' ZAKAULLAH LODHI, J.-Appellant Siddique was tried under section 302, Pakistan Penal Code and convicted by the learned II Additional Sessions Judge, Hyderabad, who sentenced him to death penalty vide his order dated 14th October, 1974. The appellant has filed appeal against his conviction while the learned II Additional Sessions Judge, Hyderabad has referred the case for confirmation of death sentence. This judgment will dispose of both the appeal as well as the reference.
' The facts leading to this case are that on 6th July, 1973 at about 3 p.m. The appellant killed deceased Mst. Hidayat by means of a hatchet near village Ningoro Junejo, Taluka Tando Bago, District Hyderabad. The first information report was lodged by complainant P. W. Yousuf at 5-30 p.m. At the Police Post Rajo Khanani. It was recorded by P. W. Mohammad Hassan, Head Constable, In charge Police Post, Rajo Khanani and its copy was sent to the Police Station, Tando Bago for incorporation in the book maintained under section 154, Criminal Procedure Code. It is stated in the F. I. R. That the complainant was grazing his bullocks in his land near the place of incident. The deceased and her son P. W. Lakhano were also grazing their bullocks in their land. P. W. Mitho Junejo was standing near the place of incident in his land. In the meantime, the complainant and others noticed the appellant, who was the cousin of the deceased and also lived with her in the same house, coming there. The deceased was a widow since about 8/9 years prior to the incident and was living with her father and son P. W. Lakhani in the same house. As soon as the appellant arrived there, he abused the deceased and told her that he had been proposing her to marry him for the last 2/3 years but she had not replied either in negative or in affirmative, therefore she must give him a final reply that day. On this the deceased replied him that she was not prepared to marry him. On hearing the refusal the appellant within the sight of the complainant, P. Ws. Lakhano and Mitho Junejo dealt two sharp-sided hatchet blows on the back of the deceased as a result of which she fell down on the ground and died instantaneously. The complainant immediately reached the said Police Post and lodged the report which was recorded by P. W. Mohammad Hassan, Head Constable Incharge of Police Post Rajo Khanani.
3. After recording the F. I. R. P. W. Mohammad Hassan Head Constable repaired to the vardat. The vardat was shown to, him by the complainant. He prepared mashirnama of the vardat in the presence of P. Ws. Jarrar and Ibrahim. The dead body of the deceased was lying there. The deceased had hatchet injuries. He secured blood-stained earth and broken piece of handle of the hatchet which was also blood-stained. These articles were sealed on the spot and a mashirnama of the same was prepared which was signed by the abovesaid mashirs. He then prepared inquest report of the deceased in the presence of the same mashirs. He sent the dead body to the Medical Officer, Tando Bago. As it was quite late in the night therefore he did not make any effort to arrest the appellant at that time. But on the following day at 7 a.m. He arrested the appellant from the "jar" bushes. His shirt and shalwar were blood-stained. They were secured and sealed in the presence of the same mashirs and a mashirnama was prepared. The appellant also volunteered to produce a hatchet from other "jar" bush. It was blood-stained. It was also secured and sealed under a mashirnama signed by the same mashirs. In the meantime, P. W. Mosso Khan, A. S. I. Reached the vardat and further investigation was carried out by him. However, under the instructions of P. W.
Mosso Khan, A. S. I., P. W. Mohammad Hassan Head Constable got 164, Cr. P. C. Statements of P. Ws.
Mitho Junejo and Lakhano recorded by the Civil Judge & F. C. M., Matli. P. W. Mosso Khan had reached the vardat on receipt of the copy of F. I. R. Which had been recorded at the Police Post, Rajo Khanani. He incorporated the report in 154, Cr. P. C. Book. On reaching the vardat he took over the investigation from P. W. Mohammad Hassan, Head Constable and verified the investigation already done. He caught the appellant and the articles recovered at the spot to the Police Station, Tando Bago. The sealed parcels of blood-stained articles were sent to the Chemical Analyzer whose report was produced by this witness in the trial Court which was positive.
4. Autopsy on the dead body was carried out by Dr. Mohammad Azim who found the following injuries on the person of the deceased :- (1)An incised wound 3i" x 1" x deep to brain on the brain on the middle and right side of back side of head cutting the right parietal bone and right side occipital bone.
(2)An incised wound 3-1/2" x 2k" deep to servical bone which, are cut underneath completely, cutting the spinal cord also at the level or Cr-2.
(3)An incised wound 6" x x deep to the other side of neck from below the chin to the lower part of and front of the neck, cutting all the structure underneath, appears with two strokes. The neck is only attached with the back skin."
' In the opinion of the doctor the death was instantaneous and was caused due to shock and haemorrhage which was the result of the injuries received by the deceased by means of a sharp- cutting weapon such as hatchet. The injuries Nos. 2 and 3 were individually sufficient to cause death in the ordinary course of nature.
5. In his defence the appellant pleaded innocence and stated that he had been falsely implicated in the offence due to enmity with one Hingoro who wanted to grab the land of the deceased and he got her murdered.
6. The prosecution has furnished ocular testimony of the complainant who had given the same statement before the trial Court which he had given at the Police Post, Rajo Khanani. According to him, the appellant proposed the deceased for marriage with her within his hearing and it was within his sight that two hatchet blows were given by the appellant to the deceased. However, in his cross-examination the complainant admitted that he was at a distance but he asserted that he was hearing the talks which transpired between the appellant and the deceased. It is impossible for a person standing at such a distance to hear the talks particularly when the nature of the talks was such that the appellant could not be expected to speak loudly. P. W. Lakhano stated that he was standing at a distance of 7/8 paces away from the place of murder at that time. P. W. Lakhano has also stated in his statement that he and his deceased mother were standing in their land. He was standing by the side of his mother. Within his sight the appellant reached his mother and asked her if she was prepared to marry him. On her refusal he gave a hatchet blow to his deceased mother on the back side of her neck with sharp side of the hatchet. When she fell down on the ground another hatchet blow was given on her neck. He has also spoken of two injuries having been given by the appellant to the deceased. In his cross-examination he stated that he was 6/7 paces away from his mother and about P. W. Mitho Junejo he has stated that he was on the other side of the watercourse which means that he saw the incident from a little distance. About the complainant P. W. Lakhano stated that he too was standing at a little distance from P. W. Mitho Junejo. He further stated that all these witnesses reached the vardat together which means that they took some time to reach the vardat and they were not quite near the place of incident. P. W.
Mitho Junejo in his statement stated that within his hearing the appellant asked the deceased if she was prepared to marry him and on her refusal he gave a hatchet blow on the backside of her neck. The other blow was also given on the front side of her neck with sharp side of the weapon. He stated in his cross-examination that-he was 20/30 paces away from the deceased when she was given first blow. P. W. Lakhano reached the vardat first and he was followed by P. W. Mithan and the complainant. They reached one by one soon after hearing the cries of the deceased. 5/10 minutes later P. Ws. Allandino and Amoon also reached the vardat. From the recital of the evidence of these witnesses it seems improbable that he could listen word by word as to what transpired between the appellant and the deceased because he was at a distance of 20/30 paces away from the deceased like the complainant. P. W. Allandino reached the vardat later and only saw the appellant running away from the scene of offence. He noticed that the clothes of the appellant were blood- stained. All the three eyewitnesses namely complainant Muhammad Yousaf, P. Ws. Lakhano and Mitho Junejo have specifically stated that the talks between the deceased and the appellant took place within their hearing and it was within their sight that two hatchet blows were given to the deceased. It means that these witnesses were quite attentive from the beginning. Their statements directly come in conflict with the medical evidence according to which three incised wounds were caused to the deceased by the hatchet. In case all these witnesses were so close to the appellant and the deceased that they had heard all what transpired between them and it was within their sight that the hatchet blows were given by the appellant to the deceased then they would be genuinely expected to be accurate about the number of the injuries also. But that is not so. The medical evidence gives an altogether different version of injuries therefore in our estimation the statements of these eye-witnesses are not free from doubt. In the F. I. R. Also the complainant has stated that it was within his sight and also within the sight of P. Ws. Lakhano and Mitho Junejo that two hatchet blows were given to the deceased on her back with sharp side of hatchet. These, witnesses are quite certain about the number of injuries but the number of injuries given by them is wrong. We are not therefore inclined to accept the testimony of these eye-witnesses. This question was raised before the trial Court and while dealing with this point the learned II Additional Sessions Judge had given a general explanation saying that "where the people observe, under stress of emotions, an occurrence from a short space, from different angles, with different temperaments, capacity to observe, intelligence and memory discrepancies are bound to occur." We are unable to agree with this observation because whatever the temperaments or emotions the witnesses might be having and whatever the angles by which they were seeing the commission of offence might have been, it is not possible that all of them would make similar mistake and that too of a very important nature. If all the three eye-witnesses had stated that they had seen the occurrence from a distance then it could be presumed that they might have seen it one after the other and thus they could not be expected to give correct account of the injuries inflicted upon the deceased. But here the case is different. All the witnesses positively assert that they were attentive to the talks which preceded the main incident. In fact these talks drew their attention towards the deceased and the appellant and therefore they were quite attentive at the time when the blows were given.
They could not therefore make such a glaring mistake. The very fact that their statements differ from the statement of the doctor puts us in doubt about the veracity of their statements and we are therefore unable to believe the ocular testimony.
7. The ocular testimony having been discarded we are left with circumstantial evidence but the same has only corroborative value and conviction cannot be based upon it. The same is therefore liable to be set aside from consideration.
8. Before we part with the case we may mention that inherently the prosecution story seems to be improbable. The appellant was living with the deceased for a number of years and therefore the marriage proposal could be extended by him at any time even in the house. It was not necessary for him to discuss his marriage affair in the presence of so many witnesses and particularly the son of the deceased. The story that the appellant discussed the marriage affair in the presence of the witnesses who claim to be very close to the appellant and the deceased seems somewhat doubtful.
9. As a result of the above discussion, we accept the appeal and reject the reference for confirmation of death penalty of the appellant. The appeal shall be set at liberty forthwith unless wanted in any other case.