' S. A. NUSRAT, J.-Appellant Rustam son of Hussain Jat was tried by Sessions Judge, Jacobabad, for the murder of Dur Muhammad under section 302/34, P. P. C. And section 13-D of the Arms Act has been condemned to death under section 302, P. P. C. And has also been fined a sum of Rs, 1,000. He has, however, been acquitted of the charge under section 13-D of the Arms Act. He was tried with co-accused Kaloo who stands acquitted. The appellant has filed this appeal against his conviction and sentence. The matter has also been referred to us for the confirmation of death sentence. This judgment will dispose of both appeal as well as the reference.
2. The incident took place on 23rd October 1974, at the time of sunrise, in front of the courtyard of the house of complainant Nandhoo son of Dost Muhammad, real brother of the deceased, at village Moreshah, deh Khatta, Taluka Thul, 16 miles away from the police station. Thus, in District Jacobabad. The complaint was lodged by Nandhoo at 11 a.m. On the same day which was recorded by A. S. I. Muhammad Talib.
3. The prosecution case disclosed in F. I. R. Is that the complainant Nandhoo. Alongwith the deceased, Nihal and Ghausbux were standing in front of the courtyard of their houses when the appellant armed with a gun alongwith accused Kaloo, who was armed with a hatchet, came there.
Immediately upon their arrival, the appellant challenged the deceased saying that he would not spare him since he had levelled allegations against them of being thieves and fired a gunshot which missed. Then he fired another shot which hit the deceased and he fell down. The complainant and others raised cries whereupon the appellant threatened them not to come near him. As they were empty-handed they stayed away. The complainant further stated that nobody came on their cries and the appellant and the accused Kaloo ran away. They went and saw the deceased who had gunshot injury on his chest over nipple and blood was oozing out. He had also received pellet injuries on his fingers. After sometime the deceased went unconscious. The complainant sent the injured to the hospital at Jacobabad for immediate medical treatment through P. W. Ghausbux and others and he himself went to the police station to lodge the report.
The complainant stated that :- "The accused persons have fired at Dur Muhammad and caused injuries to him with intention to kill him because 8/9 months ago theft of Muhammad Bux Lashari was committed and he brought Holy Qur'an and my brother Dur Muhammad seeing the Holy Qur'an informed him that his thieves are Rustam and Kaloo Jat and, therefore, they have caused injuries to Dur Muhammad.
4. The extract reproduced above discloses the motive which allegedly prompted the appellant for commission of the offence.
5. The body of the deceased was taken to Dr. Moolchand on 23rd October 1974, for examination and treatment at 8-30 a.m. The injured expired on the same day at 9-30 a.m. The S. H.
0., Jacobabad prepared the inquest report, According to the medical evidence the deceased had five injuries which are as follows :-
(1) 5 lacerated punctured type of wound 1/4' in d.m. In each into cavity deep with charring present.
On the left side of chest above nipple's wound of entrance.
(2) 2 abrasions 1/4" X 1/4' each just lateral to injury No, 1 with charring present.
(3) Right thumb is missing from the hand at its root with charring present.
(4) A lacerated wound with charring present 1"X 1/2' in bone cut, on the index finger at its anterior surface with fracture of first right phalangeal bone.
(5) A lacerated wound 1/2" x 1/4' on the right middle finger at its interior surface with charring present and fracture of first phalangeal bone of middle finger.
' In the opinion of the Medical Officer death was caused due to shock and haemorrhage consequent upon the injuries mentioned above. All the injuries were anti-mortem in nature and injury No, 1 was individually and collectively sufficient to cause death.
6. Muhammad Talib, A. S. I. (P. W. 5) carried on the investigation. He repaired to the place of incident by the complainant. He secured two empties and blood-stained earth from the jai-vardat and sealed the same, preparing a mashirnama (Exh. 15). He recorded statements of Ghousbux, Nihal and Muhammad Bux. He searched the appellant who was not found in his house. He searched the house of acquitted accused Kaloo who too was not present there. He arrested the appellant Rustam on 25th October 1970, who had himself come to the police station. Statements of P. Ws.
Nihal and Ghausbux were recorded under section 164, Cr. P. C. On 28th October 1974. Acquitted accused Kaloo was arrested on 31st October 1974, from his house. The appellant and acquitted accused Kaloo were challaned on 8th November 1974, by S. H.
0. Muhammad Ismail to whom the A. S. I. Muhammad Talib had handed over the case papers.
7. The prosecution in order to bring home the guilt to the appellant and the co-accused Kaloo, since acquitted, relied upon three pieces of evidence, namely, motive, ocular testimony and abscondence of the appellant.
8. The defence was one of denial. The appellant in his statement recorded under section 342, Cr. P.
C. Denied having committed any theft in the house of Muhammad Bux Lashari. He further stated that : -- "We had declared Ghousbux "Karo" with the wife of Idoo, my cousin. Due to that I have been falsely implicated in this case."
9. The learned Sessions Judge on the question of motive examined Muhammad Bux Lashari son of Koro (CW-1) as Court witness who stated that no theft had been committed at his house and that he did not know the deceased. He, however, placed implicit reliance upon the ocular testimony of Nandhoo Nihal and Ghousebux and regarded alleged absence of the appellant from the village after the occurrence of the incident as a sufficient circumstance showing "guilty intention" of the accused.
10. It is for consideration whether there is such impeachable evidence available on the record as may be considered sufficient for the conviction of the appellant.
11. Admittedly, the complainant Nandhoo is the real brother of the deceased while P. Ws. Nihal and Ghousbux are the cousins of the deceased. P. W. Nandhoo in his cross-examination stated that the alleged theft in the house of Muhammad Bux Lashari, in which appellant was implicated by the deceased, had been committed about three months before the incident and ornaments and cash had been stolen. This story was also supported by P. Ws. Nihal and Ghousbux. Nihal stated that the theft had been committed about six months before the incident while Ghousbux stated that the same had taken place about 2 to months before the murder. Muhammadbux Lashari (C. W. 1), who was examined as Court,witness, denied that any theft had taken place at his house and he also denied having known the deceased. Therefore, the learned Sessions Judge in these circumstances rightly disbelieved in the existence of any motive for commission of the murder. {{FOOT NOTE}}
(1) PLD 1969 SC 127 {{FOOT NOTE}} The reason for suggesting a motive, which though disbelieved, may still be relevant for consideration. Generally motive is attributed to the accused for showing the cause which led to the commission of the offence. On the facts of the case, however, if it is found that the suggestion of the motive had something more in it than merely providing an impetus for the commission of the crime, the result may adversely affect the entire prosecution story.
' Their Lordships of the Supreme Court in Habibullah v. The State (1) laid down the following rule on the question of motive: "In ordinary human conduct where killing takes place by design, it is not without a motive strong or weak. This is not to say that murders are not committed wantonly without any motive whatsoever.
Motiveless-murdered do occur owing to mad or reckless acts of inhuman nature. Sometims a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface.
But it may be stated as a rule of prudence in judging human conduct that where a motive is alle ged by the prosecution which is found to be false, it becomes all-the more necessary to scrutinise the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of an accused person on the premises cf a false motive."
11-A. In view of the fact that the motive was disproved and the appellants and the deceased are inter-related, the ocular testimony is to be judged with care and caution as laid down by the Supreme Court.
' This testimony consists of the evidence of P. Ws. Nandhoo, Nihal and Ghousbux. P. W. Nihal and Ghousbux stated that the appellant had fired gun from a distance of about 20 paces and thus there is a consensus on this point between them. The distance of 20 paces would work out to about 50 to 60 feet away from the victim. According to the medical evidence charring-was present in all the five injuries. Dr. Moolchand stated that the distance between fire-arm and the deceased could be of 12 feet. If the occular testimony is taken to be correct there should have been no charring of the wounds. Thus the occular testimony is not corroborated by the medical evidence on this material point.
' P. W. Nandhoo has stated that 5 to 8 persons had come on the spot after the appellant had left the scene of offence and he had mentioned their names to them. Nihal has also stated that the entire village had collected at the spot after the departure of the appellant and their names were given to the said co-villagers. Ghousbux in his statement recorded under section 162, Cr. P. C. Also stated that 30 to 40 persons had collected at the spot but he could not give their names. In cross- examination, he had first denied having said so and, therefore, extract from his statement made in the lower Court was brought on record as Exh.
10. Nandhoo further stated that Moreshah, who is Nekmard of the village, had come after the incident when appellant had gone away and he had given their names to him. Nihal also confirmed that Moreshah had arrived at the vardat. However, the prosecution failed to examine either Moreshah or any other independent witness from amongst the persons to whom the eye- witnesses may have furnished the names-of the accused. Thus the statement of these eye- witnesses lacks corroboration by any independent witness. It would also be not unreasonable to infer from these facts that these witnesses have made false statement, because after all the co- villagers are not strangers and if they had really mentioned names-of the appellant to any of them soon after the incident, the prosecution would surely have examined such witnesses which would have gone a long, {{FOOT NOTE}}
(1) PLD 1969 SC 127 {{FOOT NOTE}} way in providing much needed corroboration to the testimony of these witnesses.
' There are certain other material contradictions in the evidence of these witnesses. All of them categorically asserted that a theft had been committed in the house of Muhammad Bux Lashari before the incident. P. W. Nihal stated that this theft was committed in Loda village at the residence of Muhammad Bux Lashari while Nihal says that the same was committed, in Sakhi-jo-Gote. In regard to the time of this incident Nandhoo and Ghousbux say that the same took place 2-3 months before the date of the incident but according to Nihal the same had taken place 6 months before the incident. As mentioned earlier, this allegation was introduced suggesting motive for the murder. However, Muhammad Bux Lashari, when examined as Court witness, denied that any theft had been committed in his house and further stated that he did not know the deceased. This story, therefore, is proved to be a concoction and shakes the credibility of these witnesses. P. W.
Ghousbux was declared "Karo" with Mst. Hakimzadi, wife of Idoo, the cousin of the appellant, Ghousbux had to give his sister to Idoo as compensation for having been declared a "Karo".
However, Ghousbux when questioned if he had given his sister to Idoo as compensation for "Karo" denied the same. It is unbelievable that he would have forgotten this important fact concerning giving away of his own sister in compensation for "Karo" to Idoo. Nihal, on the other hand, completely denied the fact regarding Ghousbux having been declared "Karo" with Mst. Hakimzadi although he admitted that Mst. Hakimzadi was wife of Idoo. All this goes to show that these witnesses even failed to tell the truth in respect of a matter relating to their own family, particularly a serious matter like "Karo-Kari". Besides, these witnesses went to the extent of implicating Kaloo, who since stands acquitted, which shows their callous attitude in life rendering them thoroughly unreliable.
' There is yet another material contradiction in their statements. Complainant Nandhoo stated that the injured was removed to the hospital just after the incident. Similarly. P. W. Nihal deposed that the injured had been removed to the hospital after 10-15 minutes of the incident. However, P. W.
Ghousbux has to tell an entirely different story. According to him, tonga was hired from Abad, a place 2/1 to 3 miles away from their village, which would have at least taken one hour for fetching and bringing tonga to the place of incident before the injured could be removed to hospital.
Therefore, the statements of P. Ws. Nandhoo and Nihal are clearly false in this respect.
' There is another aspect of the case which cannot go unnoticed. According to Nandhoo the injured (deceased) was removed in a tonga to Jacobabad, which is 12-14 miles away from the place of the incident. According to Ghousbux tonga was hired from Abad, a place which is at a distance of 2/1 to 3 miles from the place of incident. The distance of Jacobabad from the place of incident is shown to be 12-14 miles. Normally if a man has to cover a distance of 2 to 3 miles for fetching a tonga which was first brought to the scene of offence, and allowing 20 minutes time again for lifting the injured and placing him in the tonga, and thereafter calculating the time the tonga would have taken to reach Jacobabad, it may safely be presumed that all this would not take less than 4 hours' time. The incident is said to have taken place at sun-rise time which according to the learned Sessions Judge was between 6 a.m. And 6-30 a.m. It is, therefore, highly improbable that the injured could have been brought to the hospital at Jacobabad in a tonga at 13-30 a.m. As confirmed by Dr. Moolchand. It was for this reason that P. Ws. Nandhoo and Nihal have been axious to show that the injured was removed to the hospital soon after the incident but P. W. Ghousbux has belied them.
' Lastly the testimony of these witnesses against acquitted accused Kaloo was not accepted by the learned Sessions Judge. Accordingly, the contention of Mr. Muhammad Hayat Junejo, learned counsel for the appellant, is not without force that the learned Sessions Judge erred in convicting the appellant on the same evidence which he had discarded against acquitted accused Kaloo.
The name of acquitted accused Kaloo was mentioned in the F. I. R. And he was stated to be armed with a hatchet and all the three eye-witnesses had shown his presence at the time of commission of the offence. If their evidence was not worth credence for the conviction of Kaloo the same could not be relied upon for the conviction of the appellant, more so for the reasons recorded herein above.
' The upshot of the above discussion is that the occular testimony of P. Ws. A Nandhoo, Nihal and Ghousbux who are all related inter se, is of highly doubtful character and cannot be made the basis for the conviction of the appellant for a capital offence.
' For the reasons mentioned above, the conviction and sentence of the appellant is set aside and appeal is accepted and the reference for confirmation of his death sentence is rejected.