MUHAMMAD HALEEM, J.--------Appellants Budho and Yaqub were tried for the murder of Mitho, convicted under section 302/149 and section 148, P. P. C. And sentenced to transportation for life on the first count, but no sentence was imposed on the second count. Three other persons, namely Shahan, Manthar and Ghulam Hyder were also tried but were acquitted by the Sessions Judge, Dadu vide judgment dated 15th November 1969. They have appealed against their conviction.
2. According to the prosecution case, the deceased was employed by Abdullah Khan Mahesar, 12 days before the incident which occurred at 'tripahri' time on 16th September 1968, as Karao of his lands situated in village Poracho. He lived in his otak in the same village. Uris was also employed as Kamdar: He informed Abdul Karim while he was going to offer his prayer that some persons resident of village Loung Mahesar had murdered Mitho in the otak of Abdullah Khan; and had thereafter escaped. He thereupon went alongwith him to the otak where he saw the dead body of the deceased lying in the courtyard smeared with blood. When he came out of the otak he met Hayat and Chanesar and both of them told him that about half an hour before the murder of the deceased they had seen appellant Yaqub with four other persons, who were not previously known to them. But they would be able to identify them if shown, having met them in village Poracho.
These persons were armed with hatchets and the face of one of them was muffled. They further stated that appellant Yaqub and the others had asked about the whereabouts of the deceased from them, whereupon they replied that they did not know where he was. After a little while Haji Dur Muhammad came to the village and stated that five persons, who were residents of village Loung Mahesar, armed with hatchets had met him on the way and they were raising slogans that they were returning after taking revenge and that no one should come near them. He, however; did not disclose the name of the assailants to Abdul Karim who contacted Abdullah Khan Mahesar and on his advice lodged the report at Police Station Mehar, which is 5 miles away at 01.00 hours on 17th September 1968.
3. The motive attributed to the appellants was that the deceased and Lie companions had quarrelled with appellant Yaqub and his companions, as a result of which Akk, a cousin of Yaqub and Haji Dhanibux, had received hatchet blows and on the side of the deceased, his nephew, Usman and cousin, Bahadur also received hatchet blows, where after the deceased and his companions were implicated in the case, which was pending in the Sessions Court at ,Dadu. It was for this reason that appellant Yaqub and others had committed this murder.
4. After recording the report, Pir Bux A. S. I. Went to the wardat alongwith Abdul Karim but as it was night he could not make any progress in the investigation of the case. In the morning, he secured blood-stained earth vide mashirnama (Exh: 8) and sent the dead body for post-mortem examination. He next recorded the statements of Imambux, Faiz Muhammad, Sadiq. Hayat, Uris and Abdullah. On 18th September 1968 he arrested appellant Budho vide mashirnama, Exh. 18, who volunteered to produce the crime weapon. He led the mashir, Muhammad Umar, and the Investigating Officer to the garden of Abdul Majid, from where he produced s blood-stained hatchet from a thatched shed. On the same day appellant Yaqub was arrested from the graveyard of Adamshah Bukhari vide mashirnama, Exh.
20. Thereafter he led the same mashir and the Investigating Officer to the landhi of his house and from there he produced a blood-stained hatchet which was seized vide mashirnama Exh 21. On the September 1968, appellant Budho was put to identification test and he was correctly picked out by P. Ws. Hayat, Sadiq, Faiz Muhammad and Chanesar in the presence of a III Class Magistrate at Mehar vide identification memo. Exh. 11 The two hatchets and the earth were sent for chemical analysis and all of them were reported to be stained with human blood.
5. Dr. Muhammad Hashim performed autopsy on the dead body and found the following injuries: "(1) One incised wound 6--- x ----- x scalp deep curved in shape on the occipital region, the underlying bone was cut in-a slaunt fashion, causing a depressed fracture.
(2) One incised wound 3----- x 1--" x 1--" on the left side of the back, transversely from the neck to the upper part of the left scapula.:
(3) One incised wound 3----- x ----- x skin deep on the upper part of left side of back; 1----- above to the injury No. 2.
(4) One incised wound 3--- x ----- x 1/8--- on the upper part of right side of back and right shoulder.
(5) One incised wound. 1--"x 1--- x 1----- on the right scapular region at the back cutting the underling muscles.--
(6) One incised wound 3----- x 1----- x 2 ----- on lateral side of the right scapular region and on back of right shoulder.
(7) One incised wound ----- x -- --- x --" on the lateral side of the, right thigh at middle 1/3.
6. The appellants denied their involvement in the crime. Appellant Budho alleged enmity but without giving any reason for it. Appellant Yaqub alleged his false implication in the crime out of enmity but also gave no reason for it.
7. There is no ocular evidence in the case. The conviction rests on circumstantial evidence and the incriminating recoveries at the instance the appellants. As many as four witnesses were examined to establish the, presence of the appellants either before or after the occurrence. According to Chanesar, while he was going to offer his prayer he met Hayat near the otak of Abdullah Khan, who was going to his field to cut crass and after proceeding for some distance they saw appellant Yaqub and four others armed with hatchets. It was appellant Yaqub who asked them about the whereabouts of the deceased to which the applied that they did not know where he was. This place was about 300 paces away from the otak of Abdullah Khan. Chanesar then went to the mosque and while he was offering prayer he heard cries coming from the otak. After finishing his prayer he and others offering prayers went to the otak, where they saw the deceased lying in a pool of blood.
He next told Abdul Karim that he had seen appellant Yaqub and others and that he had asked him and Hayat about the whereabouts of the deceased. This witness had also picked out appellant Budho in the parade. He was firm that this appellant was not known to him from before but surprisingly enough made an admission that he was shown to him before the identifica--petition.
As for appellant Yaqub, he has not minimised his participation. Although he is related to the deceased, yet that reason by itself would not be sufficient to discard his evidence. He was cross- examined at length and nothing tangible was elicited to establish malice against appellant Yaqub to justify an inference of false implication. We would accordingly accept his evidence so far appellant Yaqub is concerned. H4yat's testimony is on the same footing as that of Chanesar but he has minimised his evidence by saying that he had seen the appellant from behind and was therefore unable to identify them. He was accordingly declared hostile and cross-examined. Be that as it may, his committal Court deposition was not transferred to the Sessions file and under the circumstances his testimony is worthless. Sadiq is the third witness, who resided about 30 paces away from the otak of Abdullah Khan. While in his house he heard cries of 'murder, murder', upon which he and his brother, Faiz Muhammad, came out and saw five persons running away "from the side of the street near the otak of Abdullah Khan", towards Rajwah canal. Out of them he only identified appellant Yaqub and they were all armed with hatchets. He and his brother, Faiz Muhammad, followed them for some distance but they managed to escape. Soon after he informed Abdul Karim. He had also picked out appellant Budho but again made an obliging statement that he was shown to him before the parade. He thus towed the same line as Chanesar qua this appellant. This witness also attempted to minimise his evidence while making an admission in the Committal Court, which , was brought on record, that he had seen appellant Yaqub and others from a distance of 100 to 200 paces and that too when they were running away.
He is unequivocal in the identification of appellant Yaqub, for he had disclosed his name to Abdul Karim who lodged the F.I.R. In which his name figures. There cannot, therefore be any doubt about the identification of this appellant having regard to the time of the occurrence, and the fact that he was known to him (Sadiq). Lastly is the evidence of Faiz Muhammad. His evidence is on the same footing as that of Sadiq He is his brother anti was in the house when cries were heard, and bad come out alongwith him. He is also unequivocal as to the identifi--cation of appellant Yaqub and as for others he stated that he could not identify them. He, however, picked out appellant Budho and denied the suggestion that this appellant was shown to him before the identification parade.
He further stated that in the first instance he saw the appellants from the side and then from behind while they were running away, but categorically affirmed that he had known appellant Yaqub from before as he had seen him in the town. No enmity was suggested to, him and we see no reason why his evidence should be doubted qua appellant Yaqub, even though he was related to Chanesar, and through him with the deceased.
8. After scrutinising the evidence we are of the view that the participation of appellant Yaqub cannot be doubted; for his participation is assured by the disclosure of his name in the F. I. R. Had it been for the fact that he was not one of the assailants, his name would not have been s disclosed as in the case of others. Abdul Karim has corroborated Chanesar. In that that he had disclosed to him the name of appellant Yaqub. He also corroborated Sadiq and Faiz Muhammad as to the disclosure of the name of this appellant by them. In the absence of anything to disregard the assertion we are further confirmed in our conviction as to the involvement of appellant Yaqub.
9. It has come in evidence that Abdul Karim had gone to village Loung Mahesar and conversed with Bahadur, uncle of the deceased. If it is the suggestion that appellant Yaqub was implicated after consultation, then on this footing the name of the other- assailants would have also transpired which is not the case here. Again in the cross-examination of x Chanesar, it was suggested that the wife of deceased, Mst. Ashraf, had run away and was residing with his maternal uncle, Abdul Majid, and both of them had not patched up their differences. Another incident suggested to the witness was one in which Mst. Bibal, niece of the deceased, was abducted by Manu and that on the following night the mother and sister of Manu were murdered and that the deceased was implicated in that case. The object of these suggestions was to bring out the other persons, who might have entertained a grudge, could have committed his murder. There is no reason why the witnesses, if that was so, would leave the real culprits and involve the appellants.
None of them who could have had a motive to kill the deceased was named, nor is there any room for such an inference from the material on record. In the circumstances, it is not possible to weigh a bare possibility of the kind suggested above.
10. Lastly, against appellant Yaqub is the evidence of production of a blood-stained hatchet.
Mashir, Muhammad Umar, has spoken of it and there is nothing in his evidence to doubt his credibility. The appellant has not offered any explanation except having denied its production.
There is, therefore, no reason why this piece of evidence should not be accepted. As for appellant Budho, he was not known to the witnesses and, therefore, his name did not transpire in the F. I. R.
Out of the witnesses examined, Ghanesar and Sadiq have deposed that this appellant was shown to them before picking Hayat's evidence is worthless on the face of it. It is only Faiz Muhammad who has denied the suggestion that appellant Budho was shown to him before the identification parade. In the absence of any assurance that there was no room for such a possibility, it is not.
Possible a act on the testimony of Faiz Muhammad alone. Accordingly the identification of this appellant in Court is not beyond doubt the possibility of a mistake in identification is not excluded, and it is so conceded by the Assistant Advocate-General. There is also the evidence of theproduction of the blood-stained hatchet by him but in the presence of' doubtful identification it cannot incriminate appellant Budho to an extend to establish his guilt. While dismissing the appeal of appellant Yaqub we would accept the appeal of Budho and acquit him. He should be set it liberty forthwith unless required in some other case.