' JAMALUDDIN H. AHMAD, J.-The four appellants, who are brothers, were convicted for an offence under section 302/34, P. P. C. And sentenced to death by the Second Additional Sessions Judge, Nawabshah by his judgment dated 29th September, 1973. The appeal has been filed against this sentence and the matter is also otherwise before us for configuration under section 374, Cr, P. C.
2. This offence of murder is alleged to have been committed on 29th of December, 1971 at about sunset time in the lands of Mohammad Urs Dahri which place is at a distance of three miles from P.
S. Daulatpur in District Nawabshah. The case of the prosecution was that the sister of deceased was married to appellant Haji, but sometime before this incident appellant Haji had also demanded the hand of Mst. Ashia, the dauguter of deceased, for marriage with his brother appellant Ghulam Mohammad. Although the deceased had in the beginning accepted this demand, but about two or three months prior to his murder, he had blankly refused to get this marriage performed. This was the cause of annoyance of the appellants with him. On the day of incident, complainant Siddique, who was the cousin of the deceased saw appellant Haji talking to the deceased at about noon time. He had heard appellant Haji asking the deceased to come to his lands in the evening to have a talk with him. After this at sunset time witness Laung came to complainant Siddique and informed him that the four appellants had killed the deceased with hatchets, and this was witnessed by him and Janan while they were cutting grass in their own lands. They heard cries from a distance of about one acre and they ran to the plate of incident and saw the murder being committed. Complainant Siddique being thus informed of the murder contacted Haji Gul Mohammad, Haji Khaber and Urs, whereafter all came to the scene of offence where the dead body was lying. Siddique proceeded to lodge the F. I. R. At Daulatpur P. S. At a distance of three miles from the place of incident, which was recorded at 1-30 am, on 30-12-1971.
The police investigated the matter and secured blood-stained hatchets from appellants Ghulam Mohammad, Hazooro and Aliah Dad and also blood-stained clothes from appellants Ghulam Mohammad and Hazooro, which articles were found by the Chemical Analyser to be stained with human blood. The case was thereafter sent up for trial which resulted in the above said conviction.
The case of the appellants was that of denial and of being implicated falsely due to enmity which was described in the words of appellant Aliah Dad as under :- "Prosecution witnesses are inter-related and interested. Our Sardar namely P. W. Jan Mohammad is related to the complainant party. He is an influential person and also a Zaminder. We have got dispute with the complainant party over the land. The possession of the land in dispute is with us and we did not accept arbitration of Ian Mohammad on account of this dispute. Our whole family has been involved and property has been foisted against us and the evidence has been fabricated. The case is false and we have been involved due to enmity and wrath of Sardar."
3. The prosecution examined the two eye-witnesses Laung and Janan, who had witnessed the commission of the offence and P. W. Mohammad Siddique and Urs to corroborate the same as they were informed of the occurrence. Mashirs Imam Bux and Ali Muhammad were examined as in their presence the incriminating articles i,e, hatchets and clothes had been secured. The evidence was further supported by the Medical Officer, Moro, Dr. Dinal Shah to whom the body of the deceased was sent for post-mortem and who found the following injuries on the same :- "(1) Incised wound about 5 1/2'x 2' x bone deep over the left side of the face starting from the angle of the mouth, reaching the neck.
(2) An incised wound 4' x x brain deep over the left occipital region.
(3) An incised wound 4' x 2' x muscle deep over the back of neck.
(4) An incised wound 2' x 1;' x brain deep over left parietal region obliquely.
(5) An incised wound 4' x 1' x bone deep on the right parietal region transversely.
(6) An incised wound 2' x 1 x bone deep over nose and cheek left side. Bone fractured, through and through.
(7) An incised wound 3" x x bone deep over left shoulder cutting the head of humourous bone.
(l) An incised wound 2" x x muscle deep over left specular region obliquely.
(9) An incised wound 1' x x muscle deep over left shoulder, laterally.
(10)An incised wound 1 x bone deep over left shoulder laterally, fracturing the bone."
' In his opinion, injuries Nos. I, 2 and 4 were individually sufficient to cause death, which was instantaneous and the time between the death and the post-mortem was within 16 hours.
According to him it could also be 10 to 12 hours before the time of post-mortem. The prosecution also produced the report of the Chemical Examiner which supported this case.
4. The trial Court in its short judgment believed the ocular evidence of the two witnesses Laung and Janan as being supported by the evidence of complainant Mohammad Siddique who was informed of the occurrence and who had also seen one of the appellants talking to the deceased during the day and fixing the time for meeting in the evening. The corroborative evidence of Mohammad Urs was, however, not relied upon by the Trial Judge as he was declared hostile by the prosecution and had also stated facts which according to him were related to him by the complainant Mohammad Siddique, but Mohammad Siddique on his part had not so stated and therefore the evidence was held not to be admissible. The evidence regarding the recovery of incriminating articles i,e, hatchets as well as clothes from the appellants, which were subsequently found to be stained with human blood, was not considered reliable by the trial Court as the rneshirs in whose presence the said articles were alleged to have been secured had not supported the prosecution and had been declared hostile. f he mashirs had on the contrary given support to the appellants. This part of evidence was also therefore considered to be doubtful and therefore not relied upon. The trial Judge however considered the evidence with regard to the motive of murder to be reliable and has therefore taken that into account. He thus recorded the conviction of the appellants on the basis of the evidence of the two eye-witnesses supported by the evidence of the complainant Mohammad Siddique alone and awarded the sentence of death because there were 10 grievous hatchet injuries on neck, brain, cheek and head of the deceased Ayub and thus it was a brutal murder for causing which he expressed that the appellants deserved no sympathy.
5. The learned defence counsel has severely attacked the evidence of the two eye-witnesses namely Laung and Janan as unreliable and not worthy of any credit upon the basis of certain inconsistencies and contradictions that exist in their depositions. According to him these witnesses had clearly on their own admissions suppressed the truth and the inconsistencies pointed out by the counsel showed that the witnesses were falsely implicating the appellants. The submission was that the crime in this case must have been an unwitnessed crime and it was very likely that the dead body having been found at the spot where it was lying during the night, the names of the appellants were given by the witnesses on account of their suspicion. The complainant in this case was not an eye-witness but had received information from Laung and Janan and his evidence could therefore be considered as reliable only if the evidence of the two eye-witnesses was in itself found credible. The argument applies to the evidence of witness Urs who also did not have any firsthand knowledge but was in turn informed about the occurrence by the complainant. According to the learned counsel the trial Court bad rightly rejected the evidence of Mohammad Urs and also the evidence regarding recoveries of incriminating articles as all these witnesses had been declared hostile by the prosecution and had not supported the case of the prosecution at all. With regard to the evidence of motive the criticism of the learned counsel for the appellants was that the same was unnatural and could by no stretch of imagination be considered to be sufficient to have motivated this crime. According to him, it was neither usual nor customary for the appellants to have demanded the hand of the daughter of the deceased in marriage when his sister was already married to the appellant Haji. The local custom demanded that the appellants would rather give some girl in marriage to the deceased or to any of his relations rather than make a demand of the nature as is alleged. But even if that be so, refusal on the part of the deceased was not such an act as to prompt the appellants to commit such a heinous offence as of murdering the deceased. The deceased was after all related to appellant Haji as he was his brother-in-law.
6. We were taken through the record of this case by the learned counsel appearing for both the sides and we also examined the evidence produced by the prosecution against the appellants.
Surprisingly enough the F. I. R. Which, considering the distance of the police station from the place of the occurrence, appears to be belated, does not contain the name of one of the appellants I e.
Aliah Dad. The appellants are all brother admittedly residing in the same house. The omission of Aliah Dad's name from the F. I. R. Was rectified by recording a further statement of the complainant at the scene of offence the next day. The further statement of the complainant was also exhibited in spite of the objection in writing made by the defence counsel. The F. I. R. Was recorded by P. W.
Agha Mir A. S.
1. But the further statement was recorded by another Police Officer Ali slier, witness No, 10, who according to his statement took the case papers from the A. S. I. For further investigation. He has however given no reason for recording this further statement but complainant Mohammad Siddique has given the reason by saying : "I at the time of getting my F. I. R. Recorded named the accused Hazur Bux therein. At the scene of occurrence the F. I. R. Was read over to me. It did not include the name of Hazur Bux. Resented and asked the Sub-Inspector as to why this fourth name was not included while reading the F. I. R to me at the scene of occurrence. The S. I. Expressed his regrets as it was the mistake on his part. After having the fourth name recorded therein the S. I. Got my L. T.
1. On a book."
' In his cross-examination he again said : "It was during night when the S. I. Realized his mistake and obtained my L. T. I. At the place of occurrence after visiting the site."
' It appears that this further statement was exhibited after the close of the cross-examination at the request of the Prosecutor and it is thereafter that the complainant amended his first version and said : "I had forgotten the name of Aliah Dad. I cannot say correctly at the moment whether I gave the name to I.
0. At the time of recording the F. I. R. And he did not record or I forgot to give the name of I.
0. And therefore it was missing."
' The learned Additional Sessions Judge has, however, condoned this omission by giving a very strange reason and has said : "But it appears that the complainant on account of his natural worries and being perturbed due to murder of his cousin Ayub mentioned in the F. I. R. The name of only three accused persons out of four."
' As he believed the ocular testimony of Laung and Janan he thought that the omission of the name of Aliah Dad from the F.
1. R. Was not fatal to the case of the prosecution. He has however avoided to discuss the legality of admitting and exhibiting the further statement of the complainant wherein the name of Aliah Dad was included although objection in writing had been raised by the defence counsel and the learned Judge had in his order thereon stated that the same would be disposed of at the time of final argument. We think that the learned Judge has clearly adopted an erroneous procedure in promising to consider and dispose of an objection of law at the time when it was raised and thereafter avoiding to settle the same in his final judgment. In fact a question relating to admissibility of evidence should not be postponed but must as a rule be decided by the Courts at once for otherwise not only a likelihood of some prejudice being caused to the party objecting is not excluded, but as in this case it also leaves an impression of indecisiveness on the part of the Court before which the objection is raised. After all a duty is cast on the Court to see by itself that only legal and admissible evidence is brought on the record irrespective of there being an objection or not.
' About the nature of evidence of this witness Mohammad Siddique who of course is not an eye- witness but is to corroborate the eye-witnesses Laung and Janan from whom he acquired the knowledge of the occurrence, the learned Judge has still said : "Although there are few material omissions, discrepancies and contradictions in the evidence of P.
W. 1, but they did not minimize the intrinsic value of his testimony which undoubtedly corroborated the ocular testimony."
' The learned Judge has however not discussed how these omissions, discrepancies and contradictions though described by him as material, do not minimize the credibility of this witness.
Be that as it may, the overall impression left by the evidence of this witness on our minds is not satisfactory. On his own showing he was one of these who were opposed to the alleged promise made by the deceased of giving his daughter in marriage to appellant Ghulam Muhammad.
According to him, the deceased apprehended danger at the hands of the appellants except appellant Hajl with whom he says he was friendly but at the same time this witness had seen appellant Haji speaking to the deceased at noon time and fixing a time of meeting in the evening on the lands. If Haji was also conspiring to get the deceased murdered then that is a situation which is not compatible with his being on friendly terms with the deceased. On the other hand, this witness Siddique specifically says that they apprehended danger to the life of Ayub and therefore on every water rotation they used to arrange the company of two to three persons with Ayub. In fact according to him Ayub had his water rotation on the night preceding the day of the incident on which the murder had taken place and according to witness he and other five persons including his two sons Sale and Tharo were with him right from the beginning upto the end of rotation. This was only to give him protection. This rotation of water had started at 11 p. m. And had ended at 1 a. m. In spite of this the witnesses did not care to take any precautionary measures for protection of deceased Ayub's life on the day of the incident although he knew that he was being called for having talks in the evening on the lands of Haji which on the face of it should have appeared to him to be an extraordinary feature. The contradictory statements made at different stages of the case, along with these aspects in the evidence of this witness Mohammad Siddiq do not give an impression of his character to be such as to inspire confidence, but rather make it doubtful to place implicit confidence upon his testimony.
7. Before examining the evidence of two eye-witnesses on whom reliance is also placed by the Court below it would be useful to examine the condition in which dead body of the deceased Ayub was found. This is related in the Mashirnama Exh. 13 which was prepared on 30.12-1971 at 3-15 a. m.
The body of the deceased was found lying in an Acid of water in the land of Mohammad Urs Dahri.
The deceased was a Hari of Mohammad Urs. On the person of the deceased there was a chola of Maim! (shirt) beneath which there was a bunyan. He was having a loin cloth. At a distance of about one pace from the dead body there was a spade lying. Beneath the dead body in the Aad there was some standing water which was blood mixed. This state of the dead body does not coincide with the condition of a person who might have gone merely to have talks with any of the appellants. The condition and the circumstances are more compatible with the deceased having gone to his own land to do some irrigational work. The existence of the spade and the clothes of the deceased along with the place where the dead body was found do indicate that he was there not for holding any conference but to regulate the water on his own field. The statement of the complainant that he had a rotation of water on the night preceding the day of the incident may well be a twist of the time factor, for obviously the dead body appears to be of a person who was engaged with the rotation of water. In any case the dead body does not suggest that Ayub had gone to have talks with appellant Haji as suggested. That invitation even otherwise appears unnatural and not believeable.
8. Now the two eye-witnesses were obviously related to the deceased and the complainant, but admittedly they made a conscious effect to suppress their relationship in their depositions in Court.
The relationship was brought out only by cross-examining and confronting them with their previous statements. In the case of Janan this consciousness is described by the judgment of the trial Court in terms : "Though for obvious reasons of saving his evidence from being called as an evidence of an interested person this witness (Janan) being perplexed, denied the relationship with the complainant party, but it is crystal clear from the record of this Court that he is a relation of the deceased Ayub who was the brother-in-law of accused Haji."
' The learned Judge has indeed been charitable to the witness in saying that he was perplexed, but it is very clear to us that this characteristic of his evidence robs it of credibility. The witness should have honestly stated the truth and left it to the trial Court to assess the evidentiary value that was to be given to his word. A witness who understands that he was not likely to be believed and would be dubbed as an interested witness and on that account with full consciousness of his mind deliberately suppresses the truth and gives a false version is a witness who cannot in our opinion be safely relied upon and the trial Court has fallen into a patent error in relying on such testimony without a deeper scrutiny of the same that was very much required. Not only this but on the aspect of the actual witnessing of the commission of murder the observations of the trial Court are very much surprising. The description is : "I admit that in view of the evidence of this witness (bruin) to the effect that the scene of occurrence which was at a distance of one acre from the place where he was cutting the grass in his field was not visible due to intervening walls, jungles and watercourse, his seeing the accused persons causing injuries to Ayub becomes doubtful. But this doubt vanishes from the further deposition that he was challenged by the accused from a distance of 20 feet. Thus it becomes crystal clear that he must have seen the commission of this offence after rushing to the scene of occurrence and from a distance of 20 feet. This witness must have heard the cries at a distance of one acre and observed the incident from a distance of 20 feet."
9. Now the injuries on the person of the deceased as described above are sufficient to show that with four persons jointly making the attack, they would have hardly taken any time to finish the deceased who must have fallen on the ground immediately and whose death according to the Medical Officer was instantaneous. Even if the eye-witnesses heard the cries of 'murder' as they say, they could not possibly have seen the actual causing of injuries to Ayub after crossing over all the obstacles which intervened them at the place of incident. To say that these witnesses ran up crossing over the jungle and the wall to a spot which was at a distance of 20 feet from the deceased, and then to be able 'to see the appellants still in the process of giving injuries to the deceased does not appear to be credible. It may be mentioned that these witnesses did not want to give the impression initially that they had to run and come to a distance of about 20 feet from the deceased to be able to see the commission of the crime. Both of them have asserted that they had seen the incident from a distance of about one acre. Through cross-examination the position emerged that seeing the occurrence from that distance of one acre was not possible due to the obstacles. These two witnesses also in our opinion do not appear to be worthy of credit, at least inasmuch as they are not speaking the truth when they say that they had seen the deceased being actually injured. This evidence is further damaged by the evidence of complainant Mohammad Siddique who, as already stated, has not explained the delay that is so very prominent in lodging the report at the police station which was only at distance of about five miles from the wardat. This delay is of 8 hours. The eye-witness Laung who says he went to inform the complainant has stated that he went running to Siddique and informed him and he then left for lodging the F. t. R. He says that he does not know what happened thereafter or what complainant did there after receiving the information from him. He went to the wardat when he found Haji Kha bar, Urs and Ghulam Mohammad. He does not mention the name of the complainant to be there.
The other witness Janan who was supposed to be at the spot, on the other hand, states that Laung came up alongwith Siddique complainant and the others. This contradiction in their version is not a minor discrepancy that could be overlooked particularly when we have these two witnesses alone as the eye-witnesses of the incident, and from whose evidence these aspects of the case could possibly be tested. If the complainant went straight to the Police Station to get his F. I. R. Recorded, or he went first to the wardat in the company of the witnesses and then to the police station, in either case, the delay of 8 hours is patently inordinate, and fits in more with the theory of the defence rather than to support the prosecution case.
10. There is no other corroborative piece of evidence. The only one being that of securing of hatchets and clothes has unfortunately been rendered useless on account of the mashirs being declared hostile. This piece of evidence has not been relied upon, as stated above, by the trial Court also. The overall evidence led against the appellants in this case C appears to be of a character on the basis of which conviction could not safely be recorded. There is a strong element of doubt, the benefit o which will have to be given to the appellants. This appeal is, therefore,