' DORAB PATEL, J.-The appellants have been convicted under section 302/34, P. P. C. For the murder of Janan (Jan Mohammad) deceased, by an Additional Sessions Judge, Nawabshah. The appellant Lalan has been sentenced to transportation for life whilst the other two appellants have been sentenced to death. The appellants have filed an appeal against their conviction and sentence and the case has also come up before us for confirmation of the sentence of death passed against the appellants Ghulam Nabi and Ramzan. Accordingly, I will dispose of the appeal as well as the reference by this judgment.
2. The relevant facts, according to the prosecution are as follows Janan deceased was the son of P.
W. Gul Mohammad. P. W. Gul Mohammad lived in village Haji Abdul Ghafoor, Taluka Moro, Nawabshah District whilst his son Janan (deceased) lived with his family a few miles away at village Shahpur Jahania. Gul Mohammad had other sons and daughters, and the appellant Lalan was interested in marrying Mst. Sajjan one of P. W. Gul Mohammad's daughters, but the deceased had prevented the marriage and this girl was married on 3-6-1972 to P. W. Gul Mohammad's nephew on 3-6-1972 in village Haji Abdul Ghafoor. Hence, according to the prosecution, Lalan had a motive for murdering the deceased. On 3-6-1972, after the marriage, at about 10.00 a. m. Janan deceased set off on foot to teturn to his village. His father P. W. Gul Mohammad joined him, as he wanted to take his cattle for grazing. As the father and son reached village Mohammad Hayat Sethar, Janan asked his father to go ahead as he wanted to drink some water. So, whilst Janan wenito the village, P. W. Gul Mohammad went alongwith his cattle. After about half a mile, he saw the appellants passing. They were armed with hatchets, but he did not talk to them. He reached village Shahpur Jahania at tepahri time. There, P. W. Khair Mohammad came and informed him that the appellants had murdered his son Janan, therefore P. W. Gul Mohammad went to Daulatpur police station and lodged the F. I. R. At 6.00 p. m. P. W. Agha Mir, S. H.
0. Registered the F. I. R. (Ex.9), commenced investigations and found that the murder had been witnessed by P. W. Mirzo, the brother of the deceased, and his cousin P. W. Khan Mohammad. Now, the prosecution story is that after the marriage, like Janan, P. W. Mirzo had also gone to village Shahpur Jahania with P. W. Khan Mohammad. After staying about one hour there, they were returning home. As they reached village Mohammad Hayat Sethar, they heard a report of a fire arm and rushed to the wardat on the alarm raised. On reaching the wardat they saw appellant Lalan with a pistol in his hands whilst the appellants Ghulam Nabi and Ramzan were bitting Janan with hatchet blows. They challenged the assailants who however, ran away with their weapons. The house of the local Nekmard P. W. Khair Mohammad was only half a mile away, so P. W. Mirzo went and informed him and returned to the wardat, where the police examined him and recorded his statement. Further, according to the prosecution, after their arrests, the appellant Lalan produced his pistol, whilst the appellant Ramzan produced a blood-stained hatchet and a blood-stained shirt, and the appellant Ghulam Nabi produced a blood-stained hatchet. The bloodstained articles were forwarded to the Chemical Analyser and they were all found to be stained with human blood.
Therefore, after completing investigations, the appellants were challaned as stated.
3. The prosecution examined P. Ws. Mirzo and Khan. Mohammad as eye witnesses of the occurrence. It also examined P. W. Gul Mohammad on the question of motive and as a corroboratory witness. P. W. Khair Mohammad was also examined as a corroboratory witness. The investigating officer as well as the mashirs of the various recoveries were also examined and P. W.
Dr. S. D. Shah proved that the death of the deceased had been caused by wounds inflicted by weapons such as a hatchet.
4. The appellants denied all the allegations against them, including the recoveries attributed to them. And they said that they had been falsely implicated on account of enmity by witnesses who were inter-related. They, however, did not produce any evidence in support of the plea.
5. The learned Additional Sessions Judge was impressed by the ocular evidence, because the appellants had failed to prove any enmity. He was also impressed by P. W. Gul Mohammad's evidence of motive and held that the appellants had not sought to challenge the allegation of motive. He further held that the ocular evidence was corroborated by the articles recovered from the applicants, accordingly he convicted them, as stated. However, as the appellant, Lalan, had not inflicted any injury, he passed the lesser sentence against him and convicted the other two appellants to death, as they had attacked and killed the deceased with hatchet blows.
6. Mr. Imdad Ali Agha submitted that the prosecution case was not fit to be believed, because the so-called eye-witnesses were chance witnesses. Several arguments were advanced in support of this submission. Thus, for example, according to the learned counsel, it was not likely that the deceased could have attended his own brother's marriage without his family, and that as he was alleged to have been murdered whilst returning alone from the marriage, the entire prosecution case was utterly improbable and unfit to be believed. It would certainly be unusual for a villager to attend his brother's marriage without his family, and what is disturbing is that P. W. Mirzo, the brother of the deceased, could not remember whether the deceased had come to the wedding with his wife. Then as to P. W. Gul Mohammad, he emphatically denied in his cross-examination that his deceased son attended the marriage with his wife, but he was confronted with his lower court's statement (Exh. 11) in which lie had expressly stated that his deceased son had attended the marriage with his family. Again why did P. W. Gul Muhammad part company with his son just before the murder? The witness's explanation was that the son had gone to the village to drink water, but as the witness admitted in cross-examination that they were passing a canal, the explanation seems strange, and as the witness claimed to be 80 years old, 1 cannot but entertain doubts about his claim to have been with his son only about a few minutes before the murder.
Finally, as to the eye-witnesses, they explained their presence at the wardat on the plea that they had gone for shopping to village Shahpur Jahania and having stayed there an hour to two, they were just in time and at the right spot to hear the sound of a pistol shot and the alarm. Apart from the coincidences on which the prosecution case rests, P. W. Gul Muhammad also claimed that he was going to village Shahpur Jahania with his son after the marriage and so did P. W. Mirzo and P.
W. Khair Muhammad. As P. W. Mirzo was the brother of the deceased and P. W. Khair Muhammad his cousin, why did the brothers go separately, immediately after the marriage, to the same destination? Finally, as the two eye-witnesses are very closely related to the deceased, it would not be safe to accept their evidence without some corroboration.
7. The trial Court relied, for this purpose, on the evidence of the recoveries from the appellants and on motive. Taking first the question of motive, according to the prosecution, the appellant, Lalan, had wanted to marry Sajjan, but as he had been prevented from so doing by the deceased, he harboured a grudge against the deceased. As even according to P. W. Gul Muhammad, the appellant Lalan's advances had been rebuffed two, or, three years before the occurrence, Mr. Imdad Ali Agha's submission was that the crime thus attributed by the prosecution was absurd.
The trial court, however, accepted it on the ground that the appellants had not cross-examined the prosecution witnesses on the question of motive. But this finding is based on a total misreading of evidence. Thus, P. W. Gul Muhammad was expressly cross-examined on the allegation that the appellants had been invited to and had attended his brother's wedding. That he denied it is another matter, but it is clear that the appellants had challenged the prosecution motive. And, P. W.
Gul Muhammad was not the only witness cross-examined on this point. The deceased's brother was also cross-examined and he said, "It is incorrect to suggest that my brother Janan was on illicit terms with the woman of village of Muhammad Hayat Sethar". As the trial Court's finding is based on a patent miss reading of evidence, Mr. Manzoor Hussain submitted that it was not necessary for the prosecution to prove the motive for a crime. That is true, but, in the circumstances discussed, we are required to examine the ocular evidence very carefully, and I would now turn to it.
8. Both P. Ws. Mirzo and Khan Muhammad said that immediately after the marriage in the family, they had gone to village Shahpur Jahania to buy some rice from one Chanesar, that they stayed at this Chanesar's shop for an hour, or two, and, as they were returning home, they heard the report of fire-arm and an alarm and rushed to the wardat. Both the witnesses further said that they saw the appellant, Lalan, standing with a pistol, whilst the other two appellants were attacking his brother with hatchet blows who fell down and died. Both the witnesses claimed to have challenged the appellants, who ran away with their weapons. Now, according to P. W. Mirzo, the brother of the deceased, no one from the village had come to the wardat. But I agree with Mr. Imdad Ali Agha that this version of the evidence is difficult to believe and is inconsistent with that of the other eye- witnesses. P. W. Khan Muhammad candidly admitted, but only in cross-examination, that the villagers had come to wardat, but after the departure of the appellants. The witness further said: "I cannot give the exact number of the villagers who reached at the scene of occurrence from the village of Mohammad Hayat Sethar. These villagers enquired from us and we informed them about the assailants and the incident." I have no hesitation in preferring this evidence to that of P. W.
Mirzo, and I am constrained to observe that this material discrepancy in the ocular evidence escaped the attention of the trial Court.
9. However, reverting to the question of motive, the medical evidence proved, beyond doubt, that the deceased did not receive any fire arm injury. And further, as no empty was recovered from the wardat Mr. Imdad Ali Agha's submission was that the prosecution story that the appellant, Lalan, had fired a pistol was absurd, because the object of firing a pistol, in the circumstances, would only be to attract people to the wardat, and, according to learned counsel, no assailants with an iota of commonsense, would thus create evidence against themselves. But, as submitted by Mr. Manzoor Hussain, criminals are caught only because they get hurriedly, and therefore recklessly ; accoadingly I will first assume that the appellant, Lalan, had fired a shot, but, as he alone had the motive for the crime, according to the prosecution, why did he not fire again at Lalan, so as to take his revenge ? Additionally, if the prime mover of the crime thus refused to take any part in the crime, why did the two other appellants hacked to death a man against whom they had no enmity ? Mr. Manzoor Hussain's reply was that the appellant, Ghulam Nabi, was Lalan's brother, but the motive attributed for the crime by the prosecution is so flimsy that it is difficult to believe that the appellant, Ghulara Nabi, would have attacked Janan deceased, because, his brother's advances had been rebuffed. In any case, the appellant, Ramzan, was not related in any way to the other two appellants. Why then, in a murder instigated by Lalan, should this appellant have taken any part when the instigator of the crime stood by and watched as a spectator. The prosecution story is somewhat improbable, but we might have been prepared to hold that the manner of the occurrence was one more link in the chain of coincidences on which the prosecution case is based, provided we were satisfied by the evidence of the recovery of the pistol of the appellant, Lalan.
10. P. W. Agha Mir, S. H.
0. Said in his evidence that the appellant, Lalan, had, after his arrest, taken him to the wardat and produced a pistol and two live cartridges, which were lying concealed in some Sarbushes at a distance of about fount ten feet from the spot where the body of the deceased was. The pistol and the bullts were secured by the mashirnama (Exh. 28), which was witnessed by P. Ws. Mohammad timer and Sher Muhammad (Arain). Now, as the former fully supported the evidence of P. W. Agha Mir, the trial Court was highly impressed by the prosecution case, and observed, in this connection, that the mashir, P. W. Muhammad Umar, was an independent witness. But so was the other mashir, and I can only express my very great regret that the trial Court did not even attempt to examine the evidence of the other mashir, who emphatically said that an empty had been produced by the Police. Now, this discrepancy is important, because, if an empty was discovered, the failure of the Police to forward the pistol and the empty to a ballistic expert cannot but lead to a very strong adverse inference against the prosecution. And, on the further question, whether we should believe P. W. Mohammad Umar, or the other mashir, I have to point out that the former was a Wart whilst P.
W. Sher Mohammad (Arain) was a businessman. Both of them were produced by the prosecution as witnesses of truth, and, on the question, whether the article recovered was a live bullet, or, an empty, I would prefer the evidence of the witness, who was more educated. Accordingly, in my humble opinion, quite apart from the- fact that P. W. Sher Mohammad (Arain) was not declared hostile, his evidence should be preferred on the question of the nature of the recovery, and this is damaging to the prosecution case. Additionally, whilst, according to P. W. Agha Mir, S. H. 0,, and P.
W. Mohammad Umar, the appellant, Lalan, had led them to the wardat and produced a pistol and bullets, P. W. Sher Muhammad (Arain) said that he had been called by the Police when he was coming after purchasing some wheat. He further said in his examination-in-chief : "Police arrested accused Lalan and Ramzan in my presence, I was called by the Police at the time when I was coming after purchasing wheat Police prepared a mashirname which was read over to me. In token of the acceptance about its correctness, I placed my signature thereon. A pistol was lying in front of the accused Lalan. One crime empty was also lying in front of the accused." As the witness further explained that the accused had been arrested in the Jungle, the passage from his examination-in-chief, which I have quoted, is completely inconsistent with the evidence both of the Investigation Officer and of the other mashir, yet the witness was not declared hostile. Therefore, the appellants are entitled to rely on his evidence, which is very damaging to the prosecution case.
11. Mr. Manzoor Hussain feebly submitted that we should not lightly interfere with the appreciation of evidence by the trial Court. But the trial Court has followed the easy course of ignoring the evidence which went against the prosecution, and we cannot but deprecate such an appreciation of evidence. Additionally, both the eye-witnesses were very emphatic that they had seen the three appellants running away with the weapons which they were carrying. Now, it is clear from the sketch of the wardat that the sarbushes, from where the pistol and the bullets were alleged to have been recovered, would have been visible to the eye-witnesses from the spot where they were standing ; therefore the categorical assertion, of the eye-witnesses that the appellants had run away with their weapons is inconsistent with the recovery of the pistol and the bullets. Secondly, as submitted by Mr. Imdad Ali Agha, the place of recovery was a place to which the public had access, and the recovery was, even according to the prosecution, made more than twenty-four hours after the occurrence. Once again, I can only express my regret that this circum stance escaped the attention of the trial Court. I have also to refer here to the evidence of P. W. Sher Muhammad, son of Haji Idrees, read to be confused with P. W. Sher Muhammad (Arain) to whose evidence I referred earlier. P. W. Sher Muhammad son of Haji Idrees, was the mashir of the mashirnarna of the wardat (Bah. 21), and he said in his cross-examination : "At the scene of occurrence, some sarbushes were also present. The same were seen and looked into by the Police.
The Police looked into the sarbushes which were 14/15 paces around the dead body of Janan. In my presence nothing was secured from the wardat and sarbushes". Now, according to the First Information Report, appellant Lalan, who had the motive for the crime, was alleged to have fired a shot ; therefore the search in the sarbushes had reference to this allegation in the F. I. R. But, if the Police were not able to discover the pistol on the evening of the occurrence, how were they able to find it the next evening: The only person, who could have given an explanation on this aspect of the case, was the Investigation Officer, P. W. Agha Mir, S. H. O. But, although he was examined one week after P. W. Sher Muhammad, son of Haji Idrees, he did not even attempt to explain how he had on the 4th of June 1972, secured a pistol and bullets, which he had not been able to find the previous evening despite his search. In all the circumstances discussed, I am unable to believe the prosecution case about the recovery of C the pistol and the bullets.
12. This conclusion is very damaging to the prosecution case, because the fact that the recovery was planted cannot but react against the entire prosecution case. And, in this background, it is difficult to believe the statement of the eye-witnesses that the appellant, Lalan, had fired a shot, the more so, as it was an unusual and improbable thing for an assailant to fire a shot meaninglessly. Further, according to Mr. Lmdad Ali Agha, there was no other corroboration of the ocular evidence against the appellant, Lalan ; therefore he had to be given the benefit of doubt. Mr. Manzoor Hussain, however, submitted that the ocular evidence was supported by the evidence of P. Ws. Gul Muhammad and Khair Muhammad. I referred earlier to P. W. Gul Mohammad's evidence, and I would repeat that I am not impressed by it. In any case, the witness merely said that he had seen the appellants after his son, the deceased, had left him. It is impossible to decide from the evidence whether the witness crossed the appellants before or after the occurrence ; therefore the evidence does not help the prosecution case. Then, as to P. W. Khair Muhammad, he was the local Nekmard, but he cannot be said to be a disinterested witness, because his niece, according to P. W.
Gul Muhammad, was married to the deceased. I also find that the witness gave contradictory answers on the question whether the appellants had attended the wedding of Mst. Saijan that morning of the occurrence. Bearing in mind his close kinship with the deceased, in my humble opinion, neither the evidence of P. W. Gul Muhammad nor of P. W. Khair Muhammad is sufficient to corroborate the ocular evidence. But, on the other hand, as I pointed out, P. W. Khan Muhammad admitted that, immediately after the occurrence, he had informed the local villagers of what had happened. That the prosecution failed to examine these villagers cannot but lead to an adverse inference against it, because it means that it withheld independent evidence which was available, and, at the same time, I am very disturbed by the false evidence about the recovery of the pistol. In all the circumstances discussed, it would not be safe to base a conviction solely on the ocular evidence, and, as there is no corroboration of the same against the appellant, Lalan, he must be given the benefit of doubt.
13. I now turn to the case of the appellant, Ramzan, from whom, according to P. W. Agha Mir, S. H.
0., and Muhammad Umar, a bloodstained hatchet and a blood-stained shirt were recovered. But, contrary to the evidence of these two witnesses, P. W. Sher Muhammad (Arain), the other masher of this appellant's arrest said : "Police arrested accused Lalan and Ramzan in my presence. I had seen the blood-stained shirt lying in front of the accused persons. The hatchet was also lying in front of the accused persons. Hatchet and shirt were blood-stained". Although this evidence is very damaging to the prosecution case, the witness was not declared hostile ; accordingly the appellant is entitled to rely on it, and, in view of the discrepancy between his evidence and that of the other E two witnesses, it would not be safe, in my humble opinion, to rely on the evidence of the Investigation Officer and of the other Mashir, P. W. Muhammad Umar. But, in view of the failure of the prosecution to examine the local villagers, there is no other evidence, which can corroborate the ocular evidence ; therefore this appellant also is entitled to the benefit of doubt.
14. There remains for consideration the case of the appellant, Ghulam Nabi. The appellant was arrested on 7-6-1972 vide the mashirnama (Exh. 24), and, according to the prosecution, he, thereafter, produced a hatchet from a tin box vide the Masnirnama (Exh. 25). The hatchet was blood-stained, and P. W. Ayub supported the evidence of the Investigation Officer, P. W. Agha Mir, S. H.
0. About the recovery of the blood-stained hatchet. But, according to P. W. Ayub, the appellant produced the hatchet from underneath an iron box, and this is also what P. W. Agha Mir, S. H.
0. Said. Mr. Imdad Ali Agha, therefore, drew our attention to the fact that these statements were discrepant with the statement in the mashirnama that the hatchet was produced from a tin box.
This discrepancy does not impress me, but I am disturbed by the conduct of P. W. Agha Mir, S. H.
0. In fabricating the recovery of the pistol from the appellant, Lalan. And further the only mashir examined, P. W. Ayub, admitted in his cross-examination that the complainant was his maternal uncle. On a capital charge, where the ocular evidence requires corroboration, it would, in my humble opinion, not be safe to rely on the evidence of a mashir, who was closely related to the party of the complainant ; accordingly this appellant also has to be given the benefit of doubt.
15. In the result, I would reject the reference, allow the appeal, set aside the conviction and sentences passed against all the appellants and direct their release forthwith unless required on any other charge.
' JAMALUDD1N H. AHMED, J.-I agree.