' ZAKAULLAH LODHI, J.-Appellants Mohammad son of Haji Bachal and Habib son of Khan were tried alongwith Haji Bachal father of appellant Mohammad under section 302, P. P. C. For the murder of one Photo by the learned Sessions Judge, Nawabshah who convicted and sentenced the appellants to death penalty and acquitted Haji Bachal by his order dated 17th December, 1974. The appellants have filed this appeal challenging the validity of the conviction and sentence, whereas the learned Sessions Judge has referred the case for the confirmation of death sentence.
2. The brief facts of the case are that on 22nd December, 1973 at sunset time deceased Photo was allegedly murdered by the appellants and Haji Bachal in wheat cultivation of Malik Feroze in Deh Sun, Taluka Moro, District Nawabshah. The first information report of the incident was lodged by the complainant P. W. Miandad on 23rd December, 1973 at 7-00 a.m. At Police Station Daulatpur which is 16/18 miles away from the vardat. According to the F. I. R. The complainant had gone for water rotation when he heard the gun report from the land of Malik Feroze and also the cries. He went running to th t place and saw the appellants and Haji Bachal at the vardat. Appellant Habib had a single-barrel gun while appellant Mohammad and Haji Bachal had hatchets in their hands They were running towards the west. He then went in the direction wherefrom the cries were coming and found that dead body of his maternal uncle Photo was lying there. P. Ws. Ilyas and Mukim were already present at the vardat and were raising cries. On enquiry they told him that they were returning from the lands to their village when they saw that all of a sudden the appellants and Haji Bachal emerged from the sugarcane cultivation of Photo. Appellant Habib had a single-barrel gun in his hand and the others had hatchets in their hands. Photo was going to his own village when appellant Habib challenged him and fired at him. Photo ran for a few paces and then fell down.
Appellant Mohammad and Haji Bachal gave him hatchet blows. P. Ws. Ilyas and Mukim raised cries and gave "hakals" but to no avail. Then the complainant left P. Ws. Ilyas and Mukim at the vardat and went to inform P. W. Achar Khan who asked him to lodge a report with the police. Accordingly the complainant reported the matter in Daulatpur Police Station. P. W. Mazhar Hussain Shah, S. H.
0. Of Police Station, Daulatpur recorded the F. I. R. And proceeded to the vardat which was pointed out to him by the complainant. He prepared mashirnama of the vardat which was signed by mashirs Suleman and Noorul Haq. The vardat was situated in the wheat cultivation of Malik Feroze Punjabi. He secured the dead body of the deceased which was lying at the vardat and had gunshot and hatchet injuries. He prepared a mashirmama of the injuries of the deceased and secured the blood-stained earth and broken piece of handle of one hatchet which was blood- stained in the presence of the same mashirs. He then proceeded to the village of the appellants and arrested appellant Mohammad from his house and prepared a mathirnarna of the arrest, Appellant Mohammad led the S. H. O. Inside hit house and produced a shirt and a loin cloth upon which the blood appeared to have been washed away. He also produced two hatchets upon which the blood appeared to have been washed away. The handle of one of the hatchets was broken.
The S H.
0. Prepared a of these articles. At about 5-30 p.m. On the same day appellant Hamashirnamabib surrendered himself and he was arrested by the S. H.
0. In the presence of the =shin, Appellant Habib then led the S. H.
0. Inside his house which was at a distance of 1 1/2 furlongs from the house of appellant Mohammad. He produced a gun and the three cartridges and a shirt and a trousers which were blood-stained. The gun was kept without a licence therefore he was also challaned under a separate case under the Arms Act. On 25th December, 1973 the acquitted accused Haji Bachal was produced at the police station and he was also arrested in the presence of mashirs Allah Warayo and H. C. Sultan. Accused Haji Bachal did not produce any incriminating article. The blood-stained articles were sent to the Chemical Analyser. Since no empty cartridge was recovered from the vardat therefore the gun was not sent to the Ballistic Expert.
3. Autopsy on the dead body was carried on by Dr. Fazal Mohammad who found the following injuries on the person of the deceased :- Al) Incised wound 2' x 4' x scalp deep on the right parito occipital region.
(2) Contused wound 1' x x scalp deep on occipital region on back.
(3) Contused wound x x scalp deep below injury No. 2.
(4) Incised wound 2' x 3/4' x scalp deep on the left parietal region and temporal region.
(5) Incised wound 2' x x bone deep on the middle of the nose towards left side cheek below left eye. Nosal bone fractured.
(6) Contused wound 1' x 4" x bone deep on the right side chin on jaw below right angle of the mouth, mandible fractured.
(7) Incised wound 4' x 2' x muscle deep on the front of the neck from below mandible.
(8) Incised wound x x trachea deep below injury No. 7.
(9) Incised wound 4' x x bone deep (opiglotti trachea and oesophagous) deep below injury No. 8.
(10) Incised wound 4' x 2' x bone deep (trachea oesophageus cut not through and through) on the front of the neck below injury No. 9.
(11) Incised wound 2' " x x muscle deep on the left side waist above iliac bone.
(12) Contused wound 14' 2 x x skin deep on the left bicops muscle laterally.
(13) Incised wound 1+" x 4' x skin deep on the upper border of the left scapula.
(14) Gunshot wound of entrance 1/10" x in diameter skin deep on the side of left iliac bone on abdomen.
(15) Gunshot wound ;;" x 1/8' x ir skin deep going superficially of the left thigh.
(16) Gunshot wound of entrance 1/10' in diameter on the back of the waist op the left side, pellet removed, Mutt. Rum) {{BLURR PAGE}} tfiltr dial: diameter on qir dc metes on right oned he ewe He He and P.- fore the sunset. #TBS the used little distance t &chat then stract, witness he and P. #TBE #TBS out of the stag, and the othet #TBE #TBS ICAfialeS his #TBE #TBS SUSInadlt #TBE they sav, dlro the appellants and he deceased, Appehe their bands. Appe it Hibib with gun The deceased ran Apptliant Mohammad and {{BLURR}} used upon the dm-eased According to the ppeacts a tried to stop ideal hut they aiso threateued dams of killing in case an!, interckertve t4a4 dere. As far as the motive is CQDcantd, he has stated that the appellants kiiiado the deceased because they sus that hisbe&ItT Saba had mmitted theft in the house f 'tied accused Hai BitehaA about inte yea before the incident. Po, W. Ilyas has ,supported the sUluvertt a p, Maki and sates that aid Mukim vest returning fft)111 the Wads and e cultivation o; t deo/eased he sa' the of tow ds thr vii3age.. 'filch they law that an of the appellants 'casedH BachZ4 emetged frckm the sugarcane cultivation mat Habib was armed with a pan hilt others b challenged the ificosased and fired at biro why and the ackttnited accused lisji Bac:hal stract him lor testimony of these witnessess by the recoveries. However, the r Wheats of these tneases have not relied upon by the learned Sessions as far as uitted accused Haji Bethel is concerned. In case of the appellants be has ti upon.These statements because in biz nava the statements of I se weiv merceovivated by the memoir of stained taties ' The reason for not believing the statements of these witnesses is that they were closely related to the deceased and had enmity with the appellants and also that they were chance witnesses. We do not find any fault with the impugned order to the extent that the statements of eye-witnesses were not worthy of any credence because these witnesses are closely related to the deceased and had enmity with the appellants. Besides this, they are also chance witnesses. But the other part of the judgment whereby the learned Judge has held that since their statements were corroborated by the recoveries therefore conviction could take place is not sustainable. The reason being that as far as the recoveries from appellant Mohammad are concerned, he produced two hatchets, one shirt and a loin cloth from his house. All these articles did not have blood stains. The washed away hatchets can in no way lend support to the statements of the eye-witnesses. The reason given by the learned Sessions Judge that the clothes and hatchets had been washed off is not sufficient.
Washed clothes did not indicate that they were previously blood stained and same is the case with the hatchets. In case these articles had blood stains, of course, the inference would have been that the human blood found upon these articles was that of the deceased but since these articles did not contain any blood stains, therefore the inference that they had been blood-stained and were washed off by the appellants is highly erroneous and unsustainable, particularly when there is no evidence on record that there were blood marks on these articles and they were subsequently washed off. In short the recoveries from appellant Mohammad do not, in any manner, corroborate the testimony of the interested witnesses. Namely P. Ws. Mukim and Ilyas and therefore his case is also at par with that of the accused Haji Bachal who was acquitted. Coming to the case of the other appellant namely Habib we find that the blood-stained shirt and shahvar were recovered from his possession but it cannot be set aside from consideration that there was no question of any blood stains being found on his clothes because according to P. W. Mohammad Suleman Tapedar he had fired from a distance of about 155 feet at the deceased. According to P. W. Mukim also he had fired from a distance of 10/15 paces which means a distance of about 50 feet. It is unimaginable that the blood oozed so forcefully that it covered a distance of 155 feet or even 50 feet and stained the clothes of appellant Habib. The recovery of the blood-stained articles from the possession of appellant Habib is therefore highly doubtful and although the report of the Chemical Anslyser is in the positive terms but the possibility of appellant Habib's clothes being stained with blood is out of question. The recovery from this appellant also therefore does not corroborate the statements of P. Ws. Mukim and Ilyas and his case also stands at par with that of the acquitted accused and appellant Mohammad. The other aspect of the case which makes the whole case doubtful is that admittedly there was a police post at a distance of four miles from the vardat but no report was lodged in that police post against the appellants. The complainant waited for the whole day to lodge the report in Daulatpur Police Station which is at a distance of 16/18 miles from the vardat. The time of the incident had also been changed by the witnesses from sunset to one hour before sunset. In the F. I. R. The complainant has stated that the incident had taken place at the sunset time whereas the so-called eye-witnesses have stated in their statements that the offence had taken place one hour before the sunset. In all probability the shifting of the time of commission of offence is with a purpose to facilitate the identification. These facts also create a doubt in our mind about the veracity of the statements of these witnesses. This is further highly improbable that on one and the same time both the witnesses. Namely,- P. Ws. Mukim and Ilyas would think of going back to their village and the deceased would also think of going back to the village and all of a sudden at that very time the appellants would emerge from the sugarcane cultivation of the deceased and kill the deceased.
The whole story as narrated gives a touch of mechanical motivation of the deceased, witnesses and the accused which creates a doubt about its veracity and the whole story seems to be fabricated. Then if at all they wanted to kill the deceased merely on suspicion that his brother Sabu had committed theft in the house of acquitted accused Haji Bachel, they could kill him at any time earlier because the theft had allegedly 'taken place about one year back. Besides this, why the appellants would have killed the deceased on this suspicion and why not Sabu himself . The learned Sessions Judge has stated in his judgment that the clothes of appellant Habib got blood stains because after having shot the deceased he went near him and stood by his side. There is no such evidence on record and therefore his finding is without any basis. Moreover the number of injuries also does not corroborate the testimony of eye-witnesses.
6. For the foregoing reasons we do not find that the order of the learned Sessions Judge, Nawabshah convicting the appellants is in any manne sustainable. The same is therefore set aside and the appeal is allowed. Th appellants shall be set at liberty forthwith unless they are required In con nection with any other case. The reference for the confirmation of death sentence is not accepted. :Appeal, allowed.