MUHAMMAD HALEEM, J.-Appellants Muhammad Ilyas, Muhammad Yousuf, and Muhammad Nawaz were tried for the murders of Muhammad Haman and Mst. Zarnaz, wife of Ilyas, convicted under section 302 read with section 34, P. P. C. And sentenced to imprisonment for life by the Second Additional Sessions Judge, Sukkur vide judgment dated 15th February 1974.
2. According to the prosecution case, deceased Muhammad Hassan went from his house at sun- rise time on 4th April 1972, to ease himself in the jungle near Kandiar Minor. At that time his father, Zangi alongwith Tillan and his son, Allah Rakhio, aged 12, were with their cattle on the other bank of the Minor. The deceased, after easing himself, returned from the jungle and while he was crossing the cry bed of Kandiar Minor, the appellants and the absconding accused, Alam, suddenly appeared. Amongst the appellants, Ilyas and Alam were armed with guns while the others had hatchets. After abusing and throwing a challenge that he would not go alive, both Ilyas and Alam fired two shots each, as a result of which, the deceased fell down and died at the spot. They also threatened Zangi and the other two not to come near them as they would also be shot. Saying so they went towards their house and soon after two gun--shots were heard. While Zangi was near the dead body, his wife, La Khatoon, came there and stated that the appellants had also fired a Zarnaz and killed her declaring at the same time that they have also killed the karo, Mohammad Hassan. Zangi, thereafter, went to Polite Station Khairpur which is 8 miles away and lodged the F. I.
R. At 9-00 a.m. The same day.
2. After recording the report Ghulam Nabi, A. S. I., repaired to the wardat where he saw the dead body of Mohammad Hassan with gunshot injuries lying on a cot on the bank of Kandair Minor. He noticed blood on the bed of the Minor which he secured. He found two crime empties lying on the other bank of the canal which he also secured. He next went to the place of the second murder and saw the dead body of Mst. Zarnaz with gunshot injuries lying on a cot in front of the house of her father, Nahar, which was 45 paces away from her house. He then inspected the place where Mst.
Zarnaz was said to have been killed and secured blood- stained earth from there. Thereafter, he despatched the two bodies for post-mortem examination to the hospital at Mirpur Mathelo. On the same day he examined Tillan, Allah Rakhio, Mst. Lal Khatoon, Abdul Karim, Nahar, Mst. Rahandi. He then looked for the appellants but none of them was available nor any incriminating article was recovered from their houses. At 6-00 p.m. The same day, appellant Ilyas appeared at the wardat and produced a double barrel gun and eight live cartridges which were taken into possession vide.
Mashirnama Exh.
26. Yousuf and Nawaz were produced 15 minutes later by Mohammad Umar Issani. Ilyas volunteered to confess and his confession was recorded on 6th April 1972 by Mr. Obaidullah, F. C. M. Two crime empties alongwith the gun were sent for matching to the Forensic Laboratory and according to the report of the Ballistic Expert, Mukhtair Ahmed, who was examined in the case, the two crime empties were fired from that gun. The earth taken from the two places was sent for chemical analysis which was also reported to be stained with human blood.
3. Dr. A. Rab performed autopsy on the dead bodies of the two deceased. On Mohammad Hassan, he noticed the following injuries: - "(1) One charred contused wound 1/4" x 1/4" deep to the chest cavity on the Rt. Side.
(2) Charred contused wound 1/4" x 1/4" deep to the centre of chest cavity on the sternum.
Charred contused wound 1/4" x 1/4" deep to the muscle bone on the middle of Rt. Arm with fracture of humerus bone.
(4) Charred contused wound 1/4" x 1/4" deep to muscle bone with fracture of humerus 1/2' above (paper torn) joint.
(5) Six charred contused wounds 1/4" x 1/4" deep to abdominal cavity on the left renal area.
(6) Charred contused wounds 2" x 1/2" deep to the muscle of left side chest.
(7) Two charred contused wounds 1/4" x 1/4" deep to the chest cavity on the left axilla with fracture of ribs.
(8) Charred contused wound 1/4" x 1/4" deep to the left hand ulnar side."
4. On Mst. Zarnaz, he noticed the following injuries:- "(1) Charred contused wound 1--" x 3/4" deep to the chest cavity on the centre sternum slight Rt.
Side with fracture sternum.
(2) Charred lacerated wound 1" x 1" deep to the chest cavity on the centre of sternum with fracture of sternum.
(3) Six charred contused wounds 1/4" x 1/4" deep to the chest cavity on the Rt. Side chest just below breast.
(4) Three charred contused wounds 1/4" x 1/4" deep to the chest cavity -of left side with fracture of ribs.
(5) One charred contused wound 1/4" x 1/4" deep to the left side abdomen on the renal area."
5. Appellant Ilyas took the plea of grave and sudden provocation for committing the two murders, and at the same time pleaded that he was alone responsible for committing the murders. Further, he admitted having produced his licensed gun which had matched with the two crime empties.
Elaborating his plea, he thus stated :- "On the day of incident when it was still dark, I went towards the jungle for easing myself. I had a licensed gun which I carried with myself. When I reached Kandiar Shakh, I found Mohammad Hassan having illicit intercourse with my wife Mst. Zarnaz. On sudden (.Sic) and due Ghatral I fired 2 shots which killed both Karo and Karl. I then went to Khanpur P. S. Alongwith my gun and enquired about the incharge of the P. S. I was informed that he had gone to wardat to investigate this case. I came back and surrendered myself before H. C. Ghulam Nabi at the wardat. I also produced my gun. I was alone at the time of commission of the offence."
Mohammad Nawaz and Mohammad Yousuf denied having taken any part in the crime and pleaded that they were implicated because of their relationship with Ilyas ; the former being his brother while the latter, his cousin. In the context of the above plea it would be of advantage to reproduce the confession which appellant Ilyas admitted to be voluntary and true: "Day before yesterday in the early morning at prayers time I went to jungle from house to ease myself. I had my licensed double-barrel gun. When I reached at Kandlar Minor, which is on the east of our house, I found that Mohammad Hassan s/o Zangi was committing illicit-course with my wife Mir. Mir Zadi @ Zarnaz. I was provoked and fired two gunshots which hit both and they expired. From there I alongwith my gun went to Police Station Khanpur, and enquired about N. C. Ghulam Nabi Bozdar. There, I learnt that a man namely Zangi had lodged the complaint regarding the murder, and he bad gone there for investigation. I went to the scene of offence and surrendered myself with gun, before the Head Constable."
6. Again, in the F. I. R., Zangi had stated that appellants and the absconding accused abused the deceased and gave a challenge that he would not go alive as he was a karo which challenge is denied by all the three witnesses, though not without a motive because they later set up a case about a dispute over the rotation of water. One another feature of significance in the F. I. R. Is that Mst. Lal Khatoon, wife of Zangi is also stated to have come to the wardat and gave out that the three appellants and the absconding accused had fires at Mir. Zarnaz and killed her and that they also declared that they had killed the karo, Mohammad Hassan. This stand is not also adhered to by Zangi in his evidence. While disclosing about the second murder, be stated that he heard two gun reports coming from the direction of the house of the appellant where after, his wife also came to the wardat and she told him that the children shad informed her that the appellant Ilyas and the absconding accused Alam had killed Mst. Zarnaz by firing their guns at bar. He was confronted with the F. I. R. But he stated that the statement was not correctly recorded. He was next confronted with his committal Court statement in which he stated that Lal Khatoon. Nahar, and Abdul Karim bad come to the wardat but they did not inform him about the second murder; though, of course he denied having given such statement. Apparently, from his subsequent stand at the trial what transpires is that no one had witnessed the murder of Mst. Zarnaz. Tillan, nonetheless, gave a different version that he slaw from the wardat appellant Ilyas and absconding accused Alain firing their guns at Mir. Zarnaz who was in front of the house of appellant Ilyas and in cross--examination, he further stated that she was killed while sweeping the around police statement in which he had stated that it was Mst. Lai Khatooh who had come and informed them about the appellants and the absconding accused killing Mst. Zarnaz which of course he denied and which contradic-- petition has been proved. The element of improvement is clear from his evidence, for, if at all he had seen the second murder, such fact would have been disclosed in the F. I. R. Allah Rakhio has/given a totally different version. What he stated about the second murder was that Lai Khatoon and Abdul Karim had come to the wardat and it was thereafter that he heard the gun reports coming from the direction of the house of appellant Ilyas. He has discounted the presence of both Lai Khatoon and Abdul Karim at the place of second incident and in this context he further stated that it were the children who had come and informed that Ilyas and Alam had killed Mst.
Zarnaz by firing their guns at her in front of the house, which shows that he had not seen the incident otherwise, there was no reason for him not to disclose it to Zangi. However, be had not stated so either in his committal Court statement or 164 statement and such omission has been proved. Besides, none of these children who had seen the actual firing have been examined and even otherwise this assertion is of no value. It is also doubtful whether Tillan and Allah Rakhio were with their cattle at the time when the incident occurred, for, neither any hoof marks were observed nor was any cattle dung seen. Zangi has gone against the F. I. R. And attempted to make out a different case at the trial which is not even consistent. They have, thus, perjured to an extent that it is not possible to place reliance on their testimony. The next witness is Abdul Karim who has deposed that he saw Allah Rakhio and Tillan standing on the bank of Kandiar Minor and raising cries of "murder, murder" at a distance of about 40 paces. He then enquired from them as to what had happened and they told him that the absconding accused Alam and the appellants had killed Mohammad Hassan and that later he saw them entering the house of appellant Ilyas and also heard someone weeping aloud. He and his father, Nahar went towards the house of appellant Ilyas and saw the appellant dragging Mst. Zarnaz out of the house, where-after, appellant Ilyas fired his gun at her followed by Alam who fired the second shot. We are at a loss to understand that if at all he had witnessed the incident why then his name was not mentioned in the F. I. R. And instead, it was Lai Khatoon who is said to have spoken about the murder of Mst. Zarnaz, which stand was not even adhered to at the trial and at which stage it were the children who were said to have witnessed the incident. Again, neither the dragging marks were observed nor any evidence of some--one having swept the ground in front of the Kotha of the house were observed. The body of Zarnaz was also not in front of the house of the appellant but was found by the Investigating Officer lying on the cot in front of the house of her father. This witness has also denied that Ilyas has killed both the deceased on account of being `kayo and kari' which is understandable for being a nephew of Zangi he has towed the same line. Nonetheless, we are doubtful about his having seen the murder of the deceased Zarnaz, for, he appears to have been introduced later on to provide evidence of the second murder. He also went to the length of saying that at a distance of 10 paces from the body of deceased, Mohammad Hassan, he saw four crime empties, which is again false as only tyro crime empties were seen and recovered. This was to justify the stand of the other witnesses that four shots were fired two each by the absconding accused Alam and appellant Ilyas.
7. The salient feature of the case is that the deceased was killed on the dry bed of the minor and there was no reason why the deceased would be killed for any other reason at that spot. Again, such a place provides privacy. There was no reason to remove the dead body of the deceased, Mohammad Hassan, from the bed of the minor, if the stand of the prosecution was that he was all alone at that time. Even the body of Mst. Zarnaz was not left at the place where she was said to have been killed by Alam but removed from there and kept on a cot in front of the house of her father, Nahar. The blood found in front of the house would not lead to the inference of being killed at the spot, for, if she was killed earlier and her body brought there and then shifted again to another place, the blood was likely to fall from the injuries sustained by her. The stand of appellant Ilyas is that he had seen them in a compromising position, meaning thereby that they were naked.
If the bodies can be removed, they can also be clothed to defeat the plea of the appellant. Apart from the unreliable ocular testimony, there is no evidence to sustain that more than two shots were fired, which is the plea of appellant Ilyas. As for Mohammad Nawaz and Mohammad Yousuf, it is alleged that they were armed with hatchets. However, no hatchet injuries were found on the two deceased, which feature makes their presence doubtful and having regard to the tainted evidence which is wholly unreliable, their false implication cannot be excluded. 1n the circumstances, we would give to them the benefit of doubt and acquit them. While accepting their appeal we would direct that they should be set at liberty forthwith unless wanted in connection with some other case.
8. On the whole, the evidence is of such nature that no reliance can be placed on it and the possibility, nonetheless, remains of the two deceased having been seen together and then being killed by appellant Ilyas. Accordingly, we are of the view that appellant Ilyas is entitled to the benefit of Exception 1 to section 300, P. P. C. We would, therefore, alter his conviction to section 304, Part (1) and substitute a sentence of five years' rigorous imprisonment. Subject to the above modification, his appeal is dismissed.