ABDUL HAYEE KURESHI, J.---The two appellants Abdul Majeed and Muhammad, who are brothers, were tried along with their co-accused Muhammad Nawaz, on a charge under section 302/34, P. P.
C. By the 1st Additional Sessions Judge, Jacobabad, who by his judgment dated 22-6-1977 found appellants Abdul Majeed and Muhammad guilty of the said offence and convicted them. Appellant Abdul Majeed was sentenced to death and also ordered to pay a fine of Rs. 1,500 and in default R.I.
For one year while Muhammad appellant was awarded lesser penalty of life imprisonment and the same amount of fine was imposed on him. Accused Muhammad Nawaz was acquitted. Allah Rakhio another brother of appellants Abdul Majeed and Muhammad is Shown as absconder in the case. In addition, appellant Abdul Majeed was also charged under section 13-D of the Arms Ordinance but he has been acquitted on that count because the weapon, viz. The gun was found to be licensed.
2. The Additional Sessions Judge has also made a reference under section 374, Cr. P. C. For confirmation of the sentence of death and the confirmation case has been heard along with the appeal. We are disposing of the same by this judgment. We have heard Mr. Muhammad Hayat Junejo for the appellants and Mr. Murtaza Hussain for the State. On the conclusion of the hearing of this case on 27-8-1978, we have by a short order allowed this appeal, set aside the convictions and sentence and declined to confirm the sentence of death. The reasons for such short order presently follow.
2-A. The facts of the case are that on 3-12-1972 at about sunset time deceased Muhammad Nooh with his brother complainant Warisdino were returning from the town of Thul to their village Warisdino Noonari. Prosecution witnesses Raza Muhammad and Haroon, who are respectively the nephew and a caste fellow of the deceased were also following them. When the deceased and the complainant reached a diversion known as dasti diversion near the watercourse of Syed Murad Ali Shah, both the appellants together with co-accused Muhammad Nawaz and absconder Allah Rakhio charged from the watercourse and while appellant Abdul Majeed and absconder Allah Rakhio were armed with guns, appellant Muhammad was armed with a hatchet. Abdul Majeed and absconder Allah Rakhio fired one gunshot each at the deceased causing his instantaneous death, appellant Muhammad stood with his hatchet over the complainant Warisdino, ostensibly to prevent him from coming to the rescue of the deceased. Cries were raised by the complainant which attracted witnesses Haroon and Raza Muhammad, who also saw the accused before the latter ran away from the scene. The complainant proceeded to Thul Police Station, which is stated to be at a distance of one mile from the scene and lodged a report at 6-30 p.m. Which was recorded by A. S. I. Sabir Hussain. The Police Officer came to the scene and prepared a mashirnama in the presence of prosecution witness Murad Bux and one Allahdino. Two empty cartridges were secured from the scene and sealed. The Police Officer also arrested appellant Abdul Majeed, but did not arrest appellant Muhammad and absconder Allah Rakhio, although the record discloses that Allah Rakhio had come to the police station on the day following the incident.
The' complainant was aggrieved about appellant Muhammad and absconder Allah Rakhio not having been arrested so that on 12-1-1973, he filed a private complaint on the same facts before the Joint Civil Judge and 1st Class Magistrate, Jacobabad. Cognizance was taken on this complaint and on process being issued, the appellant Muhammad appeared before the Court and faced trial but absconder Allah Rakhio could not be arrested. The private complaint as well as the police case were heard together. It may, at this stage, be stated that as a result of investigations the Police Officer had come to the conclusion that the murder had been committed by Muhammad Nawaz and Abdul Majeed had helped Muhammad Nawaz to commit the crime.
2-B. During the investigation appellant Abdul Majeed had produced a gun before A. S. I. Sabir Hussain and mashir Haji by producing the same from the paial in his house. The two empties recovered at the scene together with his gun were sent to Mukhtar Ahmed, a Ballistic Expert, who has given an opinion that both these cartridges had been fired from the gun produced by Abdul Majeed. Appellant Abdul Majeed and acquitted accused Muhammad Nawaz were produced before Riaz Ahmed, 1st Class Magistrate, for recording of their confessions on 11-12-1972.
3. According to the prosecution the motive for the murder was that one Mazar, who was a caste- fellow of the appellants had been murdered and for such murder Gul Muhammad and Rasool Bux had been challaned and the appellants had committed this murder of Muhammad Nooh to avenge the earlier murder of Mazar. At the trial the prosecution examined complainant Warisdino and prosecution witnesses Raza Muhammad and Haroon as eye-witnesses, mashir Murad Bux in whose presence the scene was inspected by A.S.I. Sabir Hussain and the empty cartridges were recovered, mashir Haji in whose presence appellant Abdul Majeed produced his gun, and Mukhtar Ahmed, Ballistic Expert. Besides these witnesses, the prosecution also examined Tapedar Ghulam Qadir, who had prepared a sketch of the scene of occurrence on 16-10-1976 on the pointing of P. W.
Haroon. Since A. S. I. Sabir Hussain had died, S. H. O. Nazir Hussain had been examined to prove the several documents and contradictions from police statements recorded by the Assistant Sub- Inspector. Dr. Habibullah Shaikh had been examined in the committal Court and his evidence was brought on record of the Sessions Court. In the case that was submitted by the Police for trial three witnesses namely Hote, Muhammad Bux and Dur Muhammad had been shown as witnesses who had seen the incident. The prosecution gave up these witnesses in the Sessions Court and on an application by the defence these witnesses were summoned as Court witnesses. Each one of these witnesses has given a version about the incident which is different from the version given by the complainant and witnesses Raza Muhammad and Haroon. The three Court witnesses had stated that the actual shot had been fired by Muhammad Nawaz and not by appellant Abdul Majeed.
4. While the appellants examined no witness in their defence they denied the prosecution case.
Appellant Abdul Majeed stated that he bad produced his licensed gun at the police station but denied that any empty had been secured from the scene. In regard to the confession he stated that he had not made any such confession. Appellant Muhammad also denied the entire prosecution case and attributed his implication to enmity. Acquitted accused Muhammad Nawaz had also denied the prosecution case and attributed his implication to absconder Allah Rakhio. In regard to the judicial confession he stated that it was false and involuntary, and members of his family had been detained at the police station. He, however, went on to state that he was produced before the Magistrate where he was made to put thumb mark on the confession.
5. The trial Court while dealing with the case initially started apprecia--ting the evidence of the three Court witnesses, namely Hote, Muhammad Bux and Dur Muhammad. It came to the conclusion that the evidence of these three witnesses was false. The trial Court was persuaded by the circumstances that the statements of these witnesses under section 164, Cr. P. C. Had been recorded after some delay and further these witnesses had not disclosed the occurrence to any other person, as stated by the witnesses, after seeing the occurrence. We have read the statements of these witnesses and have not been able to persuade ourselves to come to the conclusion that the witnesses were not speaking the truth but since Muhammad Nawaz, who was implicated by these three witnesses had been acquitted, we do not consider it proper to go more deep in the appraisal of their evidence, it is not necessary to do so. We must, however, state that in cases of this nature where conflicting versions in regard to a transaction are given by two separate sets of witnesses the correct approach for appraisal of evidence is to consider the evidence of both sets of witnesses in juxtaposition and come to a conclusion as to which, if any, set of witnesses was rendering a true account of the circumstances of the case. 1t would be unfair to consider the evidence of one set of witnesses in isolation for in that case decision in regard to incredibility of one set of witnesses would always persuade the Court to come to the conclusion that the evidence of other set of witnesses was true. To that extent the Additional Sessions Judge has run in grave error specially when the evidence of some of the prosecution witnesses disclosed that the Court witnesses were present or at least came up on the scene immediately.
6. The primary evidence against the two appellants is furnished by the eye-witnesses Warisdino, Raza Muhammad and Haroon. We have read the evidence of these three witnesses very carefully and have come to the conclusion that these three witnesses were either not present at the time of occurrence or in the alternative they are giving a false version in regard to the facts of the case.
Complainant Warisdino has stated that he had gone to Thul to obtain some gunny bags from one Bakhshomal a shopkeeper. In regard to the presence of deceased Muhammad Nooh at Thul he stated that he had also gone for similar purpose. They are brothers and are living in the same house and for such reason they should have gone together but according to Warisdino they met in the town of Thul. Warisdino has further stated that he was not able to get the gunny bags from Bakhshomal because the same had already been sent by him through a boy named Bachal. In another breath Warisdino stated that Bakhshomal had refused to give the gunny bag back to him.
Shopkeeper Bakhshomal has not been examined by the prosecution nor has Bachal been examined. What is more surprising that on being asked if he or deceased Muhammad Nooh had met any person in the town of Thul or on the way, Warisdino replied in the negative. It would thus seem that the story about Warisdino and the deceased having gone for gunny bags is a concoction introduced in the case to lend an assurance to the assertion that Warisdino was with the deceased at the time the latter met his death. Coining to the point of motive the version of Warisdino does not inspire confidence. He has stated that a caste fellow and not a relative of the appellants had been murdered by Gul Muhammad and Rasool. Bux and for that reason the appellants had killed Muhammad Nooh to wreak vengeance. It is first of all improbable that the death of Mazar should have been avenged by the appellants by murder of Muhammad Nooh but if Muhammad Nooh was murdered solely for the reason of murder of a caste fellow of the appellants, the grievance of the appellants against Warisdino would be equal. According to the prosecution two out of the three assailants had guns and if Warisdino had been present, the appellants had an equal motive to cause injuries to him also but curiously Warisdino had no injury on his person. He has tried to explain that he was walking a little ahead of the deceased but such version appears to be an improvement in order to make absence of injuries on his person consistent with the story of the prosecution. Additionally, it is the prosecution case that both Abdul Majeed and Allah Rakhio fired one shot each and two empties were recovered at the scene. The gun that was recovered from appellant Abdul Majeed together with two empties was sent to Mukhtar Ahmed, Ballistic Expert, who has given evidence that both the empties had been fired from one gun, i.e. That which was produced by Abdul Majeed. This circumstance shows that only one gun had been used and not two as stated by Warisdino and the other eye--witnesses;, Even the medical evidence contradicts the evidence of Warisdino because he had stated that the assailants had fired from a distance of 4/5 paces. The sketch of the scene of occurrence which was prepared on the pointing of P. W. Haroon shows the distance between the appellants and the deceased to be 30 feet: Surprisingly, Dr. Habibullah Shaikh, who performed the post-mortem on the dead body of Muhammad Nooh, found cartridge wads in the dead body. It is established fact that wads would be found from art object if the shooting is done from a distance of 6 feet or less but if the distance would be 4/5 paces as stated by Warisdino, the version of Warisdino stands discredited. One further aspect also deserves attention and it again emerges from medical evidence. Dr. Habibullah Shaikh performed the post-mortem examination at 9-45 p.m. On the day following the incident. In his evidence he stated that the time between death and post-mortem was within twenty-four hours. Counting it back and the time of death would be 9-45 a.m. On 3-12-1972 and even if a margin of approximation of 4/6 hours is allowed, the time of death would appear to be early afternoon rather than sunset time. This is a further circumstance which indicates that the evidence of Warisdino is not reliable. It may also be noted that in the private complaint filed by Warisdino it had not been stated that appellant Muhammad had stood with a hatchet over him. Lastly, we find that in spite of the murder having taken place on a frequented road and near some villages, Warisdino has stated in his evidence that no one came up the scene of occurrence after the murder.
7. The other two eye-witnesses are Raza Muhammad and Haroon. While the former is the nephew of the deceased, the latter is a caste fellow. The evidence of these two witnesses is that they work as labourers at Thul and at the tune of incident they were on their way back home. These witnesses are also not reliable. Some of the reasons that we have recorded for not relying on the evidence of Warisdino would equally apply to these witnesses also: In addition, we find that both these witnesses are Zamindars. Raza Muhammad has himself stated that he owns 10 Jaribs of land though of course he is interested in showing that the land is cultivated by his brothers and in regard to Haroon, Tapedar Ghulam Qadir has stated that he too has got lands in the name of his father. Normally persons owning lands do not seek the lob of labourers. Both these witnesses have been cross-examined on the point as to who was the employer and each one of them stated that they take work casually and none of them was even able to state the name of the person for whom he had worked on that day. In fact on a reading of the evidence of these two witnesses it appears to us that initially these witnesses were sought to be produced to corroborate the evidence of Warisdino not as eye-witnesses but as the persons who had been informed by Warisdino in regard to the occurrence. There are a number of contradictions in their evidence vis-a-vis their police statements and such contradictions have been proved through S. I. P. Nazeer Hussain. P. W. Raza Muhammad had not stated in his police statement that he saw the actual firing. In his police statement he stated that he was at a distance of one furlong from the scene when he heard gunfire report and he was informed about the incident by Warisdino. He had also not stated in his police statement as to which accused had fired at the deceased. In fact at the time of recording police statement Raza Muhammad did not claim to be an eye-witness. Similarly Haroon has not stated in his police statement that he had seen the appellant and absconder Allah Rakhio emerging from the watercourse nor had he stated that in his presence absconder Allah Rakhio and Abdul Majeed fired at the deceased. In the Court they gave an entirely different version by stating that they were eye-witnesses of this crime. Both these witnesses were also confronted with their statements under section 164, Cr. P. C. And section 202, Cr. P. C. And the same improvement in the evidence at the trial is patent even by referring to these statements. These witnesses in the same terms as Warisdino were interested in showing that none else came up on the scene after the incident. But Raza Muhammad and Haroon were to such extent contradicted by their police statements wherein they had stated that the three Court witnesses namely Hote, Gul Muhammad and Muhammad Bux were standing near the dead body when they were also at the scene. The evidence of Tapedar Ghulam Kadir would also be relevant for the purpose of judging the credibility of Haroon. It was witness Haroon who pointed out the scene to the Tapedar. According to tapedar the point from which appellant Abdul Majeed and absconder Allah Rakhio had fired at the deceased was 33 feet away from the place where the deceased was. The medical evidence, however, discloses that cartridge wads had been found from the dead body of deceased Muhammad Nooh. The presence of the wads would clearly show that the person who fired was at a very short distance from the deceased but wads of cartridge would not have been found from the dead body if the firing was done from a distance of 33 feet. To such extent the evidence of Warisdino is also discredited. To sum up the evidence of Raza Muhammad and Haroon, we are of the view that their evidence is not reliable as they have made improvements in their evidence at the stage of trial by showing themselves as eye-witnesses when in fact they had stated in their police statements that they had neither seen the appellants nor the firing and that they had come on cries and were informed in regard to the circumstances of a transaction by complainant Warisdino.
8. The next piece of evidence on which the prosecution had relied was of recovery of two empties at the scene on the day of incident and the crime weapon, viz. a gun from and at the instance of appellant Abdul Majeed on 10-12-1972. As stated above, the Ballistic Expert has stated in evidence that both the crime empties had been fired from one and the same gun, viz. The gun produced by appellant Abdul Majeed. In that regard it must be initially stated that the opinion of Mukhtar Ahmed, Ballistic Expert negatives the prosecution case to the extent that both appellant Abdul Majeed and absconder Allah Rakhio had fired one gunshot each. What is more that the gun was recovered after seven days of the incident. S. I. P. Nazir Hussain in his evidence has not given the date of arrest of Abdul Majeed but P. W. Haroon has stated that Abdul Majeed was arrested on the day following the incident. It seems suspicious that arrest having taken place on 4-12-1972 the recovery was made after six days. There is no explanation for this delay. There is a suspicion in regard to the recovery of cartridges. P. W. Haroon has stated that except the dead body nothing was lying at the scene. Ballistic Expert Mukhtar Ahmed has again stated that two crime empties had been sent to him and the colour of one of these was green. Mashir Murad Bux has again stated that the colour of the cartridges secured from the scene was red and green. The trial Court, however, got the seal of the parcel containing he empty cartridges opened and found that both the cartridges were of red colour, although one green empty cartridge was lying in the sealed cover of the gun. This creates a confusion on account of the varying versions in regard to the cartridges. Haroon did not see any cartridge on the scene. Ballistic Expert received one green and one red cartridge empty and to such extent even mashir Murad Bux states the same colours of the cartridges while the two cartridges which were found in the sealed parcel returned by the Ballistic Expert bore red colour and in addition there was a third cartridge hearing green colour. No explanation has been furnished by the prosecution on this aspect of the case. On the evidence a word may also be said about the credibility of Murad Bux, the mashir. He has stated that he plies a jeep taxi on hire and admitted that he had acted as mashir in fifty cases and all such cases are those in which his jeep was hired by the police. The very fact of his acting as a mashir in all such cases in which for the purpose of investigation a police officer hires his jeep is by itself a circumstance to show that he is under the influence of the police. Thirdly, the police could have found a person, who would, at least, have the semblance of being independent. On the point of recovery of the gun and cartridges as well as the evidence of Ballistic Expert we have read the judgment of the trial Court and we must express that we have been disappointed. In regard to the recovery of the gun the Additional Sessions Judge in spite of mashir not having stated that the same was sealed adverted to the mashirnama which stated that the gun had been sealed, and relied on the same for the purpose of holding that the gun had been pealed. In this case the Investigating Officer was dead so that even he did not state that the gun had been sealed. The only evidence before the trial Court was the mashirnama which spoke about the sealing of the gun and in respect of it the lake is very lean that a mashirnama is not substantive evidence. The Additional Sessions Judge, seems to think that a mashirnama is and has indeed used it as substantive evidence. Again in regard to the two crime empties having been stated by the Ballistic Expert to have been fired from one and the same gun the trial Court seems to have completely overlooked that aspect of the case. Similarly in regard to the different versions of the colour of the empty cartridges the trial Court has conveniently omitted to apply its mind to that aspect of the case. It seems that in a most perfunctory manner the trial Court forgot all the threads in the matter of recovery of the crime weapons and crime empties and assumed the truth of the prosecution case.
We are of tine view that these recoveries and the opinion of the Ballistic Expert have not advanced the case of the prosecution.
9. The last piece of evidence- on which prosecution had relied was the judicial confession of the appellant Abdul Majeed. The confession was recorded by Riaz Ahmed, 1st Class Magistrate at Jacobabad on 11-12-1975 when as stated above, appellant Abdul Majeed was arrested a week earlier. Opt the day of recording the confession acquitted accused Muhammad Nawaz was also produced before the same Magistrate and at the same time for recording of his confession. We have not concerned ourselves with the confession of Muhammad Nawaz but suffice it to say that Muhammad Nawaz had admitted having fired at Muhammad Nooh. The confession of appellant Abdul Majeed is, however, exculpatory. He has stated as follows :- "I and Muhammad Nawaz were going to see cock-fight on last Sunday. On return we were together.
When we reached near the diversion of Dastis, I wanted to make water. I gave my gun to Muhammad Nawaz and sat in order to make water. Nooh was coming from the town towards his house. Muhammad Nawaz fired. He fired another shot. When Nooh died then we ran away. I have not killed intentionally. This incident happened suddenly. I was also surprised. Nawaz killed Nooh in order to take revenge for his maternal uncle."
The trial Court has also ruled the confession of Abdul Majeed out of the consideration and we also see no weight in this piece of evidence.
10. For all the foregoing reasons we find that the evidence of all the three eye-witnesses is unreliable, the evidence of recovery is not only suspicious but discrepant and the judicial confession of Abdul Majeed is exculpatory. We are also of the view that the evidence of motive is P neither substantial nor reliable. We, therefore, set aside this judgment and acquit both the appellants. The sentence of death imposed on appellant Abdul Majeed is not confirmed. The appellants shall be set at liberty forthwith unless required in any other case.