NASIR ASLAM ZAHID, J.---This appeal is directed against the judgment dated 18-3-1982 of the Sindh High Court allowing the appeal of respondents Bilawal and Nawab passed in Criminal Appeal No.114 of 1980 and rejecting the reference made by the trial Court for confirmation of the death sentence. We have heard Mr. Rashid Akhtar Qureshi, learned counsel for the State and Mr. A.H. Lakho, learned counsel for the respondent No.2 Nawab. No one has appeared on behalf of the respondent No.1 Bilawal.
2. Out of the 10 accused challaned for trial for the murder of deceased Faiz Muhammad, the trial Court acquitted 8 accused and convicted the two respondents, Bilawal and Nawab, under section 302/34, P.P.C. Awarding death sentence to both. A joint appeal was filed by the respondents and the Trial Court also made the reference for confirmation of the death sentence. A Division Bench of the Sindh High Court, by the impugned judgment dated 18-3-1982, allowed the appeal, rejected the murder reference and acquitted the respondents. The State has filed this Criminal Appeal. By order dated 24-10-1982 leave to appeal was granted to the State. Facts have been summed-up in the Leave Grating order, which reads as under:----- "The two respondents, Bilawal and Nawab, alongwith eight others were tried by the Vth Additional Sessions Judge, Hyderabad under sections 120-B, 302/34 of the Pakistan Penal Code for having caused the murder of Faiz Muhammad on the road near Sub-Jail, Nausharo Feroz on 10 February, 1975 at about 10-15 a.m. The report of crime was lodged by Bahadur Khan, Head Constable of the Sub-Jail, within 15 minutes. According to the version of the incident given by him in the F.I.R. He was on duty near jail, and on hearing a gun report he rushed to the spot and saw that four persons out of whom one had a pistol fired another shot at Faiz Muhammad, and the other three gave hatchetth blows to the victim. He succeeded in apprehending the culprit armed with pistol, and three other police officers, Head Constable Karim Buy; Head Constable Sohrab Khan and P.C. Lal Dino who reached there, caught one of the culprits with a hatchet; two others, however, escaped. By this time, other persons, including Haji Abdul Latif and Muhammad Nawaz, also reached the scene, and they identified the two apprehended culprits to be the respondents Bilawal and Nawab.
During the police investigation it transpired that the murder of Faiz Muhammad was the result of conspiracy between the two apprehended accused and eight others and all the accused persons were challaned for trial in the Sessions Court.
At the trial, prosecution relied on the evidence of P.Ws. Bahadur Khan, Karim Bux, Sohrab Khan, Haji Abdul Latif and Muhammad Nawaz who claimed to have witnessed the occurrence in whole or in part, and to have apprehended the two respondents on the spot. Apart from this, prosecution produced evidence of motive and examined P.W. Gullan, Tonga Driver who stated that he had brought the two respondents from their village during early morning hours on the day of incident to Nausharo Feroze. There was also the circumstantial evidence of Ballistic Expert whose report proved that the cartridge secured from the scene of occurrence was fired from the pistol secured from Bilawal respondent.
The Additional Sessions Judge, Hyderabad who tried the case acquitted the eight co-accused and convicted the two respondents under section 302/34 of the Pakistan Penal Code and awarded death sentence to each.
On a joint appeal filed by the convicts and a reference for confirmation of death sentence imposed on them, Sindh High Court however, acquitted the respondents, and the State now seeks leave to appeal.
After hearing the learned Additional Advocate-General who appeared in support of the petition we feel that the case deserves examination by this Court whether in view of the weight and the quantity of the prosecution evidence the acquittal of the respondents has been based on correct principles of law governing administration of criminal justice. Leave is granted and the petition is allowed:'
Mr A.H. Lakho, learned counsel for respondent Nawab, pointed out that there are two factual mistakes in the Leave Granting Order. It is staled in the Leave Granting Order that complainant Head Constable Bahadur "saw that four persons out of whom one had a pistol fired another shot at Faiz Muhammad and the other three gave hatchet blows to the victim". It was pointed out that, according to the F.I.R. And the evidence of complainant Bahadur, he had only seen respondent Nawab giving hatchet blows to the deceased and had not seen the others giving any hatchet blows. Then it was pointed out that, according to the Leave Granting Order, H.C. Karim Bux, H.C.
Sohrab and P.C. Lal Dino caught one of the culprits with a hatchet when in fact the prosecution case has been that the hatchet used by respondent Nawab got stuck in the body of the deceased.
3. Mr. Rashid Akhtar Qureshi, learned counsel appearing for the State, has taken us through the entire evidence and the judgment of the High Court. He has also referred to the relevant parts of the judgment of the trial Court. According to the learned counsel for the State, there was sufficient evidence which established beyond reasonable doubt the guilt of the two respondents in murdering deceased Faiz Muhammad with whom they had enmity in view of the dispute over land and the respondents were rightly convicted by the trial Court, but the High Court, greatly influenced by the fact that deceased was the son of a Superintendent of Police, rejected the entire ocular testimony which was not warranted by law. According to the learned counsel for the State, apart from the ocular testimony which was rejected by the High Court for alleged discrepancies in the evidence which were not material, one very important factor, which was lost sight of by the High Court, was that the incident took place in bright daylight at 10-15 a.m. On 10-2-1975 and, within 15 minutes of the incident, F.I.R. Was lodged in which the entire prosecution case is spelt out fully implicating the two respondents by name assigning them active roles in the murder of deceased Faiz Muhammad. It was emphasised that though the son of the deceased was a S.P. He was posted at Karachi and he could not have known beforehand that his father was going to be murdered by the respondents on 10-2-1975 at about 10-00 a.m. And as such he gave instructions to the local police to register the F.I.R. Immediately after the murder implicating the respondents. According to the learned counsel, the son of the deceased reached Naushero Feroz, where the murder had taken place, at night on the day of incident, several hours after the time the murder had taken place and recording of the F.I.R. According to Mr. Rashid Akhtar Qureshi, there are five eye- witnesses, namely, complainant Bahadur, P.W.4 H.C. Karim Bux, P.W. 12, H.C. Sohrab Khan, P.W.5 Muhammad Nawaz and P.W. G Haji Latif. (The last two witnesses are closely related to the deceased and they were disbelieved by the trial Court as well as the High Court. Their presence at the scene of the incident and the version of witnessing the murder was doubted). It was submitted that both the respondents were caught red-handed at the scene of the incident and their clothes were also found to be blood-stained. According to the learned counsel for the State, the medical evidence, the reports of the Ballistic Expert and the Chemical Examiner support the prosecution version. Reference was also made to the evidence of P.W.10 Gullan, the tonga driver, who had picked up respondents from a bus-stand and dropped them at Nausharo Feroz Town at about 8- 00 a.m. On the day of the incident. According to the learned counsel, reasons given by the High Court in rejecting the ocular testimony were not valid. As observed, Mr. Rashid Akhtar Qureshi, laid great emphasis on the respondents being caught red-handed and the F.I.R. Lodged within 15 minutes of the murder, in which report the two respondents were squarely implicated. It was submitted that, in the circumstances, there could be no possibility of concocting a false case against the respondents on the ground that the father of the deceased was a S.P.
4. Mr. A.H. Lakho, who appeared for respondent Nawab, the accused who had used his hatchet which got stuck in the skull of the deceased, on the other hand submitted that there were some special features in this case. He submitted as follows:---
(A) The son of the deceased was a S.P. And the record shows that he not only influenced the investigation but also approached the Civil Judge & F.C.M. Not to grant bail to the respondents.
(B) The investigation in this case was not honest. The three eye-witnesses who were disbelieved by the High Court were all policemen, and Government officers were made mashirs to suit the prosecution.
(C) The very basis in the F.I.R. Was bypassed. According to learned counsel. The F.I.R. Gives the impression that three of the accused had given hatchet blows and there was no case that the hatchet of Nawab had go,, stuck in the skull of deceased but no explanation is given by the prosecution for the deviation in their case from the version given in the F.I.R.
Mr. A.H. Lakho submitted that the eye-witness account given by complainant Bahadur, the star witness of the prosecution, was disbelieved by the High Court for very weighty reasons. Bahadur is the only witness who had seen the entire incident. His evidence has been dealt with by the High Court as follows:----- "21. The first or the only witness who claims to have seen the incident from the start to the end is P.W. 2 Bahadur (Exh.28). According to him he was busy in taking out under-trial prisoners from the sub jail when he heard a gun-shot report. He ran towards there and when he reached near the house of Mr. Masu Khan Advocate about 100 paces away, he saw four persons standing there, out of whom one was found armed with .12 bore pistol and the other three with hatchets. When the witness reached just near the culprits, the person who was holding pistol shot at Fait Muhammad who fell down on the ground with face downwards. He further says that one of the three persons armed with hatchet gave hatchet blows to Faiz Muhammad. The hatchet got stuck up in the body of Faiz Muhammad. The two other persons armed with hatchets ran away while the man armed with pistol was caught hold of by other witnesses. P.Ws. H.C. Karim Bux, H.C. Sohrab Khan and P.C.
Lal Deno who were returning to the police station from their duty happened to pass by the spot and on hearing the cries reached there and caught hold of the culprit whose hatchet has stuck up in the body of the deceased Faiz Muhammad. In the meanwhile Muhammad Nawaz and Haji Abdul Latif, who are both relations of the deceased had reached there. According to H.C. Bahadur'
Complainant, these persons also saw the incident but these two persons whose evidence will be referred to later, state that they only saw complainant and other police officials grappling with the two culprits who were overpowered and caught at the spot.
22. The first question that arises in connection with the testimony of P.W. Bahadur is whether his conduct was natural and whether the incident could have occurred in the manner he has described it. His attention was first attracted to the spot when he was 100 paces away inside the jail premises. He runs from there and covers 100 paces and reaches the spot, where there are, four persons armed with deadly weapons. The second shot is fired when he reaches there. Would the culprit who was armed with pistol, wait for P.W. Bahadur to reach the spot before firing the second shot. P.W. Bahadur should have taken some time to cover the distance of 100 paces. Within this time the culprits should have finished their task and made good their escape. Thus the manner in which this witness had described the incident makes the story not only unnatural but quite unbelievable.
23. Again P.W. Bahadur does not say that there was any other person present round about the scene of offences when he had heard the first shot and started running towards there. If he was alone and he had seen four persons armed with deadly weapons surrounding deceased Faiz Muhammad, then it is quite improbable that this witness, who had nothing with him except a cane, would have dared to rush to the spot and intercept the culprits armed with deadly weapons. His conduct is, therefore, quite unnatural and this is another reason for which his credibility has become doubtful. In this connection reference may be made to 1968 SCM R 161 in which it has been held by the Supreme Court that the behaviour of a witness running unarmed in pursuit of culprits who are armed with guns would run counter to natural probabilities. It is, therefore, difficult to believe that P.W. Bahadur would have dared to rush to the spot where, according to him, four persons had surrounded the deceased armed with hatchets and a pistol.
24. Complainant Bahadur has made certain admissions in his cross-examination which further render his presence at the spot at the time of the incident highly doubtful. He says that he was on guard duty at Sub---Jail Nausharo Feroze and that according to the normal course after being relieved from guard duty one had to report for duty again after 48 hours. The actual words in which he has mentioned this practice of changing guard duty is in the following words:--- "Every H.C. Has to report for duty 48 hours after he is relieved from his previous guard duty."
Now on the day of the incident he was relieved of his duties at 8-00 a.m. In the morning as admitted by him in his cross-examination. If this is so then according to his own admission he was not supposed to be in the Jail premises for 48 hours and as such his presence at the time of the incident which took place at 10-15 a.m. i.e. After more than two hours of his being relieved from the guard duty, is highly doubtful.
25. Learned counsel for the State has been unable to explain as to how in view of the improbable and unnatural conduct of this witness and his conflicting statement in cross-examination about having been relieved of his guard duty at the Jail, he can be believed to be a witness of the spot."
The reasons given by the High Court do not appear to be very weighty but we Find one very material factor which escaped the attention of the trial Court as well as the High Court which creates a doubt about veracity of the prosecution version. The prosecution version is clear on the point that the police witnesses did not know the respondents and they were identified by P.W.5 Muhammad Nawaz and P.W.6 Haji Latif, who arrived at the scene of the incident immediately after the murder, and, as they had been so identified, complainant Bahadur gave the names of the respondents in the F.I.R. Lodged within 15 minutes of the incident. But the evidence of these witnesses, Nawaz and Haji Latif, who were close relatives of the deceased, has been disbelieved by the trial Court as well as by the High Court. The trial Court observed that in view of the circumstances in which' these two witnesses claimed to have reached the place of Vardat and also for un--natural conduct on their part of not lodging report themselves about the murder of their close relative, their evidence was not being relied upon. The High Court also rejected their evidence. In paras 28 and 29 of the judgment, the High Court has observed as follows:----- "28. Now remains the evidence of P.Ws. Haji Abdul Latif (Exh.37) and Muhammad Nawaz (Exh.35).
Both of them are closely related to deceased Faiz Muhammad. P.Ws. Muhammad Nawaz is nephew of the deceased and residing in the same village as the deceased. P.W. Haji Abdul Latif is maternal- uncle of P.W. Muhammad Nawaz. None of them is resident of Nausharo Feroze. They have stated that they left their village together in the morning for going to Naushahro Feroze and were waiting at Bus Stand Bhurt when deceased Faiz Muhammad came there in a Tonga and enquired from them as to where they wanted to go. These witnesses told Faiz Muhammad that they wanted to go to Naushahro Feroze, whereupon Faiz Muhammad offered them lift in his Tonga and took them to Nausharo Feroze and dropped them near the shop of a Hindu from where they had to take a loan of Rs.100. They state that after taking money from the Hindu, they followed Faiz Muhammad towards Mukhtiarkar's office to 10-15 a.m. And that when they were in the way, they saw two persons armed with hatchets running away towards west, that they proceeded further and on reaching near the house of Mr. Masu Khan Advocate, they saw P.W. Bahadur having caught hold of accused Bilawal who was armed with pistol and two other policemen having caught hold of accused Nawab. These witnesses told H.C. Bahadur and others that the names of the culprits were Bilawal and Nawab and that they had killed Faiz Muhammad due to enmity over land.
29. The learned, trial Judge had disbelieved, and rightly so, these two witnesses. The main ground which weighed that the trial Court in disbelieving them was that had they reached the scene of offence immediately after the incident then the most natural course on their part would have been as close relatives of Faiz Muhammad, to rush to the Police Station and lodged F.I.R. Instead they are alleged to have stayed behind the side of the dead body while H.C. Bahadur and other Police Officials are said to have taken the culprits to the Police Station. There are other reasons also for disbelieving these witnesses. P.W. Muhammad Nawaz is nephew of deceased Faiz Muhammad and lived in the same village. If both them intended to go to Naushahro Feroze on that day, then Muhammad Nawaz would have accompanied Faiz Muhammad from his village in his Tonga rather than to have gone separately in the company of Haji Abdul Latif. P.W. Haji Abdul Latif resided only half a mile away from the deceased and P.W. Muhammad Nawaz. These witnesses knew that Faiz Muhammad had to attend a case at Nausharo Feroze on the day of the incident. If this was so then they would have rather joined Faiz Muhammad from his village to go to Nausharo Feroze."
We see no reason to take a different view about the evidence of Nawaz and Haji Latif. Their evidence was rightly rejected. This makes a big dent in the prosecution case. If Nawaz and Haji Latif were not there, complainant Bahadur could not have mentioned in the F.I.R. Lodged with 15 minutes of the incident that the names of the two accused who were caught red-handed were Nawab and Bilawal, the said information having been given to him and other police witnesses by Nawaz and Haji Latif. This creates a doubt about the time of the incident and the time when the F.I.R. Was lodged. Suggestions had been made in the cross-examination of the police witnesses that incident had taken place much earlier and the respondents had not been arrested from the place of incident mentioned in the F.I.R. But from Nausharo Feroze Town.
For the aforesaid reason read with reasons given by the High Court, we are of the view that a doubt had been created about the guilt of the respondents.
In the circumstances, we are not inclined to interfere with the judgment of the High Court acquitting the respondents.
As a result, this criminal appeal is dismissed.