' JAMALUDDIN H. AHMED, J.-The two appellants were tried and convicted for offence under section 302/34, P. P. C. And sentenced to death by IInd Additional Sessions Judge, Sukkur. They have assailed the said conviction and sentence through this appeal and the case is also sent for confirmation of death sentence.
2. The prosecution case, shortly stated, is that on 30th June, 1971, deceased Arab, alongwith his nephew P.W. Khair Mohammad, left for village Nebhaoo. On the way the appellants both armed with hatchets, attacked deceased Arab and killed him, Khair Mohammad raised cries, and witness Manghio came up from the western direction and saw the occurrence. The appellants who had severed the head of the deceased from the body besides inflicting other injuries on him, then ran away. While Manghio stayed near the dead body, Khair Mohammad came running to the village and informed complainant Allandino, the brother of the deceased. They alongwith Mangal, Kandero and some others then went over to the place, and saw what had occurred. Allandino, complainant proceeded first to Adilpur Police Outpost and thereafter to Ghotki Police Station where they lodged this report.
3. Head Constable, Wasi Hyder, who was the Incharge at Ghotki Police Station registered the F. I. R.
Of Allandino at 4 p.m. And proceeded to the wardat where he prepared the mashirnama of the same in presence of mashirs Ismail and Bahar. The head of the deceased Arab was lying separate at a distance of 6/7 paces from the body. He secured the bloodstained earth and a pair of slippers, said to be left over by the culprits, and then sent the dead body for post-mortem examination to Medical Officer, Pano Akil. He recorded statement of Khair Mohammad, Manghio, Kandero and Mangal and on the next day at 6 a.m. Arrested the appellants from their house, and secured their stained clothes in the presence of the same mashirs. The appellants then led the police and the mashirs and produced their respective hatchets which appeared to have been washed.
' These clothes and hatchets were sent to the Chemical Analyser, who certified the clothes to be stained with human blood, but not so the two hatchets.
' The Head Constable then handed over the case papers and the property to the S. H.
0. Sardar Ali Shah who challaned the case.
4. At the trial the eye-witness's account was furnished by P. W. 2 Khair Mohammad and P. W. 3 Manghio, which was corroborated by P. W. 1 Allandino, complainant and P. W. 4 Kandero, who were informed of the incident and came to the place of occurrence and found that Arab was murdered.
P. W. 5 Ismail, the mashir deposed to the fact of arrest of the appellants and securing their blood- stained clothes and two hatchets. P. W. 8-A, Karim was the Head Munshi & III Class Magistrate in whose presence appellant Nindoo was asked to wear the slippers secured from the place of incident, but he refused to do so. P. W. 9 Wasi Hyder, Head Constable investigated the case and also secured the report from the Chemical Analyser Exh.
5. Dr. Abdul Khalique, Medical Officer, Patio Akil held the postmortem examination of the deceased and found the following injuries :-
(1) The neck was cut into two at the level of second and third cervical vertebrae.
(2) Incised wound 3" X 1" x 1" on the right parietal region.
(3) Incised wound 6" X 1" >< 1' on the occipital region.
(4) Incised wound 6" X 1" x 1" on left side of face on head.
(5) Incised wound 8" X 1" X on medium side of the left side of front of chest.
Incised wound 3" X r Incised wound 3" x i" Incised wound 2' x -i" Incised wound 3" x Incised wound 8"
X 4" Incised wound 6' X 2" x -1,-" on the right side oti injury No. 5. x f" on top of right shoulder. X" on the right wrist joint. X on the left groin region. X 4" on centre of back of chest. X 2" on the back of left elbow joint.
' In his opinion the death of Arab deceased was the result of the injuries to the vital organs; and injury No. 1 was individually sufficient to cause death in the ordinary course of nature. The injuries were caused with sharp-cutting weapon like a hatchet.
6. The case of the appellants at their trial was that of denial. They stated that the blood-stained clothes and the hatchets were foisted on them. The prosecution witnesses were related inter se and had falsely implicated them on account of dispute due to `Sangabandhi' i. e., marriage proposals. According to them their deceased brother Muhammad had promised to give his daughter in marriage to one Sukhio who was related to the complainant but he had subsequently refused to get this marriage performed. Besides this, P. W. Manghio had a dispute over land with Allah Box, the brother of the appellants and was therefore against them. Appellant Nindo further denied that he left any slippers at the place of murder or that he was put to any test of wearing the same where he had refused to put on the same.
7. Admittedly P. W. Khair Mohammad was related to the deceased and although he stated in the committal proceedings that he was his maternal uncle, he denied this relationship at the trial.
Again the F. I. R. Does disclose that relationship. The witness had started crying when Arab was attacked by the appellants but no one from their own village or the villages near about seems to be attracted. He had stated in his earlier statement that the place of incident as on an open ground which was visible from his village but at the trial he changed to say that the place was not so visible. His evidence is full of such other contradictions, which make his being an eye-witness doubtful. Even the purpose for which deceased Arab left the village at such a hot hour of the day, or for that matter this witness having joined his company do not appear convincing. Moreover, the contradictions and the discrepancies in the evidence clearly indicate a conscious but unsuccessful effort on his part to prove himself as a disinterested witness. Similar is the character of the other witness Manghio, who is merely a chance witness, having reached the spot after returning from his journey to Ghotki. From his village up to I Adilpur he had gone on foot in the morning. From there he caught a bus for Ghotki. He adopted the same means, while returning home, and was in time to see the incident. He stood contradicted by his own earlier version when he stated that there was only one path from Adilpur to his village. He heard cries from distance of 50.60 paces, but when he reached the spot the appellants had run away. The medical evidence shows a number of -injuries on the deceased including the severing of the head from the body and this could not all have been done in haste, and is not in conformity with the description of the offence given by the two witnesses. Moreover, as the learned counsel for the appellants pointed out that there was no money secured from the person of the deceased although if he had gone for purchasing the goats.
He should have had some, with himself. These are some of the features in the evidence of these eye-witnesses which if considered in the light of the circumstances of the case including the alleged motive, render It unreliable unless corroborated by some other evidence.
8. The corroborated evidence in this ease consists of P. W. Ismail who acted as a mashir of the wardat and also the arrest of the appellant on the following day and securing of their clothes and hatchets. This witness is not an independent witness. He is admittedly the brother-in-law of complainant Allandino. The co-mashir with, him was. Bahar Who was his son-in-law and the nephew of Allandino.. Since the case.. Of the appellant was that of foisting of the clothes as well as the hatchets, the evidence with regard to the same with a view to corroborate other evidence should have come on record from an independent source. It is not understood why some such persons who could be considered as disinterested persons were not asked to act as mashirs when admittedly the police found 30-40 persons already collected at the spot. The investigation was conducted by a Head Constable only when it should have been done by a more responsible police officer.
As the evidence of the eye-witnesses in the case is not of a type which could inspire confidence, and reliance on the same for the purpose of conviction was unsafe, it was necessary to seek some independent corroboration. In the circumstances of this case no independent corroboration is available and corroborative evidence coming from a source which obviously was not of such a nature, cannot again be safely relied upon. The case against the' appellants is not p oved beyond reasonable doubt and the appellants are, therefore, entitled to benefit of doubt. In the circumstances of this case, therefore, their appeal is allowed and conviction and sentence set aside. The reference is not accepted.