MUHAMMAD HALEEM, J.---Appellants Wali Muhammad, Murad A.I alias Moro, Imdad and Ghulam Mustafa were tried for the murder of Azeem, convicted under section 302/34, P. P. C. And sentenced to transportation for life by the learned Sessions Judge, Khairpur, vide judgment dated 15th September 1969. Four other persons, named, Kabil, Rahim, Mubarak and Bahawaluddin alias Bablo were also tried along with them but they were acquitted. The appellants have appealed to impugn their conviction while the State has preferred an appeal against the acquittal of the above-named At the same time Hube A.I, brother of the deceased, preferred a revision against the aforesaid acquittal. This judgment will dispose of all these matters.
2. According to the prosecution case, the incident occurred on survey No. 282, Deh Walidad Lund, Tapo Khudabux in Taluka Mirwah at 11 a. m. On 27th April 1968. The deceased was taken to Setharja Dispensary where his statement was recorded at 12-50 p. m. The same day. It is to the effect that while the deceased was removing the produce from his land the appellants and the acquitted accused came there. Mubarak and Muradali were armed with lathis while the others had hatchets.
All of them caused blows to him with their weapons, whereupon he raised cries which attracted Khair Muhammad, Suhbat, Muhbat and Khamiso, who were nearby. Considering him to be dead the appellants and the acquitted accused escaped to their houses. He further stated that he was given blows for the reason that a few days back one Ghulam Mustafa Rind was injured by someone and the appellants and the acquitted accused suspected him and had given his name in the F.I.R.
But the matter was decided privately by Haji Atta Muhammad Lund; nonetheless they were not satisfied with it. Seeing him injured but still alive Khair Muhammad, Khamiso and Suhbat removed him to Setharja Dispensary for treatment. This statement was recorded by Muhammad Yaqub A. S. I. Of Outpost Setharja on receiving telephonic message from the Medical Officer, Dr. Mushtaq, at noon stating that the deceased had been brought in an injured condition, which was sent to Police Station Mirwah where it was transcribed in the 154 book at 6-10 a. m. On 28th April 1968.
3. After recording the statement, the deceased was sent to Railway Station Setharja for being sent for treatment to Khairpur, whereafter Muhammad Yaqub A. S. I. Left for the wardat and reached there at 7-30 p .m. He recorded the statement of Khamiso, Mubbat and Khair Muhammad. On the next day he inspected the wardat and secured blood-stained earth from there vide mashirnama, Exh.
28. He sent for appellant Imdad and arrested him. He volunteered to produce a hatchet and led the mashir, Shah Mir, and the A. S. I. To Shobho's landhi and from its roof he took out a blood- stained hatchet which was secured vide mashirnamo, Exh.
29. He next called Wali Muhammad and arrested him. He also volunteered to produce a hatchet from the same landhi and took it out from its roof which was secured vide mashirnama, Exh.
30. Muradali was arrested and he also produced a blood-stained lathi from the same place vide mashirnama, Exh.
31. He recorded the statement of Suhbat the same day at 4 p. m. And thereafter arrested appellant Ghulam Mustafa and the other acquitted accused. On 29th April 1968 he learnt about the death of the deceased at Khairpur, where he had gone to give evidence. He then arranged for his post-mortem examination.
4. Dr. Muhammad Memon performed the autopsy on the deceased and noticed the following injuries :- "(1) Incised wound on lower third of left leg cutting muscles, blood vessels nerves and bones. The lower part of leg and foot attached by mere tag of skin posteriorly. Splints were applied which have been removed.
(2) An incised wound over left ankle-joint anteriorly 4' x 1' x muscle deep.
(3) A large bruise on the front of right thigh fracturing the femur.
(4) An incised wound 4-- ' x 1-- ' x cutting the hones at right elbow-joint.
(5) A transverse incised wound on the top of right shoulder 3' x 1-- x cutting the bones of shoulder- joint.
(6) A lacerated wound on the left side of frontal region 2' x 1' scalp deep.
(7) A lacerated wound on the left side of the frontal region 2' x 1' x scalp deep.
(8) An incised wound 2--- x ----- scalp deep on the left parietal region.--- According to him, injuries 1, 2, 4, 5 and 8 were caused by sharp-cutting weapon while the rest with blunt weapon or and that injuries 1, 3, 4 and 5 were grievous in nature and sufficient in the ordinary course of nature to cause death. However, Dr. Mushtaq, who had examined him earlier at the Setharja Dispensary, noticed seven injuries, out of which six were incised and one caused by a blunt weapon.
5. The blood-stained hatchets, lathi and the earth were sent for chemical analysis and all of them were reported to be stained with human blood.
6. The appellants denied their involvement in the crime. Wali Muhammad, Muradali and Imdad denied the production of the weapons at their instance, while Ghulam Mustafa stated that he had gone to a bone seller at Shikarpur and he was arrested as he got down from the train in the evening. All of them pleaded that they have been implicated by the witnesses, who are related inter se, out of enmity. Acquitted accused Kabil and Rahim also alleged enmity and their involvement because of it. Mubarak and Bahawaluddin, who are school teachers pleaded alibi.
They stated that at the relevant time they were present in the school. They examined Nematullah and Muhammad Ayub in support of their defence. Appellants Wali Muhammad, Muradali and Imdad examined Gul in defence to discredit the recovery of the incriminating articles. At the request of the learned counsel for the appellants we examined Abdul Aziz, Fingerprint Expert, and Ahmad Bux Alvi, Mukhtiar kar, in this Court.
7. While dealing with the case of the appellants the trial Court discarded the dying declaration but placed reliance on the ocular testimony of Muhbat, Suhbat, Khair Muhammad and Khamiso. In doing so, it observed:--- "I have been very much impressed by the manner in which these witnesses had given their evidence. There is no reason for any of them to implicate the accused falsely. Suhbat and Muhbat are brothers of the deceased. They cannot implicate their case-fellows and co---villagers falsely and allow the real culprits to go scot free. The incident occurred in the morning time when all the male members were at work. They are not chance witnesses either as the incident has taken place only at a distance of 200 paces from their residence. No enmity has teen suggested in cross- examination as to why they are implicating the accused unnecessarily. Muhbat and Suhbat and their deceased brother were collecting wheat stalks in the land and they also saw that Khamiso was ploughing his land. In fact Suhbat, Muhbat and Khamiso are all ignorant as to why Azeem was killed by the accused. Khair Muhammad is the fourth eye-witness who has testified to the details of the incident."
It also repelled the contention that the incident had gone unnoticed and last subsequently the witnesses had made out a case against the appellants and the acquitted accused While accepting the evidence of the recovery of the incriminating articles it held that the evidence of defence witness, Gul, did not inspire confidence and "if the A. S. I. P. Wanted to play dirty, he could have as well alleged recovery of some more weapon by the remaining five accused".
8. As against Ghulam Mustafa there was only the ocular testimony but the trial Court relied on report, Exh. 40, which was lodged at the same outpost on 30th March 1968 at 1-50 p. m. In which he had implicated the deceased and three others for having caused to him laths blows as providing animus for his participation in the crime. The trial Court thus held the case, to be proved against the appellants and recorded conviction as stated above. The very ocular testimony was not held to be sufficient against acquitted accused, Kabil, Rahim, Mubarak and Bahawaluddin, on the premise that the rule of prudence required that there should be some independent corrobora--petition "to lend support to the oral evidence". The evidence of D.Ws. Nemat--ullah and Muhammad Ayub in support of the plea of alibi qua appellants. Mubarak and Bahawaluddin was, however, not relied on by the trial Court for the following reason:-- "I have not been inspired by their evidence at all. There is no documentary evidence that they were actually busy taking their classes at the precise time of incident. Mere initial in the roll call register in the first period or mentioning in the time table that they were to take particular periods on different days does not necessarily show that they were actually busy at the relevant time. Their oral evidence of course is interested and cannot be accepted because both the Headmasters -- would be found guilty of carelessness and lax control if they admit that these two class teachers had absented themselves during the school; hours. They have to save themselves from this charge also while supporting the plea of alibi advanced by accused Mubarak and Bahawaluddin. The schools are 1 or 2 miles away from the crime place and it would not take long to do the job and get back to the school within some minutes."
9. The prosecution examined Suhbat, Muhbat, Khair Muhammad and Khamiso to furnish direct evidence in the case. Suhbat and Muhbat are brothers of the deceased while Khair Muhammad is related to them. Khamiso has no relationship but is a case-fellow. According to Muhammad Yaqub A. S. I. Khamiso, Muhbat and Khair Muhammad were examined at 7-30 p. m. On 27th April 1968 at the wardar. Suhbat had accompanied the deceased and he could not be examined on that date but his statement was recorded at 4 p. m. On 28th April 1968. What is significant from this fact is that they were examined after the dying declaration was recorded by Muhammad Yaqub A. S. I. At the Setharja Dispensary at 12-50 p. m. On 27th April 1968 which piece of evidence is also challenged. The presence of these witnesses is established at the Setharja Dispensary at the relevant time, not only by their own evidence but also by the testimony of Muhammad Yaqub A. S. I.
However the failed to disclose to him that they bad witnessed the occur--rence, which fact is evident from the following reply:-- "They did not inform me that they were eye-witnesses."
None of them took the trouble of reporting the incident immediately mere after at Outpost Setharja, which is 2 or 3 miles away from the wardat or after they had brought the deceased to Setharja Dispensary. If at all they had witnessed the occurrence there was no reason for not lodging the report. Again there seems to be no reason why they were not examined at the Setharja Dispensary as they were available for such examination. Subbat has stated that they wanted the deceased to be treated first but this explanation is absurd. Again he admitted that it was Hube A.I, brother of the deceased who had lodged the first report, which is not a fact. Muhbat has gone a step further. He admitted that the deceased was taken to Outpost Setharja, where he lodged the F. I. R. And it was there that the doctor gave him first aid and advised his removal to the Civil Hospital, Khairpur. Khair Muhammad has also said so in the same terms, which fact is patently false. Khamiso has given a different version. He admitted that the deceased's statement was recorded by the A. S. I. At Setharja Dispensary. It is obvious that the first three witnesses wanted to cover up the inherent weakness in spite of the fact that it was their case that they had removed the deceased to Setharja Dispensary. Their late examination, therefore, cannot be explained otherwise than on the hypothesis that the dying declaration could not have been recorded at the time stated. The evidence of Khamiso, who is a case fellow, is on the same footing as those who are related to the deceased. All of them state that they abused the deceased who ran for some distance whereafter he was overtaken and given blows. Muhbat in this context has further stated that the appellants and the acquitted accused were causing blows while the deceased was running. This is not consistent with what Dr. Mushtaq has stated who was present while the dying declaration was being recorded. According to him, the deceased stated:- "I was collecting wheat stalks in the land. I was called by some persons. One of them gave me blow on my leg, as a result of which I fell down. I raised cries, others also gave me blows."
Again, this is what the deceased has said in his recorded statement:- "On reaching the spot, they gave me laths and hatchet blows and I fell down."
Looking at these two statements there is no element of his having run for any distance, which is spoken of by the eye-witnesses. It is also plain that if the deceased had received a hatchet blow on the leg as was found by the doctor, there is no possibility of the deceased making an attempt to escape. Again, the injuries sustained by the deceased are not wholly consistent with their ocular version. While Dr. Mushtaq observed seven injuries, eight were noticed by Dr. Muhammad Memon who performed the autopsy on the dead body. If what Dr. Mushtaq had noted, is taken to be correct then one such injury was caused by a blunt weapon and the rest by hatchets. The injuries, with the blunt weapon could either be caused by the acquitted accused, Mubarak or Moro, and not by both of them as is deposed to by the witnesses or stated in the recorded statement of the deceased. According to Dr. Muhammad Memon, five injuries were incised while the other three were caused by blunt weapons. There is, therefore, difference in the number of incised and those caused by blunt weapons. In all six persons were said to be armed with hatchets and at least one could not have caused a blow. There is also no explanation as to the discrepancy in the number of injuries noted by the two doctors, which is also a suspicious feature, cumulatively the above features make the presence of the eye-witnesses doubtful.
10. Reverting now to the dying declaration, it was urged that this was a fabricated document. In this right we have examined the evidence on record. The witnesses state that the deceased was conscious. Dr. Mushtaq, who had examined him at the Setharja Dispensary, also stated that he was conscious and "able to make a statement" but his condition was serious. It was he who had informed the police on telephone from the Union Council Office, whereafter Muhammad Yaqub A.
S. I. Arrived there and he then certified that the deceased was in a fit condition to make a statement which was then recorded by the A. S. I. In his presence. He, however, stated that he did not see the deceased thumb-marking the statement but that he saw ink on his left thumb.
Muhammad Yaqub A. S. I. Stated that he received the telephonic message from the Medical Officer, Setharja Dispensary at noon informing him about the arrival of the deceased in an injured condition and that to this effect he recorded a note in the 'roznamcha' at 12-30 p. m. Whereafter he left for the dispensary and on being assured by the medical officer that the deceased was in a fit condition to make a statement he got a certificate from the doctor on a letter and then recorded the statement of the deceased in the presence of mashirs, Ghulam Rasool and Noor Muhammad, which was thumb-marked by the deceased. The mashirs also signed at the foot of the statement.
None of the mashirs were available for examination at the trial and it is said that they had left for Punjab as they belonged to that province. No attempt appears to have been made to examine them even if this was so. Again it is in the cross-examination of Muhammad Yaqub that he left the outpost on 26th April 1968 at 5 a. m. To attend the hearing of a case at Khairpur. Such an entry appears at page 105 of the 'roznamcha'. During his absence Constable Gul Muhammad was in charge of the outpost. The A. S. I. However, claims to have returned in the morning of 27th April 3 568, which fact is contested on the premise that page 107 of the 'roznamcha' was missing and that this page was removed to do away with the entry pertaining to his absence. He, however, stated that he made no report of the missing page to the higher authorities. To establish his bona fides, the A. S. I. Stated that the entries at pages 106 and 108 are continuous and date-wise, that four entries had already been recorded on page 108 of the register before reached the outpost, and that two pages were consecutively marked as 130 and that page 86 was also missing from the register. At this juncture it may him of relevance to mention that it was reported to the higher authorities that tie dying declaration was fabricated by the A. S. I. And that Dr. Mushtaq was also involved in it, as a result of which the deed body of the deceased was exhumed and specimens were taken and sent for comparison to Lahore. In that connection upon receipt of the Court that the thumb-impression on the statement, Exh. 26, and the F. I. R. Did not correspond with the specimens sent, a case was instituted against Muhammad Yaqub A. S. I., Dr. Mushtaq and Constable Gul Muhammad on 5th June 1958. In defence, depositions of Talib Husain, Abdul Aziz, Fingerprint Expert, Ahmad Bux Alvi, Mukhtiar kar, Noor Muhammad, Shamir, Dr. Muhammad A.I Shah and the statement of Constable Gul Muhammad, who was also one of the accused, which were recorded in that case were filed. P. W. Abdul Aziz in this Court testified to what he had deposed earlier in that case, namely that the thumb-impressions on the statement, Exh. 26, and the F.I.R. Did not correspond with the specimens sent, while Ahmad Bux Alvi spoke about the exhumation of the body of the deceased and of the taking of specimens in his presence by Dr. Muhammad A.I Shah.
The evidence in this case was recorded after the institution and conclusion of that case by an order of discharge. It is, therefore, obvious from the evidence of Dr. Mushtaq that he has moulded his evidence at the trial to save his skin. He has avoided mentioning the name of the officer who spoke to him on telephone while he vas giving the message about the deceased having been brought in an injured condition. He has also omitted to mention the names of the witnesses as well as of the culprits if at all they were given out by the deceased. He also stated that the mashirs did not sign the statement in his presence. On the other hand, the A. S. I. Stated that it was he who had received the message which was recorded by him in the 'roznamcha' at 12-30 p. m. In the context of the background that page 107 was found missing from the 'roznamcha' and upon the premise that the specimens of the deceased did not correspond with the thumb-impressions on the statement, Exh. 26, and the F.I.R., it leaves room for doubt for believing that he may not be the person who had received the message and recorded the statement and the F. I. R. The plea of the defence that it was Constable Gul Muhammad who had received the message and recorded the statement, which was thumb-marked by the deceased, gains strength. The presence of ink on the thumb of the deceased is thus explainable on this hypothesis. This statement, however, appears to have been substituted by the statement, Exh. 26, and the F. I. R. Later on. Neither the dying declaration nor the F.I.R. Could then have been recorded at 12-50 p. m. At the Setharja Dispensary. It was, therefore, as observed earlier, that the eye-witnesses were not examined at the dispensary as their names could not have by then transpired. No doubt that the A. S. I. Dr. Mushtaq and Constable Gul Muhammad were discharged in that case because of want of sanction, yet the evidence of Abdul Aziz beyond doubt establishes that both the documents were fabricated. The learned counsel for the applicant in Revisions No. 115/70 attempted to show that there was no identification of the body of the deceased which was exhumed later on. This contention is without any substance, for not only there was an ink mark on the thumb of the deceased but also that one of his leg was seen cut but loosely attached. This was sufficient identification. Moreover, the applicant himself had pointed out the rave before the Mukhtiar kar, the Investigating Officer of that case and the doctor who had taken the specimens. The Mukhtiar kar, has been examined in this case who has deposed about the pointation of the grave and the exhumation of the body and its identification in the presence mashirs. There cannot, therefore, be any doubt on this account.
11. The trial Court while accepting the ocular testimony proceeded on the premise that there was a probability of their presence at the spot and that there was no reason for them to falsely implicate the appellants. It is clear from the above discussion that the witnesses were examined after the state--ment (Exh. 26) and the F. I. R. Were fabricated as their names transpired in these documents. How can then reliance be placed on their testimony if the investigation itself lacks bona fides and leaves room for believing that these witnesses may well have been falsely named as eye-witnesses. In this context, the appraisal of the trial Court cannot be sustained. The trial Court, however, disbelieved the dying declaration but we have reached the conclusion that both the F. I. R. And the dying declaration are fabricated documents.
12. The evidence as to the recoveries of the incriminating articles also lacks assurance. All the three incriminating articles were produced from the same thatched roof of Shobho's landhi, one after another by appellant Imdad, Wali Muhammad and Muradli. There is no element of exclusive knowledge attached to such recoveries. It is also not known who this Shobh is and what connection he had with the appellants. Gul, one of the mashirs who was examined in defence, has not supported the recoveries. In the context of the background that the investigation lacked bona fides, It is not possible to place reliance on this evidence.
13. Even while accepting the ocular testimony, the trial Court did not feel safe to rely on it in the absence of corroboration. In that view of the matter it acquitted Kabil, Rahim, Mubarak and Bahawaluddin. Appellant Ghulam Mustafa's case is also on the same footing but the trial Court relied on motive which was evidenced by Exh. 40 as providing corroboration of the ocular testimony. This was again erroneous as motive can never provide corroboration of the ocular testimony. It is unnecessary to deal with the evidence of alibi qua acquitted accused. Mubarak and Bahawaluddin as we have disbelieved the ocular testimony and the dying declaration. In conclusion we are of the view that there is no evidence either to sustain conviction of the appellants or the acquitted accused. The State appeal and the revision application thus fail and we hereby dismiss while the appeal of the appellants succeeds. While giving to them the benefit of doubt, we acquit them and direct that they shall be set at liberty forthwith unless required in some other case.