' ZAKAULAH LODHL J.-The appellants who are real brothers were tried under sections 302 and 34, P.
P. C. By the learned Sessions Judge, khairirpur who convicted them and sentenced to death penalty by order dated 25th October 1975. They have filed this appeal to assail the order of their conviction and sentence whereas the learned Sessions Judge has referred the case for the confirmation of death sentence.
2. The brief facts forming the background of this case are that the ' appellants Paryal and Chhuttal murdered Lal Buz by means of hatchets on 25th September, 1973 at 10 a.m. In the land of complainant R.Ahim buz situated in Deli Phat, Taluka Khairpur Min. The report of the incident was lodged at 11-30 a.m. On the same day in the police station, Khairpur Town which is at a distance of 3 miles from the vardat. According to the first information report the deceased went to his juwar' cultivation for driving birds. The land of P. Ws. Rasul Buz and Mania Bun is adjacent to the lands of the deceased and the complainant. The complainant had also gone to the land in the morning. At about 8-10 cm. When the complainant, P. W. Azizullah Shakh and P. W. Allah Bun were sitting together near a well Rasul Buz and Mottle Buz came running and informed them that about half an hour back the complainant's brother Lal Box has been murdered by the appellants. The complainant has further stated that about 14 years back before the incident appellant Chhuttal bad suspicion that the deceased was on illicit terms with his wife Mst. Sahiban and due to this suspicion he had murdered his wife Mn.Sabiban. He was convicted for this murder and had been released from the jail only about 2} months before the fateful incident.
3. After recording the F. I. R. P. W. Mohammad Akfam, S. H. O., Khairpur Police Station went to the vardat which was shown to him by the complainant. It was situated in 'Juwar' cultivation and there were fresh marks of blood. He secured the blood stained earth from the vardat: and sealed it in the presence of mashirs P. Wt. Mohabbat and Haji nin Mohammad. He found dead body of the deceased lying at the vardat with several injuries. He prepared inquest report of the dead body in the presence of the same mashirs. He then sent the dead body to the Civil Hospital, Khairpur for post-mortem examination. On 26th September, 1973, he arrested the appellant Paryal from his house and prepared a mashirnama of his arrest is the presence of P. Ws. Azizullah and Mohammad Chhuttal mashirs. On investigation appellant Paryal offered to produce the hatchet used by him in the crime. He then went to the house of appellant Paryal and secured a hatchet which bad disintegrated marks of blood on it. On the same day he arrested the other appellant Chhuttal and prepared a mashirnarna of his arrest in the presence of P. Ws Qalandar Buz and Ghulam Sabir.
From his person 580' and freshly washed loin.Cloth were secured. A mashimassa of these articles was duly prepared. On interrogation appellant Chhuttal led the S. H. 0, and the mashirs to his house and produced a blood-stained hatchet which was secured and sealed. The witness got the statements of P. Ws Rasul Buz and Azizullah recorded under section 164, Cr. P. C. By the learned City Magistrate, Khairpur on 11th October, 1973. The blood-. Stained hatchet and clothes recovered from appellant Chhuttal were sent to the Chemical Analyser for report.
4. Autopsy on the dead body was carried out by Dr. Illahi Buz Soomro who found the following injuries on the person of the deceased :- "(1) Incised wound 6' x 3' x all the structures of neck cut except skin anteriorly.
(2) Incised wound 10" x 3' x bone and lungs deep on back of chest wee part.
(3) Incised wound 5' x 1 x "muscles deep on left shoulder anteriorly."
According to the doctor's opinion death had resulted due to shock and haemorrhage consequent upon the* injuries mentioned above. The injuries were caused by a sharp cutting weapon such as hatchet.
5. The appellants have denied having committed the offence and pleaded innocence.
6. The prosecution has furnished ocular testimony of P. Ws. Rasul Bux and Moula Bux. P. W. Rasul Bux has stated in his statement that on 25 September, 1973 at 7.30 or 8 a.m. He was going to his village from his land to have his breakfast. At that time P. W. Moula Bux was working in his land and the deceased was sitting on the banah' of his land. When be was about 15 paces away from the deceased he heard his cries and on looking at him he saw bath tfie appellants inflicting hatchet blows upon the deceased. After that both of them ran away. This witness and P. W. Moula Bux reached near the deceased who was breathing his last due to injuries. Afterwards this witness and P. W. Moula Bux informed the complainant about the incident. P. W. Moula Bux whose field is admittedly nearer to that of P. W. Rasul Bux has stated in his statement that he was also going to take his breakfast when he saw both the appellants running away after giving hatchet blows to the deceased. The testimony of the first mentioned eye-witness would reveal that he is not trustworthy.
The main reason being that be has stated in his statement before the learned lower Court that "he simply saw appellant Paryal giving hatchet blows to the deceased", but ho has contradicted himself in the trial Court by stating that both the appellants were giving hatchet blows to the deceased. In this way he has tried to implicate appellant Chhuttal also and this fact has made his statement highly doubtful. Even otherwise be is brother-In-law of the deceased and his statement cannot be relied upon without applying necessary caution< The other eye-winess P. W. Moula Bux was also closely related to the deceased and he had only seen both the appellants running away after the injuries were caused to the deceased. It is strange that he did not hear the cries of the deceased and his attention was not diverted towards the deceased when the injuries were caused to him, although his field is contiguous to that of the deceased and according to P. W. Rasul Bux he was at a little distance from the deceased at the time of the commission of the offence. This is also not understandable that both the wtitnesses thought of going to take their breakfast at the same time and left their lands. Obviously they are interested witnesses and on this score as well their statements are liable to be closely scrutinized before placing reliance upon them. Besides this, the injuries were on one side of the body of the deceased from which fact it transpires that one of the two appellants had inflicated injuries in quick succession. But which of the two appellants inflicted injuries upon the deceased is a fact which is shrouded in mystery.
' The learned counsel for the State has argued that both the appellants had common intention and therefore who killed the deceased is immaterial because intention of both the appellants was the same and they are equally liable to be punished. Was are unable to agree with this contention because there is no evidence on record to show that there was common intention of both the appellants to kill the deceased and in such circumstances each one of them would be liable for the act done by him individually. In the instant case no convincing evidence is forthcoming to show as to who committed the offence and therefore both the appellants are entitled to benefits of doubt.
' Before we part with the case we may mention here that even the solitary statement of P. W. Rasul Bux who has asserted that he saw the offence being committed could be considered sufficient to uphold the conviction but this witnesses has given two different versions of the offence. Before the committal Court he has stated that appellant Paryal had given hatchet blows to the deceased whereas in the trial Court he has implicated both the appellants. From this obvious contradiction in his statement it can be safely inferred that either he did not see the commission of offence and if be say it, he has tried to implicate both the appellants due to his relationship with the deceased. Be that as it may, after the perusal of the evidence the position is that the statement of P. W. Rasul Bux cannot be relied upon at all. So far as the other witness, namely, Mauls Bux is concerned, he did not see the commission of offence although he was in the field contiguous to that of the deceased and in normal circumstances he was expected to have seen the commisson of offence, but all what he saw is that both the appellants were running away. He seems to have tried to suppress the truth.
On this insufficient evidence conviction cannot be sustained.
7. For the foregoing reasons we allow the appeal. The appellants shall be set at liberty forthwith runless they are required in connection with any other case. The death sentence is not confirmed and the reference is not accepted. Appeal allowed.
1978 P Cr. L 383 [Lahore] Before Saad Saood Jan, J MUHAMMAD HANIF-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No, 4275-B of 1977, decided on 4th December 1977.
Criminal Procedure Code (V of IBM- -- S. 497-Petitioner, accused of offence under S. 307, P. P. C., attributed firing at injured P. W. With a carbine-In cross-case lodged by petitioner such injured P. W. Alleged to have fired at petitioner with a pistol resulting in an injury to petitioner-Ali persons implicated in cross-cases, except petitioner, already enlarged on bail-Petitioner also allotted bail, in circumstances.-[Cross-case].
[p. 383]A All Ahmad Awan for Petitioner. ?Ark masood for the State.
' The petitioner has been arrested by the police in a case registered under sections 148 and 307, read with section 149 of the Pakistan Penal Code. The allegations against the petitioner are that he fired at one Muhammad Latif with a carbine. Muhammad Latif was hit by two pellets. It may be mentioned that a cross-case involving the same offences was registered against the complainant party at the instance of the petitioner. In his F. I. R. The petitioner too had alleged that Muhammad Latif had fired at him with a pistol. The petitioner had an injury on his leg. It is to be noticed that in the F. I R. Recorded at the instance of the complainant party there was no explanation whatsoever how the petitioner received his injury.
2. In the two cases. That is, the one in which the petitioner is involved and the one which was registered at his instance, all the parsons implicated, except the petitioner, have been admitted to bail. There is no reason why the same concession should not he extended to the petitioner. Let the petitioner be also admitted to the interim bail on his executing a bond in the sum of Rs, 10,000 with one surety in the like amount to the satisfaction of Assistant Commissioner, Jaranwala.