' MUHAMMAD HALEEM, -Appellatns Adloo alias Karim, Biloo alias Bilawal, Piroo and Jumo were tried alongwith Ali Nawaz for the murder of Sodho, convicted under section 302/34, P. P. C. And sentenced to death while Ali Nawaz was acquitted by the learned II Additional Sessions Judge, Nawabshah, vide judgment dated 22nd December, 1973. They have appealed to assail their conviction and sentence and at the same time the learned Additional Sessions Judge has referred their case for the confirmation of death sentence. This judgment will dispose of the appeal and the reference.
2. According to the prosecution case, the incident occurred at I p. m. On 8th March 1972 in a jungle in Deh Ghairabad Kahkat, Taluka Moro. It is alleged that in the morning of the fateful day, Ganhwar, deceased, Babu and Lalan went to the land of Kheras to collect grass of sugarcane. They had gone riding a 'dachi' (she-camel) and a camel. After collecting the grass they loaded it on the 'dachi' and the camel and while the deceased and Babu sat on the 'dachi' the other two sat on the camel and left for their village, As they reached the jungle, Piroo, who was armed with a gun, emerged from the jungle and challenged them to stop, and soon after Jumo, Biloo, Adloo and Ali Nawaz also emerged from their hide-out. Jumo and Ali Nawaz were armed with guns and the other two carried hatchets. They then told the others to separate from the deceased, upon which Babu jumped from the back of the 'dachi' and moments later Piroo fired at the deceased who fell down. Jumo and Ali Nawaz thereafter fired their guns at him and Adloo and Biloo inflicted hatchet blows on him. As the others were empty-handed, they did not approach the appellants who escaped towards the north.
The deceased suffered instantaneous death. Leaving Lalan and Babu at the wardat, Ganhwar came to his village on his camel and informed the Nekmard, Sohbat, who directed him to lodge a report. Ganhwar thereupon proceeded to Police Station Moro, where he lodged the F. I. R. At 8 p. m.
The same day. The motive alleged was that about 10 or 12 months back the deceased had abducted the mother of Jumo and Piroo who are brothers inter se, and married her, much to their annoyance and to avenge their grievance they had killed the deceased.
3. After recording the report, Faiz Muhammad S. H.
0. Repaired to the wardat alongwith Ganhwar. Since it was dark, no steps in the investigation were taken, but in the morning he saw the dead body lying in the sandy dunes with blood near him, which he collected. He also noticed marks of naked foot-prints of five persons One empty cartridge, a wooden support of the gun, a pellet and a wad, which were lying there, were also taken into possession. He then sent the dead body for post-mortem examination and examined Lalan, Babu and Sohbat and from there he went to the village of the appellants, where appellants Adloo, Biloo, Jumo and Piroo appeared before him. Biloo and Adloo volunteered to produce their hatchets and upon their production they were taken into possession vide mashirnama, Exh.
11. Four guns were also produced, the first by Sajan. Uncle of All Nawaz, the third by Dalel, maternal uncle of Jumo and the fourth by Sain Bux, a relative of Adloo.
4. Investigation in the meantime was taken over by Alyaz Ahmad A. S. I. , who examined Mst. Shahul, mother of appellant Jumo and Piroo. He sent one blood-stained hatchet and earth to the chemical analyser which were reported to be stained with human blood. The crime empty was, however, not sent alongwith the secured guns for matching, hence the guns have no incriminating value.
5. Dr. Dinal Shah performed autopsy on the deceased and noticed the following injuries :- "(1) An incised wound about 4' x 2' x hone deep cutting clevicle bone through and through over the left side of neck obliquely.
(2) An incised wound about 2' x 3/4' scalp deep over the left parietal region longitudinally.
(3) An incised wound about 1 x 1/4' x scalp deep over the right parietal region longitudinally.
(4) An incised wound about 1r xrx scalp deep just above the eyebrow transversely.
(5) An incised wound about 1'x x bone deep over the right side of the face.
(6) An incised wound about 5' x 3/4' x bone deep over the maxilary bone through and through over the right of the face starting from ear and reaching the angle of the mouth.
(7) An incised wound about 2rx 4' x muscle deep over the right side neck obliquely.
(8) An incised wound about 34' x x bone deep cutting the radius and ulna through and through over the right forearm posteriorly at its middle.
(9) An incised wound about x 4' muscle deep over the right forearm posteriorly.
(10) An incised wound about 1r x x muscle deep over the right forearm posteriorly.
(11) An incised wound about 3/4'x 1/4'x skin deep over the right middle finger posteriorily.
(12) An incised wound about 3' x x muscle deep over the right side buttock laterally.
(13) A lacerated punctured type of wound with blackening about l' in diameter structure deep over the right side of the back of the chest near the vertebral column."
' Injuries 1 to 12, in his opinion, were caused by a sharp cutting weapon, such as hatchet, while injury No. 3 was the result of a discharge from a firearm. Injury No. 13 was individually and the others collectively were sufficient in the ordinary course of nature to cause death. Again, it was stated that the range of fire was from six feet.
6. The appellants denied the prosecution case and proclaimed their innocence. Piroo denied his annoyance over the marriage of his mother with the deceased but gave out another reason for his false implication. According to him, Ganhwar had filed a case against him, Biloo and ten others for having abducted his wife on 30th April 1971 vide Exh. 44, but they were acquitted. Before this incident P. W. Sajan, his brother Piaroo and Mir Hasan had killed his maternal grandfather Mooso and ever since then Ganhwar and Sajan were inimical towards him. Adloo, who is a 'masa t' of Piroo, has adopted the same defence and so has Biloo, who is his first cousin. Both Adloo and Biloo have denied the production of blood-stained hatchets.
7. The trial Court rejected the evidence of the hatchets produced at the instance of appellants Biloo and Adloo not only for the reason that only one hatchet was sent for examination but that a hatchet with a bamboo handle was produced which was not the one recovered, for that has a 'tat' handle. In the circumstances, it was not possible to connect this hatchet with any one of the two produced by the two appellants and for that matter to connect it with either Biloo or Adloo. The only evidence that was left was ocular which was not believed qua the acquitted accused All Nawaz, for in their testimony the eye-witnesses withdrew from their earlier stand and 'went to the length of stating that he stood apart from the other appellants without doing any overt act. The trial Court did not consider his presence as incriminating and thus gave to him the benefit of doubt and acquitted him. This is what it held:- "Thus by no stretch of imagination it could be concluded that All Nawaz alongwith four other accused persons was also having common object to commit murder of Sodho. "
' As for the appellants, it held that the ocular testimony was 'satisfactory, convincing, sufficient and reliable,' and while recording conviction it held as under:- "Therefore drawing authority under section 237, Cr. P. Code and being satisfied with the evidence present on the record of this Court, I do hereby convict all the accused Adloo, Jumo. Piroo and Biloo under section 302, P. P. C. Read with section 34, P. P. C."
' We fail to see what authority could have flowed from section 237, Cr. P. C. For convicting the appellants as that section permits the conviction of a person for an offence other than that for which he was charged at the trial. The instant is not a case of that nature, and in the circumstances we cannot help observing the lack of basic knowledge of Criminal Procedure Code demonstrated by the trial Court.
8. Adverting now to the evidence relied on, admittedly there was enmity between the parties. It was stated in the F. I. R that the abduction and the marriage of the mother of appellants Jumo and Piroo was the reason for the murder of the deceased. Piroo took the stand that on the death of his father, his mother went to reside with her parents who got her married to the deceased with his consent and as such he was not annoyed. Jumo, however, pleaded that it was not so. Nonetheless, there is the admission of Piroo that the deceased had married her. Whether it was with his and Jumo's consent, is not borne out from the record. On the other hand, Piroo has pleaded enmity with the complainant party not only for being implicated in the case of abduction of Ganhwar's wife but also because of the murder of his maternal grandfather Mooso, in which case Sajan, Piaru and Mir Hasan were involved. Ganhwar while admitting that his wife was abducted stated that this happened eight days before the incident, but according to the F. I. R. (Exh. 44), she was abducted about eleven months back. Therefore, this witness lied in giving out the time while stating as to when she was abducted, which is not without a reason for the intention must have been to provide an immediate cause for the enmity with the complainant party in addition to what was alleged. As for the implication of Sajan and two others for the murder of Mooso, he denied knowledge of it while admitting that Sajan was related to him. Babu, the second eye-witness, has also denied the implication of Sajan and others but has admitted that Sain Ditto and Adho, who were also implicated in that case, were absconding. This, in fact, amounts to a half-hearted admission of his knowledge about the case, which the witness was reluctant to admit. Lalan, the third eye-witness, who is the nephew of Ganhwar, denied that hetand the others were on inimical terms with the appellants, which again is a wilful suppression of fact. Sohbat, who is the nekmard and to whom Ganhwar had narrated the facts, admitted that Sajan is the brother-in-law of the deceased and that he, Piaru and Mir Hasan were convicted for the murder of Mooso, who was related to him and not appellants Piroo and Jumo, which again is an attempt to do away with the motive by denying the relationship of the appellant with Mooso. As to how he was related to Mooso, he has not given out which, in all probability, is false, for he is aslo married to Sajan's sister and there is therefore, reason for this false admission. Not only this but he also stated that appellant Piroo is the brother of Sajan, which is again a lie. 'Saint was also examined as a mashir. He admitted having been convicted for the murder of Mooso but denied his relationship with Piroo. Not only this he stated that Mooso was his maternal grandfather. The denial of relationship by him is for the same reason as foretasted. Imambux, who is an independent witness , has stated that Mooso was related to the deceased and that P. W. Sajan had no relationship with the appellants, which Sajan gave out in cross-examination to show his connection with a view to figure as an impartial witness. Not only is this assertion false but even if it be accepted that he was related to them, still there can be hostility between the relations as well. Imambux is the Kamdar of Rais Ghulam Mustafa Jatoi in deh Lundo who knew the parties well. He has also stated that the parties were on inimical terms since many years. Concluding, therefore, there was a longstanding enmity between the parties. The trial Court, in spite of the material on record, only accepted the enmity alleged by the prosecution but did not accept that what was alleged by Piroo. This is what the trial Court has observed:- "With the exception of stereo-type mention about the vague enmity in the statement under section 342, Cr. P. C. By the accused, that too in a sweeping manner, no specific instance has been brought on the record of this Court from which direct and specific enmity between this witness and the accused persons could be inferred."
' This was not a correct approach, for the witnesses were closely related and bias could not have been eliminated on the premise of any specific instance of enmity against any one of them.
9. In this background, the rule of prudence requires a close scrutiny of the ocular testimony for safe dispensation of justice, and unless there is unimpeachable evidence to sustain conviction on a capital charge, the rule is to give to the appellants the benefit of doubt. While examining the ocular testimony of Ganhwar, Babu and Lalan, we have found that they have lied on every material aspect of the prosecution case. Ganhwar is married to the sister of the deceased while Babu is his cousin, and the wife of Sajan is his wife's sister. Lalan is his nephew. Ganhwar gave out in cross- examination that he was not a hari of Sobhan Memon but bad his own land and that further he did not reside in village Gajjan which is four miles away from the house of the deceased in deh Lundo.
The other two witnesses have also towed the same line and so has Sohbat, who was examined as a corroborative witness. Imam Bux, who was produced as a mashir by the prosecution, admitted that Ganhwar resided in village Gajjan and not in village Lundo, where the deceased had resided.
He is a Kamdar of that deh and being an independent witness we have every reason to accept what he has stated. Not having resided in village Lundo, it is doubtful that tie would have gone alongwith the deceased. There is also contradiction as to the ownership of the 'dachi' and the camel. There is no indication in the F. I. R., as to whom they belonged but Ganhwar stated in his testimony that the camel was his while the 'clothe' belonged to the deceased. Babu, on the other hand, stated that one camel belonged to him and that the other was of Ganhwar. Lalan gave out that the camel belonged to Babu while the 'dachi' was of the deceased. Even on this minor aspect of the case there is diversity and by itself not much would have turned on it but in the context of other improbabilities it does weigh against the credibility of the witnesses. In the F.
1. R. It is alleged that in all three shots were fired at the deceased. It was Piroo, who fired the first shot while the deceased was on the `dachi' and on his falling down Jumo and All Nawaz fired one shot each at him. Nonetheless according to the medical evidence the deceased received one gunshot injury from within a distance of 6 feet, but in his testimony Ganhwar stated that only two shots were tired, one by Piroo and the other by Jumo and as for All Nawaz though he was said t, be armed with a gun, yet no shot was attributed to him. Even the distance of 20 paces given by him is not consistent with the range of fire. Babu and Lalan have also spoken about two shots having been fired, one each by Piroo and Jumo. As for Ali Nawaz while Ganhwar stated that he was armed with a gun but had not fired, Babu went to the extent of saying that Ali Nawaz neither had a gun nor had participated but was standing at a distance of 50 to 60 paces. Lela]] has towed the line of Ganhwar in stating that he was armed with a gun but had not taken part and that he was at a distance of about 100 paces from the wardat. Sohbat who is the corroborative witness went a step further and stated that not only did he have any weapon with him but that he was seen with his face muffled at a distance of 100 paces. Since there was only one gunshot injury, the second shot had to be explained, about which Babu gave an explanation vide Exh. 21 that he could not say whether the shot hit the deceased. Which is absurd, for it is impossible for _the pellets to have gone astray when the gun was fired from a very close range. Again if we were to accept the ocular testimony that the deceased was shot at while he was still on the back of the 'dacha', then the line of fire would not be straight but at an angle and the pellets striking the deceased would have travelled upwards, but there is no such indication from the medical evidence which points to the injury having been caused while the deceased was on the ground. Though the gunshot injury was on the back of the deceasad, yet Babu has stated that Piroo had fired his gun from in front which is also not consistent with the medical evidence. Again, if the deceased had fallen from the 'dacha' he would have suffered some bruises which are likely to be caused by a fall, but no such injuries was found on the deceased. It is, therefore, not possible to accept the version that the deceased was shot at while he was still on the back of the 'dacha'.
10. If it be taken as what the witnesses have said then it was Piroo alone who had fired the shot and the implication of Jumo and Ali Nawaz is false, though at the trial the witnesses retracted from their earlier version as to the participation of Ali Nawaz. In the circumstances, there cannot be any manner of doubt that the credibility of the witnesses cannot be above-board for not only their version is highly improbable but also because there is a clear attempt to involve two other persons for having fired at the deceased,
11. According to mashir Ghulam, 5 to 7 maunds of grass were lying at the wardat, but Babu stated that some grass was on the 'ace and some might have fallen on the ground. If the mashir had seen the grass on the 'dachi' then he would have said so, but that is not the case here. Apparently, the grass must have been unloaded before the deceased was shot and it is, therefore, that no blood stains were found on it, and it is this feature which also lends assurance to the inference that the deceased was shot at while he had got down from the `dacha'. It is an admitted fact that the deceased had travelled three miles to collect grass from the land of Kheras without their permission, which cannot but be a surreptitious removal of the grass, which is used as fodder for the animals. The possibility nonetheless remains that It could also be the Kheras who have committed his murder. It is again significant that only the 'dada' was found at the wardat but not the other camel. Ganhwar stated that he had gone on the other camel to inform the nekmard and had left the camel in the village and had come with Sohbat on foot to the wardat. Lalan, boNever, stated that he went on foot to the village. Even on this point there contradiction, and we see no reason why Lalan would have so stated if Ganhwar had gone to the village on the other camel. .n the absence, therefore, of the hoof marks which were likely to have been found on the sand dunes, the presence of the other camel in the context of what Lalan has stated is higly doubtful.
12. There is also delay in the lodging of the F. I. R. The police station was hardly five miles away from the wardat and it could not have taken more than 24 hours to traverse that distance even on foot, which points to deliberation on the part of the witnesses as to whom to implicate, which feature raises doubt in the context of the above discussion as to whether it was a witnessed crime.
13. Concluding, therefore, the eye-witnesses are wholly unreliable and the version given out does not inspire confidence of a degree to sustain conviction which even otherwise, required corroboration qua each appellant, which is 4 lacking. Having disbelieved their version qua All Nawaz, the case of the other appellants could not have been distinguished, for the evidence is the same. The trial Court failed to consider this aspect and did not intelligently appraise the ocular testimony before convicting the appellants.
14. In the result for the foregoing reasons, the prosecution has failed to establish its case beyond reasonable doubt against the appellants, and while giving to them the benefit of doubt we accept the appeal and acquit them. The death sentence is not confirmed and the reference is rejected.
They shall be released forthwith unless required in some other case.