' ABDUL QADIR HALEPOTA, J.-The appellants Ghulam Qadir, Abdul Majeed, Allah Jurio and Ali Navin have been convicted under section 302 read with section 34, P. P. C. And appellant Faia Muhammad under section 302 read with section 114, P. P. C. By the learned Additional Sessions Judge, Dadu and sentenced to imprisonment for life and to pay a fine of Re. 1,000 each or in default to suffer R. I. For six months more. The appellants have filed this appeal to challenge the conviction and sentence awarded to them.
2. This incident took place on 13-8-1974 at 8-30 a.m. While Ghulam Wit and informant Muhammad Hussain were on their way to Mohar Town on a Scooter. While they were proceedings towards the said Town through Inspection path of Soohu Distributory and had reached near the lands of Haider Bakhsh Jatoi Ghulam Qadir shopped this Scooter as the informant Muhammad Hussain wanted to make water. While the informant was making water he heard cries of Ghulam Qadir and found that the accused Ohulam Qadir, Allah Judo and Abdul Weed who were armed with the hatchets were giving blows with hatchets to Ghulam Qadir and accused Fair Muhammad was standing and instigating the other accused to attach and kin Ghulam Qadir. On the cries P. Ws. Khatiro, Mooso and Ghulam Ali also came to the scene. Seeing them the accused left injured Ghulam Qadie and went away. The injured Ghulam Qadir was then removed to the Police Station, Tnarri Mohabat. He died on the way. His dead body was taken to the Police Station and the informant Muhammad Hussain lodged the First Information Report in terms material particulars whereof have been reproduced herein above. This report was lodged on 13.8-1974 at 11-00 a.m.
3. Upon the receipt of this report Muhammad Sadiq, Station House Officer, Thud Mohabat held an inquest over the dead body of Ohulam Qadir in presence of mashirs Shahmir and Dadan and he sent the dead body for post-mortem examination through Police Constable Ghulam Abbas to,) the Medical Officer, Mahar. Thereafter be proceeded to the scene of offence which was shown by the informant Muhammad HUSS1110. It was situated on the Inspection Path, Soohar Minor. Blood- stained earth, Scooter of the deceased and sun glasses which the deceased was then wearing were secured from the scene of offence in presence of the same masidrs . The Investigating Olicer then examined P. W. Khatir, Mooso and Ghulam Ali. He arrested accused Ohulam Qadir, Abdul Majeed, and Fair Mohammad on 15-8-1974, whereas nothing was secured from the possession of the accused Fair Muhammad, accused Ghulam Qadir took out a blood-stained hatchet from the underneath the heap of Palal (Paddy). He also took out a blood-stained shirt from inside a cornbin and accused Abdul Majeed took out a blood-stained hatchet and a blood-stained shirt and 'Patrol (Loin-cloth) from his house. The Investigating Officer prepared nos/drum and sealed these articles in presence of the same mashirs. He arrested the accused All Nawaz and Allah Judo on 17.8-1974 but nothing was secured from them. Mashirnamas to that effect were also prepared in presence of the same menhirs. The blood-stained articles were sent to the Chemical Analyser for examination and according to his report all the articles sent to him were stained with human blood.
4. Doctor Abdul Khalique who performed the autopsy on the dead body of deceased Ghulam Qadir, on external examination, found the following injuries on his person :-
(1) Incised wound of 3' x 1/2"a cutting the underneath bone on sight temporal-parietal bone.
(2) Incised wound of 2-1/2' x 1/2' x cutting underneath bone left temporal region.
(3) Incised wound of 3' ts 1/2' x41' one left side face with left eat divided into 2 parts.
(4) Incised wound of e a 1/2' a scalp deep on left parietal region.
(5) Incised wound of 2' a 1/2'x cutting underneath bone on left occipital region.
(6) Incised wound of 1-1/2' x1/2' a cutting the underneath bone c left occipital-parietal region.
(7) Incised wound of 2f" x;' scalp deep on left parietal region.
(8) Incised wound of lf x x scalp deep on middle of vertex.
(9) Incised wound of lin *kelp deep on left occipital region 1' below injury No, 5.
(10) Incised wound of 1' n 1/2 N 1/2' on right sospulu region.
(11) Incised wound of 21"X jr deep to joint on right shoulder joint.
(12) Incised wound of l' 1/4' x 1/4' on right side forehead.
(13) Incised wound r x 1/4' x on right side cheek.
5. On internal examination he found the following
(1) There was fracture of right temporal bone.
(2) The fracture of left temporal bone.
(3) Fracture of left occipital bone.
(4) Right clavicle bone was fractured.
(5) Right scapular bone was also fractured.
(6) There was dislocation of right shoulder joint."
6. From the external as well as internal examination he was of the opinion that the cause of death was due to shock and haemorhage as a result of injuries mentioned above. All the injuries were anti-mortem and appeared to have been caused by some sharp-cutting weapon such as hatchet. Injuries Nos. I, 2, 5 and 6 individually and collectively were sufficient in the ordinary course of nature to cause death.
7. After usual investigation all the accused were challaned in the Court of Civil Judge and First Class Magistrate, Mahar, where they stood commits' enquiry and on 30-4-1976 they were committed to stand trial in the Court of Session under sestions 148, 302 read with section 114, P. P. C.
The accused were then tried by the Additional Sessions Judge, Dadu who by his judgment dated 6- 3-1976 convicted and sentence," all the accused/ appellants as stated in the opening paragraph of this judgment.
8. The cue of the accused was one of bare denial. Aecueed Ghulam Qadir denied that he caused any injury to the deceased. He pleaded enmity with the deceased and his party men. In support of his plea he produced certified copies of First Information Report and charge-sheet in respect of previous cases between him and the party of the deceased. The case of the other accused was also of denial. They also pleaded enmity. Both the accused Ghulam Qadir and Abdul Majeed denied having produced blood-stained hatchets and/or bloodstained clothes. P. The prosecution evidence adduced at the trial against the accused consisted of the ocular testimony of P. Ws.
Muhammad Hussain, Khatir. Mooso and Ghulam All supported by the evidence relating to the production of blood-stained hatchets and blood-stained clothes each by accused Ghulam Qadir and Abdul Majeed. The learned trial Judge discarded the evidence of recovery from accused Ghulam Qadir and Abdul Majeed but relying upon the uncorroborated oral testimony of P. Ws.
Muhammad Hussain, Mooso, KM* and Ghulam All convicted and sentenced all the accused. That being the position the real point in dispute in this appeal is 'whether the prosecution evidence really proves the charge against the accused/appellants on merits beyond a reasonable doubt?
Mee easefully considering the oral evidence we have come to the conclusion that it would be difficult to hold that the evidence adduced by the prosecution establishes the charge against the appellants beyond a reasonable Court.
10. As regards ocular evidence adduced at the trial Muhammad Hussain stated that this incident took place while he and the deceased Ghulam Qadir were going to Mahar on the Scooter driven by the deceased and that he was attacked by accused Ghulam Qadir, Abdul Majeed, Allah Judo and Ali Nawu with hatchets at the instigation of Faiz Muhammad accused, at the time when the deceased Ghulam Qadir stopped his Scooter to facilitate him (informant Muhammad Hussain) to make water. He further stated that on ries P. Ws. Khatir, Mom and Ghulam Ali were attracted besides other eople from the vicinity who came there running. Then he and the witnesses including the other persons removed Ghulam Qadir to Police Station for lodging the report. He has further stated that he disclosed the entire facts and names of all the accused to these persons who collected there and these persons helped them in bringing the decreased up to Tharri Mohabat Police Station. He admitted that the accused persons used to block water and directed the same to their fields and that they were dangerous persons. He admitted that Allah Dino a relation of the accused filed a case under section 326, P. P. C. Against him and his brother Tayyab. He admitted that there was dispute between him and the accused due to cases. P. W. Muhammad Mooso has stated that he and P. W. Khatir left their village for Tharri Mohabat and that when they reached on the path of the Socha, Minor and were heading towards the village Tharri Mohabat on the Katcha track they found all the accused standing there armed with hatchets except ;ais Muhammad. Faiz Muhammad was standing and instigating the other accused to kill the deceased Ghulam Qadir whereupon all the other accused gave Injuries with hatchets to.Him. He admitted that the informant Muhammad Hussain and P. W. Khatir were cousins. He also admitted that he was very closely related to the informant and that he was married with the cousin of the informant. He stated that 50/60 persons same to the scene after the incident and that he narrated all the facts to them and also gave them the names of the accused who had attacked the deceased. He stated that Khatir met him by accident. Khatir was Hari of the deceased whereas the complainant was Kamdar of the deceased. Around the place of incident there were lands of Lasharies and Jatois. P.
W. Khatir also gave the same version of the incident and stated that he found all the accused except Faiz Muhammad giving hatchets blows to Ghulam Qadir at the instigation of Faiz Muhammad. This witness has stated that Ghulam Qadir was attacked while he was driving the motor-cycle. He admitted that P. W. Moor) was married with the daughter of his 'Phophi' and that the complainant was his cousin. Be admitted that the complainant was also related to deceased Ghulam Qadir. He admitted that there were cues between the parties in the Courts regarding water dispute and land dispute prior to this incident. He admitted that the accused party had filed cases against his relations. He admitted that the lands of accused were situated nearer to the Module of watercourse whereas their lands were situated at its tail and the accused used to obstruct water and divert it to theis lands. He farther stated that P. W. Ghulam All was in his Tnoga at the time when they were removing the deceased. P. W. Ghulam Ali stated that on the day of incident he was going to village Thant Mohabat in his Tonga. When he reached near the lands of Haider Bakhth Jatoi he heard the sound of motor-cycle on the Inspection Path of Soohar Minor. Muhammad Hamlin got down from the motor-cycle to make water and deceased Ghulam Qadir took away his motor cycle under the tree and stood there. Immediately thereafter he heard the cries of Muhammad Hussain and deceased Ghulam Qadir. He, Moose and the rushed to that direction and found the accused Pals Muhammad instigatin other accused who were giving hatchet blows to the deceased. Ho stated that his father Muhammad All used to cultivate lands of deceit:kw 4 Chub= Qadir.
10. There is no doubt that P. Ws. Muhammad Hussain, Mooso, Khatir are related to the deceased who had enmity with the appellants and P. W. Ohulam All is the son of Hari of the deceased. All the prosecution witnesses, are, therefore, interested as not only that they are related Inter se and/or inclined towards the deceased but there is also enmity between them and the accused. When interested persons came forward to give evidence in a case involving capital punishment the Court as a rule of prudence usually looks for some corroboration which is lacking in this case.
11. The incident is alleged to have occurred on 134-1974 at 8-30 on the Inspection Path of Soohar Minor. P. Ws. Moose, Khatir who are admittedly related to the deceased happened to pass by and were attracted on the ones of the deceased and he present on the scene at the fateful hour. P. W.
Ghulam All also happened to be near the scene of offence in his Tanga at the relevant time. Mr. Muhammad Hayat Junejo the learned counsel for the accused submitted that all these witnesses were chance witnesses and that their evidence should not be accepted in the absence of any independent corroboration.
12. Then there is material discrepancy as to the scene of offence. The Investigating Officer stated that he secured blood-stained earth from the cultivation of Haider Bakhsb Yatoi. This blood- stained earth was scoured from the Paddy cultivation. He also found struggling marks in the Paddy cultivation. There was no specific mention in the mashlrnama of the scene of offence about the blood at the Inspection Path. The dark sun glasses which were also stained with blood were also found in between the top of the Minor and the Paddy cultivation. Mashir Haji Dadan who was examiner in the trial Court stated that the police secured blood-stained earth from the top of the Inspection Path of the Minor. He denied that blood was found in the lands of Haider Bakhsh Jatoi.
He stated that blood-stained dark glasses were also secured from the top of the Path and not from any else. He wanted to say that the mashirnama of the scene of offen was wrongly drafted. In view of this material discrepancy between the statement of mashir Heji Dadan and Investigating Officer, it becomes doubtfu whether the incident occurred on the top of Inspection Path of Soohar Minor or in the Paddy cultivation in the lanes of Haider Bakhsh Jatoi. Mr Muhammad Hayat Junejo the learned counsel for the appellants subc '"ed that this was perhaps an unwitnessed crime and none of the eyc-witnesse actually seen the incident.
13. It was for these reasons that we had by a short order allowed .:ais appeal and released all the appellants.
14. This appeal was accordingly allowed and the conviction and sante" e awarded to the appellants was set aside.