1. ' Through this criminal appeal, appellants Ghulam Nabi and Muhammad have called in question the judgment, dated 21-7-1998, passed by the learned IIIrd Additional Sessions Judge, Dadu in Sessions Case Nos.70 of 1998, 178 of 1998 and 483 of 1999 (State v. Roshan and others) arising out of F.I.R. In Crime No.196 of 1998 registered at Police Station K.N. Shah for offence under section 302/34, P.P.C. By this judgment, the appellants were convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.50,000 and in default of payment of fine each of them was liable to undergo R.I. For one year more, in lieu of fine. The appellants/convicts were also made liable to pay compensation of Rs.20,000 each to the legal heirs of deceased Beero and in default of payment of compensation they were made liable for further imprisonment of one year each in lieu thereof.
2. Learned trial Judge, however, granted them benefit under section 382-B, Cr.P.C.
3. ' The facts in brief giving rise to the present appeal are as under:-- ' On 14-12-1988, .Me Haji Allan Leghari lodged report at Police Station K.N. Shah wherein he staled that on that day he alongwith his nephew Ghulam Qadir was going to village Begodero to enquire about the health of his ailing sister-in-law. It was about 2-00 p.m. When they reached near Begodero Canal, they met complainant's brother namely Beero who was grazing sheep there. In the meantime, accused Ghulam Nabi, Muhammad, Sheroo and Roshan all sons of Esso Leghari came duly armed with hatchets who challenged them, as they were inimical to each other over some matrimonial affairs. Complainant and P.W. Ghulam Qadir ran away while Beero was overpowered by the accused. Accused Ghulam Nabi inflicted backside hatchet blow to Beero who fell down. Accused .Roshan and Sheroo caught the deceased from legs and arms while accused Muhammad inflicted sharp side hatchet blow to Beero on his neck who subsequently died. The accused then ran away and the complainant leaving P.W. Ghulam Qadir over dead body went to police station and lodged report.
4. ' The accused persons were charged under sections 302 and 34, P.P.C. To which they pleaded not guilty and claimed to be tried.
5. ' The prosecution in support of the case examined Doctor Mazhar Ali Khoso at Exh.15 who produced post-mortem report noted as Exh.15/A. Tapedar Ali Gohar Chandio is examined at Exh.16 and he has produced sketch as Exh.16/A, S.H.O. Lutufullah Sahar is examined at Exh.17. On 14-1-1989 he arrested accused Roshan and Sheroo in presence of Mashir Bhaledino and Hajan Khan. On 22-1- 1989 he secured one hatchet each from Roshan and Sheroo. On 12-3-1989 S.H.O. Gul Muhammad of K.N. Shah arrested accused Muhammad and Lutufullah acted as Mashir and then he handed over the papers to S.H.O. The prosecution has examined Niaz Hussain corpse bearer at Exh.18. This Niaz Hussain has also identified the signatures of A.S.-I. Nasrullah Khushak as he was dead. He has identified the signature of A.S.-I. Nasrullah on Daily Diary at Exh.19/A whereby the report was lodged and also signature on Mashimama of Vardat Exh.22/A inquest report at Exh.22/A. He has also identified the signature of Bhaledino on Exh.17/A, Haji Allan is examined at Exh.19 and he has produced the report as Exh.19/A, Ghulam Qadir is examined at Exh.20, Exh.21 is the application by D.D.A. Giving up P.W. Khuda Bux as he was reported to have shifted to some unknown place.
6. Through same statement H.C. Bhaledino Panhwar and A.S.-I. Nasrullah Khushak were given up as they were dead. Request was also made for calling co-Mashir Abdul Latif and calling some body to identify the signature of A.S.-I. Nasrullah Khushak and H.C. Bhaledino and for this purpose Niaz was called. Abdul Latif is examined at Exh.22 and he has produced Mashimama of Vardat at Exh.22/A inquest report at Exh.22/B, and Mashimama of search of the house of accused persons Exh.22/C and Mashimama of recovery of clothes as Exh.22/D. Thereafter, side of the prosecution was closed.
7. Accused Roshan and Sheroo in their statements have denied if there was any matrimonial dispute with deceased Beero. They have further denied if on 14-12-1988 at 2-00 p.m. On the land of Gul Muhammad Awan Deh Chandan in furtherance of common intention with co-accused committed the murder of Beero Leghari. They have further denied if they were arrested on 14-1-1989 and they produced one blood-stained hatchet each on 22-2-1989. They have stated that P.Ws. Have deposed against them due to enmity. P.Ws. Are interested co-accused Roshan has opted to examine himself on oath and he has also given the name of one Amanullah in defence. They have stated that they are falsely implicated.
8. ' Accused Ghulam Nabi and Muhammad in their statements have also denied the matrimonial dispute with deceased Beero. They have also denied if on 14-12-1988 at 2-00 p.m. At the land of Gul Muhammad Awan in furtherance of common intention with co-accused committed the murder of Beero. They have denied if they have absconded away and arrested on 12-3-1989 and 4-9-1989 at Kurkat Mori. They have stated that P.Ws. Have deposed against them due to enmity. They have not opted to examine themselves on oath and Muhammad has given the name of one Punhal in defence.
9. ' Roshan has examined himself on oath at Exh.24 and D.W. Amanullah is examined at Exh.25, and Haji Punhal is examined at Exh.26.
10. ' Learned trial Court formulated the following points for determination.
(1) Whether Beero died unnatural death on 14-12-1988 at about 2-00 p.m. At the land of Gul Muhammad Awan Deh Chhandan?
(2) Whether present accused persons in furtherance of common intention committed murder?
(3) What should the judgment be?
11. ' After filing of this appeal, as per report, dated 10-1-2001 called by this Court, one of the appellants namely Ghulam Nabi had expired at L.M.C. Hospital, Hyderabad.
12. ' Learned counsel for the parties have been heard.
13. ' It has been contended by learned counsel for the appellant that there are material contradictions in the depositions of the two eye-witnesses namely P.W. Haji Allan and Ghulam Qadir. The co- accused namely Sheroo and Roshan were acquitted by the learned trial Court on the same set of evidence. He further submits that the Mashir of Vardat, recovery of crime weapon inquest report and arrest of co-accused Sheroo and Roshan, did not support the case of prosecution with the result that he was declared hostile. He, therefore, urged that the case was doubtful and the appellant were entitled to benefit of doubt.
14. ' Learned counsel for the State submits that the complainant Haji Allan and P.W. Ghulam Qadir made improvements in their depositions and also concedes that there are material contradictions.
15. He further submits that Mashirnama of arrest of the present appellant was produced through Investigating Officer and none of the Mashirs were examined. He further submits that plea in the charge was not signed by either of the accused and that the charge as framed by the learned trial Judge was defective. In view of the above submissions, learned State Counsel does not support the judgment of the trial Court.
16. ' I have considered the arguments advanced by the learned counsel for the appellant and learned counsel for the State, perused the paper book and R&Ps of the case with assistance of the counsel for the parties.
17. ' P.W. Haji Allan who is eye-witness and informant of the case, had stated in the F.I.R. As well as in his deposition that the deceased Beero was murdered by causing hatchet blows. As per the version given in the F.I.R., all the accused persons were armed with hatchets. In his examination-in-chief also. P.W. Ghulam Qadir has stated that "I saw all the four accused persons and they were armed with hatchets". He further deposed that "accused Muhammad started butchering the deceased".
18. However, other eye-witness P.W. Ghulam Qadir in his deposition has controverted this fact by stating that in fact the deceased was butchered and a knife was used as a crime weapon by the appellant Muhammad. It will be proper to reproduce the relevant portion of the deposition of P.W.
19. Ghulam Qadir Exh.20 appearing at page 121 of the paper book. In his examination-in-chief, the said P.W. Deposed that "Accused Muhammad started butchering the deceased with knife". In his cross- examination, he went on to say that "I do not know whether knife was secured by the police from the accused persons". "I do not know from where the accused Muhammad had taken out knife but I have seen him causing injuries with knife to the accused". Such glaring contradictions in the deposition of the two eye-witnesses render the ocular testimony doubtful and absolutely unbelievable.
20. ' As a matter of fact, the knife, which is stated to be crime weapon, was neither recovered nor produced. According to the prosecution, two hatchets from accused Roshan and Sheroo were recovered. The recovery of hatchets, as stated, was effected on 22-1-1989 while occurrence took place on 14-12-1988. Thus, there is a delay of 5 weeks in the recovery which cannot be relied upon.
21. In any case the crime weapon was admittedly not recovered from the possession of present appellant. Though there is doubt as to what weapon was used in the crime yet the hatchets so recovered were neither sealed nor sent to Chemical Analyser. This fact has even been pointed out in the impugned judgment. From the perusal of the charge, it appears that a joint charge was framed against all the four accused persons. The charge is not precise and it does not contain the particulars and details of the accusation and roles played by each of the accused persons. Plea of not guilty does not contain the signatures of the present appellant, or for that matter, any of the accused persons which renders the charge absurd and defective. From the scrutiny of the statement recorded by the accused under section 342, Cr.P.C., it appears that all the three statements of accused namely Muhammad, Ghulam Nabi and Roshan bear the thumb- impressions but there is no mention as to the thumb-impression marked on the charge belongs to which particular accused person. It is an admitted fact that two accused persons were let off on the same set of evidence whereas the present appellant alongwith Ghulam Nabi was convicted.
22. This fact also makes the case of the prosecution doubtful. It is also an admitted position that the Mashir of inquest, Vardat, recovery of blood-stained earth and clothes etc. Did not support the case of prosecution P.W.7 Mashir Abdul Latif denied that the police visited place of Vardat in his presence. He also denied having witnessed the preparation of inquest report. He also denied if the police searched the house of accused Ghulam Nabi and Muhammad. He further denied that the police secured blood-stained clothes of the deceased. Resultantly the said Mashir was declared hostile. It is also an admitted fact that the co-Mashir in this case was not examined. The Mashirnama of arrest of the present appellant was produced through the Investigating Officer and none of the Mashirs of arrest and recovery of hatchets were examined. It is also an admitted position that there exists enmity between accused and complainant party. It has come in evidence that P.W. Ghulam Qadir did not belong to the same village and belongs to District Nawab Shah residing at Qazi Ahmed.
23. ' In view of the above circumstances, the case of the prosecution is highly doubtful and prosecution has failed to bring home the guilt of the accused persons. There are material contradictions in the ocular evidence as discussed above which go to the root of the case. Learned counsel for the State has rightly not supported the conviction.
24. The upshot of the above discussion is that the impugned judgment, dated 1-7-1998 is hereby set aside. Resultantly, appellant Muhammad stands acquitted. He shall be released forthwith if not required in any other case. Since co-accused Ghulam Nabi has expired, appeal filed by him shall stand abated.
25. ' Criminal Appeal No.20 of 1988 and Criminal Jail Appeal No.50 of 1999 are allowed.