1. JUDGMENT, ABDUL HAFFEZ MEMON, J.-Appellants 'Laloo alias Alaboo son of Nawab aged 29 years and Mewo son of Dur Muhammad aged 28 years both by case Gishkoris have been convicted under section 302 read with section 34, P. P. C. And sentenced to death for the murder of Waryam son of Sachoo aged 50 years Appellant' Laloo hat been further convicted under section 13(d) of the Arms Ordinance and sentenced to t months R.
1. They have filed this appeal and the case is also before us on reference under section 374, Cr. P. C. For confirmation of sentence of death on each of the appellants.
2. The facts of the case are that on 25-7-1971 at 11-30 a.m. P. W. Jhaman appeared at the Police Station Jacobabad to lodge the F. I. R. Regarding the murder of deceased Waryam which was recorded by the Head Constable Ghazi Khan in the following words :- "Complaint is that I reside in village Noor--Muhammad Dombki, my sisters son Waryam son of Sachoo Jat and his wife Mst. Nazi all live in one and the same village. Today early in the morning I, Waryam and Mst. Nazi and my son Tillo were coming together to Buxapur to buy provisions. When we reached near Manghra Bridge, on the southern side, on the bridge of Buxapur minor, at about break--fast time, there 3 persons namely Mewo, Allaboo sons of Nawab,
3. Hamzo son of Nasir, all by case Gishkori residents of Thahim Wah Taluka Kandhkot were standing. All the three were armed with guns. When we reached near the bridge, all the three gave challenge to Waryam and said him to be careful as his relatives Mitho Jat and others had killed their cousin Qadoo Gishkori, .Without any reason, and now they are getting revenge, saying so Mewo and Hamzo fired their guns at Waryam in our presence. Due to fires Waryam fell down. We raised cries of murder murder, none else came on the cries, then assailants went towards south, by firing in the air. Then we went and saw Waryam he was dead and he has gun-shot injuries on neck and back, blood oozed out. I have made to sit Mst. Nazi and my son Tillo near the dead body and I have come for report.
3. About 3-4 years back Mitho Jat and others had killed Qadoo Gishkorl at Resaldar side: Due to this revenge the above named accused have murdered Waryam, today, with gun shot fires. The accused are known to us previously. I am complainant ; action be taken."
4. After recording the F. I. R. Head Constable Ghazi Khan reached the scene of offence and there secured blood-stained earth and six wads under a mashirnama, prepared the inquest report and recorded the statement of P. W. Tillo. The investigation was thereafter taken over by A. S. I. P. W.
5. Abdul Razak who arrested appellant Mewo on 9-8-1971 from Court of Additional Sessions Judge, Jacobabad and appellant Laloo from Deh Muhammadan on 9-8-1971. After his arrest, appellant Laloo led the police to a hedge of Sardar Khan's dera from where he produced one muzzle loaded gun lying under the hedge which was secured by the A. S. I. In presence of the mishir Ghulam Muhammad and Anwar A.I. After the usual investigation was completed, the appellants were sent up to stand their trial in the Court of Sessions Judge Jacobabad under section 302 and section 307 read with section 34, P. P. C. For the murder of Waryam and for attempt to murder of P. Ws. Jhaman, Tilloo and Mst. Nazi. In addition appellant Laloo was to face trial under section 13-D of the Arms Ordinance. Accused Hamzo, however, could not be arrested and remained absconder.
6. At the trial, the prosecution relied upon ocular testimony of P. W. Jhaman, his son P. W. Tiloo and Mst. Nazi, wife of deceased Waryam, the circumstantial evidence of recovery of the gun from appellant Laloo and the evidence of motive which was to the effect that one Qadoo, brother of appellant Laloo was murdered by one Mitho Jat and the appellants in order to avenge the murder of Qadoo had killed Waryam, alleged to be relation of Mitho Jat.
7. At the trial the defence of the appellants was one of denial and false implication. Appellant Laloo in his statement under section 342, Cr. P. C. Also denied to have produced the gun.
8. On the aforesaid evidence, the trial Court acquitted the appellants or the charge under section 30 7, P. P. C. But convicted them on the charges under section 302 read with section 34, P. P. C. And under section 13-D of the Arms Ordinance and sentenced them as stated above.
9. The conviction of the appellants rests mainly on the ocular testimony of P. Ws. Jhaman, Tiloo and Mst. Nazi. Complainant Jhaman A the maternal uncle of the deceased, P. W. Tiloo is the maternal cousin of the deceased and Mst. Nazi is the wife of the deceased. In view of the relationship of these witnesses with the deceased and inter se and contradictions appearing in their evidence, as will be discussed hereinafter, their evidence needs close and careful scrutiny and it will have to be seen whether the evidence of these witnesses is of such quality as, can be implicitly relied upon on a capital charge.
10. Mr. Azizullah Shaikh, the learned counsel for the appellants, contended that the aforesaid witnesses had in fact neither accompanied the deceased nor seen the incident but were set up by the police to depose falsely against the appellants to an, otherwise, un-witnessed crime.
11. Complainant Raman in his evidence at the trial stated that on the day of incident he and his son Tillo alongwith deceased and his wife Mst. Nazi left their village at about morning prayer time for Buxapur village to buy provisions. When they reached Mangbra bridge on the Shahi Canal, they saw three persons whom they identified to be Laloo alias Alaboo, Hamzo and Mewo who were all armed with guns. The accused on seeing them challenged the deceased Waryam that they would take revenge from him as his relation Mitho Jat had murdered their relation Qadoo. /Appellant Laloo and Mewo thereafter fired guns at the deceased while Hamzo fired at the witnesses. The deceased was hit and he fell down, but the gun shot fired by Hamzo did not hit the witnesses.
12. Appellants then ran away taking their guns with them. On finding Waryam dead, he left P. W. Mst.
13. Nazi and Tiloo at the dead body and himself went to the Police Station to lodge the F. I. R. In his cross-examination he denied to have stated in the F. I. R. That Mewo and Hamzo fired at the deceased. He also denied to have stated in F. I. R. That appellants Laloo and Mewo were both sons of Nawab. He also denied to have said in his statement before the Court of Enquiry that appellant Laloo and accused Hamzo(absconder) had fired at Waryam. Ile was confronted with the F. I. R.
14. Lodged by him wherein he had said that appellant Mewo and Hamzo had fired at the deceased and with statement before the Court of enquiry wherein he had stated that absconding accused Hamzo and appellant Laloo had fired at the deceased. He was confronted with his statement before the committal Court wherein he had stated that the village of Shamsuddin Doinki was about one survey number away from wardat as against his statement in the trial Court that the village was one or half mile away from the wardat.
15. P. W. Tiloo in his evidence in the trial Court stated that on the day of incident, he alongwith his father complainant Jhaman, Mst. Nazi and deceased Waryam had set out for Buxapur to buy groceries and when they reached Manghra bridge, they saw three persons whom they identified to be accused Laloo, Mewo and Hamzo all of who had guns. Accused Laloo and Mewo challenged them that they would take revenge of murder of Qadoo and saying so accused Laloo and Mewo fired at the deceased Waryam while Hamzo fired in the air and threatened them not to go near as a result whereof they lay down on the ground and raised cries but no one came and the accused ran away. Finding deceased Waryam lying dead in the pool of blood, he and Mst. Nazi sat at the dead body while Jhaman went to lodge the F. I. R. In his cross-examination, he admitted that it was a season for transplanting paddy and that he used to go for transplanting work except--ing on the day of the incident when he had accompanied the deceased and other witnesses. In his cross- examination it was suggested to him whether he had stated before the police that accused Mewo and Hamzo had fired at the deceased but he denied to have made such statement. It was also suggested to him whether he had stated before the police that Hamzodid not fire in the air which he denied. It was further suggested to him that he did not live with his father but resided six miles away from the wardat which suggestion also he denied. He, was, however, confronted with his statement before the committal Court wherein he had stated that his village was six miles away from the wardat and with his statement to the police wherein he had stated that Mewo and Hamzo had fired at the deceased.
16. Mst. Nazi in her evidence at the trial stated that it was breakfast time when she alongwith Jhaman, Tiloo and her deceased husband were proceeding to Buxapur for making purchases and when they reached on the Shahi Canal, they saw three persons armed with guns sitting on the bridge at the distance of 30 paces whom they identified to be accused Laloo, Mewo and Hamzo. The accused abused her husband and threatened that they would take revenge for the murder of Qadoo. All the three accused then fired their guns from the bridge. Two gun shots hit her husband on neck and back and he fell down. They raised alarms but no one came and the accused ran away. She and Tillo sat at the dead body while Jhaman went for report. In her cross-examination, she admitted that her husband had not carried any money with him on the day of the incident. It was suggested, to her in her cross-examination whether she bad stated in her statement to the police that all the appellants bad fired at the deceased to which she replied in the affirmative.
17. Defence, however, contradicted her through A. S. I. Abdul Razak who admitted that she had not stated to him that all the accused fired at the deceased, 'but had stated that Mewo and Hamzo had fired at the deceased. She was then asked if she had stated in her statement before the Court of enquiry that the police had recorded her statement at Police Station Buxapur after 15 days of the incident which suggestion she denied. She was confronted with her statement before the committal Court wherein she had admitted that her statement was recorded at Buxapur Police Station after 15 days. She was then asked in the cross-examination whether she had stated in the lower Court that all the accused fired at the deceased, she denied to have made such statement and stated that she had said in her statement before the Court of Enquiry that only accused Laloo and Mewo had fired at the deceased. She was asked if she had stated in her statement to the police that accused Hamzoand Mewo had fired at the deceased and she admitted the suggestion.
18. Taking up first tire evidence of P. W. Jhaman, it will be noticed that he has given three different versions of the main incident of firing at the deceased. (n the E.
1. R. Lodged by him he had stated that accused Mewo and Hamzo had fired at the deceased Waryam. In his statement before the committal Court, however, he stated that accused Hamzoand Laloo had fired at Waryam. In the trial Court he gave yet a third version and deposed that Mewo and Laloo had fired at the deceased.
19. This is indeed material contradiction which, apart from detracting seriously from the credibility of this witness, goes to show that appellant Laloo has been assigned the part of firing at the deceased in place of Hamzo. If Laloo had in fact fired at the deceased, the complainant could not have omitted to mention about it in the F. I. R. This, however, is not the only contradiction. In the F. I.
20. R. He had alleged that appellant Laloo and Mewo were both brothers inter se and sons of Nawab whereas at the trial he denied that both were brothers and stated that he had not mentioned in the F.
1. R, that both were brothers and sons of Nawab.
21. With regard to P. W. Tillo, he also does not appear to us to be con--sistent and truthful witness. It was suggested to him in the cross-examination that he lived separately from his father complainant Jhaman in the village at the distance of six miles from the wardat which suggestion he denied. He was, however, confronted with his statement before the Court of Enquiry wherein he stated that "our house is six miles away from the wardat". The sugges--petition of the defence appears to be well founded as P. W. Jhaman has stated in his evidence that his village is about 1-- or 2 miles away from the wardat. People living in mufassil have fair estimate of the distance. P. W.
22. Tillo could not have, therefore, put the distance of his village at 6 miles unless it was different. It was also suggested to him in his cross-examination whether he had stated in his statement under section 161, Cr. P. C. Made to the police that accused Mewo and Hamzohad fired at the deceased which suggestion he denied. His statement to the police, however, shows that he did state therein that Mewo and Hamzo had fired at the deceased.
23. As to P. W. Mst. Nazi, she too has not fared better than the other two eye-witnesses as she has faithfully toed their line. She stated in her evidence in the trial Court that all the three accused had fired at the deceased. In her cross-examination, however, she admitted that she had stated in her statement before the police that it was Hamzo and Mewo who had fired at the deceased. Further, in her statement before the Court of Enquiry, she had stated that her statement was recorded 15 days after the incident. She, however, denied in her evidence at the trial to have made such statement and she was duly confronted with her statement before the Court of Enquiry. She has then said in her evidence that P. W. Tiloo and Jhaman had not started their transplantation work, whereas P.W.
24. Tiloo has himself admitted that he was busy in transplantation work except on the day of incident.
25. Beside the above variations and contradictions, the ocular evidence is also not supported by the medical evidence. P. W. Mst. Nazi has stated in her evidence that the accused fired at the deceased from the bridge at a distance of 30 paces and the evidence of P. W. Daman is also to the same effect. Medical evidence, however, shows that the injuries on the deceased showed charring of skin and according to P. W. Gajjan, "six wads were attached on the back of the deceased", which suggests that the deceased was fired at from much closer distance. Then, the prosecution witnesses allege that they had all left in the morning without taking their breakfast. Post-mortem report however, shows that semi-liquid food was found in the stomach of the deceased.
26. The ocular evidence is also inherently incredible as there exist circum. Stances which render it highly doubtful if the witnesses had even accompanied the deceased or were present at the scene of offence. Admittedly, ft was a transplanting season as deposed to by P. W. Tiloo who stated in his evidence that all the members of his family were busy transplanting and even he himself was engaged in transplantation work excepting on the day of the incident when he accompanied the witnesses and the deceased to Buxapur village to buy provisions. It is difficult to accept that four persons would leave early in the morning for purchasing ordinary groceries like gur and tobacco from the Buxapur village leaving behind their important work of transplanting when only one person could have easily done the needful. Besides it is not understandable as to why Mst. Nazi had to accompany her deceased husband and the witnesses when the groceries that were to be purchased were like tobacco and gur, as deposed to by P. W. Mst. Nazi and, for that matter, it is also not understandable as to why Tiloo had to leave important work of transplanting when his father Jhaman was also to go to Buxapur village. Another circumstance which makes it further doubtful whether these witnesses had accompanied the deceased is that they had stated in their evidence that they had set out for Buxapur village early in the morning without taking any breakfast. Post- mortem report of the deceased, however, shows that semi-liquid food was found In the stomach of the deceased. This lends support to the contention of the learned counsel for the appellant that in all probability the deceased had left his village alone after taking breakfast either on that morning to make purchases or had left earlier in connection with some other work when he was done to death by some assailants. Still another circumstance which throws doubt on the story of the witnesses of leaving the village for buying provisions is that P. W. Mst. Nazi admitted in her evidence that deceased Waryam had no money on him at the time of the incident.
27. The witnesses then claim that the deceased was killed in their presence and died instantaneously.
28. P. W. Ghazi Khan, however, admitted in his evidence that the body of the deceased had decomposed. This is supported by the fact that post-mortem of the deceased was held at the wardat by the doctor who was specially sent for. Had the body not decomposed, this unusual course would not have been adopted. The learned trial Judge has termed Ibis admission of P. W.
29. Ghazi Khan as a concession to oblige the accused which is not justified. The learned trial Judge was also not right in saying that letter was given to the Medical Officer at the time when the Head Constable Ghazi Khan had not proceeded to the wardat as the evidence shows otherwise. That being so, it is difficult to believe that if the deceased was killed in the presence of these witnesses, they would have allowed the deceased's body to decompose which is only consistent with the fact that the deceased was done to death much earlier and not at the time alleged by the prosecution witnesses. No doubt, the doctor has not been questioned on this aspect but we find that estimate of the probable !Time between the death and post-mortem is not based on tangible evidence as mention of rigor mortis, which could have afforded the basis for the estimate made by the doctor, is conspicuous by its absence.
30. Lastly, according to complainant Jhaman, the wardat was two miles away from Buxapur village and his own village was 1--or 2 miles away from the wardat whereas the accused lived about S miles away from his village. This would mean that the village of accused was either further away from the Buxapur village or, at any rate, far away from the wardat. How would then the appellants have known that the deceased and the witnesses would be leaving their village early in the morning for purchasing groceries and would be passing through the place of incident so tat they would be lying in wait for the deceased at the particular spot in broad daylight, and it has not come in the evidence either that the witnesses had earlier announced their proposed visit to Buxapur.
31. It has been repeatedly pointed out by the superior Courts that when the prosecution case mainly rests on ocular evidence, it must come from un--impeachable source in order to carry conviction on a capital charge and the appraisement of the evidence of eye-witnesses has to be based upon fun consideration and evaluation of all the circumstances appearing in the case A including the intrinsic worth of the evidence. If such a source is not' available, then it must be supported by some strong circumstance who would enable the Court to overcome the inherent doubt which such evidence must necessarily create. Keeping in view the above, salutary principle laid down for the safe dispensation of criminal justice, in the case before us, in view of the close relationship of the witnesses with the deceased and inter sethe apparent material contradictions between the version given in the F. I. R. Their earlier version to the police and their evidence at the trial and even between the version before the Court of Enquiry and the evidence at the trial, and bristling inherent improbabilities, implicit reliance on oral testimony of these witnesses would be extremely hazardous. This brings us the evidence of recovery of double barrel gun from appellant Laloo. P. W.
32. Ghulam Muhammad, the mashir of the recovery has stated in his evidence that the place of recovery of the gun was, visible from the Otak and that there were many Raj people of the locality present in the Otak whereas his place of duty was four furlongs away from the wardat. He admitted in his cross-examination that he did not remember if police had checked the gun or that it was tested by making fire from it. The gun bad also not been sent to the Ballistic Expert. It will be noticed that the incident in this case took place on 25th July and the accused was arrested on the 9th August 1971 by A. S. I. Abdul Razzaq who stated in his evidence that he arrested the appellant Laloo on that day at a distance of 50 to 60 paces from the place of the recovery of the gun in the dera of Sardar Khan. It has not even been alleged that appellant Laloo was absconding. It is, therefore, not under-- standable that why his arrest was not effected for such a long time. Accordingly, the recovery of the gun in the above circumstances of the case does not inspire confidence. Then, both in the F. I. R. As well as in the police statements of the witnesses; appellant Laloo is not alleged to have fired his gun. Consequently, the recovery of gun from Laloo is of no help to the prosecution.
33. The motive alleged on the part of the accused for committing this crime also does not appear convincing. All the witnesses have admitted that they and the deceased bad no relationship with Mitho Jat who is alleged to have committed murder Qadoo, a close relation of the accused, for whose murder the appellants are alleged to have killed the deceased. - The witnesses also admit that they and the accused had no enmity whatsoever with the accused. It is, therefore. Difficult to believe that the accused would kill an old man of 50 years but leave the complainant- Jhaman and Tiloo who were com--peratively younger in age to the deceased and were at their mercy, if the motive alleged by the prosecution had element of truth in it.
34. For the reasons given above, we have formed the view that the prosecu--petition has failed to prove its case against the appellants and the convictions of the appellants cannot therefore be sustained. We, accordingly reject the reference and allow the appeal and set aside the convictions and the sentences passed on the appellants and order that they be released forthwith unless required in any other case.