' AKHTAR ALI G. KAZI, J.--- This is an appeal filed by Dooso alias Dost Muhammad son of Ilyas by caste Lohar, who has been convicted by the learned Sessions Judge, Thatta under section 302, P.P.C. And sentenced to death. The learned Sessions Judge has further awarded compensation of Rs,10,000 to the heirs of the deceased under section 544-A of the Criminal Procedure Code to be recovered as arrears of land revenue and in default of payment or recovery, he shall suffer imprisonment for a period of six months more, vide his judgment dated 25-3-1991. The sentence to death is subject to confirmation of the High Court of Sindh for which proceedings have been submitted under section 374, Cr.P.C.
2. The brief facts of the prosecution case as alleged in the F.I.R. Lodged by one Muhammad Bachal on 19-1-1982 at Police Station Mirpur Sakro are that the complainant used to do work as blacksmith at the time of incident. Deceased Yousaf son of Din Muhammad Lohar was his nephew who used to reside with him. It is alleged that appellant Dooso son of Ilyas Lohar had demanded hand of one Mst. Bibi from his cousin, Panah, who agreed to give him the hand of Mst. Bibi. After some time Panah asked Dooso to get Mst. Bibi married with his son, but appellant Dooso is alleged to have declined to do so as his son was minor. Thereafter Yousaf demanded hand of Mst. Bibi which Panah agreed to give to deceased Yousaf. On this it is alleged that Dooso got annoyed. It is further alleged that . On the day of incident i,e. 19-1-1982, deceased Yousaf left for village Lait with some work in the morning. After some time complainant Bachal and prosecution witnesses Mitho and Suleman also left for village Lait with their own work. At about 10 a.m. When they reached Path of Sim Nali, they saw appellant Dooso armed with a hatchet in his hand and within sight he gave hatchet blow with sharp side on the neck of Yousaf, who after receiving injury fell down. They challenged Dooso but appellant after causing injury ran away by crossing Sim Nali. Yousaf died as a result of injury at the Wardat. The complainant made witnesses Mitho and Suleman to sit over the dead body at the Wardat and he proceeddd to Village Lait to inform Rais Ali, Muhammad Shoro, who directed him to lodge a report at the police station. The complainant proceeded to Police Station Mirpur Sakro and lodged the report at the police station which was recorded by A.S.I.P. At 12 noon. The First Information Report has been produced by the complainant as Exh.P.1. After recording the F.I.R., the A.S.I.P. Proceeded to Wardat and saw the Wardat on the pointation of complainaht Bachal which was situated at the Path of Sim Nali about 8 miles away from the police station. The dead body of Yousaf was lying there with hatchet injuries. The blood was also found at the Wardat. A.S.I.P.
Secured blood-stained earth and prepared such Mashirnama Exh.P.7, in the presence of Mashir Ali Muhammad and Muhammad Qasim. He then prepared inquest report as Exh.P.8 in presence of the same Mashirs. He then sent the dead body for conducting post-mortem examination to Medical Officer, Mirpur Sakro Hospital through a Police Constable, Dil Sher. He then recorded the statements of prosecution witnesses Mitho and Suleman at the Wardat. He then proceeded to Village Lait and recorded the statement of prosecution witness Ali Muhammad in his village on the same day. He arrested appellant Dooso on the same day at about 3-10 p.m. Near Irrigation Bungalow Mirpur Sakro in the presence of the same Mashirs under Mashirnama as Exh.P.9. He secured blood-stained hatchet from the accused at the time of his arrest and prepared such Mashirnama Exh.P.10 in the presence of the above Mashirs. The appellant was then produced before the Mukhtiarkar and F.C.M., Mirpur Sakro for recording his confession, which was recorded on the same day by Mukhtiarkar and F.C.M., Mirpur Sakro, Mr. Lekh Ram, which has been produced by the Magistrate as Exh.17-A. The dead body of the deceased was handed over to the complainant after the postmortem examination. The blood-stained shirt and Shalwar of the deceased were also secured by the police under Mashirnama Exh.P.11. The bloodstained articles were sent to the Chemical Analyser and the report has been produced as Exh.P.14. After completing the investigation the S.H.O.
Challaned the accused in the Court.
3. The appellant was tried by the learned Sessions Judge, Thatta, who acquitted him on 18-1-1983.
As against the said judgment, a revision was filed in the High Court of Sindh and was allowed by Mr. Justice Syed Abdur Rehman with the instructions that the appellant be retried. The appellant was retried by the Sessions Judge, Thatta, who after taking into consideration the evidence produced before him at the trial was pleased to convict the appellant as stated above, on 25-3-1991. This appeal is directed against the above judgment of conviction. The learned Judge has also made reference for confirmation of the death sentence of the appellant.
4. The learned Sessions Judge framed the charge against the appellant under section 302, P.P.C. To which the accused pleaded not guilty.
5. The prosecution has examined Gul Hasan Tapedar as prosecution witness, who has prepared the sketch of Wardat and produced the same as Exh.14-A. The Medical Officer, Dr. Warsi Mal who conducted the postmortem examination has been examined and he has produced the post- mortem notes as Exh.10-A. The prosecution witness, Bachal (complainant) who is also an eye- witness has produced the F.I.R. As Exh.P.1. The posecution witnesses Mitho and Bachal are also eye- witnesses and have produced their 164 statements recorded by the Mukhtiarkar and F.C.M. As Exhs.P.3 and P.S. Mashir Ali has produced Mashirnama of Wardat as Exh.P.7, inquest report Exh.P.8, Mashirnama of arrest of accused Dooso as Exh.P.9, Mashirnama of recovery of blood-stained hatchet as Exh.P.10, Mashirnama of recovery of clothes of the deceased Exh.P.11. The Mukhtiarkar and F.C.M. Who recorded the confession of accused Dooso had been examined and has produced confession of the accused recorded by him as Exh.P.12. Dil Sher, Head Constable is corpse-bearer who took the dead body from the Wardat and handed over to the Medical Officer for post-mortem examination. Muhammad Hussain, S.H.O., Police Station Mirpur Sakro had sent the blood-stained articles to the Chemical Analyser and has produced the report as Exh.P.14. He had also challaned the accused in the Court of S.D.M., Mirpur Sakro at Gharo. Imam Bux Sial, the then A.S.I.P., Mirpur Sakro recorded the First Information Report and conducted the investigation in this case. The statement of the appellant was recorded under section 342, Cr.P.C. In which the appellant has denied the allegations and has produced the documents as Exhs.D.1 to D.5 alleging enmity over the lands with the complainant. He has further stated that his sister-in-law, Mst. Nathi had filed a criminal case against Bachal. The appellant also examined himself on oath under section 340, subsection (2) of Cr.P.C.
6. We have heard Mr. Hasan Inamullah, learned counsel for the appellant and Mr. Zubair Qureshi, learned counsel for the State and have also gone through the record and proceedings of the trial Court. It has been argued by Mr. Hasan Inamullah, learned counsel for the appellant that the learned trial Judge has erred in convicting the appellant on the intended inimical evidence. He has further argued that there are material contradictions in the evidence of eye-witnesses which have not been considered by the learned trial Judge. According to him all the prosecution witnesses are interested and chance witnesses. He has further argued that circumstantial evidence and recovery of hatchet and the blood-stained clothes from the person of the appellant is also not worth reliance as the Mashir Ali is also related to the complainant and is also a chance witness. With regard to the evidence of confession given by the accused before the Magistrate, according to him, the learned trial Judge has even not placed any reliance on it. He has further submitted that the medical evidence is also against the oral evidence given by the witnesses in the Court. The learned counsel for the State has also not supported the case of the prosecution against the appellant due to material contradiction in the evidence.Of the prosecution. He has further submitted that as the prosecution has failed to prove its case beyond reasonable doubt, the appellant is entitled to acquittal.
7. The prosecution case rests on the following:--
(i) Ocular evidence.
(ii) Circumstantial evidence consisting of recovery of blood-stained hatchet and clothes from the person of the accused.
(iii) Motive.
(iv) Judicial confession of the appellant.
8. The ocular evidence consists of the prosecution witnesses, Bachal, Mitho and Suleman. The prosecution witness, Bachal has supported the facts mentioned in the F.I.R. He has stated that deceased Yousaf was his nephew and on the day of incident he had left village at about 6 a.m. For village Lait. He was accompanied by prosecution witnesses, Mitho and Suleman. He has further stated that when they reached Sim Nali they saw accused Dooso causing sharp side hatchet blow to the deceased on the right side of his neck. Deceased Yousaf fell on the ground struggling for his life. They challenged appellant and he ran away. Yousaf expired there and then. Mitho and Suleman sat over the dead body and he went to village Lait and informed Haji Ali Muhammad Shoro who advised him to lodge the report. He accordingly proceeded to police station and registered his F.I.R. As Exh.P.1. The prosecution witnesses Mitho and Suleman have also stated the same facts in their statements before the trial Court. It has been admitted by the prosecution witness Suleman that at the time of the incident, complainant Bachal used to reside at village Gharo which was about 9 miles away from the Wardat. He has further stated that Yousaf was also residing with Bachal at that time in village Gharo. He has further admitted that there was a dispute between the accused and Bachal over lands. He has further stated that the prosecution witness Mitho used to ply rickshaw in Gharo Town at the time of incident. He has also admitted that many persons were sitting near the Wardat in a hotel and that they came to the Wardat on cries including hotel-keeper, Mamoo, Manio and others. The prosecution witness, Bachal had admitted in his cross-examination that the deceased was employed in a hotel at Gharo at the time of the incident. He has further admitted that he used to work as a labourer at Gharo and that his place of residence had been shown as Gharo Town in his Identity Card. He has further admitted that there are villages of Shoro, Jokhio and Khaskheli near the Wardat. He has further admitted that there is a hotel of Jan Muhammad Shoro near the Wardat and that many persons were attracted from the village and the hotel at the Wardat and had seen the incident. He had also admitted that Jan 'Muhammad, owner of the hotel had also come at the Wardat. Muhammad Rahim Jokhio, Hashim and others also reached at the Wardat on cries. He further admitted that one Shoro was catching fish in Sim Nali at the time of incident. He has further stated in his deposition before the trial Court that Ali Muhammad Shoro had accompanied him to police station and they reached the police station at about 10 or 11 a.m. He has also admitted that Mst. Nathi is sister-in-law of accused Dooso and that she had filed 107, Cr.P.C. Case against him which was pending at the time of incident. He has further admitted that Survey Nos.76, 87 and 88 situated in Deh Langoti belonged to his father, but has denied that the said land was granted to the accused in 1974. He has admitted that prosecution witness Ali who is Mashir in this case used to work in a hotel at Gharo at the time of incident. He has stated that the prosecution witnesses Mitho and Suleman are his distant relation, whereas prosecution witness Mitho has stated that deceased Yousaf and prosecution witnesses Bachal and Suleman are related inter se and are cousins. Prosecution witness Suleman has clearly admitted that prosecution witnesses Bachal and Mitho are closely related to him, and that deceased Yousaf was son of his Masat. The prosecution witness Ali, who is Mashir in this case, has admitted that the deceased was his cousin and that he was working as bearer in hotel of Haji Malook in Gharo Town and he used to reside there. According to him Gharo Town would be about 7 or 8 miles away from the place of incident. He has further admitted that the place of arrest of the accused would also be 7 or 8 miles away from the Gharo Town.
9. Admittedly the deceased was cousin of the complainant and prosecution witnesses Mitho and Suleman are closely related to him. The above witnesses claim to reside in village Jaro. However, the prosecution witness Mitho has clearly admitted that deceased Yousaf used to reside at Gharo in the house of the complainant Bachal. Due to material contradictions in the evidence of eye- witnesses, it creates doubt about their presence at the Wardat at the time of incident. Complainant Bachal has stated in his deposition before the learned Sessions Judge, Thatta, where accused Dooso was first tried, that he had left Gharo in bus at about 7 a.m. And that deceased Yousaf had left for village Lait at about 5 a.m. This admission has been brought on record at the time of subsequent trial. It is also admitted by him in that deposition that he had travelled by bus. He has further admitted therein that the prosecution witnesses Mitho and Sideman were not with him in the bus.
10. Whereas prosecution witness Mitho has stated that he alongwith complainant Bachal and Suleman left their village at about 9 a.m. For going to village Lait. Thus, the evidence on record shows that even witnesses are not consistent with regard to their going to village Lait, whether the complainant went in the bus or all left together also becomes doubtful. Even their departure time is not clear. Admittedly all the prosecution witnesses do not belong to the locality where the crime was committed. How was it possible in these circumstances that all happened at Wardat at the same time to see the incident. Apart from this it is clear that the evidence on the record, the prosecution witnesses, Bachal and Mitho were working as blacksmith and there is no evidence to show that they had any land to look after in the locality. Hence even thier purpose of going to the village Lait is doubtful. All these circumstances show that all the prosecution witnesses are chance witnesses. Enmity as alleged by the appellant has also been admitted by the complainant himself.
He has admitted that Mst. Nathi sister-in-law of the appellant Dooso had filed 107, Criminal Procedure Code proceedings against him and that the matter was pending at the time of incident in the Court. The enmity on account of land has also been admitted by prosecution witness Suleman. It has been observed in the case of Wasihullah v. Mirza All and others PLD 1963 SC 25 that the direct evidence consists of interested persons and enemies of the person charged, it is proper to ask that the evidence in corroboration should be exceptionally strong almost if not quite sufficient by itself to establish guilt of each accused person beyond reasonable doubt.
11. It has also been observed in the case of Toba and others v. The State PLD 1963 SC 40 that the ocular evidence of interested and partisan witnesses on capital charge must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of interested and partisan witnesses.
12. It may further be mentioned that one Ali Muhammad Shoro whose name appears to be in the F.I.R. And in the list of witnesses has not been examined in the Court. Complainant Bachal has even admitted that this prosecution witness, Ali Muhammad Shoro was immediately informed about the incident and that he accompanied him to the Police Station Mirpur Sakro where he went to lodge the report. The non-examination of this prosecution witness at the time of trial, clearly raises presumption that had he been examined in the Court he would have not supported the case of prosecution. It is admitted by all the prosecution witnesses examined in the Court that at the time of incident, on the cries and commotion, the persons from the neighbouring villages came to the Wardat belonging to different castes and saw the incident, but none has been examined by the prosecution in this case, nor even any effort was made by the Investigating Officer to record their statements. It has been observed in the case of Umedo and others v. The State PLD 1959 Kar. 257, where in a murder case no independent witness of actual occurrence was examined and the only witnesses examined were related to the deceased persons and were not on good terms with the accused and further there were contradictions and discrepancies in their statements and the evidence as to the recovery of weapon. It was held that the case had not been proved beyond reasonable doubt. It was further observed that while relationship with the deceased is not to be considered 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 the independent people residing in the area, or having cultivation round the place of occurrence are examined. In this case A.S.I. Police has not made any attempt to fmd out from the independent witnesses what had happened particularly when Wardat was surrounded by villages of people of different castes.
13. The circumstantial evidence in this case consists of alleged recovery of blood-stained hatchet from the accused at the time of arrest. The hatchet was recovered in presence of Mashirs All Muhammad and Muhammad Qasim. It is admitted by Mashir Ali Muhammad that he resides at Gharo about 7 or 8 miles away from the place of recovery and happens to be cousin of deceased.
At the relevant time he was working as a bearer in some hotel at Gharo. The other Mashir Muhammad Qasim is admittedly a beggar by profession from the same town. Both these Mashirs have acted as Mashirs in all Mashirnamas including Mashirnama of Wardat. Mashir All Muhammad who has been examined in Court admittedly does not belong to the locality in which Wardat is situated and also appears to be a chance witness. Mirpur Sakro is a big town where independent and respectable persons reside. It is surprising that the Investigating Officer has made no effort to secure independent Mashirs for the recovery of hatchet. It is also unnatural that the appellant would move in the vicinity of police station after committing such a serious offence. Apart from this, Mashir has stated before the trial Judge that on the same day after getting post-mortem of the deceased done, police arrested the appellant from the Rest House of Irrigation Department.
According to the Medical Officer he had received dead body through Police Constable at about 4- 30 p.m. And completed post-mortem examination at about 6 p.m. This clearly shows that the appellant was arrested after 6 p.m. As stated by Mashir Ali in this case, Exh.12, whereas the arrest in the Mashirnama and the evidence of the Investigating Officer shows that he was arrested at 3-10 p.m. It is clear that apart from the fact that Mashir is a cousin of the deceased and a chance witness but even the time of the arrest of the appellant has become doubtful. Under these circumstances this circumstantial piece of evidence is also not worthy of reliance.
14. The evidence of motive is also not convincing. The father of the girl, namely, Panah has not been examined nor has been cited as a Witness. The evidence of motive has also come on record though the same interested and hostile witnesses. As such is not worthy of any credit.
15. The other piece of evidence against the appellant is that of confession (Exh.17) which has been retracted by the appellant. This piece of evidence has not been relied upon by the learned trial Judge and we feel that he has rightly excluded the same from consideration on account of sound reasons mentioned by him in the judgment.
16. Dr. Varsimal, Medical Officer, Shaikh Zaid Hospital, Mirpur Sakro, who has conducted the post- mortem examination of the deceased, has stated that he found oblique incised wound 14 c.m. 1-1/2 c.m. x 6 c.m. Deep over left side of the neck upper part extending from pinna of the left ear backwards and downwards beyond the mid point back of the neck, whereas the complainant Bachal has stated in Exh.9 that accused Dooso caused sharp side hatchet blow on the deceased at his right side of the neck. Thus, it is clear that the version of the prosecution witnesses has been contradicted by the medical evidence. It is clear that all the pieces of evidence which the prosecution has relied upon are not worthy of reliance. It has been observed in Wazir and others v.
The State PLD 1960 Kar. 674, that one piece of weak evidence, itself requiring corroboration, cannot be used as corroboration of another similar piece of weak evidence. It has been further observed that it is highly unsafe, in fact dangerous, to base a conviction on an aggregation of such weak evidence.
17. In the present case all the eye-witnesses are interested, inimical and chance witnesses and their evidence has been contradicted by the medical evidence. Motive has not been proved and the recovery of blood-stained hatchet is also doubtful as Mashir is also a chance witness and closely related with the deceased
18. After consideration of these facts and circumstances, we are of the view that the prosecution has failed to prove the case against the appellant beyond any reasonable possibility of doubt and conviction cannot be maintained on such evidence. We, therefore, accept the appeal, set aside the conviction and sentence and the appellant is acquitted of the charge. The reference made by the learned Judge for confirmation of death sentence is hereby declined. The appellant be set at liberty forthwith if not required in any other case.
19. We had decided the above appeal by a short order on 30-3-1992 and the above are the reasons for our short order.