' ABDUL HAFEEZ MEMON, J.-Appellants Mohammad Khan, Qaisar and Jan Mohammad have been convicted by the first Additional Sessions Judge, Nawabshah, for an offence under section 302/34, P. P. C. And each of them has been sentenced to death. They have also been convicted under section 307/34, P. P. C. And sentenced to R.. I. For three years each, in addition appellants Mohammad Khan and Qaisar have been sentenced to R. I. For one year each under section 13-D of the Arms Ordinance. They have appealed against their conviction and sentences and their case has also been referred to this Court under section 374, Cr. P. C. For confirmation of the death sentences. By this judgment we propose to dispose of both the appeal as well as the murder reference.
2. The appellants are closely related, inasmuch as, Qaisar and Jan Mohammad are brothers inter se while Mohammad Khan is their cousin. The prosecution case against them was that, on 8-9- 1974 at about 6 p.m. Agha Mohammad Hussain (deceased) and his nephew Naeem Akhtar, after visiting their lands in Deh Panjo Chan, were returning on a motor-cycle when they were fired at by three unidentified assailants as a result of which, Mohammad Hussain died and P.W. Naeem Akhtar was injured. The incident was reported at taluka Police Station, Nawabshah on the same evening at about 6-45 p.m. By complainant Agha Akhtar Hussain, brother of the deceased, in the following words :- "We are in all seven brothers out of which Muhammad Hussain is eldest among us. I, Agha Saleem and Agha Muhammad Hussain look after the lands. Our lands are in Deh Kiharoon and Deh Panjoo Chan. Today in the morning, I, Agha Saleem were riding on a motor-cycle and Muhammad Hussain and my nephew Agha Nasim were riding on the other motor-cycle and went to look after our lands leading to Sanghar as usual. Similarly after finishing the work at lands we returned back to Nawabshah on the same motor-cycle at 5 45 p.m. Mohammad Hussain and Agha Naeem were ahead in front of us on motor cycle which was driven by Muhammad Hussain. At about 6-00 p.m.
When we reached at the bridge of Dhoro Maro Minor Muhammad Hussain and Naeem had crossed the bridge of watercourse. At that time three persons came in front of the motor-cycle of Muhammad Hussain and Naeem. Two of them fired from the pistols at Muhammad Hussain which hit Agha Muhammad Hussain in his right side and Hussain fell down from the motor-cycle and Agha Naeem Akhtar ran towards us. The third person armed with hatchet inflicted hatchet injuries at Mohammad Hussain on his head and other parts of body. We did not go near due to fear. Then all the three persons ran away towards north crossing the road. Then we found Muhammad Hussain was lying dead. The faces of the accused were open.
' On seeing them we would identify them. The people used to pass near our lands on which deceased Muhammad Hussain used to prevent them not to pass from the lands. It might be that same persons have murdered him and we have old enmity with Brohis since last 20 years. On murders. Then after leaving Agha Muhammad Saleem over the dead body of Muhammad Hussain.
I took injured Agha Naeem to lodge report. I complain steps be taken".
3. After recording the F. I. R., S. H.
0. Qalandar Bux Shah sent the injured Naeem to the Civil Hospital for treatment and proceeded to the scene of offence where he saw dead body of Muhammad Hussain lying on the private path and also found one empty cartridge of '12 bore lying on the vardat. He secured the empty cartridge and blood-stained earth and sealed it in presence of mashirs Ghulam Muhammad and Bashir whom he had taken from the Police Station. Thereaftar, on receiving any information, he arrested accused Muhammad Khan and Qaisar cn 1-10-1974 and secured `banian' and shirt from Qaisar and a shirt from Muhammad Khan under a mashirnama in presence of the same mashirs. All the three clothes had washed bloodstains on them. On the same day, both these appellants were put to identification test supervised by P. W. Faiz Muhammad, Head Munshi and Third Class Magistrate, and were identified by the witnesses P. W. Agha Akhtar Hussain, Agha Saleem and Agha Naeem Akhtar. Appellant Jan Mohammad was arrested on 31-10-1974 by the D. S. P. P. W. Ali Gohar and put to identification wherein he was identified by the same witnesses. The footprints tests of the appellants were also held on the same dates and Police Puggi Muhammad Saleh identified their footprints vide Exhs. 14 and 15. Appellants Muhammad Khan and Qaisar are also alleged to have produced one 12 bore pistol which were secured vide mashirnama. Exhs. 27 and 18 and sent to the Ballistic Expert Mukhtar Ahmed, according to whom the empty secured from the vardat was fired from one of these pistols. It could not, however, be ascertained whether it was fired from the pistol produced by the appellant No. 1 or appellant No.
2. Autopsy on the dead body of Agha Muhammad Hussain was conducted by Dr. Fazal Muhammad, Medical Officer Rural Health Centre, Daur, who found the following injuries on the deceased :-
(1) Incised wound 7' x 2' x 2' x bone and brain matter deep on the right parietal region vertical start from right frontal towards right parietal (fractured) right occipital region.
(2) Incised wound 7i" x bone and brain matter deep on the occipital region back side, start from right occipital towards left mastoid region 11" in front of left region. Right occipital region from injury No. 1 tail towards back.
(3) Incised wound 3" in muscle deep on the right mastoid region transverse.
(4) Incised wound 4' X j" x muscle deep on the right side neck below injury No. 3.
(5) Incised wound 6" x 2' muscle deep and cutting piece of right clavical on the right side neck and shoulder.
(6) Incised wound 5' X 2' X muscle deep on the right shoulder joining injury No. 5.
(7) Incised wound 5" x 11" x muscle deep on the mid of right arm medially.
(8) Incised wound 14" x r x muscle deep on right elbow joint.
(9) Two gunshot wounds on entrance I" in the diameter on right shoulder laterally.
(10) Gunshot wound of entrance r in diameter on the mid of the right arm laterally.
(11) Three gunshot wounds of exit 1/3" in the diameter on the postural side of right shoulder on deltoid muscle.
(12) Gunshot wound of enterancein diameter on the mid of right arm medially.
(13) Incised wound 3" x 1" x bone deep on the dorsum of the right hand with fracture of 1st corpar bone.
(14) Incised wound 4" x x bone deep on the left hand, cutting left little at base, left ring finger, corpar bone and middle finger corpar bone. All three fingers are sustaining on the skill and muscle.
(15) Contused wound 3" X 14" on the left side chest near nipple."
' The same doctor also examined P. W. Naseem Akhtar and found one simple gunshot injury 1/4" in diameter slightly right to the mid line front of neck at epiglottis going towards left side. In his cross- examination, the learned doctor stated that he could not say what was the range and distance from which the fire arms had been discharged but he could say that it was not fired from close distance as there were no charring or blackening marks of the gunpowder on the deceased.
4. After the investigation was completed, the appellants were challaned and committed to the Court of Session to stand their trial.
5. The defence of the appellants at the trial was one of denial and false implication on account of enmity with one Chaudhry Anwar who was a friend of the complainant party and had enmity with the accused over lands. They further stated that the police had shown them to the witnesses before the identification and footprint tests. No evidence was however, led in defence.
6. The learned trial Judge first dealt with the motive alleged by the prosecution and held that prosecution had failed to prove it and discarded it from consideration with the following observations :-- "So far the motive is concerned the accused had denied any connection with the Brohis who according to the F. I. R. Is said to have been murdered by the deceased or that they were the persons who were restrained by the deceased from passing in front of his lands. On the point that deceased was convicted in the murder of one Noor Mohammad Brohi father of Muhammad Khan, in which he was subsequently acquitted by the High Court, there is only one word of complainant.
The murder of said Brohi is said to have been committed about 20 years ago and one can say in absence of recorded proof connecting deceased with it or by their evidence that the motive is hazy. Accordingly it is held that the motive is not proved, but it may be mentioned that motive is not necessary for the commission of murder.
7. The learned trial Judge also discarded the evidence relating to identification tests as well as the footprint tests by observing in paras. 14 and 15 of his judgment as under :- "According to the accused they were already detained in custody 10 or 12 days before the alleged arrest and shown to eye-witnesses, therefore, no value can be attached to the identification test.
The complainant and the two eye-witnesses examined have denied to have been previously shown accused Mohammad Khan and Qaisar. The Head Munshi and Lard Class Magistrate who conducted the test had also deposed that he had observed the legal formalities requisite for identification test, but I do not believe that the identification test was held properly for the following reasons :-
(1) That the tracker Mohammad Saleh constable has admitted in his cross examination at Exh. 11 that he has seen the two accused in lock-up at Taluka Police Station 8/10 days before the identification test or footprint test.
(ii) That the number of dummies mixed with the accused was not sufficient and according to P. W.
Faiz Muhammad, Head Munshi and IIIrd Class Magistrate Exh. 12 and mashirnama Exh. 13 six other persons were mixed with the accused whereas according to PLD 1961 Kar. 728 the proportion of dummies should be at least 9 or 10 to one. So far the identification test against accused Khan Muhammad and Qaisar is concerned it fails on account of, two reasons given above and it also fails against accused Jan Mohammad for the latter reason because in his case also according to mashirnafna Exh. 16 only three persons were mixed with him. Accordingly it is held that the prosecution has not been able to prove the evidence of identification test against all the accused.
' Footprint Test.
15. In view of the admission in the cross-examination one tracker at Exh. 11 and the fact that wardat shed prints of P. W. Muhammad Saleh were seen, it was frankly conceded to by the learned A. P. P.
That no value can be attached to the test of prints. Accordingly this piece of evidence has also not been proved against the accused."
8. The evidence relating to recoveries was likewise rejected by the trial Court for reasons appearing in para. 16 of the judgment which is to the following effect: "It is alleged against accused Muhammad Khan and Qaisar that they were arrested on 1-10-1974 at a Chowk near Post Office, Nawabshah which is at thickly populated area in presence of mashir Bashir Ahmed and Ghulam Muhammad. P. W. Bashir Ahmed, the mashir of arrest at Exh. 22 has admitted that his house was 21 furlongs away from the place of the arrest of the accused and at that time he was out of employment and that the same investigation officer was investigating a criminal case of the same Police Station against him at the time of investigation of this case. The other co-mashir has not been examined, for whom the Tapedar examined at Exh. 8 has admitted that he looks after the land of complainant party. Besides that P. W. Bashir Ahmed is the same mashir in whose presence the vardat was also visited on 8-9-1974. It is further deposed that in presence of the said mashirs accused Muhammad Khan and Qaisar had produced the unlicensed arms on 1-10-1974 although it has been admitted by P. W. Bashir Ahmed that on the same day after the arrest of accused Muhammad Khan and Qaisar he went away and was taken by the Police from Sanghar Bus Stand of Nawabshah to act as mashir of recovery of pistols. Although there is no harm to believe the evidence of the mashir who has acted as such several times in police cases, but the position of evidence of P. W. Bashir Ahmed is different because he had happened to be present whenever required by police at the places of which he is not the resident. Further also he cannot be said to be the respectable person in view of the fact that at the time he was out of employment and involved in a criminal case being investigated by the same Investigating Officer of this case. Accordingly in view of 1975 P Cr. L J 565 wherein it has been held that recovery witness should be respectable rather than inhabitant of the locality. I disbelieve the evidence of P. W. Bashir Ahmed, which is sought to corroborate the evidence of S. H.
0. Qalandar Bux Shah Exh.
29. It may be said that there is no reason to disbelieve the evidence of Police Officer, but when the independent witnesses were available then there is reason to disbelieve the evidence of Police Officer in view of the fact also that it has been admitted by complainant as well as the Investigation Officer that one Abdul Rehman brother of complainant was the A. S. I. Of the same Police Station during the investigation of this case and it is therefore, likely that in his anxiety to sympathise with his colleague the S. H.
0. Might have exaggerated the actual fact. The recoveries of unlicensed pistols in the present case by themselves are of little value and they can become good evidence when as alleged by the prosecution one of them is matched with the empty cartridge, which was secured from the vardat, but so far the empty cartridge is concerned it is said to have been secured from the vardat but it has not been so mentioned in the F. I. R. By the complainant and moreover this fact has also been sought to be corroborated by the evidence of same mashir P. W. Bashir as Exh. 22, who has been disbelieved by the undersigned. It may be further mentioned that the place of recovery of empty cartridges has not been mentioned in the site plan Exh. 9, therefore, in view of 1973 P Cr. L J 675 where it has been held that "place where empty cartridge be neither shown in site plan nor shown to person preparing the site plan such evidence is doubtful". I also hold that the evidence of recovery of crime empty from the vardat is doubtful. Under the circumstances discussed above the evidence of recovery against the accused also fails, even though if the report of Ballistic Expert in respect of one of the accused (name of accused not established) is positive because also the fact that the crime empty and the pistols were sent to Ballistic Expert after the delay of about 8 months. At this stage something should be said about the recovery of'blood- stained clothes which were secured from accused Mohammad Khan and Qaisar at the time of their arrest. This evidence can also not be believed for the reason that the evidence of attesting mashir P. W. Bashir Ahmed Exh. 22 has already been disbelieved and for the reason that the blood-stained clothes have been sent to the Chemical Examiner after unexplained today of about 27 days."
9.Having thus disbelieved every other item of evidence, the learned tria; Judge, proceeded to convict the appellants by relying solely on the ocular evidence of the three witnesses, namely Agha Akhtar Hussain, Agha Saleem, both brothers of the deceased, and Agha Naeem Akhtar, nephew of the deceased, who all are alleged to have identified the appellants in Court after l years.
10. The question for consideration is whether the ocular testimony of the aforesaid eye-witnesses was that unimpeachable character as could be safely made the basis of conviction of the three appellants on a capital charge.
11. The learned trial Judge himself held the evidence of the witnesses to be "admittedly interested", in which case, it required to be scrutinized carefully in the light of all the other circumstances appearing in the case, and accepted with circumspection. Instead, the learned trial Judge proceeded to accept their testimony for the only reason, stated in para. 16 of the judgment, that no enmity had been established between the witnesses and the appellants, which, however, was not the correct approach of assessing the oral evidence of the witnesses, in view of the infirmities attaching to their evidence and several other circumstances appearing in the case.
12. It will be noticed that the prosecution witnesses had suggested two motives for the murder of the deceased, one was that the deceased was of quarrelsome nature and mostly used abusive language and used to prevent people from passing by his lands and it may be that someone of those persons had murdered him, and the other was as that about 20 to 22 years back one Noor Mohammad was murdered for which the deceased was convicted by the trial Court but was acquitted by the High Court, and the appellant Mohammad Khan was son of that Noor Mohammad and hence the murder. The evidence of the witnesses would, however, show they made efforts to conceal the alleged motives of the deceased being used to abusive language and preventing persons from passing by his lands. Then, although the witnesses claimed that they had seen the appellants from a very close distance and identified them as their faces were open, yet no mention was made in the F. I. R. About the features of any of the assailants. What is more, even if it were to be assumed that they inadvertently omitted to mention the features of the assailants in the F. I. R., they could have mentioned their features at least in their statement under section 161, Cr.
P. C. But, admittedly, none of the witnesses mentioned the features of any of the assailants in their statement under section 161, Cr. P. C. That being so, it is highly doubtful if the witnesses had seen and identified the assailants, for, if they had, it is unbelievable that they would not have mentioned their features or at least some particulars like their height, colour, etc. In the F. I. R. Or in their police statements. It was further admitted by P. W. Agha Akhtar Hussain that he could not distinguish between Punjabi, Pathan and Brohis, Sindhi or Balochi, of this Province. P. W. Agha Saleem likewise admitted that according to him "appearance of all persons whether Sindhi, Punjabi and Brohi would be same". Similarly, the last eye-witness namely, Agha Akhtar Hussain also frankly admitted that he would not be able to identify the person who had taken him from Southern side of taluka office to the spot of identification on the Northern side of the office. If this is the power of observation of these witnesses, it will be highly dangerous to alone place implicit reliance on their identification of the appellants in Court after years for convicting as many as three persons on capital charge, especially when there would be confusion and terror created and the entire incident, admittedly, did not last more than 2-3 minutes.
13. The witnesses have also tried to deny certain facts which went in favour of the accused, although they had admitted the same in the Court of Committing Magistrate. In this connection, the anxiety of the complainant to deny the fact that one Ghulam Mohammad Arain, who was a mashir in the case, was his hari or Kamaar is significant. He denied this fact although he was falsified by Tapedar Mohd. Pariyal. He then stated in his evidence that he had seen the assailants emerging from the babul trees and firing at the deceased. When, however, confronted with his statement in the Committing Court wherein he had stated that he had seen the assailants "at the time of fire and not before", he replied that he did not remember to have so stated. He then stated that he did not see empty cartridge lying at the vardat before leaving for report but saw it when he returned to the vardat with the police. When, however, confronted with his statement in the Committing Court wherein he had stated that "blood and empty cartridge were lying near the dead body", he replied that he did not remember to have so stated. He also pretended not to know whether his deceased brother used to abuse and insult people who used to pass by his lands and denied that he used to prevent people from passing from his lands. He was, however, duly confronted with the F. I. R. Wherein he had stated in the contrary. He further stated at the trial that on that day of the incident all the three witnesses and the deceased had taken meals together in their village in Deh Panjo-Chan and categorically denied the suggestion that the deceased and P.
W. Naeem Akhtar had taken meals in their village Panjo Chan, while he and Agha Saleem had taken meals in their village in Deh Khiyaroon. When, however, confronted with his statement in the lower Court wherein he had stated that deceased Mohammad Hussain and P. W. Naeem had taken their meals in their village while he and P. W. Agha Saleem had taken meals in their own village in Deh Khiyaroon, he replied that he did not remember to have so stated before the Committing Court. Similarly, evidence of P. W. Agha Saleem is also full of discrepancies, as, contrary to what was stated by the complainant in the F. I. R. And before the Committing Court, he stated that he had never gone to his village Khiyaroon on the date of the incident and taken meals there with the complainant Agha Akhtar Hussain and also denied categorically, that the deceased was of a short temper and mostly used abusive language, although he had admitted this fact in his statement to the police, with which he was duly confronted. Then, he stated in his evidence at the trial that he used to look after his lands in Deh Kbiyaroon while deceased used to look after his lands in Deh Panjo-Chan, at a distance of two miles, but on that day he had gone to the village of the deceased at Deh Panjo-Chan, as the deceased had to take water rotation. He, however, failed to name the person from whom the deceased had taken rotation of water and the time when the rotation of water had ended. As to P. W. Agha Naeem, his evidence also does not advance prosecution case any further in view of the infirmities pointed out above. No doubt, he being an injured witness, his presence cannot be doubted, but this fact by itself could be no guarantee that he had seen and identified the assailants, which was the most important question in this case. He stated in his evidence that as soon as he received the injury he ran to his father and uncle who were following them, and, admittedly, the entire incident did not last more than 2-3 minutes. Then like other witnesses, he also did not give features of any of the assailants in his tement to the police or to other witnesses and frankly admitted that he would be to identify the person who had brought him for identification thern side of the taluka office to the northern side of the office. In these circumsi,.Nces, it is difficult to accept that he could have and had seen and identified the assailants, particularly when there would be confusion and terror created at the time of the incident. Further, he stated at the trial that he had seen the assailants even before receiving the injuries. He was, however, confronted with his statement in the lower Court wherein he had stated "1 saw the accused when they had fired at us for the first time? He then proceeded to further state in his cross-examination that he had seen the accused when they came in front of the motor-cycle but agains stated that the assailants did not actually come in front of the motor-cycle but they stood together on the way on their right side, and this he appears to have obviously done to fit in his evidence with the medical evidence, which showed that the fir-arm injuries had been caused to the deceased from right side and not from the front. Then, according to the sketch of the vardat prepared at his pointing out, the assailants are shown to have fired from Point B at a distance of 12 ft. Right in front, but the medical evidence would show that the deceased had no fire arm injury on front. These inconsistencies further confirm that he had not identified the assailants and his evidence could not be placed at any higher footing on account of the injury on him.
14. Besides, the learned counsel for the State himself conceded that the alleged motive, recoveries, as well as the identification and footprints tests had been rightly discarded by the trial Co art for good and cogent reasons which were borne out by the state of evidence on record. Now, if the identification test held much before the trial was disbelieved, value of identification cannot possibly be enhanced by identification in Court after a year and half when accused are the only persons to the dock. To accept such evidence for convicting the appellants on a capital charge would be highly improper. Further, the ocular evidence is also not corroborated by the medical evidence. According to the F. I. R. Reproduced above, the assailants are said to have come in front and fired at the deceased, but the medical evidence shows that the deceased had all the fire arm injuries, that is, injuries Nos. 9, 10, 11 and 12, on his right shoulder, right elbow and right arm, laterally, which appears to show that whosoever fired at the deceased came behind the cover from the right side and had not come out in front of the deceased.
15. Further, the deceased was admittedly a person who would be having enemies. In this connection his brother complainant Agha Akhtar Hussain himself admits as follows :- "My brother was a quarrelsome. I do not know if my deceased brother used to abuse or insult people who used to pass by his lands. He did not prevent people from passing from his lands. I do not know if he had any dispute or enmity with the persons living in the neighbourhood of his land. I have stated in my F. I. R. That the deceased used to prevent people from passing in front of the lands and it may be on account of that some one from them might have killed him."
P. W. Agha Saleem likewise admitted having stated even in his statement to the police "that the deceased was of short temperament and very strict with the persons who passed in front of his house and used to reprimand those persons". In view of what has been stated above by the wit-- possibility cannot be ruled out, as was contended by the lea-for the appellants, that deceased might have been killed by persons, and not by the appellants, as it is not even alleged that the appellants used to pass by the lands of the deceased. Then, although the motive against the appellants was entirely different, but even this was not believed, and rightly so, by the trial Court.
Further all the three eye-witnesses are close relations of the deceased and the learned trial Judge has himsel characterised them as interested witnesses. It will therefore, be highly unsafe to base the conviction of the appellants on the uncorroborated testimon of the three witnesses, who, in the circumstances pointed out above, cannot be said to be worthy of implicit reliance.
16. For the aforesaid reasons, we hold that the prosecution has failed to prove its case against the appellants beyond reasonable doubt and they are entitled to acquittal. Accordingly, we allow the appeal and set aside their conviction and sentences and acquit them and direct that they be released forthwith unless required in any other case. The reference under section 374, Cr. P. C.
Stands rejected.