' kottUAHMAIAD 1iALEES16 J.-Appellants Jaro, Lakhmir and Qalendar Bux were tried for the murder of Muhammad Yusif and for causing grievous injuries to Adial and convicted under sections 302 read with section 34, P. P. C. And 326 read with section 34, P. P. C. On the first count, while Jaro was sentenced to death, the other two were sentenced to imprisonment for life and on the second, all the three were sentenced to three years rigorous imprisonment and to pay a fine of Rs, 500 or in default to suffer rigorous imprisonment for six months, Phullo and Shafi Muhammad were also tried but acquitted by the learned Sessions Judge, Khairpur vide judgment dated 25th of September 1974. The appellants have appealed to assail their convictions and sentences while the learned Sessions Judge has referred the case of Jaro for the confirmation of death sentence. This judgment will dispose of the appeal and the reference.
2. According to the prosecution case Yousif was the brother of Adial and they resided in village Phullan Kandhro, taluka Khairpur. While the deceased and Adial were sitting in their otak which was in the garden at evening time when the sun was about to set on 23rd of February 1973, Lakhmir, Jaro, Qalender Bux and Shafi Muhammad who were armed with hatchets called them from outside whereupon both of them went out to meet them. Jaro and Lakhmir thereafter abused them and asked them as to why they had fought with their relative, Mahi. Yousif replied that they had not fought upon which the appellants and Shafi Muhammad gave hatchet blows to him and his brother Adial. One such hatchet blow was caused by Jaro on the head of Muhammad Yousif whereupon both of them raised cries which attracted Imam Box and Manzoor who intervened and saved them from being further belaboured. Phullo, the acquitted accused, thereafter came and abused them. Muhammad Yousif and Adial were thereafter taken in a bullock cart to the Police Station Tando Masti Khan by ,Manzoor where Muhammad Yousif lodged the first information report the same day at 9-30 p.m. Adial was unconscious when he was brought to the police station. As for the motive it was stated in the first information report that there was a dispute over a money transaction with the assailants.
3. Muhammad Rafik All after recording the report sent the two injured to Civil Hospital Khairpur and thereafter examined Manzoor and proceeded to the wardat which he inspected the next day in the morning and secured from there blood-stained earth. He next examined Imam Bux and thereafter arrested the appellants and the acquitted accused from their houses. Appellants Jaro, Lakhmir, Qalender Bux and Shafi Muhammad produced a hatchet each which did not appear to be blood- stained. They were secured vide mashirnama Exh.
19. On each hatchet which was separately parceled the name of the person who produced it was written. Rasool Bux was examined on 25th of February 1973. Injured Adial was examined in the hospital. On being transferred investigation was taken over by Muhammad Shafi A. S. I.
Muhammad Yousif died in the hospital on 1st of March 1973, whereupon the A. S. I. Arranged for the autopsy which was performed by Dr. Sattar who noticed the following injury :- "Incised wound. 3' x 1/4' x bone broken on the left parietal region of skull.
' And opined that it was caused by a sharp cutting weapon such as axe and was sufficient in the ordinary course of nature to cause death. Adial was also examined by Dr. Sattar who noticed the following injuries "(I) Incised wound 2' x 1/8'x bone cut on the left side of parietal region of skull.
(2) Lacerated mound 3' x 1/8' x scalp deep on the left frontal region skull with blackening or right eye.
(3) Incised wound l' x 1/4' x muscle cut on left paimer part of the hand.
' Injuries 2 and 3 were simple in nature while injury No, 1 was grievous. Except for injury No, 2 which was caused by a blunt weapon the other two were stated to have been caused by a sharp cutting weapon.
4. The earth and the hatchets were sent to the chemical analyzer and except for one hatchet on which human blood was detected, the others had no human blood on them. Earth was also blood- stained.
5. The appellants denied their involvement in the case. Appellant Lakhmir pleaded that the witnesses were inter related and interested. He further stated that there was a dispute over land which the complainant party wanted to purchase from them as it was situate near their houses.
The other two adopted the same defence.
6. The trial Court did not place reliance on the testimony of Rasool Bux as his presence was doubtful considering that his name was not mentioned in the F. I. R. And further that he was examined on the third day of the incident. Again since the blood-stained hatchet was not connected beyond doubt with any of the appellants or the acquitted accused it was not considered as incriminating evidence. There was therefore only ocular testimony against the appellants and the acquitted accused. In acquitting null() and Shafi Muhammad the trial Court held that the evidence on record did not show that they had taken part in assaulting the deceased and Adial and thus gave to them the benefit of doubt. Such conclusion obviously is linked with the possibility expressed by the trial Court in the judgment that the complainant party "tries to involve more persons than the actual assailants."
7. This being so, it remains to be seen whether the same ocular evidence can be believed qua the appellants. It was the deceased who lodged the F.
1. R. And eight days thereafter he died. The question arises as to whether the deceased was in such state of health as to give a coherent statement. He had an incised injury on the head and the opinion of the doctor is that he could have become senseless immediately on receiving the injury as it was serious and dangerous to life. Besides, when examined on the next day at 8-30 a.m. The doctor found him in a serious condition as he had developed Hemiplegin, which means paralysis, on the right side and was unconscious and had remained so until his death. It was also opined to be fresh and stated to have been caused six hours before his arrival at the hospital, while the time at which the incident occurred was given out in the F. I. R. As sun set time. There is thus a difference of about eight hours which stands unexplained. In the circumstances it is difficult to believe that the injured could have remained in senses till the lodging of the report after traversing a distance of six miles in a bullock cart considering the serious injury on his head which had resulted in the fracture of his skull bone. In the context of the admission of Adial that he had fallen unconscious, the possibility is not excluded that Manzoor, who had accompanied the deceased, may have given the statement which is now attributed to the deceased. It is thus doubtful that it was the deceased who had given the statement.
8. There are material contradictions in regard to the parts assigned to the appellants and the acquitted accused. In the dying declaration the part assigned to Phullo is that he came after the others had caused blows and merely abused them. However, Adial has stated that he was armed with hatchet and that the appellants and the acquitted accused caused injuries with their hatchets to the deceased. Giving out the details be stated that it was Jam who gave the first blow on his head who fell down unconscious while the others caused blows to him by the back side of the hatchet. Imam Bux however stated that he came after the deceased was caused injuries and he only saw the appellants and the acquitted accused causing hatchet injuries to Adial. He has of course implicated Phullan as one of the assailants armed with a hatchet and having caused a blow with it to Adial. However in cross-examination he resiled from his earlier version and stated that he did not see Phullan causing any blow to anyone eianzoor has equally implicated the appellants and the acquitted accused and he has given the same version as Adial. There is therefore no consistency in the part assigned to Phullan. Besides as will be presently seen the dying declaration is not free from other defects. As for Sh Muhammad, the deceased stated in his dying declaration that he was one of his assailants. Adial has implicated him as one of the assailants of the deceased and so has Manzoor while the trial Court has held that neither Phullan nor Shafi Muhammad has caused any blow either to the deceased or Adial, In holding so it has disbelieved the ocular testimony and the part assigned to Phullan in the dying declaration. Again only one injury was noticed on the deceased whereas the deceased has stated in his dying declaration that he was given hatchet blows by the assailants other than Phullan, Adial and Manzoor have equally stated so. There can therefore be no doubt that not only the deceased but the other two witnesses have lied on this point and the reason is not far to seek as the attempt was to implicate as many persons as possible.
9. Imam Bux stated that when he came he saw the deceased lying injured and that the other two P.
Ws. Namely, Manzoor and Rasool Bux bad come afterwards. Manzoor has also stated that Imam Bux had come before him while Rasool Bux had come after him. If this was so then it is difficult to believe that Manzoor would have seen the assailants and the acquitted accused causing hatchet injuries to the deceased as deposed by him. Adial has suffered the same kind of injury on his head as the deceased and also one other lacerated wound on his head of considerable dimension and his version is that be had fallen unconscious on receiving the said blows. It would then be difficult for him to have noticed either Imam Bux or Manzoor or Rasool Bux who had responded to the cries and must have taken some time to reach the wardat. In the circumstances it is difficult to accept that he had seen them. Imam Bux stated that he was pushed by appellant Lakhmir with the result that he fell down on the solid ground and sustained injuries but there is no evidence to establish that he had received any injury. Adial has stated that it were the appellants who gave him the first three blows where after he was caused other blows with the back side of the hatchet. However except for the three injuries sustained by him no other injury was noticed. It is surprising as to how a heavy weapons like the back side of the hatchet would not leave any mark of injury. This is again a lie which goes to discredit him.
10. The time of the occurrence is also inconsistent. In the F. I. R. The time given out is "evening time at sun set time" while Adial, Imam Bux and Manzoor have stated that it was tripahri time. If it was sun set time, than it could not be a time either for scaring the birds or cutting grass. It was therefore advanced to provide a reason for Imam Bux and Manzoor to come to the wardat just in time to witness the occurrence, which again reflects on their credibility. There is also a serious discrepancy as to the time of occurrence when judged in the light of the opinion of the doctor as to the age of the injury on the deceased. Cumulatively taking all the circumstances into consideration it is doubtful as to whether the incident at all occurred at the time stated.
11. The ocular testimony not being credible it is difficult to believe the role assigned to Jaro for having caused a hatchet blow on the head of the deceased. Equally it is not possible to hold that five persons could have participated in causing four injuries and the possibility nonetheless remains that such injuries may as well have been caused by lesser number of persons.
12. As for the recovery of the hatchets, both the mashir and the S. H.
0. Have stated that they had not seen any blood stains on them. As to how one hatchet was found to be stained with human blood is not explained which again is a suspicious feature. The masher has also not supported the recovery for he has stated that he saw the hatchets lying in the Otak of Misri Khan Jatoi. Even otherwise the hatchet on which blood was detected has not been established to have been produced by any one of the appellants. It was thus rightly discarded.
Lastly, the motive assigned is obscure. It was Wahido who had caused injuries to Mahi, the uncle of Lakhmir and Qalender Bux. There is nothing on record to show that the P. Ws. Had any connection with Wahido. Then why at all the appellants would take revenge from Adial and Yousif. In this context it is not possible to accept that the appellants would have come and asked for an explanation from the deceased and Adial. As for the dispute over money, that has also not been clarified and the allegation remains without any foundation.
13. The evidence not being unimpeachable, there was no basis for drawing a distinction between the case of the acquitted accused and those convicted. In the result, there is no reliable evidence on which the appellants can be convicted and therefore, the prosecution has failed to prove its case against them beyond reasonable doubt. We would accordingly acquit them and accept the appeal. The death sentence is not confirmed and the reference is rejected. They should be set at liberty forthwith unless wanted in some other case.