1. SAJIAD ALI SHAH, J.---Three appellants namely Wazir son of Jhando, Ali Dino son of Sher Muhammad and Abul Khair son of Maula Bux, all by caste Samair, have filed three separate appeals against the judgment dated 13-5-1978 passed by the learned I11rd Additional Sessions Judge, Sukkur whereby they have been convicted for offence under section 302/34, P. P. C. And sentenced to life imprisonment and a fine of Rs. 5,000 each, in default of the payment whereof each is, further sentenced to R. I. For one year. After hearing the learned advocates appearing for each side; on 25-2-1979, by a short order we had allowed these appeals for reasons to be recorded later on, which follow now. Since all the three appellants were tried together and were convicted and sentenced by a single judgment, we propose to dispose of these three appeals by this single judgment.
2. Shortly stated prosecution story is that deceased Ali Gul son of Muhammad Bachal was suspected to be on illicit terms with Mst. Hajran wife of Shahbaz Dino, Mst. Hajran is stated to be cousin of appellant Wazir The other two appellants namely Ali Dino and Abul Khair are caste-fellows of Wazir.
3. On 27-8-1976 complainant Sain Dino and his sin-in-law Ali Gul deceased, who was also his nephew; left together from their village Wahiyun Taluka Pano Aaqil for Sultan Pur in order to make purchases as deceased Ali Gul was running a retail shop in his village. While they were returning from there at about ---tipahri--- time, they were joined by F. Ws. Rabdino son of Muhammad Yakoob and Qadir Bux son of Shahoo near the bridge of Pir Ibrahim Shah along the road leading towards Lanjharo. All the four proceeded together and when they reached near the land of Allah Bux, the three appellants named above merged from Khabar trees duly armed with hatchets.
4. Appellants raised hakkal that Ali Gut was their 'Kayo' and he would not be spared appellants also threatened the other witnesses not to interfere. All the three appellants gave hatchet blows to Ali Gut who fell down injured. On finding Alt Gut still alive appellants Wazir and Abut hair inflicted each hatchet blow to him. Thereafter the appellants ran way towards their village. Complainant Sain Dino and P. W. Qadir tux then carried injured Ali Gut, vho, though badly injured, was still live and conscious. P. W. Rabdino was left behind at the vardat. P. Ws. Sain Dino and Qadir Bux carried injured Ali Gut up to a distance .f about 50 paces when P. W. Jiand met them to whom injured Ali Gut narrated the story of incident. After that Ali Gul became unconscious and in the meantime complainant went and brought a cot from his village, on which complainant and P. W. Qadir Bux and other persons from the village carried injured Ali Gut to the Police Station Pano Aqil where they reached at about 9-30 p. m. Injured Ali Gut succumbed to this injuries on the way to the Police Station. P. W. 9 Hamidullah Jatoi, additional S. H. O. Registered F. I. R. Of the complainant and then prepared mashirnama of the dead body. He also prepared inquest report and despatched the dead body to the hospital for post-mortem examinati--on. He recorded statement of witnesses, namely Chhato, Jiand, Qadir Bux, Arz Muhammad, Maula Bux, Gahram and Sadiq at the Police Station and thereafter despatched a constable to the vardat. In the morning he inspected vardat which was pointed out by the complainant and was situate at a distance of 9 miles from the Police Station. He secured blood-stained earth along with human hair from the vardat and also noticed a trail of blood upto the 50 paces. He put the blood-stained earth into sealed parcel. He also recorded statement of Rabdino. On 30-8-1976 he recorded statement of Mst. Hajran and Shahbaz Dino. On 3-9-1976 he arrested appellants Wazir, Abut Khair and Ali Dino from bus stand Hingora on National High Way at a distance of about 6 miles from Pano Aqil. He prepared such mashirnama.
5. He brought all three appellants to Sultan Pur where appellant Wazir while in custody led to the recovery of his blood-stained hatchet from under the bedding on a cot in a room of his house. This hatchet was sealed into a parcel. Thereafter appellant Ali Dino led to the recovery of his blood- stained hatchet from the corn bin in the courtyard of his house. This hatchet was also put into a sealed parcel. Lastly appellant Abul Khair on the same day led to the recovery of his hatchet from the bedding in a room of his house, situate in village Hasil, but this hatchet was not stained with blood. On 4-9-1976 he recorded statement of Saleh and on 13-9-1976 he got the statements under section 164, Cr. P. C. Of witnesses, Rabdiro, Jiand and Qadir Bux recorded by Mukhtiarkar and F. C. M.
6. On 17-9-1976 after completing other steps of investigation he submitted challan in the Court.
7. Prosecution has examined 9 witnesses in support of its case. P. W. 2 Sain Dino, P. W. 3 Qadir Bux and P. W. 4 Rabdino have been examined as eye witnesses of the occurrence. P. W. 7 Jiand has deposed about the dying declaration made by the deceased to him in presence of two eye--witnesses. P. W.
8. 6 Abdul Qayoom tapedar has prepared sketch of vardat Exh. 14 P. W. 8 Ali Dur is mnshir who has attested various mashirnamas. P. W. 1 Muhammad Ali Shah is corpse bearer and lastly P. W. 9 Hamidullah Jatoi is S. H. O. Who has investigated the case.
9. P, W. 5 doctor Yar Muhammad has deposed that on 27-8-1976 he performed post-mortem examination on the dead body of Ali Gut at Hospital at Pano Akil. On external examination he found the following injuries:- (1)Incised wound 4" x --" x cranial cavity deep on right fronto parietal region.
10. (2)Incised wound 2" in diameter cutting the scalp on left occipital region.
11. (3)Incised wound 1 --" x --" x skin deep on right supra clavicular region.
12. (4)Incised wound U shape 6" x --"x bone deep on lower part of the left fore armwith fracture of left ulna.
13. (5)Incised wound 2" x --" x subcutaneous deep on dorsem of left hand.
14. (6)Incised wound 4" x 1/10" x skin deep on centre of abdomen.
(3) There was the fracture of left ulna.
15. From the external and internal examinations of the deceased he was of the opinion that the death, was due to shock and haemorrhage as the result of injuries mentioned above. The injuries were ante-mortem and caused by sharp cutting weapon. The probable time between death and post- mortem was four hours.
16. Before the trial Court the defence of the appellant was total denial of prosecution allegations. In his statement under section 342, Cr. P. C. Appellant Abut Khair has further stated that there was long- standing enmity between him and the complainant and his other relatives over dispute of lands.
17. He has also produced certified copies of some docu--ments in support of his averment. The appellants have examined no witness in defence.
18. We have heard the learned counsel appearing for each side and in the light of their arguments and submissions, we have very carefully examined the record. Prosecution evidence consists of ocular testimony, dying declaration of deceased allegedly made to P. W. 7 Jiand in presence of two eye-witnesses, circumstantial evidence of recovery of alleged crime weapons from the appellants and evidence of motive. After careful analysis of the direct evidence and the evidence of P. W. 7 Jiand, we have come to the conclusion that the presence of these witnesses at the vardat at the time of incident and that of P. W. Jiand at the time of dying-declaration is highly doubtful as such their evidence is unfit for the purpose of reliance for the following reasons.
19. All the three eye-witnesse are related to the deceased. Complainant Sain Dino is uncle of deceased as well as his father-in-law. P. W. 3 Qadir Bux is maternal cousin of complainant and P.
20. W. 4 Rabdino is husband of sister of wife of complainant. They are also chance witnesses and claimed to be present at the time of incident but they have failed to give satisfactory account of their presence at the spot at the time of incident. Complainant Sain Dino has deposed before the trial Court that he was a grain merchant and his son-in-law Ali Gul deceased had a retail shop in the village and on the day of incident both of them had gone to Sultan Pur for making some purchases and the incident took place while they were on their way back from Sultanpur. This assertion is incorrect firstly because the complainant failed to clarify as to what articles were purchased. Secondly the other eye-witnesses who met them on the way also do not say anything about the purchased articles to be with them at the time of incident. Complainant further in his cross--examination before the trial Court admitted that he did not know if deceased Ali Gul had taken any money with him while going to Sultanpur. He has further stated that he did not find any money in the pocket of deceased nor the police recovered any money from his pocket. At one other place in his cross-examination the complainant has stated that he and deceased did not make any purchase in Sultanpur on the day of incident. In that case also some money should have been found on the person of deceased if the complainant and the deceased had gone together to make purchases from Sultanpur. It is further the case of prosecution that P. Ws. Qadir Bux and Rabdino were on their way from Pano AM after making purchases when they met deceased and complainant Sain Dino at the bridge of Pir Ibrahim Shah near which the incident took place. The evidence of these two witnesses on this point is also contra--dictory and unsatisfactory. P. W. 3 Qadir Bux has stated that he was a tractor driver of Ali Dur mashir in this case and had gone to purchase spare parts of tractor from Pano Akil. He had purchased 9 plough--bits from a shop at Ghotki and he did not remember the name of the shop. This was the first time be had purchased from that shop. He did not obtain any receipt. While coming back he met P. W. Rabdino in Pano Akil and they returned together. They hired a tonga from Pano Akil upto Holiji and then were going by foot. He has also stated that Rabdino had made some purchases and he saw some articles in a basket with him. He has further explained before the trial Court that after the incident he sent the `plough-bits' which be had purchased to his village from the vardat through a boy by name Haider.
21. He was confronted with his police statement where he had stated that on the day of incident he was coming back from Sultanpur when he saw the incident. P. W. 9 Investigating Officer Hamidullah has also confirmed that P. W. Qadir Bux in his police statement had stated that he and Rabdino were returning from Sultanpur to their village when he saw the incident. The Investigating Officer has also further confirmed that this witness did not state in his police statement that he had gone to purchase spare parts of tractor from Ghotki or Pano Akil. This witness Qadir Bux admitted having stated in his 164, Cr. P. C. Statement that he and Rabdino were returning from Sultanpur to their village when the incident took place. He had further not stated in his 164, Cr. P. C. Statement about returning from Pano Akil and then from Ghotki or about having met Rabdino in Pano Akil and returning together to their village on the day of incident. P. W. 4 Rabdino has stated before the trial Court that on the day of incident he and P. W. Qadir Bux were returning together from Pano Akil when on the way the incident took place. He has not explained in his evidence as to what articles did he purchase but stated in the cross-examination that after the incident he had given the basket containing purchased articles to a boy name Rashid to carry to his village. In his statement before police he had not stated that he and Qadir Bux were coming from Pano Akil when on the way they met deceased and complainant and the incident took place. He further admit--ted before the trial Court having stated in his 164, Cr. P. C. Statement that he and Qadir Bux were coming from Sultanpur village when on the way the occurrence took place. On the other hand P. W.
22. 3 Qadir Bux has admitted in his cross-examination before the trial Court that while coming from Pano Akil to his village, he could not come across Sultanpur on his way. P. W. Rabdino has further stated in his deposition before the trial Court that after the incident he was left at the vardat which he guarded up to 'Isha' time and then he went to the Police Station Pano Akil where he learnt that the injured had died on his way to the Police Station. Had it been so and he had really gone to the Police Station, Pano Akil at night, the Investigating Officer must have recorded his police statement as according to the Investigating Officer he had recorded the statements of 7 persons who had accompanied the complainant and were available at the Police Station but the name of this witness does not transpire in the list of persons examined by the Investigating Officer after the registration of F. I. R. According to the Investigating Officer the statement of this witness was recorded at the vardat on the following day.
23. Not only this but the manner in which these eye-witnesses have testified about the minute details of the incident including who caused what injury and at what place is surprising and gives an impression that these witnesses have crammed-up these details and have repeated them in the trial Court and at earlier stages in a parrot-like fashion. Complai--nant has stated in F. I. R. That all the three appellants emerged from Khabar trees and they were armed with hatchets and all of them gave a hakkal that Ali Gul is their `kharo' and he would not be spared and at the same time they threatened the witnesses not to come near. There--after Wazir gave a direct hatchet blow to Ali Gul which hit him on his head and near the forehead at the right side. Thereafter Ali Dino gave straight hatchet blow to Ali Gul which hit him on the right side near the neck. Thereafter Abut Khair gave a straight hatcchet blow, which hit Ali Gul on his left arm bone. Then Wazir again gave a straight hatchet blow to Ali Gul which hit him on his left hand Ali Gut fell down. Accused persons went a little ahead when Wazir turned back and saw that Ali Gul was still alive and was writhing in pain, he came back and gave another straight hatchet blow to Ali Gul which hit him on his head and left side near occiput. Abul Khair also turned-up and gave hatchet blow to Ali Gul which hit him on the stomach. Thereafter accused 'persons went away towards their house. All these eye- witnesses bad repeated the story of incident with meticulous care down to the minute details of locale of injuries as stated above. It appears to be highly improbable that the witnesses would have at the time of incident watched dispassionately the infliction of injuries by the appellants at different parts of the body of the deceased and remember the details and sequence. Only one witness namely Qadir Bux has made a mistake by saying before the trial court that third hatchet blow given by Abut Khair struck on the right arm instead of left arm as stated by the other two eye- witnesses. Otherwise all these three eye-witnesses have repeated these details with perfection. On the other hand P. W. 6 Abdul Qayoom tapedar has deposed that he prepared sketch of vardat Exh.
24. 29 on the painting out of P. W. Rabdino. He has mentioned that at point `C' all the eye-witnesses were reported to be present which was at a distance of 21 feet from point 'A' where assault was made at deceased. It is not possible to believe that these witnesses would simply stand there non- chalantly and watch with concentration as to at what places of the deceased hatchet blows were being inflicted and by whom.
25. Secondly the eye-witnesses claim that after departure of the appellants complainant Sain Dino and P.W. Qadir Bux carried injured Ali Gul when at a distance of about 50 paces they met P.W.
26. Jiand, before whom injured Ali Gul made a dying declaration. These witnesses left behind P. W.
27. Rabdino at the spot where the injuries were caused. The story about carrying the injured is not further explained by these witnesses as to in what manner injured Ali Gul was carried who was a young man of 28 years of age as shown in post-mortem notes and was badly injured on different parts of body including incised wound on his stomach. Their witnesses have only stated that they lifted the injured and carried him forward. It is also the case of prosecution that Ali Gul was bleeding profusely from his injuries. In this respect complainant Sain Dino has stated before the trial Court that while helping injured Ali Gul, hip clothes and that of P. W. Qadir Bux were soaked with blood. On the other hand P. W. Qadir Bux has denied this fact that their clothes were soaked with blood while they were carrying injured Ali Gul.
28. It is the case of prosecution that while injured Ali Gul was carried on the cot by witnesses Sain Dino and Qadir Bux to the police station. P. W. 4 Rabdino was left behined at the scene of offence. P. W. 4 Rabdino has also stated so. Complainant Sain Dino has denied in his statement before the trial Court in his cross-examination that any witness was left behind at vardat before leaving for police station with injured on the cot.
29. P. W. 4 Rabdino has deposed about the details of the incident and also about P. W. 7 Jiand having met complainant and P. W. 3 Qadir Bux while they were carrying injured Ali Gul and he saw them taking while he was still waiting at the vardat. This witness Rabdino has not mentioned presence of P. W. Jiand or his arrival at the spot in his 161, Cr. P. C. And 164, Cr. P. C, statements.
30. Strangely enough P. W. 4 Rabdino has stated before the trial Court that he was left at the vardat by the complainant after injured Ali Gul was carried away by complainant and P. Wt. Qadir Bux for the reason that he should wait and preserve the footprints of the assailants. This witness claims to have waited at the vardat till 'Isha' time and then realized that it was useless to watch the footprints as the assailants were already known to them and they were identified by all the eye-witnesses.
31. Complainant Sain Dino has stated in F.I.R. That they had left behind P. W. Rabdino to look after the footprints which they had covered. 1t is not understandable as to why the footprints should have been covered and a witness left behind to watch them when the incident was seen by the eye- witnesses who had already identified the assailants. The only presumption which can be drawn from this is that the incident was not seen by any eye-witness, in which case it becomes necessary to preserve the footprints in order to facilitate the identity of the assailants.
32. The story about the dying declaration of deceased Ali Gul to have been made before P. W. Jiand in presence of eye-witnesses Sain Dino and Qadir Bux patently appears to be false. It is apparent that Ali Gul was badly injured, so much so that as per prosecution case the appellants after inflicting injuries on him came back when they saw Ali Gul still alive and writhing in pain and inflicted more blows on him so that he should die and further as per medical evidence that Ali Gul sustained 6 incised injuries on different parts of body including head and the incident was seen by the eye- witnesses and two of them were carrying Ali Gul then why should injured Ali Gul be allowed to narrate the facts of incident to P. W. Jaind instead of those two eye-witnesses who were carrying him and saw the incident. In the ordinary course the eye--witnesses would have narrated the facts of incident to P. W. Jiand in order to spare injured Ali Gul who was so seriously wounded. This fact also shows that Sain Dino and Qadir Bux were not eye-witnesses and that is why Ali Gul injured himself was made to speak. On the other hand doctor, who performed the post-mortem examination, has deposed before the trial Court that injury No. 1 seated on the head which had cut the scalp on left occipital region, was so serious that it would cause death and he has further opined that it was possible that after the receipt of injuries the deceased might have gone unconscious immediately, To cap it all P. W. Jiand was confronted which his police statement and statement under section 164, Cr. P. C. In with he had given the details of incident as narrated by the deceased including number of injuries inflicted by whom and at what parts of the body of the deceased and also the fact as to how Ali Gul and complainant left together their village as it was repeated by all other eye-witnesses as stated above. This is simply pre-posterous and be believed.
33. The trial court has rightly ruled out of consideration the evidence of P. W. Jiand. This shows that how the eye-witnesses have lied with impunity.
34. In the circumstantial evidence hatchets are stated to have been recovered from all the appellants and blood-stained hatchet of Wazir and Ali Dino were found by Chemical Examiner to be stained with blood while the hachet recovered from Abul Khair was found not to be stained with blood at the time of recovery. It is the case of prosecution that appellant Wazir led .To the recovery of hatchets from under the bedding on a cot from a room of his house. Appellant Ali Dino also led to the recovery of his blood-stained hatchet from the corn bin in the courtyard of his house. Appel-- lant Abul Khair led to the recovery of his hatchet from under the bedding in a room of his house.
35. The Police Officer had searched the houses of the appellants before their arrest but could not find the alleged weapons, The Investigating Officer found father of appellant Wazir present in the house at the time of recovery. Similarly the houses of other two appellants were habitated. Recovery of hatchet from the combin of the house is open to doubt because the combin was situate in the courtyard of the house and was accessible to others. Moreover the Investigating Officer had made Ali Dur and Allah Dino as mashir for all these recoveries. Both these witnesses are related to the complainant. Out of them Ali Dur has been examined as P. W.
8. Ali Dur is cousin of complainant as admitted by him. Complainant had further stated in his deposition before the trial Court that Ali Dur had got lease for cultivation purpose from Forest Department and he further expressed ignorance whether 'appellant Abul Khair had made an application for against Ali Dur cancellation of that lease. P. W. Ali Dur has himself admitted before the trial Court that deceased Ali Gul was son of his cousin. He has also admitted that there was a dispute between him and Muhammad Saleh, uncle of appel--lant Abul Khair over land. He has also admitted that Abul Khair had made a complaint against him to the Forest authorities three years prior to the incident. He has also admitted that co- mashir Allah Dino is brother of P. W. Qadir Bux. He has also admitted that Sher Muhammad father of appellant Ali Dino had filed an appeal against him regarding land. In such circumstances the evidence of this witness is not worthy of reliance.
36. There is chequred background of enmity between appellant Abul Khair and the complainant party.
37. Appellant Abul Khair has asserted this fact in his statement under section 342, Cr. P. C. And has produced certified copies of eight documents Exhs. D. 1 to D. 8, which reflect enmity between the parties. Among those documents D. 8 is the application made by him against mashie Ali Dur to the Governor of Sind. For most part the complainant has admitted these disputes with Abul Khair appellant in his cross-examination before the trial Court. He has admitted that he had filed appeal before the Project Director against the grant of land in S. No. 16 and 46 of Deh Hasil in favour of appellant Abul Khair but has further stated that although such appeal was filed before the incident but they had settled the dispute on Holy Qur'an before the occurrence. Complainant has admitted that his brother Wali had filed appeal against Ghulam Qadir brother of appellant Abul Khair who was granted land. Complainant has also admitted that his nephew Arz Muhammad had filed appeal againt grant of land to Muhammad Saleh uncle of appellant Abul Khair. Complainant has also admit--ted that his nephew Abdul Haq had filed an appeal against Ghulam Rasool cousin- of Abut Khair regarding grant of land. Complainant had also admitted that his cousin Dhani Bux had filed an appeal against Pir Bux cousin of Abu] Khair. Complainant had also admitted that his cousin Nazar Muhammad had filed an appeal against Maula Bux father of appellant Abul Khair regarding grant of land Exh. D. 7 pro--duced by appellant Abul Khair is certified copy of F. I. R. Lodged against him and others for offence under section 379/427/149, P. P. C. By Daim son of Rabdino. Rabdino is eye-witness in this case. With his background of litigation between the parties it can be safely stated that relations between them were highly strained and they were inimical to each other. The witness examined in this case are related inter se and are not only interested but inimical towards the appellants as is obvious from the record.
38. Lastly the story about the motive as given by the prosecution is also not convincing. 1t is stated that deceased Ali Gul was on illicit terms with Mst. Hajran wife of Shahbaz Dino. Shahbaz Dino is stated to be cousin of appellant Wazir. Allah Dino and Abul Khair are cousins inter se but there is no evidence on the record to show any particular relationship between these two cousins and appellant Wazir. If this motive was true then Shahbaz Dino husband of Mst. Hajran was very much alive and he could take the offence to illicit relationships of his wife with deceased. Complainant has also admitted before the trial Court that Mst. Hajran has two brothers, one of whom is grown- up and the other was still a boy of about 15 years of age at the time of incident. Both Mst. Hajran and Shahbaz Dino have grown-up sons. In such circum--stances it is not possible to believe that appellant Wazir would be moti--vated to take revenge from Ali Gul of his illicit relationship with Mst.
39. Hajran who is wife of his cousin only. Furthermore there is no evidence on the record to suggest as to bow could the other two appellants involve themselves in this case for this motive. It is admitted by the complainant before the trial Court that the house of Shahbaz Dino husband of Mst. Hajran was at Pir Ibrahim Shah and the incident took place at a distance of 30 paces from village of Shahbaz Dino. In such circumstances in view of the above evidence it is possible that Ali Gul might have gone to meet Mst. Hajran and when it was found out, he might have been killed there and the incident was not seen by the eye--witnesses as alleged that is why report was not lodged immediately at Police Out Post, Sultanpur which was at a short distance from the place of occurrence and the complainant party had to go all the way to Police Station, Pano Akil at a distance of 9 miles in order to cover the delay which might have been used for manipulation of the case.
40. For the facts and reasons mentioned above, we hold that prosecution has failed to prove the case against the appellants beyond doubt and in the result we set aside the impugned judgment and allow the appeal. The appellants may be set at liberty at once if they are not wanted in any other case.
41. AGHA ALI HYDER, J.----I agree.