1. ALLAH DINO G. MEMON, J.--- The appellants were charged under section 302 read with section 34, P.P.C. And tried before the learned 1st Additional Sessions Judge, Tharparkar at Mirpurkhas, who has convicted and sentenced them to death. He has further ordered them to pay a sum of Rs.10,0(X?
2. Each as compensation to the heirs of deceased Habibullah as provided under section 544-A, Cr.P.C. Vide judgment, dated 20th August, 1989.
3. The brief facts of the prosecution case are that on 13-10-1984 one Shari Muhammad son of Abdul Haleem lodged a report at Police Station Umerkot, District Tharparkar, inter alia alleging therein that: "He resides alongwith his family members at Village Sadar. His elder brother Habibullah resides in Dch Haweli, who has got 6/7 acres of land in Deh Larh, and there is Thalia (raised platform) for sitting purpose in the said land. The relations between his brother Habibullah and Muhammad and Ahmed Arisar were strained and there was a dispute between them, and proceedings under section 107, Cr.P.C. Were pending, he proceeded from his village Sadar to meet his brother Habibullah and reached at Chore Railway Station by train, where his nephew Muhammad Ali son of Achar met him. He inquired from him about his brother Habibullah who informed him that Habibullah had gone to his land alongwith Gul Hassan in order to pick cotton pods. Thereafter, he stayed there. At about 3-30 p.m. He and Muhammad Ali proceeded to the land of Habibullah to meet him, and when they reached near the land at about 4-00 p.m. They heard cries and saw that Muhammad and Ahmed were causing Lathes was to Habibullah on the Thalia (raised platform), situated in the land. They reached towards the place of incident by raising Hakals, P.W. Gul Hassan also came there running. On seeing them, Muhammad and Ahmed ran away towards the north with their Lathis. They saw that Habibull .h had sustained injuries, below F.I.R. The right side of ear, legs and other parts of his body. On inquiry the Habibullah informed them that after leaving the labourers to pick the rates cotton pools while he was sitting on Thalla, he sustained Lathes blows on right side of jaw and raised cries. That blow was given to him by Muhammad and thereafter.
4. Muhammad and Ahmed caused him many blows on his tick and other parts of the body and on seeing them they ran away. Habibullah went unconscious and when they reached Government Hospital Chore he had expired. Thereafter, leaving the dead body and witnesses over the (lead body at the hospital, complainant went to the police station and lodged his report."
5. The above F.I.R. Was recorded,, by A.S.I. Slier Muhammad and the F.I.R. Has been produced as Exh.9.
6. After recording the F.I.R. The A.S.I. Proceeded to Chore Government Hospital. And saw the dead body of deceased Habibullall. He prepared the inquest report in presence of Mashirs Muhammad Mohsin and Muhammad Siddicluc and the same has been produced as Exh.20. He then visited the place of Wardat and left one police constable there, as due to darkness, it was not possible for him to prepare the Mashirnama of place of Wardat. On the following day he went to the place of Wardat at 7-45 a.m. And saw the same at the pointation of the complainant. He prepared the Mashirnama in presence of the same Mashirs and the Mashirnama has been produced as Exh.17.
7. He then arrested accused Ahmed from the Railway Station Hasisar, but nothing was secured from his personal search, he prepared such Mashirnama in presence of lne same Mashirs and the Mashirnama has been produced as Exh.l8. After his arrest accused Ahmed led the hashers and police to his house and produced Lathes alleged to have been used by him in the commission of the offence. The A.S.I. Secured the Lathes under a Mashirnama,, which has been produced as Exh.19.
8. On 16-10-1984 he arrested accused Muhammad from his house in presence of the same Mashirs, and prepared such Mashirnama,, which has been produced as Exh.15. The accused produced a Lathes said to have been used by him in the commission of offence which was secured under Mashirnama, and the Mashirnama has been produced as Exh.l6. The A.S.I. Also prepared Mashirnama of dead body of deceased Habibullah which has been produced as Exh.21. He also examined the witnesses under section 161, Cr.P.C. And produced them before the Mukhtiarkar and F.C.M. On 20-10-1984 for recording their statements under section 164, Cr.P.C. He had also referred the dead body to Medical Officer, Chore for post-mortem and report. '
9. After necessary investigation the accused were sent up before the Court.
10. Formal charge was framed against the accused, to which they pleaded not guilty.
11. At, the trial prosecution examined complainant Shat Muhammad, P.W.1, he has produced the F.I.R.
12. As Exh.9, Gul Hassan an eye-witness, P.W.2, he has produced his 164, C r. P.C. Statement as Exh.11, Muhammad Ali an eye-witness P.W.3, he has produced his 164, Cr P.C. Statement as Exh.13. Mashir Mohsin P.W.4, he has produced Mashirnama of arrest of accused Muhammad as Exh.15, production of Lathes by accused Muhammad as Exh.16, Mashirnarna of place of Wardat as Exh.l7, Mashirnama of arrest of accused Ahmed as Exh.18, Mashirnama of production of Lathes by accused Ahmed as Exh.l9. Inquest report as Exh.20, Mashirnama of dead body as Exh.21. Tapedar Lal Muhammad P.W.5.
13. He has produced the sketch of Wardat as Exh.23. A.S.I. Sher Muhammad P.W.7, he had carried on the investigation and challaned the case before the Court. Dr. Ata Hussain Soomro, P.W.8, he had conducted post-mortem on the dead body of deceased Habibullah and has produced the post- mortem notes as Exh.29.
14. After close of the prosecution case, the statement,, of the appellants/ accused were recorded under section 342, Cr.P.C. In which they denied the allegations. Accused Muhammad has further stated that he had filed 107, Cr.P.C. Proceedings against Habibullah and he was bound down by S.D.M. Nara Valley for maintaining good behaviour. The incident was un-witnessed, and he has been,, implicated falsely by the complainant. Accused Ahmed has stated that co-accused Muhammad is his brother and he had riled 107 proceedings against Habibullah deceased in which he was bound down. The incident was un-witnessed and he has been implicated falsely. Deceased Habibullah had abducted a Hindu-woman and had married her by converting her as Muslim. He had enmity with the relatives of that woman. Accused Muhammad has also examined himself on oath as envisaged by section 340(2), Cr.P.C. And produced order under section 118, Cr.P.C. As Exh.34, passed against the deceased by S.D.M. Nara Valley at Umerkot. Accused Ahmed has also examined himself on oath. However, they did not examine any witness in their defence.
15. After taking into consideration, the evidence produced by the prosecution and the accused, the learned trial Judge has been pleased to convict the appellants as described above, and the present appeal is directed against the above judgment of conviction. The learned trial Judge/1st Additional Sessions Judge has also made a reference for confirmation of the sentence of the appellants.
16. We have heard Messrs A.Q. Halepota and Sarwar Khan, learned counsel appearing for the appellants, Mr. Hayat Qureshi, learned counsel appearing for the State, and have gone through the R&P of the case.
17. It was contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants, that the learned trial Judge has erred in convicting the appellants on interested, inimical, contradictory and uncorroborated ocular testimony. That complainant Shat Muhammad and P.W. Muhammad Ali were chance witnesses, and they had no reason to be present at the place of Wardat. That the evidence,, of P.W. Gul Hasan and Muhammad Ali is belied by complainant Shari Muhammad and medical evidence on the point of dying declaration and, therefore, the learned trial Judge has erred in relying upon their evidence. It was further contended that number of independent persons were available at the place of Wardat but the prosecution has failed to examine any one of them and, therefore, the prosecution case was doubtful. That the medical evidence shows that the murder was the outcome of some deepk,, rooted enmity, and the motive advanced by the prosecution could not be a motive for committing murder of deceased Habibullah.
18. Mr. Hayat Qureshi, learned counsel appearing for the State has contended that the prosecution has failed to prove its case beyond reasonable doubt and, therefore, the appellants were entitled to acquittal.
19. We have considered the contentions and have gone through the record and proceedings. The evidence of Dr. Ata Hussain Soomro, P.W.8, shows that he had conducted post-mortem on the dead body of deceased Habibullah and had found the following external injuries:
(1) Bruise with swelling below the right ear, size 6 c.m. x 4 c.m.
(2) Bruise with swelling below the right ear 4 c.m. x 3 c.m.
(3) Bruise with swelling on back at the right side 23 x 1.5 c.m.
(4) Bruise with swelling on back at right side 27 x 1.5 c.m.
(5) Bruise with swelling on back at right side 26 x 1.5 c.m.
(6) Bruise with swelling on back at right side 25 x 1.5 c.m.
(7) Bruise with swelling on back at left side 21 x 1.5 c.m.
(8) Bruise with swelling on back at left side 20 x 1.5 c.m.
(9) Bruise with swelling on back at left side 17 x 1.5 c.m.
(10) Bruise with swelling on back at left side 23 x 1.5 c.m.
(11) Bruise with swelling on back at left side 13 x 1.5 c.m.
(12) Bruise with swelling on back at left side 25 x 1.5 c.m.''
(13) Bruise with swelling on back at left side 24 x 1.5 c.m.
(14) Bruise with swelling on back at left side was 18 x 1.5 c.m.
(15) Swelling with bruise on the right hip size 7.5 x 1 c.m.
(16) Swelling with bruise on the right hip size 13.5 x 1.5 c.m.
(17) Swelling with bruise on the right hip size 8 x 1.5 c.m.
(18) Swelling with bruise on the right hip size 11 x 1.5 c.m.
(19) Bruise with swelling on right hip laterally 8 x 1.5 c.m..
(20) Bruise with swelling on right hip laterally 9.4 x 1.5 c.m.
(21) Bruise with swelling on right hip laterally 11 x 1.5 c.m.
(22) Bruise with swelling on right hip laterally 14 x 1.5 c.m.
(23) Bruise with swelling on right wrist joint size 1.5 x 1.5 c.m.
20. On internal examination of the dead body he found the following damage.
21. "There are fractures of the ribs on back of the right side 4th/5th and 7th ribs, anal fracture of the left side of back of 5th rib. Pleurae was contested and pleural cavity was full of blood. Right lung was damaged and congested. Right side of heart was empty, while its left side was full with blood, stomach contained digested food and the bladder was full of urine.
22. From the external as well as internal examination of the dead body, he was of the opinion that the cause of death is due to shock and haemorrhage due to damage of lungs by fracture of ribs caused with the blunt weapon or hard substance. Probable time, which elapsed between injury and death was about half an hour and the time elapsed between death and post-mortem was 3/4 hours. He has produced the post-mortem notes as Exh.29. In cross-examination he has deposed that after sustaining injuries, which were very serious, the injured must have gone unconscious.
23. As far as ocular evidence was concerned, it consists of complainant Shall Muhammad, Gul Hasan P.W.2, Muhammad All P.W.3. Complainant Shaf, Muhammad is brother of deceased Habibullah, Muhammad Ali P.W.3 is sisters son of deceased Habibullah and complainant Shafi Muhammad.
24. The niece of complainant Shafi Muhammad is married with P.W. Gu1 Hassan as admitted by the complainant (at page 57 line No.6 of the paper book), while Mashir Mohsin is related to them inasmuch as the niece of the deceased and complainant is married with the brother of Mohsin as admitted by Moshin in cross-examination.
25. It is an admitted position that complainant Shafi Muhammad used to reside about eleven miles away from the village of the deceased, while P.W. Muhammad Ali was working as Naka Munshi at village Chore about one mile away from the village of the deceased. The complainant and P.W.
26. Muhammad Ali have not stated as to what work they had with the deceased, due to which they went to the lands to see him. The evidence of P.W. Gul Hasan and Muhammad Ali is in conflict with the evidence of complainant and medical evidence. According to the complainant in Court, when they went near Habibullah he had Lathes injury on his back, head and face, and he was unconscious. He has further stated in cross-examination that: "My brother was not in a position to speak when we reached near him. Many persons had gathered at the place of incident. My brother was unconscious when we carried him from the place of incident to hospital. My deceased brother did not regain his senses till his death."
27. Dr. Ata Hussain Soomro, Medical Officer has stated in cross--examination that: "After sustaining injuries, which were very serious, the injured must have gone unconscious but according to P.W. Gul Hassan and Muhammad Ali when they reached at the place of incident, on enquiry Habibullah informed them that first Lathes blow was given to him by accused Muhammad and thereafter, both the accused showered Lathes blows on him."
28. Thus evidence of P.W. Gul Hassan and Muhammad Ali is in conflict and is belied by medical evidence and the evidence of the complainant. P.W. Muhammad Ali also admitted in cross- examination that about 15 persons had gathered at the place of incident. It is admitted by complainant that one Manghio Menghawar was Hari of deceased Habibullah. He was present and was on turn of water. h is also admitted by complainant that many persons had gathered at the place of Wardat (4th line at page 58 of the paper book).
29. It is also admitted by complainant that proceedings,, under section 107, Cr.P.C. Were initiated against his brother by accused Muhammad. However, he again stated that his brother had initiated 107, Cr.P.C. Proceedings against the accused, and accused had not initiated proceedings against his brother. P.W. Gul Hassan has admitted in cross-examination that:- It is correct that `one month prior to the incident he had initiated 107, Cr.P.C. Proceedings against accused Muhammad P.W. Muhammad Ali has admitted that a month before the incident, accused Muhammad had filed a case under section 430, P.P.C. Against him and deceased Habibullah". However, he has denied that accused Muhammad had initiated 107, Cr.P.C. Proceedings against him, Habibullah and others. Accused/appellant Muhammad has produced order, passed by the learned S.D.M. Nara Valley at Umerkot, which shows that complainant Muhammad/ present appellant had filed 107/151, Cr.P.C. Proceedings against deceased Habibullah P.W. Muhammad Ali, Abdul Haleem, Inayat and Wasayo, alleging therein that there was a dispute between them over land and water and the respondents had pleaded guilty and were bound-down under section 118, Cr.P.C. For keeping peace.
30. From the admissions, made by the complainant and witnesses, and the order Exh.34, it is clear that there was enmity between the parties and that they had. Filed cases against each other, therefore, it was necessary for the Investigating Officer to have examined independent persons having lands around the place of Wardat, specially when it is the prosecution case, that when the incident took place it was a picking season and even 15 or more persons had reached the Wardat on cries.
31. Unfortunately, the Investigating Officer had failed in his duty in not examining any independent person specially when there was enmity between the parties and three eye-witnesses were near relations of the deceased.
32. PLD 1985 SC 11; it was observed by their Lordships of the Supreme Court, while hearing petitions against conviction as well as acquittal that: "Where a witness is interested, inimical and is thus likely to falsely implicate one or the other accused, it was essential to seek independent corroboration regarding each one of other accused:"
2. In the case of Muhammad Sharif v. Tamir-ur-Rehman's and 3 others 1972 SCMR 144 wherein:- "it was the prosecution case that a large number of persons had collected at the place of occurrence, and the prosecution had failed to produce a single disinterested witness, it was therefore, held by the High Court, that in the absence of any corroboration of the said eye- witnesses, it was not safe to place implicit reliance of their evidence and the accused were acquitted."
33. The complainant filed appeal before the Honourable Supreme Court but the same was dismissed.
34. Apart from the above, it will be worth, while to mention that conduct of the complainant and P.W.
35. Was also unnatural inasmuch as the accused were two in number, whereas there were at least four persons on the side of the complainant, namely, complainant Shari Muhammad, Gul Hassan, Muhammad Ali and Manghio Hari of the deceased. Apart from the other persons who reached at the Wardat, but they neither chased the accused nor made an effort to catch hold of them. The accused are said to have been having Lathes and not fire--arms nor hatchets, and therefore, they could easily be chased and caught. But no effort was made by the, complainant party in this regard.
36. As far as motive was concerned, it is admitted that there were 107, Cr.P.C. Proceedings tiled by the parties against each other but the actual motive has not been disclosed by any one. The number and nature of injuries found on the dead body of deceased Habibullah clearly indicate that the attack was due to some deep-rooted hatred and it has been admitted by complainant Shat Muhammad that: "My deceased brother had married a Kolhi woman after converting her as Muslim."
37. It is the case of the accused that in fact the incident was un-witnessed incident, and the deceased was attacked and his murder was committed by the relations of the Kolhi woman whom he had married after converting her. The stand taking by the appellant is probable, looking to the nature of injuries, and it appears that the deceased was attacked and killed by the relations of Kolhi woman who married the deceased after converting herself.
38. "No doubt in law, motive can often be used as corroboration but in cases of this nature motive is just a second name of enmity and in relying on such motive which is born of enmity the trial Judge followed the wrong process of appreciation of evidence. The is not one of those cases where only one side had a grievance but looking to the series of the cases between the parties, the motive could not be used as corroboration."
39. As far as recovery of Lathes was concerned, the same were not blood-stained and, therefore, the recovery could not be used as corroboration of the ocular evidence. In the present case, since the eye-witnesses were near relations of the deceased and there was enmity between the parties, it was necessary for Investigating Officer to have examined some independent persons from those who had come on cries, or who had lands around the place of Wardat, as already observed.
40. Unfortunately, the police did not examine any independent person from the persons who had come on cries as well as from the persons who had lands around the place of Wardat. In the case of Umedo and others v The State PLD 1959 (W.P.) Kar 257 it was observed by a Division Bench of this Court that: "Although relationship with the deceased is not a sufficient ground to discredit a witness, the prosecution should in all cases where enmity exists between the parties, and where they can reasonably anticipate that impartiality of the witnesses would be challenged, make effort to see that independent people residing in the area or having cultivations around the place of occurrence are examined." and since the ocular evidence was interested, inimical, and no independent witness was examined nor there was any corroboration of the ocular evidence, the appellants were acquitted.
41. The reference made by the learned trial Judge for confirmation of death sentence is hereby declined.
42. We had decided the above appeal on 21-1-1991 by a short order and these are the reasons for the same.