' MUHAMMAD HALEEM, J.-Appellant Nabu stands convicted under section 302, P. P. C. For the murder of Khadim Hussain and sentenced to death by the Additional Sessions Judge, Larkana vide judgment dated 18th April, 1972. He has appealed to impugn his conviction and sentence, while the learned Additional Sessions Judge has referred his case for the confirmation of death sentence.
This judgment will dispose of both the matters.
2. According to the prosecution case, the incident occurred at "Katchri Manjhand" time on 14th July 1971 on the bank of Panhwaro Minor, near the module of Aitbar Ali Khan Chandio, Taluka Kamber.
The deceased was employed as a beldar in the Irrigation Department; his duty was on Panhwaro Minor. As usual, he went in the morning on duty. Ahmad Ali and Muhammad Zaman took breakfast for him, and as they reached the head of Panhwaro Minor near Aitbar Ali Khan Chandio watercourse, they saw deceased and Nabu sitting together. At that moment two other persons namely, Sahar and Khudu came from the western side armed with hatchet and on seeing the two coming towards the deceased they threatened them not to come near the deceased as they were going to kill him. Nabu, who had hatchet, called Sahar and Khudu to kill the deceased, upon which all the three gave hatchet blows to him killing him at the spot. They also declared that they have taken revenge, from the deceased because he had a hand in the transfer of Sahar. They then went away. Ahmed Ali returned to his village and informed Ali Hasan, uncle of the deceased. He went along-with the others to the vardat, where he saw the deceased lying dead. Leaving the others there he proceeded to Police Station Drigh, which is seven miles away, and lodged the F. I. R. The same day at 6 p. m.
2-A. After recording the report, Abbas Ali A. S. I. Repaired to the vardat and from there he secured blood-stained earth, a bucket and rope lying near the deceased vide Mashirnama, Exh.
14. He sent the dead body to Kamber Dispensary for post-mortem examination and examined Ahmed Ali and Muhammad Zaman at the spot. He next looked for the appellant and his other two accomplices and succeeded in arresting the appellant on 25th July, 1971. From his house the appellant produced a loin-cloth and hatchet which appeared to be "partially washed", which were secured vide Mashirnama Exh.
16. The loin-cloth, hatchet and earth were sent for chemical analysis, and all of them were reported to be stained with human blood.
3. The autopsy on the dead body was performed by Dr. Nisar Ahmed who noticed the following injuries:
(1) One incised wound 3' x 2" x cutting muscles, neck vessels on the left side of neck running below the lower border of lower jaw, extending up to survical spitr.
(2) One incised wound 1' x r x muscle deep behind left ear on mastoid region.
(3) One contusion of 2' x 1' with swelling left parietal region above left ear.
' According to the Doctor, injuries 1 and 3 were individually sufficient to cause death in the ordinary course of nature and that while injuries 1 and 2 were caused by sharp-cutting weapon such as hatchet, injury No, 3 by a hard and blunt substance such as lathi or the back side of hatchet.
4. When called upon to enter defence, the appellant denied the prosecution case. In reply to the question whether he had to say "anything else", he stated: "My brother was beldar on Panhwaro Minor, he had requested the S. D.
0. To appoint me as beldar during Abkalani season, on which S. D.
0. Had told my brother that 2 brothers could not be appointed on the same beat. Therefore my brother Sahar had volunteered for transfer to Kur Sulleman Minor, so that I may be appointed as a katcha beldar for Abkalani season only. S. D.
0. Muhammad Sachal was examined in the lower Court and had supported my plea. I had therefore, no grudge against deceased Khadim Hussain. About a month prior to the alleged incident bullock of complainant's party was stolen, for which they suspected me. One day before the incident complainant party had tampered the module which was in my beat, therefore, I had insulted them. Therefore, they bore grudge against me. Hence I have been involved. As a matter of fact Khadim Hussain was found lying dead by passers-by, who had informed his relatives. I produce true copy of Sachal's deposition in lower Court Exh. 24-A."
' Lastly he denied having absconded and pleaded that he was available all the time.
5. The trial Court while convicting the appellant relied on the ocular testimony of Ahmed Ali and Muhammad Zeman, corroborative evidence of All Hussain. Production of blood-stained clothes and hatchet from his house and lastly his abscondence for a period of eleven days.
6. We have scrutinized the evidence on record with the assistance of the learned counsel for the parties. While Ahmed Ali is the cousin of the deceased, Mohammad Zaman is his uncle. Both of them have given the reason that they were able to witness the incident because they had taken breakfast for the deceased. In the context of this explanation it is to be seen whether the reason is convincing before reliance can be placed on their ipse dixit. When examined, Ahmed Ali stated that this was the first occasion when they had taken breakfast for the deceased; and they did so, because the S. D.
0. Was expected that day and it was likely that he would have also taken the breakfast. Being a gazetted officer, the S. D.
0. Cannot be expected to share the meal with a beldar who is lowest in the ladder. Again, noon was not breakfast time and if at all the S. D.
0. Was scheduled to come that day certainly he would have taken his breakfast before proceeding on his rounds. Moreover, this explanation was given for the first time by this witness at the trial so as to justify his presence in the face of his admission in the committal Court, which was duly proved, that the deceased had taken his breakfast in the morning. There is also an attempt to reconcile breakfast with lunch, since breakfast could not have been taken at noon time. It is in this strain that this witness has further stated that the meal could serve both as break. Fast and lunch and therefore it would make no difference if he had merely stated breakfast in the committal Court.
Again the breakfast comprised of rice, bread and curd. Why two persons should take it is again suspicious. This witness also admits not having shown it to the police as many people had collected. This was hardly reason for not pointing it out to the police or the mashir of the vardat . If at all breakfast was taken, then it would have been at the vardat but neither the mashir, Abdul Qadir, nor Abbas Ali A. S. I. Had seen it. This feature assumes significance because it provided a reason for his presence and that of Muhammad Zaman. In the circumstances it is not possible to accept the reason for his presence at the vardat. Muhammad Zaman the next witness, went a step further and stated that the deceased had asked him and Ahmed Ali to come and help him in the work as the S. D.
0. Was coming. When asked whether he had stated in his section 161 statement that he was called by the deceased to help him as the S. D.
0. Was coming, he replied in the affirmative but this omission has been proved through the evidence of Abbas Ali A. S. I. Obviously therefore, this could not be a reason for him, to go to the deceased. The other reason namely having taken the breakfast for the deceased is also highly improbable for the reasons given above. In the circumstances no weight can be given to his assertion as well. Hasan Alt's evidence is on the footing that it was being taken every day. This is what he stated in his cross-examination :- "The deceased had taken slight breakfast and then in the days of work meals were to be taken to him which would serve the purpose of breakfast and lunch."
' None of the two witnesses have stated that meals were regularly taken. In fact their case is that it was because the S. D.
0. Was coming that the deceased had asked for the meal. Again his claim that he had shown the meal to the police is belied by his own admission which was duly proved. Therefore it is not possible to accept his version of the meals being taken every day. It is again a matter of sheer coincidence that the incident would have occurred at the nick of time when they reached the bank of the Minor. If the appellant was with the deceased it was more probable that he would have killed him and not waited for such time as to allow the witnesses to come near and see the incident.
7. Reverting now to the narration of the incident, it was given out in the F. I. R. That Nabu and his accomplices namely, Sahar and Khudu caused hatchet blows with its sharp side to the deceased, whereas only two incised injuries were noticed on the deceased and the third was with the back side of the hatchet. Ahmed Ali in his testimony stated that it was the appellant who struck all the blows. While admitting that his other two accomplices were present, he refrained from saying that they had also caused hatchet blows. There is again a discrepancy not only as to the causing of the blows with the sharp side of hatchet but also as to the causing of the hatchet blows by the other two accomplices. Muhammad Zaman has also towed the same line in attributing all the three blows to the appellant. Ali Hasan who had lodged the F. I. R. Gave out that Ahmed All had told him that not only the appellant but his other two accomplices namely, Sahar and Khudu had also given hatchet blows. At the trial Ali Hasan moulded his evidence to bring it in line with the other two witnesses. All these three witnesses have moulded their evidence in a particular fashion for reasons best known to them to exclude the participation of Sahar and Khudu which feature adversely reflects on the credibility of the entire prosecution case. In the circumstances we are hesitant to accept the testimony of these witnesses for it also leaves room for doubt as to the participation of the appellant.
8. The evidence about the recovery of hatchet and loin-cloth is also not free from doubt. While the mashirnama is dated 25th July 1971 and timed 17-00 hours and refers only to the arrest and personal search of the appellant, yet it refers to the production of incriminating articles. The portion of mashirnama which refers to it is worded intriguingly. It reads:- "On personal search nothing incriminating was found except the hatchet with wooden handle used in the crime and one blue loin-cloth which he produced in Court."
' Mashir, Abdul Kadir, in his deposition has stated that the appellant had agreed to produce the blood-stained hatchet and loin-cloth from his house and he actually produced it. None of these facts arc mentioned in the nicbhirnama. Further he had not said so in his lower Court statement, and when confronted with these omissions, he candidly stated that he did not know if he had not mentioned them in the lower Court. On the face of it, therefore it is now being established that he had produced the incriminating articles from his house which was not the prosecution case earlier, for if it would have been so there was no reason for these omissions.
' On being questioned Abbas All A. S. I. Stated that the appellant was arrested at 5 p. m. "from opposite his house", but that he forgot to mention it in the mashirnama that the appellant had undertaken to produce the articles. On the point as to the place from where the articles were produced he stated: "I think I may have mentioned that accused had brought the articles from his house."
' He has also tried to fill the gap and in the circumstances it is not possible to give weight to his stand concerning the omissions. The time at which the articles were secured is again discrepant.
According to Abbas Ali A. S. I. The appellant was arrested at 17-CO hours and it was then that he produced the incriminating articles, while the mashir has stated that he produced the articles at breakfast time. Since the arrest and the production of the articles were at the same time it is not possible to reconcile the time given by the mashir. In the context of omission as to the place from where the articles were secured it is unbelievable that the appellant who was arrested 11 days after the incident would still be in possession of the blood-stained hatchet and the loin-cloth. The recoveries of the incriminating articles, therefore are highly suspicious and cannot be accepted.
9. Now motive remains to be considered. It is the prosecution case that the deceased was instrumental in getting Sahar, brother of the appellant, transferred from the beat, and it was therefore that he was killed. The S. D.
0. Who had transferred him was examined in the committal Court yet the prosecution did not examine him at the trial. If he had been examined, facts would have come to light necessitating the transfer of Sahar, withholding him, therefore, necessarily causes suspicion on the plausibility of the motive. However, what the appellant has stated appears to us to be more probable, for two brothers could not have worked on the same beat and it was therefore that to get the appellant engaged as a katcha beldar, Saha': himself volunteered to work as beldar on another beat namely, Kur Sulleman Minor. The appellant has further suggested his implication for two other reasons.
The first is that he was suspected for having stolen a bullock of the complainant, a month back; and the second is that he had insulted the complainant party for having tampered with the module a day before the incident. Whatever may be merit of these two reasons it is obvious that the appellant was implicated on suspicion, particularly in the context of the fact that the two accomplices have not been challaned and the two eye-witnesses and the corroborative witnesses having moulded their evidence to explain their presence, and to lay blame of all the three injuries on the appellant.
' The trial Court has not correctly weighed the probability of the reason assigned by the two witnesses for being present at the time of occurrence, and while accepting their evidence it has resolved all doubts in favour of the prosecution. Similarly the trial Court has placed reliance on the recoveries of the incriminating articles without weighing and assessing the weaknesses in the evidence and resolving the doubts in favour of the prosecution. Abscondence is also relied on, without weighing whether the reason given by the A. S. I. Was sufficient. Motive was given weight on the premise that Sahar was a permanent employee, who would not give up his right to remain in a convenient place of posting for the sake of getting a temporary job for his brother, which we regard as untenable for the reasons given above.
The prosecution has accordingly failed to bring home the guilt to the appellant. While giving to him the benefit of doubt we accept the appeal and acquit him. He should be set at liberty forthwith unless wanted in some other case. Death sentence is not confirmed and the reference is rejected.