' Appellants were convicted under sections 302, 148 and 149, P.P.C. By a learned Additional Sessions Judge, Larkana and sentenced to undergo life imprisonment and fine of Rs,50,000 or in default to undergo further R.I. For one year for the offence of murder read with section 149, P.P.C. And sentenced to R.I. For 3 years and to pay fine of Rs,20,000 or in default to suffer imprisonment for six months for the offence of rioting punishable under section 148, P.P.C.
2. Episode leading to unnatural death of deceased Faqir Muhammad amounting to murder took place on or at about 15-2-1990 at about 12-00 noon on a vacant plot situated in Nazar Mohalla of Larkana Town. According to the prosecution case as given out in the First Information Report lodged by Faiz Muhammad real brother of the deceased at "B" Section Police Station, first informant Faiz Muhammad and his sister's son P.Ws. Darya Khan and Shahan left their village for Larkana Town to make household purchases and after necessary shopping they were on their way back to their village when they came across deceased Faqir Muhammad on a motorcycle on the way leading from Nazar village to Rasheed Wagon. On seeing the first informant and his nephews after halting his motorcycle Faqir Muhammad was exchanging views with them when all of a sudden present appellants, duly armed with hatchets emerged from the northern side and on seeing Faqir Muhammad issued threats to kill him. Leaving his motorcycle Faqir Muhammad in an attempt to save his life started running but the appellants succeeded in catching hold of him on an open plot and inflicted fatal hatchet blows to him culminating in his instantaneous death. As the first informant and the witnesses were empty-handed they could not afford to resist the assault. After the departure of the appellant they found injuries on the head, neck, shoulder, forehead, both arms and other parts of the body of the deceased who was bleeding from his injuries and was dead.
Leaving both the witnesses to guard the dead body, Faiz Muhammad rushed to "B" Section Police Station where he lodged the report of the incident with A.S.I.P. Ghulam Abbas the same day at 1-00 p.m.
3. Motive for the commission of the incident as divulged by the first informant is that all the appellants after a pre-concert committed rioting in order to avenge the murder of Wali Dino Khakharani committed about one year before the incident. For the aforesaid murder a case was registered against Faqir Muhammad and others at Taluka Police Station, Larkana and they were prosecuted before the Court of Sessions Larkana which was in progress. On this account appellant Bahar brother of deceased Wali Dino had issued threats to deceased Faqir Muhammad that he would certainly avenge the murder of his brother.
4. After registration of the crime A.S.I.P. Ghulam Abbas visited the place of occurrence, inspected the dead body, recovered blood-stained earth and prepared a memo. In presence of Mashirs Mian Khan and Ghulam Rasool. After preparing inquest report on the dead body he referred it for post- mortem examination through police constable P.C. Abdul Rehman. He recorded the statements of P.Ws. Darya Khan and Shahan on the same day. On 28-2-1990 all the appellants surrendered before the Investigating Officer at Police out post Rahmatpur through Nekmard Kauro Khan who were taken into custody through memo. Of arrest Exh.18-C attested by Mashirs Mian Khan and Ghulam Rasool. On 8-3-1990 both the eye-witnesses were produced before Resident Magistrate, Kamber at Larkana for recording their statements under section 164, Cr.P.C. On interrogation appellants volunteered to produce the crime weapons before the Investigating Officer. Appellant Battu and Mashooque who are related inter se led the Investigating Officer and Mashirs Rasheed Ahmed and Ali Murad and produced blood-stained hatchets from the roof of their house and a heap of grass lying on the west of the house respectively. Likewise appellants Rasheed and Wasayo produced their respective blood-stained hatchets from Lai bushes sitauted on the eastern direction of their house. Accused Yakoob purportedly produced his blood-stained hatchet concealed under the heap of grass from outside his house, accused Panah produced his weapon of crime after taking it out from lai bushes. All the weapons were taken into custody and sealed vide separate memos. In presence of Mashirs Rasheed Ahmed and Ali Murad. According to A.S.I.P.
He had handed over the case papers and crime weapons to S.H.O. "B" Section Police Station but the Chemical Examiner's Report Exh.20 produced by the Investigating Officer reveals that all the hatchets as well as blood-stained earth were despatched on 12-7-1991 and received by the Chemical Examiner on 13-7-1991.
5. Dr. Muhammad Yakoob, Medical Officer, Casualty Department Chandka Medical College Hospital, Larkana performed autopsy on the dead body from 3-50 p.m. To 4-50 p.m. And found the following injuries on it:
(1) 1 incised wound 17 c.m. x 8 c.m. (crushed type) from laieral left eyebrow to left occipital region slightly above posterior side neck cutting left ear, bone deep and brain matter cut.
(2) 1 incised wound 5 c.m. x 1 c.m. Left side of neck below left ear.
(3) 1 incised wound 3 c.m. x 1 c.m. At left forehead.
(4) 1 incised wound 6 c.m. x 1 c.m. At occipital region.
(5) 1 incised wound 7 c.m. x 2 c.m. At occipital left parietal region.
(6) 1 incised wound 3 c.m. x 1 c.m. At right parietal region.
(7) 1 incised wound 4 c.m. x 1 c.m. At left parietal region.
(8) 1 incised wound 3 c.m. x 1 c.m. At left supra scapular region.
(9) 1 incised wound 3 c.m. x 1/2 c.m. At left forearm posteriorly.
(10) 1 incised wound 3 c.m. x 1 c.m. In between web of index and middle finger.
(11) 1 lacerated wound 3 c.m. x 1 c.m. At right palm near thumb.
(12) Abrasion at left supra scapular region.
(13) 3 abrasions at back.
6. In the opinion of Medical Officer the death had occurred due to intra crannial haemorrhage and shock on account of injuries Nos.1 to 7 which were sufficient in the ordinary course of nature to cause death. While injuries Nos.1 to 10 appeared to have been caused by some sharp-cutting weapon, injuries Nos.11 to 13 were the result of a hard and blunt substance.
7. At the trial prosecution examined Faiz Muhammad P. W.1, Darya Khan P.W.2, Corpse bearer Abdul Rehman P.W.3, Tapedar Barkat Ali, P.W.4, Dr. Muhammad Yakoob P.W.5, Shahan P.W.6, Mashir Rashid Ahmed P.W.7, Mashir Mian Khan P.W.8 and A.S.I.P. Ghulam Abbas P.W.9.
8. In their respective statements recorded under the provisions of section 342, Cr.P.C. Appellants denied the allegations against them. Appellant Bahar stated that the witnesses had deposed against him due to enmity. His statement which was adopted by all other appellants reads as under:- "Prior to this incident deceased Faqir Muhammad had lodged a false F.I.R. Under section 436, P.P.C.
Against accused Mashooque, Yakoob, Bashir, Allah Wasayo, Kauro father of accused Abdul Rasheed and Paryal father of accused Muhammad Panah. In that case P.W. Shahan of this case was also a witness. I produce the photostat copy of F.I.R. Dated 27-1-1989 being Crime No,17 of 1989 Taluka Police Station Larkana, Exh.23. Meeral son of Faiz Muhammad of this case was also witness.
Accused Abdul Rashid in Crime No,17 of 1989 is my cousin. The accused Panah, Yakoob and Mashooque are my Pufat. Accused Allah Wasayo is my cousin. Deceased Faqir Muhammad was a well-known dacoit involved in so many criminal cases. He was also challaned under Sindh Crimes Control Act and section 110, Cr.P.C. Proceedings. I produce true copy of report under section 14, Sindh Crimes Control Act, Exh.24. Due to old enmity, I and my other relatives have been involved."
9. In his further statement he claimed that he was called at police station alongwith other accused on the day of incident, again said on the morning of next day of incident at about 9-00/10-00 a.m.
And involved in this false case. He was kept at P.P. Rehmatpur alongwith other accused till the hatchets had been foisted against him and other co-accused. No evidence in defence was, however, adduced except the production of photo copy of extract from daily "Ibrat" containing a news item regarding the murder of deceased Faqir Muhammad at the hands of four armed persons on account of old enmity.
10. On assessm ent of the evidence on record learned Trial Court found the appellants guilty of the charge and convicted and sentenced them as aforesaid. It is as against the judgment and conviction that the present appeal was filed.
11. Unnatural death of the deceased as a result of fatal incised wounds on his person has not been disputed before this Court and it stands concluded by expert medical evidence on record. Mr. Habibullah Shaikh learned counsel for appellants has raised the following contentions in support of the appeal.
(i) That the evidence against the appellants is by interested, partisan and chance witnesses who had direct animosity against the appellants.
(ii) That the motive for the commission of the crime is neither natural nor strong enough to warrant the involvement of six appellants for commission of murder.
(iii) That the evidence regarding recoveries of crime weapons is completely unnatural, improbable and unworthy of any credit.
(iv) That there is no independent corroboration of the prosecution case and the appellants have been falsely implicated in the crime.
12. On the other hand learned State Counsel instead of meeting the contentions in sequence submitted that this was a broad daylight murder; that the appellants had been specifically nominated in the F.I.R. Which was promptly lodged; that the recovery of crime weapons was voluntary; that there is a strong motive against appellant Bahar who is closely related to remaining appellants and lastly that the contradictions in the evidence are immaterial; negligible and of no consequence.
13. Adverting to the first contention raised by the learned defence counsel he has referred to various discrepancies in the evidence of the alleged ocular witnesses namely according to first informant Paiz Muhammad, he himself as well as his nephews Darya Khan and Shahan made purchases of cloth, empty bags, a small tin of Ghee, onions and potatoes from Shahi Bazar Larkana which is about one mile away from the place of incident. According to him articles of Darya Khan were kept in one bag while the articles purchased by P.W. Shahan were placed in the other bag and both of them took such bags by themselves. On the other hand, P.W. Darya Khan candidly and categorically stated that while the cloth was purchased by all the witnesses from cloth market he purchased potatoes and onions from Nazar village while Shahan purchased sugar and spices from Nazar Mohalla. As regards Faiz Muhammad he expressly stated that the former purchased 10 yards of cloth from Shah Bazar but a tin of Ghee was purchased by him from Nazar Mohalla. Contrary to the account furnished by P.W. Faiz Muhammad, Darya Khan stated that "we had given the articles purchased by us to small children of our village who had come to Larkana after the incident".
According to him, when police visited the place of Wardat articles purchased by the witnesses were not available with them, whereas Faiz Muhammad stated in definite and candid terms that "we had shown bags and articles purchased by us to the police".
14. Learned counsel has also referred to another contradiction in the evidence with regard to the motorcycle on which the deceased came to the place of incident and was made the target of unfortunate assault allegedly by the appellants. While Faiz Muhammad who is the author of the F.I.R. And on whose version entire structure of the prosecution case is founded, stated that he did not know whether motorcycle on which his brother had arrived was seen by the police or secured by them. P.W. Darya Khan introduced as eye-witness claimed that "we had shown motorcycle of the deceased and the dead body to police. Police returned us the motorcycle". The statement of P.W. Faiz Muhammad on this aspect of the case is completely divergent and discrepant. On being asked whether he had seen the motorcycle at the place of incident when police visited it, he clearly stated that he had not seen the motorcycle. He further stated that the deceased had left the motorcycle while running away on the challenge of the accused and on the next day motorcycle was returned to them by Akhtiar Khakhrani of Nazar Mohalla
15. With regard to the interest of the witnesses in the prosecution case learned counsel urged that they were closely related to each other and consequently interested in the outcome of the case registered at the instance of Faiz Muhammad. He further pointed out that deceased Faqir Muhammad and others being involved on the murder charge for culpable homicide of Wali Dino Khakhrani and deceased being of questionable reputation and character was murdered by some unknown absconders but Faiz Muhammad and the witnesses bore a serious grudge against the appellants. Indeed first informant did not miss the opportunity to settle old scores with appellant Bahar and his close kith and kin as explained by him in his statement under section 342, Cr.P.C. The contention is not devoid of substance and meaning.
16. There is yet another material discrepancy in the prosecution case. While P.W. Shahan claimed that the police removed the dead body in their vehicle for taking it to hospital for the purpose of post-mortem examination, P.C. Abdul Rehman who was entrusted with the dead body unhesitatingly stated that he removed the dead body on a donkey cart to Chandka Medical College Hospital, Larkana. Obviously both the statements cannot be reconciled with each other and it is evident on the face of record that either of the witnesses is suppressing the truth with a certain motive behind it. On a close scrutiny of evidence of the aforesaid witnesses which remained uncorroborated by any other independent evidence notwithstanding the admission by them that many persons were attracted to the place of incident after the departure of the appellants, I am of the view that material omissions and contradictions in their evidence cannot be slightly ignored. Prosecution owes an explanation to the Court for such variations and discrepancies in evidence which create a reasonable doubt about the truth of the statements made by the witnesses who, on their own showing, had set out for Larkana on the material day for the purpose of making household purchases. Unfortunately, learned State Counsel has not been able to convince this Court about such contradictions and a bald statement that these are immaterial and negligible is hardly any answer to the points raised at the Bar.
17. Reverting to the second contention of the learned counsel for the appellants with regard to motive for the commission of the crime, suffice to say, murder of deceased Wali Dino the brother of appellant Bahar has not been disputed during the course of trial. It is also not disputed that deceased Faqir Muhammad and others were facing trial before the Court of Sessions, Larkana for the murder of Wali Dino. It is, however, pertinent to observe that notwithstanding the purported threats issued by appellant Bahar to the deceased, it is neither probable nor natural that as many as six appellants should join hands for committing the murder of Faqir Muhammad in order to avenge the commission of. Murder of Wali Dino. At any rate, motive may also serve as a ground for animosity between the parties and prompt the party of the deceased to rope in as many members of the family of the appellants as possible. In any event, since the ocular evidence is not capable of implicit reliance, motive, even if strong, would not be adequate enough to improve the prosecution case. To my mind, prosecution has not been able to establish strong and adequate motive for the commission of the crime on the part of appellants who are closely related inter se.
18. As regards recoveries of crime weapons at the hands of appellants, it would appear that both the Mashirs of recovery are related to the first informant as admitted by P.W. Shahan in clear and unambiguous terms. While Mashir Rasheed Ahmed resides in their village, Mashir Ali Murad is resident of village Dilijan Khakhrani situated four miles away from the place of incident. It is highly improbable that both these Mashirs had reached at the place of incident at the time of arrival of police and this aspect of the case does not inspire much confidence
19. Even otherwise, appellants were arrested after thirteen days of the incident and the alleged recoveries were made at their instance after nine days of their arrest. It is quite improbable and unnatural that the appellants would retain blood-stained hatchets in their possession knowing fully well that they were involved on the charge of murder punishable with death. Normal course of human behaviour would be to destroy such weapons or to dispose of the same with a view to cause disappearance of the evidence incriminating the real culprits. It is, therefore, difficult to believe that after their surrender before the Investigating Officer on the 22nd day of occurrence appellants had voluntarily led the Investigating Officer and Mashirs to respective places to point out the crime weapons allegedly concealed by them. In Muhammad Tasneem v. The State 1985 SCM R 160 where crime weapon was recovered five days after the arrest of the accused, Honourable Supreme Court expressed the view that such recovery was doubtful. Recovery evidence was considered to be weak also for the reason that attesting witness of recovery was himself a close relative of the deceased and as such was an interested witness whose testimony required corroboration. In Mujahid Hussain v. The State 1985 SCM R 1573 where accused who was not shown to have absconded and had, thus, opportunity to get rid of articles, it was held that he would not keep articles in his house for four days until he was arrested. In the present case recoveries were allegedly made after twenty-two days which as observed hereinabove do not inspire confidence and can be safely ignored. The matter does not end here. Although the so- called recoveries were effected on 9-3-1990, it is the case of prosecution that these were forwarded to the Chmemical Examiner as later as 12-7-1991 for which no explanation has been offered. While Investigating Officer, A.S.I.P. Ghulam Abbas seemingly remained content by stating that he had handed over the case property to S.H.O. Who sent hatchets and blood-stained earth to Chemical Examiner for examination and report, no attempt is made to examine the S.H.O. "B"
Section Police Station to explain inordinate delay of more than sixteen mouths in despatching incriminating articles to the expert for chemical examination. It is strange to note that the Chemical Examiner's Report is in positive. In all probability human blood fades with the passage of long time and necessary ingredients to find out the origin of the blood disappear by lapse of long time but neither the S.H.O. Nor the Chemical Examiner was examined to explain this mystery. The evidence with. Regard to the so-called recoveries of crime weapons thus looses its significance and is thus of no assistance to the prosecution. I am fortified in this view by a Division Bench judgment of the Lahore High Court reported as Abdul Rehman v. The State 1985 PCr.LJ 2975. In the reported case there was delay of twenty-one days in despatching the blood-stained hatchet to the Chemical Examiner without any explanation for the delay. Division Bench consisting of Mazhar-ul-Haq and Ijaz Nisar, JJ. Expressed the view that recovery evidence did not inspire confidence. Despite my repeated queries learned State Counsel as well as private counsel for the complainant were not in a position to make any convincing reply as to the reason for this inordinate and alarming delay in the despatch of crime weapons to the expert. It is, thus, not possible to attach any weight and importance to this circumstantial piece of evidence which is weak and infirm by itself. Needless to observe a tainted piece of evidence cannot strengthen another tainted piece of evidence.
20. For the aforesaid facts and reasons I am of the considered view that the prosecution case rests on interested, inimical and chance witnesses unsupported by any independent evidence. To my mind prosecution has not been able to bring home the guilt of the appellants beyond a reasonable doubt. They are, thus, entitled to an acquittal. I would, therefore, set aside the judgment and conviction and direct the release of the appellants, forthwith unless wanted in any other case. .