted) who carried an iron bar. It is alleged that both of them-caused injuries to Pir Nazar Muhammad with their respective weapons. The cries raised by complainant Pir Gul Muhammad and deceased Pir Nazar Muhammad attracted Gul Muhammad Sheedi and Ahmed Sheedi, who also saw the incident. On seeing them the appellant and co-accused Ismail (since acquitted} bolted away- The commotion also attracted Porho and .Jump,, .Haris of deceased Pir Nazar Muhammad, who were apprised of the incident by complainant Pir Gul Muhammad. Pir Nazar Muhammad died on the spot. On the same day at 10-15 P.M., Pir Gul Muhammad lodged P.I.R, at Seerani P.P., which was recorded in station dirary and was subsequently incorporated in 154 Cr.P.C, book maintained at Badin P.S. Abdul Wahid A.S.I, then repaired to the place of incidcht which was shown to him by complainant Pir Gul Muhammad in presence of mashirs Shall Muhammad Shah and Abdul Rahim. The dead body of Pir Nazar Muhammad was lying there which was despatched to Medical Officer, Civil Hospital Badin for post-mortem examination. The police officer then recorded the statements of Gul Muhammad, Ahmed, Junto and Porho. On 25.11.1987 Abdul Wahid A.S.I, arrested appellant and co-accused Ismail (since acquitted) from their village Badipur and recovered blood stained clothes from their persons in presence of mashirs Noor Hassan and Muhammad Iqbal. The crime weapons were also recovered from the possession of respective accused. All the blood stained articles were sealed on the spot. The sealed parcels were sent to Chemical Examiner, Karachi, who confirmed that the articles were stained with human blood. After completing the investigation the appellant and co-accused Ismail (since acquitted) were sent up.
3. At the trial the accused pleaded not guilty. The prosecution then examined Dr. Muhammad Sulleman (P.W.-l), Muhammad Bachai P.C. (P.W.-2), Pir Gul Muhammad (P.W.-3), Gul Muhammad Sheedi (P.W.-4), Ahmed Sheedi (P.W.-5), Jumo (P.W.-6), Ghulam Mehdi Tapedar (P.W.-7), Abdul Wahid A.S.I. (P.W.-8), Noor Hassan (P.W.-9), and Abdul Rahim (P.W.-10).
4. The appellant met the charge with a denial. He has alleged enmity with complainant Pir Gul Muhammad who had committed theft of his tape- recorder and was consequently prosecuted. He also examined himself on oath. No witness in defence was, however, examined.
5. On the assessm ent of evidence available on record, the learned Sessions Judge found the appellant guilty, and convicted him accordingly. Co- accused Ismail was, however, acquitted. It is in these circumstances that the present appeal has been filed.
6. I have heard Mr. A.Q. Halepolo, learned counsel for the appellant and Mr. Shaukat H. Zubedi, learned A.A.G, for State. I have also gone Through the record of the case carefully.''
7. The case of the prosecution mainly , rests upon ocular testimony consisting of Pir Gul Muhammad (P.W.-3), Gul Muhammad Sheedi (P.W.-4), Ahmed (P.W.-5), and Jumo (P.W.-6), which is further corroborated by motive and recoveries of blood stained clothes and hatchet from the possession of appellant which on examination by Chemical Examiner were found stained with human blood.
8. Quite admittedly the incident took place on 24.11.1987 at about 8 P.M. During dark hours of night of winter season. The F.I.R, is silent about the source of light. Gul Muhammad Saeedi (P.W.-4) has, however, tried to meet with this situation by stating that the night of incident was moonlit and consequently he identified both the accused, viz, the present appellant and co-accused Ismail (since acquitted). The question in every criminal case is whether the person put up on trial is the same who had committed the offence, and the answer is sometimes very difficult. It is, however, settled proposition of law that when a criminal Court has to appreciate evidence given by interested witnesses it has to be very careful in weighing such evidence. Pir Gul Muhammad (P.W.-3) is the star witness of the prosecution and his testimony, seems to have weighed considerably with the trial Court in lipping the balance against the appellant.: He has testified the same facts which I have reproduced in the narrative part of this judgment. There is, however, an important omission in his evidence about the source of light through which he had identified the appellant. Pir Gul Muhammad (P.W.-3) as his own witness has stated in clear terms that he alongwilh deceased Pir Nazar Muhammad resided in village Pir Bahawal Bux Shah, Taluka Badin during. The days when this incident took place at S1MNALT which was about one acre away from the place of occurrence. The record, however, shows that complainant Pir Gul Muhammad (P.W.-3) and his deceased brother Pir Nazar Muhammad had shifted to village Vehnai, Taluka Tando Bago after marrying with the sisters of Juman Mahah. Abdul Wahid A.S.I. (P.W.-8) has admitted this fact in clear terms in the following words: " It is correct to say that both the mashirs Shafi Muhammad and Abdul Rahim reside in village Vehnai. It is correct to suggest that their village is away at a distance of 20 miles from Wardat. It is correct to suggest that during the days of incident deceased Pir Nazar . Muhammad Shah and complainant Gul Muhammad Shah used to reside in village Vehnai. Both the mashirs were present at wardat when they were picked up by me and were made mashirs in this case."
9. Gul Muhammad Sheedi (P.W.-4) has although denied this fact at the initial stage of his evidence, but was constrained to admit as follows:- "It is correct that the marriage of Gul Muhammad Shah and Nazar Muhammad Shah had taken place in the village of Papoo Shah. It is not correct that after their marriage both the brothers had shifted to village of Papoo Shah. Voluntarily says they had been living in the village of Hashim Bakari which is about two miles away from the village of Papoo Shah towards north. Hashim Bakari is KOTAR (sort of manager) of Papoo Shah. It is correct that the village of Hashim Bakari is at a distance of 2U/25 miles from the place of incident towards north east corner."
10. Thus it is proved from the evidence of these two witnesses that complainant Pir Gul Muhammad (P.W.-3), and his deceased brother Pir Nazar Muhammad resided at a distance of about 20 miles from the place of occurrence during the days when this incident look place. The version of Pir Gul Muhammad (P.W.-3) to the effect that he and his brother deceased Pir Nazar Muhammad resided in village Pir Bahawal Bux Shah during those days appears to be false. This factor also makes the presence of complainant Pir Gul Muhammad (P.W.-3), at the place of wardat at that relevant lime doubtful. It may be recalled that complainant Pir Gul Muhammad (P.W.-3), and his brother deceased Pir Nazar Muhammad had married the sisters of Jumnian Mallah to the annoyance of the present appellant and other persons of Mahah tribe. In ordinary course of human conduct the appellant or the assailant, whoever he may be, would not have spared complainant Pir Gul Muhammad, if he was really present with deceased Pir Nazar Muhammad at the time of incident.
The delay in lodging F.I.R, and the presence of mashirs Abdul Rahim and Shafi Muhammad, who are admittedly residents of village Vehnai, Taluka Tando Bago, situated at a distance of about 15^or I6 miles from the wardat, at the place of occurrence when the police officer inspected the wardat lends support to the contention raised on behalf of appellant that it was in fact an unwitnessed crime and complainant Pir Gul Muhammad (P.W.-3) had arrived to the place of incident from the village where he resided during those days alongwith Abdul Rahim (P.W.-10) and Shafi Muhammad.
11. Pir Gul Muhammad (P.W.-3) has also implicated co-accused Ismail I(since acquil. Ed) by ascribing specific role of causing injuries to deceased Pir Nazar Muhammad by means of iron bar which he was allegedly carrying. Dr. Muhammad Sulleman (P.W.-l) who had conducted the autopsy on the dead body of Pir Nazar Muhammad found nine injuries on his person and according to him all of them appeared to have been caused by some sharp cutting substance like hatchet. Thus the evidence of Pir Gul Muhammad (P.W.-3) was found to be false to the extent that co-accused Ismail (since acquitted) caused injuries to deceased Pir Nazar Muhammad by means of iron bar.
12. Gul Muhammad Sheedi (P.W.-4), and Ahmed Sheedi (P.W.-5) are real brothers. Gul Muhammad Sheedi (P.W.-4) claimed to be a resident of village Pir Bahawal Bux Shah, where complainant Pir Gul Muhammad (P.W.-3) and deceased Pir Nazar Muhammad earlier resided. This village is at ,a distance of about one acre from the place of wardat. Out of these two brothers, Ahmed Sheedi (P.W.-5) has not supported the case of the prosecution and although he was declared as hostile nothing is brought on record to show as to why he would depose falsely just to oblige the appellant. The evidence of a hostile witness is not to be rejected outrightly and it is a mistaken notion of law to maintain that such evidence must be brushed aside completely. Such evidence has to be considered for what it is worth.
13. Gul Muhammad Sheedi (P.W.-4) is resident of village Pir Bahawal Bux Shah, the ancestral village of complainant Pir Gul Muhammad (P.W.-3). He was present in his house situated at a distance of about one acre when he was attracted by the cries and rushed to the wardat and saw the appellant causing hatchet blows and co-accused Ismail (since acquitted) causing iron bar blows to deceased Pir Nazar Muhammad, who fell down and died on the spot. Gul Muhammad Sheedi (P.W.-4) has denied that he was a hari of complainant Pir Gul Muhammad (P.W.-3) or deceased Pir Nazar Muhammad. Jurno (P.W.-6) has, however, admitted this position in clear terms. The evidence of Gul Muhammad Sheedi (P.W.-4) appears to be incredible. There was no occasion for the assailant or the assailants to slay at the wardat till the witnesses reached there. The weight of evidence depends upon the rule of common-sense. Justice cannot be divorced from the truth and the ascertainment of truth is the primary duly of a Judge. He has, however, to go deeper and discover the quality of evidence. Gul Muhammad Sheedi (P.W.-4) is basically an unreliable person.
He was working as hari of deceased Pir Nazar Muhammad, but still he had the audacity to conceal this fact. Besides the evidence of his brother Ahmed Sheedi (P.W.-5), his evidence is in variance with the evidence of expert witness, who did not find any injury from iron bar on the dead body of Pir Nazar Muhammad.
14. Jumo (P.W.-6) is admittedly a hari of deceased Pir Nazar Muhammad. He resided about 2 miles away from the wardat, but was present on his lands situated near the place of incident, when he was attracted by the cries. According to complainant Pir Gul Muhammad (P.W.-3), this witness reached to the wardat after the culprits had left and the complainant had apprised him of the incident. Jumo (P.W.-6) has come out with a new story by stating that he, Gul Muhammad Sheedi, Ahmed Sheedi, and Porho were working on their lands, when they heard1'tries and rushed to the wardat where they saw the incident. This is clearly an improvement and a concoction, lt is beyond imagination that these persons would throw fertilizer in tomato crop at that time in winter season.
15. The learned Sessions Judge has given no weight whatsoever to these glaring inconsistencies. It is unnecessary to compare so many discrepancies in the statements of all the above eye witnesses, but it seems to me a very strange thing that the Sessions Judge, who heard the witnesses does not appear to have allowed such discrepancies to affect his conclusion in respect of the appellant, specially when the enmity between the parlies is proved from the record. From the charge- sheet (Ex.21/A), it is clear that complainant Pir Gul Muhammad was prosecuted for having committed the theft and Ali Muhammad, the father of the present appellant was a witness against him. Quite admittedly Ali Muhammad, father of present appellant was murdered alter this incident, and Jumo (P.W.-6) is one of the accused in that case. Thus the witnesses, besides being interested in deceased Pir Nazar Muhammad were hostile to appellant.
16. The motive of the case as unfolded by complainant Pir Gul Muhammad (P.W.-3) does, not appeal to reason. The record shows that complainant Pir Gul Muhammad (P.W.-3) and deceased Pir Nazar Muhammad had married with the daughters of Usman Mahah, which had annoyed the appellant and co-accused Ismail (since acquitted). Gul Muhammad Sheedi (P.W.- 4) has admitted in clear terms that Usman Mahah had four sons, namely, Juman, Abdul Hakeem, Nazer, and Ali Muhammad. It is, therefore, not logical that the appellant would take revenge from his PIR (spiritual leader), for a cause in which he was not directly involved. Since an action without a motive is in a sense an effect without a cause, the absence of an inducing cause may in many cases afford a strong presumption of innocence.
17. The evidence of recoveries which has come Abdul on record through Noor Hassan (P.W.-9), and Abdul Wahid A.S.I. (P.W.-8) does not inspire confidence. Abdul Wahid A.S.I. (P.W.-S), who is the investigating officer has testified that on 25.11.iy87, he arrested both the accused from their village Badipur and recovered their blood stained clothes which they were wearing at that time. The clothes were sealed on the spot and such mashirnamas were prepared. The police officer has also testified that he recovered respective weapons from both the accused persons, which were blood stained and were sealed on the spot. The blood stained articles were despatched to Chemical Examiner, Karachi, who on examination found them stained with human blood vide report (Ex.16/F).
This version of Abdul Wahid A.S.I. (P.W.-S) is contradicted by Noor Hassan (P.W.-9), who has acted as mashir. The following extract from the evidence of Noor Hassan (P.W.-9) make the recoveries doubtful:- "Again says that when I was present in village Seerani, accused came to me and asked me about the police station. I showed them the police station and went to the police station alongwith the accused where 1 was asked by the police to act as mashir. I had not gone to the village of accused persons, lt was about 8-00 or 9-00 P.M. When accused came to me in village Seerani. It is correct to suggest that all the mashirnamas were prepared at the police station. I also put my signatures on all the mashirnamas at police station................."
18. It may be added that co-mashir Muhammad Iqbal was not examined.
It is, therefore, difficult to rely upon such evidence, specially when the investigation carried out by Abdul Wahid A.S.I. (P.W.-8) was tainted. The record will show that the iron bar recovered at the instance of co-accused Ismail (since acquitted) was not stained with blood, the mashirnama (Ex.16/E) is clear on this point. Noor Hassan (P.W.-9) who has acted as mashir has also testified so.
Abdul Wahid A.S.I. (P.W.-8) has, however, stated on oath that this bar was stained with blood and in fact the report of Chemical Examiner (Ex.16/F) also confirmed the statement of the police officer to this effect. It, therefore, follows that the iron bar was stained with blood after its recovery, otherwise this fact must have been mentioned in the mashirnama.
19. Mr. Shaukat H. Zubedi, learned A A.G. Finding himself on the horn of dilemma, conceded and I think rightly, that in view of the shaky and unreliable evidence, he is not in a position to support the impugned judgment- in view of this position the appellant is extended benefit of doubt, and is acquitted accordingly. He is present in custody and be released forthwith, if not required in any other case. The impugned judgment is set aside and the appeal is accepted.