I. MAHMUD, J.-The appellants Allah Bux son of Dital, aged 29 years, Mitho son of Khatan aged 42 years, and Mir Khan son of Allah Rakhio aged 35 years, all Mirjat by case were tried by the Additional Sessions Judge, Larkana, on a charge under section 302/34, P. P. C. For the murder of Mor son of Misri aged 25 years. All the three appellants were convicted and each of them was sentenced to transportation for life vide judgment dated 1-10-1971. They have appealed against their convictions and sentences.
2. The prosecution case briefly is that the appellants are related inter se. Allah Bux is `Bhanejo'
(sister's son) of Mitho and is 'Phuphat' (cousin) of Mir Khan. They, the deceased and the P. Ws. All reside in village Duro Machi in deh Mirpur taluka Warrah, district Larkana. The appellants live in separate houses inside a common enclosure having a common courtyard surrounded by a hedge with only one entrance towards cast side of the enclosure. It is alleged that Allah Rakhio father of the appellant Mir Khan used to suspect the deceased Mor to be on illicit terms with Mst. Mahnaz his wife, the step-mother of the appellant Mir Khan. The incident occurred at past mid-night on 23-5- 1971 inside the enclosure of the appellants' houses, and according to rapedar's sketch, at the extreme and diagonally opposite the entrance, at a place for storing manure and 'palal'. That night there was a marriage of Bachal Jat to the daughter of the appellant Mitho in the village.
The deceased Mor, his brother P. W. Kaiser. P. W. Safar and P. W. Karim Dino as well as the appellants attended the marriage function on invitation. After the marriage dinner, the parties returned to their respective houses, except the deceased Mor, who remained behind. At about Post mid--night it is alleged that while the P. Ws. Were asleep in their houses they got up on hearing cries of 'KHOON KHOON' coming from the direction of the house of the appellant Allah Bux. Kaiser, brother of the decease' Mor, hastened with a torch in hand towards the house of Allah Bux and on reaching the entrance to the enclosure, already found P. Ws. Saffar and Karim Dino standing there. He flashed the torch and saw the appellants Allah Bux, Mitho and Mir Khan inflicting blows with sharp sides of their hatchets to his brother Mor, the deceased. Appellant Allahbux is said to have challenged them not to come near otherwise they would be killed. The deceased died on the spot as a result of the hatchet Injuries received by him. Thereafter, the appellants went away towards their houses inside enclosure. Kaiser went to Amir Bux who is his nekmard and narrated the incident to him. Amir Bux directed him to go and lodge a complaint at the police station. Accordingly, Kaiser went on foot to P. S. Warah which was at a distance of 14 miles from the village and at 7-30 a.m. He lodged his F. 1.
R. Which was recorded by the S. H. O. P. W. Azizullah. The latter along with the complainant then repaired to the wardat where they saw the dead body lying by the side of the hedge in the courtyard of the houses of the appellants. He prepared mashirnama of the wardat and inquest report in the presence of mashirs Amir Bux and Khair Muhammad. The complainant Kaiser also produced a torch which was secured by the police officer under mashirnama (Exh. 16) in the presence of the same mashirs. He then sent the body for post-mortem examination. That after noon at about 3 p.m. He arrested the appellant Allah Bux from his house. After his arrest, Allah Bux led the police officer and the mashirs Amirbux and Khair Muhammad to the 'Manah' of his house from where he produced a blood--stained hatchet which was secured and sealed under mashirnama Exh.
17. Similarly 15 minutes later, the appellant Mitho was arrested and he also is alleged to have produced a blood-stained hatchet from the 'manah' of his house which was secured and sealed under mashirnama (Exh. 11). The two hatchets and the blood-stained earth were sent to the Chemical Examiner who reported later that they were stained with human blood.
The third appellant Mirkhan was arrested three days later from Warrah town but nothing incriminatory was recovered from him. After completing the investigation of the crime, he challaned the appellants.
3. The autopsy on the dead body was conducted by Dr. A.I Khan Medical Officer Rural Health Centre Warrah. On external examination he found the following injuries :-
(1) An incised wound 3--' x 3' x 3' over the left side and back of skull. Fracture o. Skull bone present and brain matter coming out.
(2) An incised wound 2 --' x --' x --' over the left side of skull near left ear.
(3) An incised wound 5--' x 3' --2--'' over the back of upper part of the left side of chest and left shoulder joint. Fracture dislocation of left shoulder joint and fracture of left scapula bones present.
(4) An incised wound 1' x 1/3' x --'' over the back of left side of chest.
(5) An incised wound 2--'' x 1' x 2--'' over the lower part of the back of neck. Fracture of cervical vertebrae present.
(6) An incised wound 2--'' x --' x 2' over the upper middle part of back of chest. Fracture of vertebrae present.
(7) An incised wound 1' x --'' x --' over the back of lower part of skull.
(8) Three abrasions each 5' x 1/16' over the back left side of chest.
(9) An abrasion 2' x 1/16' over the back of upper part of left side of chest.
(10) An abrasion 2' x 1/16' over the back of left upper arm.
It will be noticed that most of the incised injuries are on the left side of the skull, chest and shoulder.
He expressed the opinion that injuries No. 1 to 7 appear to have been caused by a sharp cutting weapon such as a hatchet while injuries Nos. 8 to 10 by some blunt substance such as a lathi or back side of hatchet. He further opined that injury No. 1 was sufficient in the ordinary course of nature to produce death.
4. The appellants did not lead any evidence in defence. But in their statements in both the lower Courts which are identical, they denied having committed the murder and stated that the P. Ws.
Are interested and hostile to them and that they have been falsely implicated. They further say "dead-body was lying away from the courtyard in the 'wars' of 'palal' and 'dung' and there are 15 houses of Mir Jats in the same enclosure and the palai and dung wara is common."
5. In support of its case, the prosecution has relied on the ocular testimony of Kaiser, Saar, Karim Dino and Muhammad Hussain as well as on the corroborative testimony of Amir Bux (P. W. 7) and the circumstan--tial evidence regarding the production of the two hatchets by the appellants Allah Bux and Mitho.
6. The evidence of the alleged 4 eye-witnesses is to the same effect. P. W. Kaiser is the brother of the deceased Mor. He stated that at about past mid-night, he was asleep in his house which was 20 or 25 paces away from the houses of the appellants. His brother Mor had not yet returned from the marriage function. He awoke on hearing cries coming from the direction of the house of the appellant Allah Bux. He reached almost simultaneously, as P. Ws. Saffar and Karim Dino who also reached the entrance passage of the enclosure, where they stood. Kaiser flashed a torch which he had brought with him and in the light of the torch, he stated that he identified the 3 appellants and saw them inflicting hatchet blows to the deceased Mor in the courtyard of the house of the appellant Allah Bux.They raised cries and alarm which also attracted Isso and P. Ws. Muhammad Hussain there who also -are said to have witnessed the incident. In his cross-examination Kaiser admitted that he had not stated in the F.I.R. That they raised cries and on their cries Isso and Muhammad Hussain came and that they also saw the incident. P. W. Saffar also admitted in his cross---examination that he omitted to mention the names of Isso and Muhammad Hussain in his sections 161 and 164, Cr. P. C. Statements. It is for that reason that the learned Additional Sessions Judge, has disbelieved the testimony of alleged eye-witnesses Muhammad Hussain. An equally more important discrepancy in the testimony of P. W. Kaiser, as well as of the other eye-witnesses, is with regard to the precise place where Mor was murdered which these witnesses state was the courtyard of the house of the applicant Allah Bux, whereas the other P. Ws: namely mashir P. W.
Amir Bux, and the Investigating Officer P. W. Amirullah say that it was by the side of the hedge. The tapedar also does not support P. W. Kaiser and the eye-witnesses. The sketch prepared by the tapedar on the pointation of the wardat by- the P. Ws. Eye-witnesses Kaiser, Saffar and Karim Dino shows that the wardat was where "palat" and dung was lying by the side of the hedge, at a point marked "A" in the sketch. This point was situated diagonally opposite the entrance passage, where the P. Ws. Were standing, at a distance of 125 paces away from it. A further defect in the ocular evidence is that none of the witnesses have given any particulars or details as to the part played by each of the appellants in inflicting the hatchet blows to the deceased. All that they say is that they saw the appellants giving hatchet blows the deceased without indicating who gave what blow. As observed earlier, the medical evidence shows that all the injuries were caused on the left side of the skull, chest and shoulder, which indicates that it is highly improbable that they could have been caused by as many as three assailants on one side of the body. P. W. Kaisar produced the torch before the Investigating Officer after tie reached the wardat for investigation. He did not produce it at the police station Warah if he had taken it with him while walking to the station to lodge his report in the darkness of the night. We are, therefore, in some doubt whether the torch was employed at all.
7. P. W. Saffar is a neighbour of the appellants and lived outside the enclosure. He stated that Kaiser Bashed a torch in the light of which they identified the appellants and saw them murdering the deceased from a distance of 8 or 10 paces. In his cross-examination he was confronted with his 161 and 164, Cr. P. C. Statements and his lower Court deposition in which he had omitted to state that the appellants were at a distance of 8 to 10 paces away from them. He further stated that when challenged, the appellants gave threats not to come near as they had declared Mor as 'KARO'. This version is not supported by any of the other eye-witnesses. He admitted the presence of Isso and P.
W. Mohammad Hussain but in cross-examination he was confronted with his previous statements wherein no such mention was made of the names of these persons. While in the examination-in- chief he admitted knowledge that the appellants used to suspect the deceased to be on illicit terms with Mst. Mahnaz but in cross-examination he admitted that in his lower Court statement he had stated that he did not doubt about the suspicion in connection with which the deceased was murdered.
8. The testimony of P. W. Karim Dino also suffers from the same discrepancies as that of P. W. Saffar.
He stated that he was 8 paces away from the appellant when P. W. Kaiser flashed his torch but he admitted that he had not stated it before this. Although he admitted knowledge of appellants' suspicison of the deceased, no such mention was made in his 164, Cr. P. C. Statement. In fact, in his lower Court statement he stated that he did not know why the appellants had killed Mor.
9. There are other compelling reasons which lead us to believe that it is improbable that the witnesses had seen the appellants murdering the deceased. We have verified from the calendar and find that the night between 23-24th May 1971 corresponded to the 27th of Rabial Awal of the Muslim calendar. It was, therefore, a moonless night. It is highly improbable that in the darkness of the night, the eye-witnesses could have possibly seen the appellants on the flash of a torch.
Admittedly they were stand--ing at the entrance of the enclosure which was 125 paces away from the wardat. The injuries were such that it would not have taken more than a few minutes for appellants to inflict them. The P. Ws. Lived outside the enclosure to the west and south-west and they would have had to skirt round the hedge to reach the entrance on the east side. It seems doubtful, therefore, that they had reached in time. The motive is there but it is not special to the appellants. It is common to Rakhio the husband of Mst. Mahnaz and others. For these reasons the testimony of the eye-witnesses does not inspire confidence and we cannot place implicit reliance on it. We must, therefore, look for independent corroboration from an unimpeach--able source.
10. The corroborative evidence is that of P. W. Amir Bus. He lives -- mile away in the village. He is nekmard and case fellow of the complainant and he also acted as mashir throughout the investigation of the crime. He stated that while be was sleeping in his house in the last Pahar of the night P. W. Kaiser came to see him and narrated the incident and gave names of the appellants as the culprits. Apart from certain discrepancies in his cross, examination and material omissions in his 161 and 164 Cr. P. C. Statements one material discrepancy must be pointed out. He stated that at breakfast time the appellants Allah Bux and Mitho produced their respective hatchets. This is contradicted by the Investigating Officer who stated that the appellants were arrested at 3 p.m.
When they produced the hatchets. He denied suggestion put to him that he was deposing because he was the nek-ward of the complainant party and the case fellow. We are inclined to believe that he is interested in the complainant party and it would not be safe to accept his testimony as independent corrobo--ration.
11. As far as the recovery of the hatchets is concerned, they have been produced from the houses of the appellants and there is no evidence of their secretion. There is no other incriminating evidence and in the light of the unconvincing evidence above discussed, no reliance can be placed on such recovery alone.
12. In our opinion the learned Additional Sessions Judge, has not appraised the evidence in the light of the material discrepancies discussed above. In the circumstances we are of the opinion that the prosecution has not proved its case against the appellants beyond all reasonable doubt. We therefore, allow the appeals and set aside their convictions. We direct that they be set at liberty forthwith unless wanted in some other cases.