' S. A. NUSRAT, J.-The appellants, Khan son of Raman Khokhar, aged 58 years, and Piral son of Rahim Khan Khokhar, aged 44 years. Were tried for the murder of Ghulam Rasool by the Additional Sessions Judge, Jacobabad and convicted on charge under sections 302 read with 34, p. P. C. And each of them has been sentenced to death. They have also been sentenced to pay fine of Rs, 1,000 each and in default to undergo further R. I. For one year. They have appealed. A reference under section 374, Cr. P. C. For confirmation of their death sentence is also before us. This judgment will dispose of both the appeal as will as reference.
2. The offence was committed on 20-5-1974, at 7-30 p.m., on a street near the house of Lutif Ali Bhatti, at Garhi Khairo. The report regarding the incident was lodged by Muhammad Buz, (P. W. 6) brother of the deceased, on the same day at 8 p.m. At Police Station Garhi Khairo, which is at a distance of 2 furlongs from the place of incldent. The report was recorded by the S.
1. Ghulam Shabir Khoso.
3. The facts of the prosecution case are these:- The deceased Ghulam Rasool had a Commission Agent Shop in Garhi Khairo town. The complainant Muhammad Buz was in his house at Maghrib time on the day of the incident where Muhammad Siddique, (P. W. 4), came running and informed him that a little before sun set, he, Muhammad Din (P. W. 5) and the deceased had all gone together to Government Dispensary for taking medicine for the deceased. The Doctor examined the deceased and gave him a chit for buying medicine from store which he held in his hand. All of them were on their way back to the town and when, at about 7-30 p.m., they reached the street, in the vicinity of the house of Lutif All Bhatti, they found accused Khan and Piral, and one Achar, standing armed with hatchets near the door of the house of Lutif Ali. On seeing Ghulam Rasool they challenged him and all three of them attacked him with hatches. P. Ws. Muhammad Siddique and Muhammad Din raised cries from a distance. The accused challenged and warned them not to raise cries saying that they had no concern and that they (accused) had taken revenge of Lal Khokhar. The cries of the P. Ws. Did not attract any one and the accused rah away with their weapons.
' Thereafter Ghulam Hussain (P. W. 8) and some other persons appeared at the scene and saw the dead body of the deceased. Muhammad Siddique and Muhammad Din found that the deceased had hatchetinjuries on his neck, was bleeding and his brain material had soma out and he was dead. Muhammad Siddique proceeded to inform the complainant, leaving Muhammad Din and Ghulam Hussain at the deadbody. The complainant first went to the scene of the incident, where he saw the dead body of his brother with hatchet injuries on his neck and head. Thereafter ho went to the police station where he lodged the complaint. It was stated in the complaint that about 10-11 years back Lal Khokhar was murdered towards Patfeeder, regarding which complaint was filed by Punhal Khokhar and others against the deceased and Nawazo Khokhar, and in that case the deceased was acquitted by dirge. The accused, therefore, had killed Ghulam Rasool out of old enmity.
4. The autopsy on the dead body of the deceased was performed by Dr. Habibur Rehman, who found following three injuries on the dead body of the deceased:- "(1) An incised wound 7" x 2' cutting the brain matter on the right side of the head 1' above the right ear.
(2) An incised wound 9 x 2' cutting the brain matter starting from the lett check to the occipital region, cutting the ear lobule on the left side of the face.
(3) An incised wound 9' x 2' cutting the brain matter of the left side of the head starting from the left maxillary prominence to the posterior part of the left parital bone passing through the middle of the left ear."
' In the opinion of the said Medical Officer the death was caused due to shock and haemorrhage as a result of the above injuries which were caused by heavy sharp cutting weapon, such as hatchet.
All the injuries were antimortem in nature and were individually sufficient to cause death in ordinary course of nature. Probable time between injuries and death was instantaneous and probable time between death and postmortem was within 20 hours. The S. B.
0. Ghulam Shabir (P. W. 7), after recording the F. I. R. Proceeded to the Vardat along with complainant and reached there at about 8-15 p.m. He found the dead body of the deceased lying is street in a pool of blood. P. Ws. And other persons were present at the Vardat. He deputed police constable Suhbat Khan on guard duty on the dead body and himself returned to the Police Station.
He, however, did not start investigation Immediately, allegedly due to odd hours. He inspected the Vardat next morning and secured-blood stained earth and sealed it. He prepared inquest report (Eab. 10), and sent the dead body to the dispensary at Garhi Khairo for post-mortem examination.
He recorded the statement of P. Ws. Muhammad Siddique, Muhammad Bin and Ghulam Hussain.
No recoveries were made.
5. The appellants Khan and Piral were arrested on 18-6-1974, in the presence of Mashirs Quadir Bux and Abdul Karim, and Mashirnama of their arrest, (Exb. 26), was prepared. According to the prosecution the appellants had allegedly absconded after the incident which caused delay in their arrest A cballan against the appellants was submitted in the Court of Civil Judge and F. C. M. Garhi Khairo, on 3-7-1974 and final eballan was submitted on 21-7-1974 showing accused Acbar as abseconder.. The blood stained earth was sent to the Chemical Analysit at Karachi. After enquiry the Civil Judge and F. C. M., Garhi Khairo committed the appellants to the Sessions Court for trial.
6. The motive for committing the offence by the three accused was said to be enmity with the deceased on account of marder of one Lal Khokhar which had taken place some 10-11 bears back in which the accused was involved but was later acquitted by 'jirga.
7. The prosecution case rested on the ocular testimony of P. Ws. Muhammad Siddique and Muhammad Din statements of the P. Ws. Muhammad Buz and Ghulam Hussain, as well as the motive and the Medical evidence. Certain other pieces of circumstantial evidence were also relied upon to support the ocular testimony. The appellants pleaded innocence and stated that they were falsely implicated and the P. Ws. Were interested and inimical. Accused Khan, further stated that he and the co-accused Piral alongwith four other persons were prosecuted under section 302 read with section 148/149, P. P. C. In Sessions Case No, 176/58 for the murder of one Sohrab, the brother-in-law of the complainant and the deceased, before the Sessions Court, Larkana, which ended in acquittal on 4.3-1959 (Eah. 34), and due to said enmity he was falsely implicated In the case.
8. Mr. Mohammad Muzaffar, learned Counsel for the appellants, contended before us that the eye- witnesses are related Inter se and are also caste-fellows of the deceased and as such they are interested and partisan witnesses. The niece of the deceased, Mst. Sharifan, is married to Mohammad Anwar, who is brother of P. W. Mohammad Siddique. The deceased was maternal uncle of P. W. Mohammad Din. He further contended that even mashir of vardat P. W. 3, Mohammad Anwar, is brother of P. W. Mohammad Siddique. According to the learned cousel, the testimony of these witnesses is also not corrob ?Rated by the medical evidence regarding number of injuries sustained by the deceased. He laid great emphasis on the fact that admittedly although the Invetigating Officer, Ghulam Shabir, had visited the Vardat at 8-15 p.m., on the day of the incident, ho recorded the statements of P. Ws. Mohammad Siddique and Mohammad Din on the following day, after delay of 12 hours, for which there is no explanation. According to him, prosecution had introduced interested and false witnesses subsequently. His further eritioism was that although incident had taken place on a main street, where there wore 59 to 60 houses, yet the prosecution could not produce a single independent witness who may have witnessed the crime.
He also referred to the sketch of the scene of offence (Exh. 6), and indicated that the position of the P. Ws. Mohammad Siddique and Mohammad Din, from where they allegedly witnessed the crime, had not been shown therein, which was necessary.
9. It is for consideration whether the testimony of two eye-witnesses, namely Mohammad Siddique and Mohammad Din, who are admittedly related and caste-fellows of the deceased, can be relled upon for snstaining conviction and the capital punishment awarded to the appellants. P. W.
Mohammad Siddique, stated that after the appellants had gone after committing the offence, Ghulam Hussain and many other persons had arrived at the vardat, to whom he bad mentioned the names of the appellants. However, in cros s-examination, he stated that he could not recall the name of any such person. P. W. Ghulam Hussain did not support him on this point. On the contrary, he stated that he had made enquiry from Mohammad Siddique, who had told him that he did not know as to who had committed the murder since he had just arrived P. W. Ghulam Hussain further stated that Mohammad Siddique was standing at the scene of offence alongwith 100.150 persons. If really Mohammad Siddique had mentioned the names of the appellants, soon after the incident, to some other persons besides Ghulam Hussain, surely at least one independent witness could be found to corroborate his testimony but none has been produced. Mohammad Siddique is not the resident of the Mohalla where the offence was committed. According to him he had accompanied the deceased, who was sick, to the medical dispensary but when questioned, he was unable to say from what ailment the deceased was suffering for which he required treatment. He tried to represent himself as an independent witness by saying that the deceased was neither related to him nor was he on friendly terms with him. However, he had to admit in cross-examination that Min Shasifan, niece of the deceased, was wife of his brother Anwar. His testimony lacks any independent corroboration and hence cannot be relied upon.
' The next witness is Mohammad Din, who is nephew of the deceased. He also stated that he had given the facts as well as names of the appellants to Ghulam Hussain and other persons at the Vardat. Ghulam Hussain did not confirm having been informed about the names of the appellants by this witness nor any question in this respect was asked from him. He also failed to give name of any other person, except Ghulam Hussain, from amongst the persons, who allegedly had appeared at the scene of offence, soon after the commission of the crime. As he is closely related to the deceased, his testimony all the more required some independent corroboration which is not forthcoming. His testimony also, therefore, is not worthy of credence.
' The testimony of P. Ws. Mohammad Siddique and Mohammad Din, is also not corroborated by the medical evidence. According to them all the three accused had inflicted five hatchet blows whereas according to the medical evidence the deceased had sustained only three injuries caused by heavy sharp-cutting weapon, such as hatchet.
As contended by the learned counsel for the appellants, it is true that the place from where P. Ws.
Muhammad Siddique and Muhammad Din may have witnessed the crime has not been indicated in the sketch of the Vardat (Exh. 6). In Mehar Ali v. Stale (1) Cornelius, C. J. Held that ommission to indicate in site plan position of witnesses at time of occurrence reflects on the possibility of witnesses not being present at all at the time of occurrence.
' The motive alleged for the commission of the offence has else not been proved. No independent witness has been examined to prove the same and we have already declined to rely upon the testimony of P. Ws. Muhammad Siddique and Muhammad Din. The evidence of complainant Muhammad Bux alone in this respect is not sufficient to prove the same. Besides the incident, in which Lal Khokhar was allegedly murdered, had taken place some 10-11 years before the incident and the same cannot be presumed to aft rd a proximate and reasonable cause for committing the offence after such a long time. On the other hand, the appellants have successfully proved, by production of certified copy of judgment dated 4-3-1959 (Exh. 34) passed in Sessions Case No, 176 of i958 showing that both the appellants had been prosecuted under section 302 read with section 148/.49, P. P. C. Fer murder of Sohrab, the brother-in-law of the complainant and the deceased, in which the appellants were acquitted by {{FOOT NOTE}}
(1) 1968 SCM R 161 {{FOOT NOTE}} lst. Additional learned Sessions Judge, Larkana. Accordingly a probable justification has been shown by the appellants for involving them in a false case.
' There is one significant fact which has attracted our attention. P. WS. Mohammad Siddique and Mohammad Din have been emphatic in saying that the deceased was carrying a prescription in his hand which was issued by the doctor for the purchase of medicine. Tnis prescription has not been produced by the prosecution. Tho possibility of the prescription having been lost cannot be ruled out but certainly the doctor could have been summoned to corroborate the testimony of these witnesses. The story of these two witnesses accompanying the deceased to the dispensary for getting treatment, apparently seems to have been set up for the purpose of proving their presence with the deceased at the time of commission of the offence, However, this story cannot be believed in the absence of corroboration from any independent source ce, more particularly, when Mohammad Siddique has been even unable to mention the disease from which the deceased had been suffering.
We have also taken notice of the fact that investigation in this cage, involving murder, was carried on in a very perfunctory and callous manner. The S. H.
0. Had admittedly repaired to the Vardat at 8-15 p.m. Bu investigation was delayed till the following morning, when the statement of the witnesses were recorded. If the Investigating Officer had acted promptly he may have collected some independent evidence. The result of such enquiry itself casts doubts about the involvement of the appellant in the crime as suggested by the learned counsel for the appellants.
' In the result, for the foregoing reasons, the appeal is accepted an the conviction and sentence passed against the appellants is set aside. The reference is rejected.