' JAMALUDDIN H. Amu), J.-Appellant Hussain was tried along with acquitted accused All Gul and Haji for an offence under section 302/149, P. P. C. And was convicted by the Sessions Judge, Dadu and sentenced to death under section 302, P. P. C. And also under section 302/149, P. P. C. Besides to 12 months' R. I. Under section 148, P. P. C. He was further convicted under section 13-D, Arms Act and sentenced to R. I. For 12 months. He has filed this appeal against the said convictions and the case is also sent to this Court for confirmation of death sentence.
2. The occurrence by which two persons i,e, All Akbar Shah and his son Fazal Shah lost their lives, took place on 20.7-1972 at about 4-45 p.m. On the Inspection Path of Nara Canal at a distance of about 11 miles from Khairpur Nathan Shah Police Station in District Dadu. Both the deceased were on a motor-cycle, and were returning from Dadu where they had to attend to a hearing of a case.
The case pertained to a dispute over land and peech of water and had been filed by deceased All Akbar Shah against Sheral Khoso and others. The disputed land was in possession of Sheral Khoso and others and was claimed by the deceased. On the inspection path the deceased were seen by Nural Shah, Murad Shah and Khairo Machi as they crossed on their motor-cycle towards their village. When they had covered about 180 yards there were two simultaneous gunshots as a result of which deceased All Akbar Shah jumped down and ran towards South of the inspection path.
Deceased Fazal Shah also gave speed to the motor-cycle and went towards the jungle on the Southern side. From the North side Ali Hassan (absconding accused), All Gul and Haji (acquitted accused) emerged. They were armed with a gun and hatchets respectively. The appellant, and Sheral (who died during committal proceedings) came out from the Southern side. Appellant had a gun while Sheral had a hatchet. All the five then ran towards the two deceased giving challenges.
' Nooral Shah and his companions advised them not to commit murder but were threatened with death if they approached, and therefore they kept back. The appellant and All Hussain (absconding accused) then fired at the two deceased with their guns, where after others gave hatchet blows to deceased Ali Akbar Shah. After committing the murder the appellant and four others went away towards south. Nooral Shah and his companions then went over to the two victims and found them dead. Nooral Shah left Murad Shah and khairo over the dead bodies and went over to All Murtaza Shah the uterine brother of deceased Ali Akbar Shah, and narrated to him what he had witnessed. He and Abdul Jabbar Shah who was sitting with him at that time, then accompanied Nooral Shah to the spot and saw the dead bodies. All Mum& Shah then proceeded to Police Station, Khairpur Nathan Shah and lodged the report.
3. S. H.
0. Abdul Majeed, who registered the F. I. R. Proeeeded to the scene of offence and prepared mashirnamas of the same in presence of Mashirs Muhammad Usif and Qassim Shah. He found two empty cartridges on the inspection path, besides two other empty shells near the dead bodies. He seized all the four empty shells and sealed them. A scooter, a cap and a pair of slippers were also on the Sarzamine. He then sent the two dead bodies for post-mortem examination. On 21-7-1972 he recorded statements of Nooral Shah, Murad Shah, Abdul Jabbar Shah and Khair Muhammad. He arrested Sheral on 23-7-1972, who produced his hatchet. He arrested the appellant on 27-7-1972 from his house and secured his shirt and loincloth which had indistinct marks of blood and appeared to have been washed. Appellant produced a gun from within a room beside his house and which was kept in 'huh' (dry grass). This gun was in working condition and he seized it under a mashitnama signed by Muhammad Yousif and Qassim Shah. Appellant had no licence for this gun, hence he filed a separate F. I. R. Against him for this offence. On 10-8-1972 he arrested Haji and Ali Gul. Ali Gul produced a hatchet, so did Haji. All Hassan was an absconder, so the S. H. O. Filed interim challan for the remaining accused on 6-8-1972. He sent the clothes of the appellant to the Chemical Analyser and the gun secured from him to the Fire-arms Expert for examination.
4. At the trial the eye-witness account of the occurrence was given by P. W. 6 Nooral Shah and P. W.
7 Khairo who both said that the appellant fired at deceased Fazal Shah who thereafter fell down on the ground. P. W. All Murtaza Sbah the complainant corroborated Nooral Shah, as he was informed by Nooral Shah about the appellant firing at deceased Fazal Shah. P. W. Muhammad Yousif as well as S. H.
0. Abdul Majeed deposed to the fact of recovery of four empties from the wardat, arrest of the appellant Hussain and recovery of his shirt and loin-cloth at the time of arrest. The clothes were sent to the Chemical Examiner whose report Exh. 34 showed that they were stained with human blood.
' In the presence of these witnesses the appellant also produced the gun, which had been sent to the Ballistic Expert alongwith the empties secured from the place of occurrence. P. W. 6 Mukhtiar Ahmed the Expert who examined the gun and empties deposed that only two of the empties had been fired from the gun forwarded to him.
5. P. W. Dr. Jan Muhammad the Medical Officer who held the postmortem examination of the deaa bodies was examined and found the following injuries on their persons :- Deceased All Akbar Shah:-
(1) Penetrating gunshot wound 1 x r breaking the underlying bones (maxilla) and fracturing the teeth on the upper lip middle.
(2) Incised wound 1' x r muscle deep on the tip of nose.
(3) Incised wound w x 1' x 1/5' deep to the bone cutting the underlying bone on the temporal occipital region left side. Brain matter was protruding out.
(4) Incised wound 34' x 3/4' deep to the bone cutting the underlying bone on the occipital region middle. Brain matter was protruding out.
(5) Incised wound 74' x r deep to the bone cutting the underlying bone on the right parietal occipital region. Brain matter was protruding out.
(6) Incised wound 54' x 3/4' x bone deep cutting the underlying bone above the right ear, running back to the occipital region.
(7) Circular penetrating pellet shot wound ?' in diameter on the left pectoral region.
(8) Circular pellet shot wound in diameter on the inner aspect of left thigh lower 1/3rd.
(9) Circular penetrating gunshot wound 1 1/5' in diameter on the back middle just right to the vertebral column.
(10)Two circular pellet shot wounds each y in diameter, one near the other below the pit of left axilla.
(11)Incised wound 1 4/5' X 1/5' muscle deep on the left shin middle. Deceased Fazal Shah:-
(1) A penetrating circular gunshot wound 3/4' in diameter on the left temple in front of left ear.
Margins were inverted and balackened.
(2) Lacerated gunshot wound 4/5' in diameter on right temporal lateral to the outer end of right thigh brow, Margins were everted.
(3) Incised wound 3i" x11' deep to the bones cutting the underlying bone on the outer aspect of left arm upper end.
(4) Six penetrating pellet shot wounds on the posterior aspect of the left forearm middle breaking both the bones of forearm in pieces.
(5) Lacerated gunshot wound x 2i. On the anterior aspect of left forearm upper half.
(6) Gaping incised wound 2' x lr muscles deep on the left iliac region.
(7) Four discrete pellet shot wounds on the left pectoral region inner to the nipple.
(8) One pellet shot wound on the right hypochondriac region.
' In his opinion death in the case of both, was due to shock and haemorrhage which resulted from the injuries caused to them by fire-arms and hatchet.
6. In his statement, the appellant denied that he committed the alleged murder or that he was a member of any unlawful assembly that had such common object. He denied that the clothes i,e, the shirt and the loin.Cloth were his clothes, or that they had been sec red from h s person at the time of arrest. He also denied the allegation that be had volunteered to produce a gun or that he actually led the police and the mashirs and produced the gun in their presence. He admitted that Sheral bad a dispute with Ali Akbar Shah on land which was owned by them, but which Ali Akbar Shah wanted to take for himself as it was near bis own village. About the P. Ws. Be stated that they were related hence hostile to the appellant and others. He produced documents to support this plea. He added :- "I produce true copy of F. I. R. In Case No, 90/1974 Exh. 4, and challah of that case Exh.
45. I produce true copy of F. I. R. In Crime No, 86 of 1972 Exh. 46 and copy of challah in that case Exh.
47. I produce a true copy of direct complaint filed by Andel Seah against my father and others Exh.
48. I produce true copy of F. I. R. In Crime No, 127 of 1971 Exh. 49 and copy of challah in that case Exh.
50. I produce true copy of F. I. R. Lodged by deceased Fazal Shah Exh,
51. I produce true copy of deposition of Khair Muhammad Machhi given against us in previous case Esh.
52. I produce true copy of Discharge Order in a case filed by Fazal Shah against us Exh.
53. I produce true copy of judgment of Civil Suit No, 41 of 1970 Eel).
54. I produce copy of order of High Court in appeal in the aforesaid suit Exh.
55. I produce true copy of judgment in cases-filed against us by complainant party Exh.
56. I produce true copy of judgment in Case No, 17 of 1970 filed against my brother All Gat and others Exh.
57."
7. The first criticism of Mr. Akhtar All Qazi, learned counsel for the appellant, was directed against the evidence of the eye-witnesses, which according to him was interested and not worthy of any credit, for, on their own showing and as also borne out by documentary evidence produced by the appellant, they were proved to have links with deceased Ali Akbar Shah and bad even taken some part on his behalf against the appellants group. In this regard he pointed out that even trial Court has discarded their evidence,-considering it unsafe for reliance, which resulted in the acquittal of the other two co-accused. This is correct, but the trial Court had taken into account the corroborative factors in evidence which supported the version of the eye-witnesses as aeainst the appellant. In fact even after assessing those factors, the trial Court found that the testimony of one of the eyewitnesses Nooral Shah did not inspire confidence about his being an eye--witness of the incident.
' The second part of the contention raised by the learned counsel, therefore,. Was that even the corroborative evidence in this case was not worthy of any credit because P. W. Muhammad Yousif the mashir, who is the main witness on that aspect of the case was not trustworthy.
8. So far as the ocular evidence is concerned only two witnesses Nooral Shah and P. W.Khairo have beep, examined. The relationship of P. W. Nooral Shah with the deceased or the complainant, if any, has not been established. However, the appellant produced a true copy of the complaint, Exh. 48 which had been filed in the Court of the Resident Magistrate, Dadu by Syed Andal Shah father of witness Nooral Shah against Sheral Khoso, the father of the appellant, All Gul, his brother, Haji the acquitted accused, Ali Hassan the absconding accused and others, this complaint is dated 19-IC- 1968 and is for offences under sections :07/149, 323/142/34/197/151, P. P. C. The allegation in this complaint was that Syed Andal Shah was attacked and threatened to be murdered by using fire- arms because his relative Fazal Shah had involved Sheral Khoso and others in 2-3 theft cases. The appellant has also produced Ma. 51 which is the true copy of the first information report tiled by deceased Fazal Shah relating to the theft of bullocks. Although Nooral Shah in his evidence has professed innocence about the complaint filed by his father against the Khosas but the documents produced by the appellant do indicate that the witness could not have been well disposed towards the Khosas. P. W. Khairo on the other hand has admitted that he had figured as a prosecution witness in 2-3 cases against the appellant and co-accused although he did not remember the names of the complainant in those cases ; but he remembered that he was a witness against them in which they were acquitted. The appellant produced Exh. 52 being the true copy of deposition of Khair Muhammad in Case No, 54 of i.970 which shows that this witness had given evidence against Sheral, Ali Hasan, Ali Gul, Haji and others.
' The. Trial Court therefore concluded that implicit reliance could not be placed on their evidence and proceeded to examine the question whether they were at all present at the time of the murder and had witnessed the incident as claimed. In this context, discrepancies in the evidence of these two witnesses about their going together to Kakar village before the incident, end also contradictions on the use of hatchets by the accused led the trial Court to conclude that the presence of these witnesses was doubtful unless it was corroborated by some other circumstance in the case. With regard to the evidence of P. W. Nooral Shah no such confirmatory circumstances were found out hence the trial Court held that his testimony did not inspire confidence about his being an eye-witness of the incident and it was not thought safe to rely on it. However, P. W. Khairo had stated that there had been two rounds of firing at the deceased. First two-three shots were from a distance of 10-15 paces while tit.: second round of shots was fire by the accused 'while standing over Ali Akhar Shah and Fazal Shah when they were lying on the ground.' According to the trial Court this evidence was materially corroborated by the medical evidence and also by circumstance that out of the four empties secured from the wardat two were near the dead bodies while other two were at some distance. It was therefore found that the claim of P. W. Khairo as an eye-witness was established. However, as corroborative evidence was still necessary to make his evidence reliable on account of the bias shown to exist against Khosa accused the trial Court proceeded to examine the same. This evidence was available in the shape of blood-stained clothes and production of the gun as against the appellant alone. The other two co-accused were therefore acquitted.
9. In so far as the evidentiary value of the two eye-witnesses Nooral Shah and Khairoo is concerned, it is sufficient to say that it is not of a character which could be safely relied upon without some extra corroboration. 9 The position that the two deceased were antagonistic towards the appellant and other Choses, and vice versa, appears to be an admitted position in the case, In fact on the day they were murdered the two deceased were returning from Dadu after attending the hearing in a case in which these Khosas were involved. The dispute between the two parties related to possession of land and use of water and admittedly there had been a chequered history of litigation between the two parties. There is enough material on record of this case to justify the conclusion that the above two eye-witnesses had been close associates of the group of the deceased and that they were not in any way favorably inclined towards the Khosts. P. W. Khairoo had even admitted this position, while litigation is shown to have existed between the father of the P. W. Nooral Shah on one side and the Khosas on the other. In this situation it would not be necessary to go into the question whether the claim of P. W. Nooral Shah to have seen the occurrence is in fact established nor would it be necessary to examine the reasons given by the trial Court to reach the conclusion opposed to such a conclusion.
10. The deciding factor that emerges out of the circumstances appearing in the case, would therefore, be, whether there is any evidence available which could be considered as sufficiently corroborating the evidence of the two eye-witnesses so as to uphold the conviction of the appellant.
' Appellant Hussain was arrested on 27-7-1975 by A. S. I. Abdul Majeed, P. W. 8 from his house. P. W. 4 Muhammad Yousuf and Qasim Snah acted as mashirs of his arrest and a blue-cultured shot and a siiken green loincloth were secured from his person at that time. According to the mashirnama clothes appeared recently washed but still had some marks en blood. Immediately thereafter on the same day the appellant led the Investigating Officer and the mashirs to the place inside his house and produced the crime weapon i,e, gun No, 2384/SBBL '12 bore from a room after removing "buh" (dry grass). On opening, this gun was found to smell of gun-powder. According to the report of Chemical Examiner the appellant's clothes were found to be stained with human blood and according to Mukilter Ahmed, P. W. I the Ballistic Expert, two of the crime empties secured from the "Sarzamin" had been fired from the '12 bore shot-guts No, 2384/SBBLthat had been produced by the appellant.
' Muhammad Yousuf and Qasim Shah had acted as mashirs even of the "ward at" on 20-7-1975.
Qasim Shah was not examined in Court and as admitted by the complainant, he was related to him. Muhammad Yousuf who lived near the "wardat" was on his own showing supplied as a Mashir by the complainant Ali Murtaza Shah along with Qasim Shah to the Investigating Officer where after he acted in that capacity and was associated with the investigation throughout. The police officer on the other hand stated that he had called the mashir through a police constable.
However, this mashir made statements which were discrepant and self-contradictory which materially affect his credibility and the trial Court also came to the conclusion that in view of the prevaricating statements made by the mashir it was not D safe to rely upon him either with regard to recovery of blood-stained clothe from the appellant or production of gun by him. This opinion about th witness is based on valid reasons and proper assessment of his evidence.
' The only evidence on the point of recovery of blood-stained clothes and the production of gun by the appellant, therefore, is that of the Investigating Officer S. H.
0. Abdul Majeed. His evidence was relied upon by the trial Court in the first place on the ground that there was no legal' bar on placing reliance on the evidence of Investigating Officer alone and in the second place because of the circumstance that there was no evidence of bloodstains against the acquitted accused which suggested that he had not created a false evidence in the case of appellant. The trial Court, therefore, thought it, "Not unsafe to rely on his evidence notwithstanding the fact that the testimony of the mashir had been discarded in the light of the facts pointed out".
There can be no denial of the fact that a Police Officer is a competent witness and his reliability cannot be doubted merely because he has investigated a case. But in the present case where the credibility of the mashir is found to be doubtful on a crucial point on various grounds including that of being associated with the complainant's party, the evidence of the Investigating Officer who selected the mashirs could be accepted only after it is found to be of an absolutely unimpeachable character. In this case the Investigating Officer on his own showing had remained at the "wardat" for about an hour whereafter he proceeded to the "Autaq" of Muhammad Yousuf where he stayed the following night and, after that whenever he made him a mashir he used to pick him up from his "Autaq" as it was on the way and be used to call Qasim Shah also at that "Autaq". According to him whenever he had the occasion to visit the "Autaq" of Muhammad Yousuf, he found him present there. It may be mentioned that Muhammad Yousuf and Qasim Shah acted as mashirs on 20th, 23rd and 27th July and 10th August, 1972 for various purposes. Although witnesses Nooral Shah, Khair Muhartmad, Murad Shah and Abdul Jabbar Shah were present at the "wardat" on 20th July, 1972 the Investigating Officer chose to examine them on the following day i,e, 21st July, 1972 at the "Autaq" of Muhammad Yousuf, mashir. Admittedly, there is no mention of four shells of empty cartridges lying at the "wardat" either in the F. I. R. Or in the statements-recorded on 21st July, 1972. According to the S. H.
0. He asked a police constable to bring any two persons for acting as mashirs who brought them within 15/20 minutes, but this situation is incompatible with the one deposed to by Muhammad Yousuf himself, who stated in unequivocal terms that the S. H. O. Enquired from the complainant as to who will act as mashirs and the complainant presented him (Muhammad Yousuf) and Quin Shah for acting as mashirs. These and other such factors affect the evidence of this Police Officer in a manner so as to make it doubtful and not one which could in the circumstances of the case be used to corroborate a weak piece of evidence. In any case when corroboration is being sought for making a piece of evidence believable, it would be unsafe to make Use of a fact on which there appears to be a conflict in the testimony of witnesses. In absence of any convincing evidence on the fact of recovery of the bloodstained clothes and the production of a gun, the same cannot be used toserve as a corroborative evidence in the circumstances of the case.
' In the result, the case against the appellant does not appear to be free from doubt. His appeal is therefore allowed, the conviction and sentence set aside, and the reference is not accepted.