' G. M. SHAH, J.-The appellant Naukaf son of Phalai Lohar, aged about 36 years, was convicted by the learned Ist Additional Sessions Judge, Jaeobabad by judgment dated 1-4-1976 of an offence under section 302, P. P. C. Read with section 34, P. P. C. And sentenced to death. He was also imposed a fine of Rs. 1,000 or in default to undergo further R. I. For one year. He was separately, convicted under section B-E of the West Pakistan Arms Act, and sentenced to two years R. I. The sentence of two years R. I. Under section 13-E of the Arms Act was to run concurrently, if the sentence of death is not confirmed by this Court.
' He has filed this appeal against the said judgment. There is also a reference under section 374, Cr.
P. C. Both, the reference as well as, the appeal, would be disposed of by this judgment.
2. The facts of the prosecution case are that on 22nd September, 1974 P. W. Sawad went to Garhi Khairo Police Station, at 2 p. m. And lodged the F. I. R. Exh. 6 which reads as under :- ' Today one pahar after sun rise time, I was sitting in my house and my cousin Abdul Karim was coming to the house after giving round from his field. There, 1 saw that Miran Bux came out of his shop and he had a gun in his hand. He gave challenge that he will not be spared and saying so, he fired two shots at him. Abdul Karim fell down crying. Seeing this, I challenged Miran bux and ran towards there. The father of Abdul Karim, namely Wahid Bux followed me and my brother Allandito and other people of the village came running. Miran bux challenged us, that if we went near, we would be killed. Due to fear, we did not go near him. Then Miran bux went to his house along with his gun. There his brother Naukaf was also standing, to whom, within our sight, he said that Abdul Karim was on illicit terms with his wife Hidayet daughter of Azim Lohar, to whom he had killed, and he should go with him so that they should kill Mst. Hidayat, and there we saw that the accused put the cloth around the neck of Mst. Hidayat, dragged her inside "Chan" and throttled her to death.
Mst. Hidayat was crying, and after killing Mst. Hidayat both the brothers, Miran Bux and Nankai.
Along with the gun, went out to the house towards the east. Then we went and saw Abdul Karim, who had gunshot injuries on his left side and left elbow and blood was oozing from the injuries and he was dead. Then we also went and saw Mst. Hidayat. She was lying dead and had been throttled.
Then 1, after making my brother Allandito, and Wahid Bux to sit near the dead body of Abdul Karim, have come now for lodging the report. Both the dead bodies are lying on the wardat.
' Miran Bux and Naukaf have killed my cousin Abdul Karim and Mst. Hidayat. I do not know, if both the accused were on illicit connections, with each other or not. Accused are sons of my maternal uncle and the age of deceased Abdul Karim was 30 years and so also that of deceased Mst.
Hidayat. I am the complainant. Action be taken."
3. On the basis of this report, the Incharge of the Police Station, Jalal Khan A. S. I. (P. W. 7) went to the place of occurrence, which was at a distance of about 5 miles, accompanied by the complainant.
He prepared the mashirnama (Exh. 15) in presence of lvlashirs Gulab and Mahram. The vardat was situated in Village Rasoolabad Deh Wasayo, Taluka Garhi Khairo. The dead body of Abdul Karim was lying in front of the shop of Miran Bux (co-accused). Thereafter the police proceeded to the house of the appellant and found the dead body of Mst. Hidayat lying there. The A. S. I. Prepared the inquest report on the two dead bodies (Exhs. 17 and 18). Abdul Karim deceased had gun shot injuries, whereas Mst. Hidayat deceased, was strangulated to death. Both the dead bodies were dispatched to Medical Officer Garhi Khairo. The Investigating Officer, then examined P. Ws. Wahid Bux, Allandito and Amir bux and made the inquiries about the appellant ; but was unable to secure him. He succeeded in arresting the appellant from the well of Bachal Khan on 26-9-74 in presence of mashirs Muhammad Hashim and P. C. Muhammad Saleh under the mashirnama (Exh. 20). The appellant then voluntarily led the A. S. I. Jalal Khan, and two mashirs namely Muhammad Hashim and P. C. Muhammad Saleh to his house and produced one '12 bore single barrel gun, from the roof of his house, which was used by his brother, co-accused Miran Bux, for causing gun shot injuries to deceased Abdul Karim. It was in working condition. The appellant had no licence for it. The A. S. I.
Secured and sealed the said gun. Under the mashirnama (Exh. 21). He brought the appellant in custody, to the police station Garhi Khairo, where he registered a separate case against him under section 13-D, of the Arms Act. After completing the investigation, the police finally challaned the case on 1040-1974 in the lower court. The co-accused Miran Bux was shown as an absconder. The case against the present appellant alone, therefore, proceeded in respect of the murder of Mst.
Hidayat.
4. In his statement under section 342, Cr. P. C. (Exh. 27) the case of the appellant was of denial. He stated that the witnesses were deposing against him due to enmity. He further denied having produced the gun. His statement in the committing Court was brought on record (Exh. 28) which, he admitted had been correctly recorded, wherein, he had stated that the P. Ws. Had deposed against him, due to their own wishes, which he did not knox'. He had examined no witness in defence. Since the appellant was not charged for the murder of Abdul Karim, I would therefore, refrain from discussing that aspect of the case here.
5. The question whether Mst. Hidayat had died an unnatural death, as a result of the injuries sustained by her, is not disputed. Even otherwise, it is proved by the evidence of Dr. Habibur Reiman, who was examined in the lower Court, and his deposition was brought on record (Exh. 24). The Doctor had held the post-mortem examination on 22-9-74 on the dead body of Mst. Hidayat. From the certificate it is proved that on external examination of her dead body, the doctor found the following injuries :- ' A ligature mark 1" in breadth in circling the neck horizontally and completely situated below the thyroid cartilage.
' From general appearance the doctor found below noted findings :- ' Face was swelled and cyanosed. Both eyes were prominate and puples were dilated. The lips were blued. Extravasation of blood was seen into the subcutaneous tissues under the ligature mark and the adjacent muscles.
' On internal examination, he found that the brain matter was conjested. The lyrinx and tracheae were conjested and contained mucus. The right and left lungs were conjested and were full of dark fluid blood. The right side of the heart was also filled with dark fluid blood and left side was empty.
The mouth pharynx and aesophagus were conjested. The large and small instestines were conjested, so was the lever and the kidneys, as well as, the spleen. The deceased Mst. Hidayat was seven months pregnant.
7. From the external, as well as, the internal examination of the dead body, the dotor opined that the death was due to asphyxia, as a result of strangulation. The ligature mark was anti-mortem. In addition to the medical evidence, the two eye witnesses, namely P. W. Sawad and Allandito, had also supported the fact that Mst, Hidayat had died, as a result of strangulation.
8. In his evidence, Sawad (P. W. 1) had supported the contents of the F. I. R. The deceased Abdul Karim was his cousin and the appellant is his maternal uncle. They all live in Deh Rasoolabad, in the village of Allah Rakhio Khan. His house is only about 20 paces away from the house of the appellant, and his brother co-accused Miran Bux. Deceased Mst. Hidayat was the wife of Miran Bux who lived with him in the same house. After killing deceased Abdul Karim, the co-accused Miran bux went to his own house, where the appellant was already present. He informed the appellant that he had killed Abdul Karim, as Karo with his wife Mst. Hidayat, and asked the appellant to go with him for killing her, as well. Both the brothers then strangulated Mst. Hidayat in the house.
9. From the circumstances, it appears strange that for murdering deceased Abdul Karim, co- accused Miran bux did not seek any assistance from the appellant, where encounter with the deceased was possible. While for killing his wife, who was helpless, weak and alone and was sitting in the house, why would he ask the appellant for assistance for killing Mst. Hidayat. He could easily have done the job himself.
10. The two eye-witnesses Sawad (P. W. 1) and his brother Allandito witnessed the murder of Mst.
Hidayat from outside the hedge of her house. The third eye-witness was Wahid Bux, father of deceased Abdul Karim who could not be examined, as he had died by then, when the case came up before the Court. At the time of hearing gun shots, these witnesses went running there, and witnessed the murder of Abdul Karim. When they tried to reach Miran Bux, they were threatened by accused Miran Bux not to go near, otherwise he would kill them. In view of this situation, understandably these witnesses could not have followed accused Miran Bux nor could have possibly heard the conversation between the appellant and Miran bux, inside their house, much less, witnessing the murder of Mst. Hidayat. Besides, from the place where Abdul Karim was shot at, where these witnesses had subsequently reached, the inside of the house of accused Miran Bux was not visible. It is, therefore, difficult to accept the version of these witnesses when they say that they had seen Mst. Hidayat being strangulated, dragged and murdered, while standing at the entrance of the house of accused Miran Bux, where, it is difficult to believe that, despite the fear of being fired upon and killed, they had stood at the entrance and watched the whole incident.
11. The two mashirs of the vardat Gulab (P. W. 5) and Mehran (P. W. 6) did not support the prosecution, as regards the location of the place of vardat and the recovery of the dead body of Mst. Hidayat.
12. Further, in spite of the fact, that due to firing several persons from the neighbourhood had collected ; but none was examined in Court in support of the prosecution case, except only P. Ws.
Sawad and Allandito, who are admittedly related and interested. Their version does not in any case, inspire confidence and in addition is not corroborated in material particulars, by independent evidence.
13. The evidence of the investigating officer A. S. I. Jalal Khan (P. W. 7) also does not help the prosecution in respect of the eye witness account of the incident, as he was only the investigating officer, who had reached the place of occurrence after recording the F. I. R. Syed Nasiruddin, learned counsel, appearing for the State, has very rightly, conceded that he does not support the judgment of conviction of the appellant. He further pointed out that P. W. Saw ad had admitted, that the house of accused Miran Bux and appellant Naukaf, was not visible from the place where Abdul Karim was murdered, where they had, gone first. It is very strange that when the house of accused Miran Bux was surrounded by the hedge, how could any one from outside the hedge witness what was happening inside the house.
14. Mr. Imdad Ali Agha learned counsel for the appellant had contended that these two prosecution witnesses Sawad and Aliandito, brothers inter se were interested and were hostile to the accused.
Their presence at the place of occurrence, as it appears from the evidence, was doubtful. He further argued that the testimony of these two witnesses is not corroborated in material particulars. As regards the motive, the complainant Sawad (P. W. 1) as well, his brother, Allandito (P.
W. 2) stated that this was a Karo Kari case, but, the two eye-witnesses, subsequently, emphasised the motive to be one over the dispute of lease of land.
15. As regards the recovery of the gun from the roof of the house occupied by the appellant, his brother co-accused Miran Bux and other members of the family, it cannot be said that the place of recovery was exclusively in occupation of the appellant and in possession of the appellant. Since it is not the prosecution case that the gun belonged to the appellant or that it was used by him, in the commission of the offence as alleged it cannot therefore be taken as a piece of corroboration against the present applicant.
16. From the above discussion, I am, therefore, of the view, that no case, as alleged, has been satisfactorily brought home against the appellant,, beyond al reasonable doubt. Under the circumstances, I would not accept the reference, set aside the conviction under section 302, P. P. C.
And allow the appeal. The appellant is in custody, he shall be forthwith released, if not required in some other case.
' AGHA ALI HYDER, J.-I agree.