' Z. A. CHANNA , J.-The two appellants, who are son and father inter se were tried by the learned Sessions Judge, Sanghar, in respect of an offence under section 302 read with section 34, P. P. C., for committing the murder of Sulaiman, and both of them have been awarded imprisonment for life for the said offence.
2. The incident is said to have occurred on 17-3-1972, at about 7-30 p.m., in the lucerne field of Haji Thalho, in Deh Bero, at a distance of some 6/7 miles from Nawabad Police Station in District Sanghar. First informant Loung is the hart of Haji Thalho. The prosecution case is that on the day of the incident Loung got his turn of water at 10-00 a. m. Which was to last till 2-00 a. m. On the next morning. At about 7-30 p.m., Loung's youngest son, Sulaiman, went to look after the flow of water in their fields. Some 10 to 15 minutes later, Loung's nephews, Jaro and Sobho, came and informed Loung that while they were in their house they heard cries of Sulaiman from his lucerne field, whereupon they went running there and saw the two appellants giving sharp-sided hatchet blows to Sulaiman, who fell down and died on the spot, while the appellants ran away towards their houses alongwith their hatchets. Loung thereupon accompanied Jaro and Sobho to the scene of offence and found Sulaiman lying dead in a pool of blood, having hatchet injuries on his body. After reporting the matter to Haji Thalho, Haji Idan, Usman and others, Loung went on horse-back to Nawabad Police Station where his first information report was recorded at 11-00 p.m. By S. H.
0. Ali Shah. The motive for the murder is said to be the fact that the appellants suspected the deceased of having illicit relations with appellant Bachayo's wife, Mst. Rahiman.
3. After recording the F. I. R., the S. H.
0. Accompanied Loung to the vardat where they reached early next morning at 2-00 a.m. The S. H.
0. Sent the dead body of Sulaiman to Medical Officer, Sanghar, for post-mortem examination and secured blood-stained earth from the vardat. At about 10-00 a.m. That day, Haji Thalho produced before the S. H.
0. Appellant Mohammad Siddik. He was found wearing a shirt, shalwar and towel, all of which were blood-stained. The S H.
0. Seized the same under a mashirnama. On interrogation, appellant Mohammad Siddik took the S. H.
0. And mashirs to his house and produced from the manah of his house the handle of a hatchet and from a heap of manure the blade of a hatchet. Both the handle and the blade were found blood-stained. The S. H. O. Seized the same under a mashirnama. On the same day, at about 2-00 p.m., one Mir Mohammad Wassan produced before the S. H.
0. Appellant Allah Bachayo from whose person the S. H.
0. Secured a blood-stained shirt and who also produced from his house a blood-stained hatchet.
The S. H.
0. Thereafter recorded the statements of P. Ws. Jaro, Sobho, Haji Thalho, Haji 'Iddan, Usman, Mevvo and others. On 29-3-1972, both the appellants were challaned.
4. The autopsy on the deceased disclosed the following external injuries on his body:- - "(1) Incised wound 5' xyx bone deep with cutting the left mandible, maxila and left carotid vessels and left neck veins are cut.
(2) Incised wound 5" x x bone deep on back of neck oblique in direction and fourth cervical interverteberal disc cut and spinal cord _ cord cut.
(3) Incised wound 2/2xrx bone deep cutting the lower end of left radius and ulna bones."
5. On internal examination, the spinal cord of the deceased was found cut in front of the fourth intervertebral disc. The Medical Officer also found that the stomach of the deceased contained half digested food. The Medical Officer has opined that the injuries on the deceased were caused with a sharp-cutting weapon, that injuries Nos. 1 and 3 were individually and collectively sufficient in the ordinary course of nature to cause death and that the deceased may have taken his last meals 3 to 4 hours before his death.
6. The defence of the appellants was a complete denial of the prosecution allegations against them. They claimed that they had been falsely involved by the complainant party with whom they have dispute over land.
'7. The main evidence in the case is the ocular testimony of P. Ws. Jaro and Sobho, upon which the learned Sessions Judge has strongly relied, characterising it as natural, reliable, trustworthy and suffering from no material defect. In our opinion, the most important question which falls to be considered is the time when the murder was committed and whether there was enough light and opportunity for the witnesses to clearly see and identify the assailants. In the middle of March, when the murder was committed, the sunsets sometime before 6-45 p.m. According to the F. I. R.
The deceased had left his house at about 7-30 p.m., after taking his meals, and it was some 10 or 15 minutes later that first informant Loung was informed by P. Ws. Jaro and Sobho about Sulaiman's murder. Since according to the Tapedar the house of P. Ws. Jaro and Sulaiman, from where they had gone to the scene of offence on hearing cries, is at a distance of only 217 feet from the vardat, and according to complainant Loung his house is at a distance of only 60 to 70 paces from the house of P. Ws. Jaro and Sobho, it could not have taken more than five minutes for these two witnesses to go to the vardat, see the dead body and come and report the matter to first informant Loung. As such, even according to the prosecution version, the incident took place after 7-30 p.m., that is more than 45 minutes after sunset. By that time it must have become fairly dark and proper identification in such circumstance from a distance is difficult and not reliable. Even according to P.
W. Sobho, the evening prayers had already been offerred and it was dark when they heard the cries. Since the deceased had sustained only three injuries, which are stated to have been given by two persons, the causing of these injuries by the assailants could not have taken more than a few moments. Furthermore, it is our experience that whenever villagers go to the aid of any person, they raise cries. We are, therefore, inclined to the view that by the time that P. Ws. Jaro and Sobho had reached near enough to properly see the incident and to be able to identify the culprits, they must have completed their nefarious object and made good their escape.
8. We have reached the above conclusion on the basis that the witnesses have correctly stated the time of the incident, but there are a number of Circumstances which suggest that the murder took place much later. According to the Medical Officer, the deceased had taken his last meal 3 to 4 hours prior to his death. Villagers usually take their meals at about sunset time, but even if we accept the version of the first informant that the deceased had taken his meals at 6 p.m., as he had to go for water-rotation, though the deceased is said to have left for water-rotation at about 7-30 p.m. The time of the murder of the deceased, on the basis of the Medical Officer's opinion, would be after 9 p.m. This coincides with the statement by P.W. Haji Thalho in the committal Court, which statement has been brought on record of the trial Court under the provisions of section 288, Cr. P. C., that first informant Loung informed him of the incident at 10 p.m. Another circumstance which supports the view that the incident had taken place at about or after 9 p.m. Is the fact that the F. I. R. Was lodged at 11 p.m. Since the police station was only 6 to 7 miles from the vardat and the first informant had gone on horse-back it could not have taken time more than one hour to reach the police station. This indicates that he left for the police station at about 10 p.m. And in turn suggests that the incident took place at about. 9 p.m. When it must have been too dark for proper identification of the assailants. We thus entertain serious doubts as to the credibility of the two eye- witnesses as to the identity of the culprits. It is just possible that because the appellants suspected the deceased of having illicit relations with their relation, Mst. Rahmani, that the two eye-witnesses imagined or suspected that they must have killed the deceased.
9. Mr. Muhammad Hayat Junejo, the learned counsel for the appellants, also contended that since only three injuries were caused to the deceased and futhermore were not only caused with one type of weapon but on the same side of the deceased, namely the left side, therefore, there is the reasonable possibility that all the injuries to the deceased were caused by one person. We, however, find that whereas two injuries were caused to the deceased from the left side, one injury, which was on the neck and intervertebral disc, was definitely caused from behind. As such, it is quite probable that the injuries to the deceased were caused by two persons, both of whom were armed with hatchets.
10. Since we find ourselves unable to place implicit reliance on the testimony of the eye-witnesses as to the identity of the assailants, the evidence of the corroborative witnesses, namely complainant Loung and P. W. Haji Thalo, who have deposed that they were given the names of the two appellants as the assailants by the two eye-witnesses also cannot be relied upon.
11. The only other material evidence against the appellants is the recovery from them of blood- stained clothes and hatchets. The two mashirs of recovery are P. Ws. Haji Thalho, the nekmard of the complainant, and Nooran. Of them, Haji Thalho did not support the prosecution case in the Sessions Court and hence he was declared hostile, was cross-examined and his evidence in the committal Court was brought on the record of the Sessions Court under section 288, Cr. P. C., which evidence and the evidence of the second mashir, Nooran, has been relied upon by the trial Court.
So far as mashir Nooran is concerned, he has admitted that when he saw appellant Allah Bachayo the latter was not wearing the blood-stained shirt and that further the hatchet was already with the police when he saw this appellant or the first time with the police. In respect of appellant Muhammad Siddik he has stated that the blood stains on his clothes and the hatchet produced by him were indistinct and not comparable. The learned Sessions Judge has characterised these averments as obliging statements. However, the mashirnama of the recovey of clothes of appellant Muhammad Siddik itself mentions that they were found slightly blood-stained.
Furthermore, P. W. Haji Thalho in his section 164 statement has also stated that the clothes of appellant Muhammad Siddik as well as the hatchet and clothes recovered from appellant Allah Bachayo were slightly blood-stained. No mention has been made by him in that statement of the recovery of a hatchet from appellant Muhammad Siddik. It was submitted by Mr. Muhammad Hayat Junejo that looking to the nature of the injuries on the deceased blood must have gushed out for some distance when he sustained the same, profusely staining the clothes of the person or persons who caused him the injuries. We are inclined to agree with his submission and consider that the slight staining with blood of the clothes of appellants does not seem to be quite consistent with the nature of the injuries caused to the deceased.
12. There is also conflicting evidence as to how appellant Muhammad Siddik was secured.
According to S. H.
0. Sattar Ali Shah he was produced by P. W. Haji Thalho. This witness, however, neither in his section 164, Cr. P. C. Statement nor in the statement made by him in the committal Court has supported the S. H.
0. On this point. In the Sessions Court, he stated that he was called by the police to the vardat to act as mashir and when arrived there he found the accused and the articles already there. Haji Thalho was the zamindar and nekmard of the deceased. The prosecution have failed to show what motive he has for not supporting the prosecution case. His failur to support the prosecution case in regard to the recovery of bood-stained clothes and hatchets from the appellants does arouse reasonable doubts as to this aspect of the prosecution story and in fact reacts on the whole prosecution case.
13. On a careful appraisal of the entire evidence in the case we are of opinion that the case against appellants is not free from reasonable doubt, to the benefit of which doubt they are entitled. We accordingly set aside their conviction and accept their appeal. If they are not required in any other case they should be forthwith set at liberty.