1. SAJJAD ALI SHAH, J.---Above-named appellants have filed appeal against the judgment dated 5-11-1977 passed by learned Sessions Judge, Dadu, whereby be has convicted all the appellants under section 302/149, P. P. C. And sentenced them to death and a fine of Rs. 1,0.0 each, in default of the payment whereof R. I. For six months. They have been further convicted under section 148, P. P.
2. C. And sentenced to R. I. For 12 months each, under section 325/149, P. P. C. To R. I. For 12 months and a fine of Rs. 500 each, in default R. I. For three months. Appellants Saleh and Allah Rakhio are convicted under section 13-D, Arms Ordinance and sentenced to 12 months' R. I. Each. There is also before us reference for confirmation of death sentence and we propose to dispose of both by single judgment.
3. Shortly stated prosecution story is that about five or six years before the incident one Mst. Hatul daughter of Ibrahim Lund was abducted by appellant Patio and Mevo Lund and such report was lodged at Police Station, Bban. Mst. Hatul was recovered and produced before Civil Judge and F. C.
4. M., Dadu, where she made a statement that she apprehended daughter to her life from her relatives and as such request was made by her that she be given in custody to Nakmard Ghulam Muhammad Khan. The Court ordered accordingly and she was given in custody to Ghulam Muhammad Lund. Afterwards relatives of Mst. Hatul filed proceedings under section 107, Cr. P. C.
5. Against Ghulam Muhammad and strongly objected to the custody of Ghulam Muhammad and spread rumours that he was on illicit relations with Mst. Hatul. Subsequently one Allah Rakhio claiming guardianship of Mst. Hatul filed application in the Court with a prayer that Mst. Hatul be given in custody to Mubarak Lund. The Court ordered accordingly. Appellants went on issuing threats time and again that they would take revenge from Ghulam Muhammad for his illicit relations with Mst. Hatul. Subsequently Ghulam Muhammad had employed appellant Jurio as his Had. Other appellants are related to Mst. Hatul.
6. Incident took place on 8-3-1976 at 12-45 a.m. A little earlier than that, P. W. -Maqbool Ahmed came and informed his brother, complainant Shaharuddin, who was studying at home for his M. A.
7. Examination, that he was called by their grandfather Ghulam Muhammad. Complainant accompanied by P. W. Maqbool Ahmed went to the otak of Ghulam Muhammad. Complainant was informed by Ghulam Muhammad that his hari appellant Patio had complained that thieves entered the house of Pario and attempted to steal a pair of bullocks but Pario succeeded to rescuing the bullocks. Ghulam Muhammad then asked complainant to join them to check up and preserve footprints. Patio and Waris were also present there. Thereafter all of them left together for the house of appellant Patio, they took with them one lighted lantern. Complainant took a torch.
8. Deceased Ghulam Muhammad took his licensed gun and revolver. They were going alongside canal and when they reached near the house of appellant Patio, they saw four persons near the watercourse and in the light of torch they Were identified as Allah Rakhio, Saleb, Jurio and Adloo the present appellants. Allah Rakbio, Jurio and Saleh were armed with guns, while Adloo had a lathi.
9. Allah Rakhio challenged Ghulam Muhammad that revenge of Mst. Hatul would be taken from him.
10. Appellant Patio also joined other appellants and instigated them not to spare Ghulam Muhammad.
11. Allah Rakhio, Saleh and Jurio fired from their guns at Ghulam Muhammad, who became injured, fell down and died. Appellant Abdul Karim came and gave lathi blows to P. W. Maqbool Ahmed on his head and other parts of body. All the appellants thereafter, raising slogans ran away. Due to fear other witnesses could not interfere. Leaving Waris and Maqbool Ahmed near the dead body, complainant came to Dadu and informed his uncle P. W. Arbab Ali, Head Munshi, and then went to Police Station Dadu District, where report was filed at 2-30 a.m. The distance between spot and the police station is 3-- miles.
12. P. W. 11 Shafi Muhammad A. S. I., after recording F. I. R. Exh. 18, came to the vardat. Due to the night he arranged for the watch over the dead holy. In the morning he recorded the statement of P. W.
13. Maqbool Ahmed injured. He also prepared mashirnama of injuries of P. W. Maqbool Ahmed and sent him to the hospital for examination and treatment. He inspected the scene of offence. Dead body was lying at a distance of 17 paces from Dubi minor. He secured blood-stained earth and put in into a sealed parcel. He secured broken lantern from the spot. He also secured four empty cartridges from the spot and put them into a sealed parcel. He prepared inquest report of the dead body and sent it .To the hospital for post-- mortem report. Then he went to the village of complainant, where complainant produced one torch being in corking order, which he secured Complainant alsoproduced licences of gun and revolver of deceased, which were secured. He recorded statements of Muhammad Waris and Arbab Ali Khan. He went to the house of appellants Saleh, Allah Rakhio Jurio and Adloo and searched but nothing incriminating was secured. On 11-3- 1976 he examined Mubarak and Mst. Hatul. On 15-3-1976 he arrested appellants Saleh, Allah Rakhio, Adloo and Jurio. While in custody Saleh produced his licensed gun with its licence issued in his name, which were secured and gun was put into a sealed parcel. Appellant Saleh also produced the gun belonging to the deceased from the hedge of cattle-pen, where it was not visible.
14. Appellant Allah Rakhio took out one D. B. B. L. Gun from under the bedding on the cot lying in his house and produced it, which was secured and sealed. Ha had also produced licence for the same. Appellant Allah Rakhio, while in custody, climbed and took out revolver and a bandolier from the straw roof of his house. Both these articles belonged to Ghulam Muhammad deceased.
15. Appellant Adloo, while in custody, produced laths from under the cot lying in his house. It had no blood marks on it. The Investigating Officer then went to the village of Pario and arrested him. On 16-3-1976 he had statements under section 164, Cr. P. C, of P. Ws. Maqbool and Waris recorded before Mukhtiarkar and F. C. M. Dadu. On 18-3-1976 he lodged F. I. Rs. Under section 13-D of tee Arms Ordinance against appellants Saleh and Allah Rakhio. Parcel containing earth was sent to the Chemical Examiner, while guns of appellants Saleh and Allah Rakhio and crime empties recovered from the spot, in sealed parcels were sent to the ballistic expert. After completion of investigation all the appellants were challaned.
16. Prosecution has examined 11 witnesses in support of its ea4e, P. W, I Muhammad Khan Tapedar has prepared sketch of vardat Exh, 5 P. W.2 Maqbool Ahmed injured and P. W. 3 Waris and P. W. 6 Shah4ruddin have been examined as eye-witnesses. P. W. 4 Arbab Ali has given corroborative evidence. P. W. 7 Gul Muhammad Constable is corpse-bearer, P. W. 8 Issa Khan is mashir, who has attested mashirnamas Exhs. 21 to Z5, P. W. 9 Ghulam Mustafa is also mashir, who has attested mashirnama Exhs. 27 to Exh.
37. P. W. 10 Shafi Muhammad A. S. I. Has investigated the case. P. W. 11 Mehar Khan Head Constable has recorded F. I. Rs. Under section 13-D, Arms Ordinance against appellants Muhammad Saleh and Allah Rakhio lodged by Shafi Muhammad A. S.1. He investigated those cases and handed over papers to the S. H. O.
17. P. W. 5 Dr. Vishandas performed post-mortem examination on the dead body of Ghulam Muhammad on 8-3-1976 at 1-30 p.m. At Civil Hospital, Dadu. According to him deceased was 70 years old and body was cold and rigor mortis was present. On examination he found the following injuries :-
(1) A fire-arm wound (outlet) behind right shoulder lateral to medial part of right scapula edges averted.
(2) A fire-arm wound below right shoulder joint measuring 5----- x 4----- through and through.
18. This was wound of entrance. Edges inverted. Border of the wound zig-zag about upper 1/3rd of the border blackened. Five pieces of wads and small pellets found in the wound. They were recovered.
19. The muscles of the area blood vessels and nerves were ruptured.
(3) A lacerated wound on left temporal region measuring ----- x ----- skin deep.
20. On internal examination he had found the following :- The wall of right side of thorax ruptured, pleurae of right side ruptured. Right lung ruptured at several places, covered with blackish blood. Blood vessels of right side of thorax ruptured.
21. In his opinion the death had occurred due to intra-thoracic haemorrhage as a result of fire-arm injuries mentioned above which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem in nature. The external injury No. 3 could be caused by a fall on the ground. He has produced the post-mortem notes Exh.
14. According to him the injury was to inflicted either with a gun or a country-made pistol. The shot was fired from a distance of 4 to 5 feet. The deceased may be standing or lying when he had received the injuries.
22. On the same day the doctor examined P. W. Maqbool Ahmed and found the following injuries on his person :-
(1) A lacerated wound on left clavicle measuring ----- x ----- skin deep with fracture of left clavicle.
(2) A contusion on right shoulder measuring 4--- x ----- x 1/6---.
(3) An abrasion of right side of neck measuring 2--- x ----- skin deep.
(4) A contusion in the middle of occipital region measuring 1--- x ----- x 1/3---.
23. In his opinion injury No. 1 was grievous while the rest of the injuries were simple. All the injuries were caused with hard, blunt substance such as lathi or back side of hatchet. He has produced the certificate Exh.
15. He has produced the receipt regarding handing over pellets and wads to the police as Exh.
16. He has stated in his cross-examination that the injury Nos. I and 2 on the person of the deceased were the result of one shot only. The injury No. 3 on the person of deceased may have been caused with ablow of a laths.
24. Before the trial Court appellants have denied all prosecution allegations. Appellants Allah Rakhio and Muhammad Saleh have admitted having produced their licensed guns along with licences but claim that they produced them at the instance of police and were not used in the crime. About prosecution witnesses they have stated that they are interested, hostile and setup. Appellant Pario had stated that he was accused in the abduction cue of Mst. Hatul in which other appellants were prosecution party. Mat. Hatul is related to them, as such he is at daggers drawn with them.
25. Appellants have not led any defence.
26. We have very carefully examined the whole material on the record in the light of arguments of learned counsel appearing for both parties. Prose--cution evidence in the case is composed of ocular testimony of three witnesses supported by corroborative evidence of Arbab Ali and circumstantial evidence of recoveries of crime weapons. There is also evidence on the point of motive. So far direct evidence is concerned all the three eye-witnesses are closely related to the deceased. P. W. 2 Maqbool Ahmed is grandson of the deceased. He is in fact son of P. W. Arbab Ali, who is son of deceased. P. W. 6 Shaharuddin is also grandson of deceased Ghulam Muhammad. P.
27. W. 3 Waris is cousin of Maqbool Ahmed. These eye-witnesses are, therefore, interested, hence their evidence requires deep scrutiny with great care and caution and strong corroboration. All these three eye-witnesses claim to be in the company of deceased when the alleged incident is said to have taken place. F. I. R. Is lodged by P. W. 6 Shahruddin complainant at Police Station, Dadu District, on 8-3-1976 at 2-30 a.m., when the incident is alleged to have taken place at about 12-45 a.m. The distance between the spot and the police station is 3j miles but the complainant is stated to have informed P. W. 4 Arbab Ali Head Munshi and IIIrd Class Magistrate, Dadu, who is son of deceased and after consulting him, he has lodged the report. It is, therefore, not surprising that F. I. R. Is rather longish and contains lucid account of incident with full back ground of enmity, which has obviously been written with- extra-patience. According to F. I. R., complainant was called by his grandfather deceased Ghulam Muhammad through his cousin P. W. Maqbool Ahmed. Complainant went to the otak of deceased where he found deceased, P. W. 3 Waris and appellant Pario. Deceased informed him about the attempt of thieves to steal bullocks of appellant Pario and asked him to join the party for preserving foot--prints. Then they all proceeded together, when on the way incident took place.
28. Now admittedly the night of incident was dark and the assailants were identified in the light of torch and immediately after the incident the complainant with due despatch went to inform P. W.
29. Arbab Ali at Dadu and from there went straight to the police station where he filed F. I. R but he did not take the torch to the police station where he reached at 2-30 am. Amazingly as it is, the torch was produced by the complainant on the next day from his village. Complainant does not say anywhere that after incident he went back to his village. This raises serious doubt in our minds about the availability of torch at the spot at the time of incident Secondly had-the torch been available at the spot, the Investigating Officer would not have waited till morning to commence the investigation. F. I. R. Does not mention as to how the lantern came to be broken. It is improbable that while incident was witnessed in the light of torch which was flashing alt the time, no injuries were caused by stray pellets to the witnesses who were nearby or the appellants would spare the witness who continued flashing the torch all the time.
30. Subsequently the version of incident as related in F. I. R. Was improved by the eye-witnesses. During the, investigation four crime-empties were recovered from the spot, which were not mentioned in F.
31. I. R. And post--mortem notes indicated that deceased had sustained injuries caused by one gunshot. Complainant improved his version by saying in the trial Court that Allah Rakhio fired at Ghulam Muhammad, while Jurio and Saleh had fired at witnesses but the shots missed them. In the same breath he had stated that appellants were four paces away from them at the time of incident. On that point P. W. 2 Maqbool Ahmed stated therefore the trial Court that 3 or 4 shots were fired. Allah Rakhio had fired at Ghulam Muhammad, while others had fired in the air. He had not stated so in his police statement as well as 164, Cr. P. C. Statement. P. W. 3 Waris has stated before the trial Court that in all three shots were fired. All the shots were fired at them but only one shot hit the deceased. No one fired any shot in the air. It would not be out of place to mention that F. I. R.
32. Says that Allah Rakhio, Saleh and Jurio fired at Ghulam Muhammad, who fell down injured and died.
33. F. I. R. Mentions the fact that deceased Ghulam Muhammad had taken his licensed gun and revolver but there is no mention that he also took with him cartridges and bullets. The Investigating Officer has secured gun of deceased from appellant Saleh and revolver and bandolier containing 11 cartridges belong--ing to deceased from appellant Allah Rakhio. P. W. 2 Maqbool Ahmed has stated in trial Court that Ghulam Muhammad had taken his gun for which he had no cartridge then said that he had taken two cartridges in his hand. He had bullets of the revolver in his belt. The cartridges of the gun may have fallen down on the ground. Record shows that the Investigating Officer bad not secured any live cartridges from the spot. P. W. 3 Waris also stated in his deposition before the trial Court that Ghulam Muhammad had two cartridges in his hand which had fallen down on tae ground. He had not stated in his statement before police nor in his 164, Cr. P. C.
34. Statement. P. W. 6 Shaharuddin has also testified to this effect. Now if those two cartridges were with the deceased, then why they could not be recovered from the spot. Secondly no witness says that deceased had loaded the gun. It is not natural that deceased would take empty gun in one hand and two live-cartridges in the other and also would not load the gun when he noticed assailants, who were identified as his enemies, who had been extending threats. It is also not understandable as to why deceased should take both gun and revolver and if he bad approached such grave danger then why should he not load his weapons. This mysterious part of the story is beyond comprehension. Then strangely no witness says about the removal of bandolier by any appellant.
35. One other unusual aspect of the story is that why should appellants pick out P. W. Maqbool Ahmed, who was hardly 16 years old at the time of incident and inflict injuries on him and why not the other two witnesses namely Waris and Shaharuddin who were present at the spot. Shaharuddin is stated to be flashing the torch all the time during the incident. All these witnesses are stated to be near the deceased and assailants had fired from a distance of 4-5 paces but still no witness was injured and it is claimed that 4 shots were fired and only one hit the deceased. The only convincing answer can be that P. Ws. Shaharuddin and Waris were not present at the time of incident.
36. P. W. Maqbool Ahmed has stated before the trial Court that after the incident police had come to the spot at about 2-30 a.m. And he was sent to the hospital in the jeep in which police had come.
37. Hassan Ali Police Constable who is related to him had accompanied him to the hospital. Then said that Shaharuddin and Issa Khan accompanied him to the hospital. P. W. 3 Wads has stated before the trial Court that police and Arbab Ali came to the spot at 6 a.m. They came on foot. Maqbool Ahmed went from the spot to the hospital at about I p.m. He went in a jeep and S.I.P. Accompanied him to the hospital in the jeep. Arbab Ali and Shaharuddin also went with him in the jeep. P. W. 6 Shabaruddin complainant has deposed that police recorded statement of Maqbool Ahmed and then sent him to the hospital. Maqbool Ahmed went alone to the hospital on foot. Complainant further stated that he had brought the police to the spot in a jeep. P. W. 10 Shafi Muhammad A. S. I.
38. Has deposed that he and complainant came to the spot on foot and reached at about 4-30 or 4- 45 a.m. Maqbool Ahmed alone was sitting at the spot. P. W. Waris was not at the scene of offence.
39. Now we come to the evidence of Arbab Ali. He was Head Munshi and Third Class Magistrate in Dadu at the time of incident. He is son of deceased Ghulam Muhammad. Complainant Shaharuddin informed him about the occurrence at about 2 a.m. At Dadu, he advised the complainant to file the report and he himself came to the vardat, Police came to the spot with complainant and recorded his statement. This witness has tried to show that he did not contact police and did not contribute anything to influence the course of investigation and like any other unconcerned witness lay in the background, although he was Head Munshi and Third Class Magistrate in Dadu and his father was murdered. He had deposed before the trial Court that he had not gone to the Police Station and had come to the scene of offence on a cycle. He reached there at 3 aan. And police came to the spot in a jeep with complainant at 6 a.m. When police reached the scene of offence, he was not there. Police had come to his otak to record his statement at 6 a.m. This witness is belied by his own son P W. Maqbool Ahmed injured who has testified that Arbab Ali had reached scene of odence along with police and complainant and they had come in a jeep. P. W. Waris has also deposed that police and Arbab Ali had come to the spot at about 6 a.m. And Arbab Ali and complainant went with injured Maqbool Ahmed to the hospital. It has come in the evidence of P. W. Arbab Ali that at some time in the past relations between him and his deceased father were strained and his father had filed a private complaint for offence under sections 307, 323, 147, 148, P. P. C. In which along with others Arbab Ali is also shown as accused. Bailable warrants were issued and subsequently both parties filed a joint application for compromise, which was accepted by the Court. Now this complaint was filed on 16-1-1975 and order of the Court accepting compromise is dated 17-2-19'75. After this compromise according to this witness the relations between him and his father were cordial and he was not disassociated from the property of his father. In these circumstances it is improbable if not impossible that a son would remain unmoved when his own father had been murdered and would act non-chalantly and unconcernedly as this witness professes to have acted. We have, therefore, strong suspicion that this witness has used his influence with the police in the conduct of the investigation. We also hesitate, and for valid reasons stated above, to rely upon these eye-witnesses as truthful witnesses. We are conscious of the fact that P. W. Maqbool Ahmed is injured during the incident as alleged, but we are not satisfied that he has spoken truth about the manner in which incident had taken place. Contradictions and inherent improbabilities and infirmities in the evidence of eye- witnesses coupled with inspiring guidance of P. W. Arbab Ali impel us to think that incident has not taken place in the manner suggested by the prosecution, hence we do not accept the ocular testimony as truthful. Now about the circumstantial evidence of recovery of incriminating articles.
40. P. W. 4 Issa Khan has testified about recovery of four crime --empties from the spot vide mashirnama Exh.
21. These crime-empties are not mentioned in- F. I. R. He has also attested mashirnama of recovery of torch from complainant. This mashir has admitted that he is cousin of deceased and is a retired police constable. He is uncle of P. W. Arbab Ali. It has come in the evidence of P. W. Maqbool Ahmed that there are .200 or 250 houses in their village and persons of different castes live there. In that case some independent witnesses could have been joined as mashir. P. W. Ghulam Mustafa is rnashir, who has attested mashirnamas of recovery of licensed gun of appellant Allah Rakbio and revolver belonging to the deceased. About the revolver it is stated that appellant Allah Rakhio climbed the thatched roof of hire cattle-pen and took out the same and produced it before police. Mashirnama Exh. 33 mentions recovery of belt with bullets in it but it is not mentioned as to how many live bullets there were. He has also attested mashirnamas of recovery of gun of appellant Muhammad Saleh, which was licensed and gun of deceased which was recovered from the hedge of the enclosure of the cattle-pen. Recoveries of stolen gun and revolver of deceased do not inspire confidence to attribute exclusive possession to the appellants so named, as cattle-pens are accessible to others also. Mashir Ghulam Mustafa and the witnesses claim that there is no relationship inter se, in any case since ocular evidence is not relied upon, the evidence of these recoveries becomes insignificant.
41. On the point of motive we are not satisfied so far the part assigned to appellant Pario is concerned.
42. He was named by other appellants as accused in the case of abduction of Mst. Hatul. It is in the evidence that he remained in Jail on that account. Other appellants are close relations of Mst.
43. Hatul, in that case it is improbable that appellant Pario would have any truck with other appellants.
44. Secondly it is also surprising that Pario should be employed Toy deceased Ghulam Muhammad particularly in the light of fact that appellants were issuing threats to Ghulam Muhammad that they would take revenge of Mst. Hatul from him as they suspected him to be on illicit relations with her and the whole thing started when she was initially abducted by appellant Pario and Mevo and Pario had to remain in jail for this reason. This circumstance is open to two presumptions. Firstly that deceased had supported Pario after the abduction and may be before the abduction also, hence Pario was man of deceased so he was employed as his hari, then he is not expected to join the appellants, who are inimical against him. Secondly Pario .Had conspired with other appellants and they had forgiven him and asked him to manage and get the employment of the deceased so that he should be able to provide them proper opportunity to kill him, and this could not 'be detected by the deceased for as many as four or five years is bards to understand. In any case the evidence with regard to the motive produced by the prosecution is insufficient and in fact the evidence produced by prosecution as a whole is unsatisfactory to warrant conviction on a capital charge. We, therefore, hold that prosecution has failed to prove the case, of against the appellants beyond reasonable doubt, we therefore, give benefit of doubt to appellants, set aside their convictions and sentences and acquit them. They be set at liberty if not wanted in any other case.
45. Reference for confirmation of death sentence is not accepted.