' AGHA ALI HYDER, J.-The appellant was convicted by the learned Additional Sessions, Judge, Dadu, for an offence under section 302/34, P. P. C. And sentenced to death. There were two other persons facing the trial, namely, Mehar and Murad, the latter having been arraigned for an offence under section 302/114, P. P. C. They have, however, been acquitted. There is a reference by the learned Additional Sessions Judge, as required under the law, and there is also an appeal filed by the convict. The reference and the appeal will be disposed of by this common judgment.
2. The prosecution story, in short, is that Ghulam Muhammad had lost his plough, and was making frantic efforts to get back the same. It is alleged that, on 22-7- 1974, at about the sunrise time, he, accompanied by his father, Shah Nawaz, had gone to the lands of the complainant, Mehar, where the appellant, and two other Haris of the land, were ploughing the field. Ghulam Muhammad identified the plough with the appellant as his own and claimed the same. There were some exchanges, and Ghulam Muhammad was returning to the village for further action. After the latter had covered only a little distance, the appellant and his two companions, namely, Murad and Mehar, had overtaken him, and, on the instigation of Murad, hatchet injuries had been inflicted by the appellant and also Mehar. Ghulam Muhammad had fallen down on the ground, but still breathing. Shah Nawaz had gone to the village, and broken the news to Mehar, who was his wife's brother. It was the latter who had proceeded to the Mehar Police Station, and lodged the First Information Report, at about 8-30-a.m. It was recorded by H. C. Muhammad Safar Having learnt that Ghulam Muhammad had been shifted to the dispensary, the said Head Constable repaired there, and noted the injuries on the person of Ghulam Muhammad, for which a "Mashirnama" was prepared. Gliulam Muhammad was then referred to the Medical Officer for treatment when he succumbed to his injuries the next day. The head constable states that, thereafter, he had examined Ghulam Muhammad, and then proceeded to the "Warden', which was about six miles away. There were certain articles lying at the "[Vardar which came to be secured, including the plough, which was some 300 paces further away. Enquiries were then made from Shah Nawaz, Qasim and Punhal.
3. The appellant came to be arrested the next day. He had a hatchet in his hands, which came to be duly secured, as it had some blood-stains thereon. A "Mashirnama" was prepared, but, it appears, that the hatchet was not sealed. It is not necessary to mention the particulars in regard to the two acquitted accused. All that needs be mentioned is, that the hatchet, secured from the appellant, was not sent to the Chemical Examiner at all. Ultimately, the case came to be challaned in the Court.
4. The appellant in his statement at the Court of Enquiry as well as at the trial denied the various allegations made against him, and maintained that he had been run down in the case, because Mehar, the complainant, wanted him to be thrown away from the land, which he wanted to take in his own possession.
5. The autopsy was performed by Dr. Ghulam Mustafa. He found the following injuries on the person of the deceased.
(1) Incised wound 4" x 1/2" x on the frontal region.
(2) Incised wound 1/4 x 1/8" x skin deep on the back of left hand on the medial side.
(3) Incised wound 1/2 " X x muscle deep on the left anterior thigh.
' According to him, the injuries had been caused by a sharp-cutting weapon, like a hatchet, and death had occurred as a result of injury No 1.
6. The occular testimony has been furnished by Shah Nawaz and Punhal. Shah Nawaz is the father, and Punhal a cousin of the deceased. In view of the fact, that Mr. Nooruddin Sarki, learned counsel for the State conceded that he could not support the judgment, and I will say very fairly, it is not necessary to expatiate of the details furnished by these witnesses, as the salient points are enough to dispose of the same.
7. Shah Nawaz was cross-examined by the learned A. P. P. As he had been soft against Mehar and Murad, two of the accused in the case. It is to be seen that the role of Mehar was the same as that of the present appellant, and even Murad is alleged to have given the instigation, leading to the attack. The fact also remains that he had supported the prosecution case even at the Court of Enquiry, and it was only at the trial that he took a somersault Punhal is a shop-keeper, and therefore his presence at the field, near about the sunrise time, is rather difficult to appreciate. He implicates all the three accused. Under the circumstances, the version of the two witness remain at loggerhead, and one does not know where the truth lies. Th evidence of Mehar is only derivative in nature, and will succeed, or, fall upon the appreciation, of the evidence of the main witnesses.
8. What is more, enquiries had been made by the head constable fron Ghulam Muhammad, as stated by him at the dispensary. Even if it was not recorded with all the formalities, it could be produced as a dying declaration. The same has not been done, and the presumption would be tha the same could not be in favour of the prosecution. What clinches th matter, however, is that, there is no confirmatory circumstance at all, as th hatchet was never sent to the Chemical Examiner, or, if sent at all, and no disposed to, the report has not been produced. With the performance of the witnesses, as it is certainly their testimony cannot be the basis of any conviction, as urged by Mr. Azizullah K. Shaikh and conceded by Mr. Nooruddin Sarki.
9. In this view of the matter, the conviction and sentence of the appellant are set aside, and the appeal is allowed. The reference is, therefore, not accepted. The appellant is in custody, and will be released forwith, unless wanted in connection with some other case.
ZAKAULLAH LODHI, J.-I agree. .