1976 P Cr (PLP)

ZAKAULLAH LODHI, J.‑Respondents Juwan and Jurio were tried under section 302/34, P. P. C. for the murder of Samano by the Sessions Judge, Sanghar, and were acquitted on 31‑3‑1973.

2. The incident took place at about 6‑30 p.m. on 9‑10‑1970 in the land bearing S. No. 91/74, Deh Darhan, Taluka Shahdadpur. The F. I. R. was lodged by Guloo, the brother of the deceased at 4‑30 p.m. on 10‑10‑1970 at Police Station Tando Adam, wherein be stated that they were four brothers of whom he, the deceased and Hakim resided in village Kadir Bux Mangsi while the 4th brother lived in the town of Berani. About 1 years prior to the incident, respondent Juwan and others called them to the shop of Dadlo Mangsi where they went, and found that besides the respondents Yaro and Biro were already sitting there. Juwan are: others told them that they sus pected the deceased to be in love with Mst. Noori, wife of Allah Mangsi, who happened to be the sister of Juwan and sister‑in‑law of curio. In this con nection inquiry was made from Samano, who denied the allegation but Juwan and others insisted on the allegation and did not believe Samano. They admonished him. About 3 months prior to the incident ore Ismail Shah of Berani called him to his otak where Beero, Achar and the respondents were already sitting. Ismail Shah told them that Juwan and others complained that the deceased was having illicit relations with Mst. Noori. He inquired as to how far this allegation was true. The allegation was denied once again but this time also the denial was not believed. During the conversation Allan also reached there. Juwan and others asked him not to allow the deceased to come to his house but Allan did not accede to their demand and replied that they will visit each other's house and that it was none of their business to interfere. Subsequently. Allan migrated to Deh Bahadur along with his wife while Juman and others migrated to village Dodo Mari and settled there. However, after this migration also the deceased continued to visit the house of Allan. On the day of incident at about sunset time the complainant alongwith the deceased was cutting grass in his field at a dis tance of about half a mile from the village. The distance between the two was about 100 paces. Sardaro Mangsi was also cutting grass at a distance of about one acre towards north from them in his own cultivation. The cries of the deceased were heard upon which Gullo and Sardaro went in that direc tion and saw that the respondents were giving hatchet blows to the deceased. They challenged the respondents not to kill the deceased but they threatened them of the same fate if they dared to interfere. From the injuries which were received by the deceased his neck was practically severed from the body except a flappiskin which was attached with the body. The complainant left Sardaro to took after the dead body and himself proceeded to village to inform the people about the incident. Bakhoo, Harder and Ahmed reached the wardat and were narrated the whole story by the complainant. After this he went to lodge the report.

3. The report was recorded by Nawab Ali S. H. O., Tando Adam Police Station at 4‑30 a.m. which is Exh.

8. He deputed Ahmed Khan, A. S. I. P. for the arrest of the accused and himself proceeded to the wardat and pre pared a mashirnama of the same in the presence of Ali Muhammad and Wazir. He found the dead body of the deceased lying in Bajra cultivation in a pool of blood with hatchet injuries thereon. The head of the deceased was attached with the body only with a flap of skin. He secured blood‑stained sickle, grass and Khamani which the deceased was holding at the time he was killed and prepared a mashirnama of the same, which is Exh.

13. At the same time he prepared inquest report Exh. 14 in the presence of same mashirs and sent the dead body for post‑mortem examination to the Medical Officer Barani. After that he examined P. Ws. Sardaro, Bago, Ahmad and Dodo. On 11‑10-1970 he examined Piaro and Miro while on I5‑10‑1970 he examined Ismail Shah, Allan and Mst. Noor Bai. He further got recorded statements under section 164, Cr. P. C. of Sardaro, Bago, Ahmad and Dodo by Resident Magistrate, Tando Adam. The respondents were arrested on 11‑10‑1970 and from Juman his shirt and shalwar were secured. The blood on these articles was washed away but still the same was slightly visible. These articles were secured and sealed vide mashirnama Exh.

17. On the pointation of Juwan a blood‑stained hatchet was also recovered from his house of which a mashirnama was prepared as Exh.

19. From Jurio's house also one blood‑stained hatchet was secured. The blood‑stained articles were sent to the Serologist who in his report stated that the blood‑stained earth, hatchet recovered from Juwan, his shirt and shalwar were stained with human blood whereas on the hatchet recovered from Jurio no blood was detected.

4. Dr. Muhammad Ismail conducted autopsy on the dead body and found the following injuries on his person:‑‑‑ (1) Incised wound 5' x 2" x bone deep (brain‑matter out) cutting the parietal and temporal bones on left side of skull. (2) Incised wound cutting the back to neck vertebrae lower mandible cut only the neck is attached with skin on the front. All structure i.e. blood vessels, muscles, nerves bones were damaged. (3) Incised wound 7 ' x 3' x bones deep cutting right scapula, lung and ribs right side and thoracic vertebrae are cut. (4) Incised wound 6' x 1 x muscles deep, parallel to injury number on upper side. (5) Incised wound 6' x 1 x muscle deep parallel to injury No. 4, upper side. (6) Incised wound 5' x 1 " x muscle deep parallel to injury No. 5. (7) Incised wound 4' x 2' x joint deep on right shoulder joint. (8) Incised wound in crescent shape 1' x ' x skin deep on right leg near ankle joint interiorly. In his opinion all the 8 injuries were ante‑mortem and appeared to have been caused by a sharp cutting weapon such as hatchet. From the external as well as internal examination of the dead body he was of the opinion that the death occurred due to shock and haemorrhage as a result of the afore mentioned injuries. Of the above referred injuries, the injuries Nos. 1, 2 and 3 each were individually sufficient while the others were collectively sufficient in the ordinary course of nature to cause instantaneous death.

5. In their defence both the respondents pleaded innocence and stated in their statements that they had been falsely implicated in the case. They also examined Photo as their only defence witness, who stated that about 2 years prior to his appearance in the Court, complainant Guloo, Sardaro and 3/4 other persons came at the `khara' and inquired from him if he had seen Samano as he had not returned to his house and they were searching from him. He also accompanied them in search of the deceased and Guloo found his dead body in Bajra cultivation. On seeing the dead body he shouted that some one had killed him. Then they went to Sattaro to inquire about the murder or the cries, if any, he had heard as he lived near the cultivation. Sattaro denied having heard any cries. He also denied having any knowledge about the murder.

6. The trial Court has not accepted the ocular testimony for, according to it their version is improbable for various reasons. While appraising ocular testimony, the trial Court took into consideration the time and the sequence of the arrival of Sardaro and Gul Muhammad at the wardat in the context of what they stated. Sardaro deposed that he, went to his land at about noon and remained there till the time of the incident while the deceased was in his field since morning as he had to scare away the birds: and as for Gul Muhammad he came to the wardat at 4‑00 p m. Gullo on the other hand, admitted in cross‑examination that he went to the land 10 to 15 minutes be fore the incident and that Sardaro had come after him. There is, therefore, discrepancy as to the time at which the two witnesses had come and, there fore, the trial Court held that the witnesses "have not come out with the truth" and in any case they can be rated only as chance witnesses. Again, the sun‑set time at which the' incident occurred, according to the calendar for the West Pakistan High Court, was 5‑50 p.m. at Lahore and after saving allowance of 10 to 15 minutes the sun must have set at 6‑15 p.m. If the version of Gul Muhammad is to be accepted, then the deceased was still cutting grass at 6‑30 p.m. when the sun had already set which is highly improbable; and it was also most unlikely that Gul Muhammad himself would have come for cutting grass at sun‑set time for that is the time to return to the village and no one would come to cut grass when darkness was fast approaching. Again, the presence of Sardaro also becomes highly doubtful for he would not also come at that time to cut grass. If the pur pose of their visit to the land was to cut grass, then they would have cut the grass but there is no evidence to sustain that any grass was cut by either of them; though Sardaro claims to have shown the grass to the S. H. O. to whom no question was put to confirm it. Such reason appears to us to be false and invented to show their presence. Again, Sardaro admitted that the incident occurred in the field where the standing crop was of a man's height and he had seen the assailants from his field about 50 paces away while Gul Muhammad gave a different version that both of them ran towards the deceased and saw him bang given hatchet blow, by the respondents which statement is not consistent, for, Sardaro did not say so that he had accom panied buy Muhammad to the place where the deceased was killed. It is also not possible for Sardaro to have seen the assailants with clarity if the sun had already set and the visibility was obstructed by the standing crop. This is another feature which weighs against his veracity. Gul Muhammad finally stated that he saw his brother falling down with face downwards upon receiving hatchet blows. But if this was so then he would not still be holding a bunch of grass in one hand and a sickle in the other. 7 his circum stance can only be consistent if he was attacked while he was still cutting the grass, and the fatal blow caused his instantaneous death upon which he reeled to the ground with his face downwards. If he had known about the assailants, then certainly he would make an attempt to escape. Therefore, it is highly improbable that he would have raised cries to attract the witnesses. Such was also the opinion of the trial Court with which we agree. The relevant observations of the trial Court are as under:‑ "The location of injuries and the presence of grass and sickle in the hands of the deceased show that the deceased has received fatal blow in the first instance. If the first blow had not been fatal, then the deceased would have thrown the grass and sickle from his hands and he would have either faced the culprits or tried to run away from there. Furthermore, the deceased was lying with face downwards. These circumstances further show that the deceased had received the injuries while he was bending to cut grass. He was actually busy in cutting the grass. The circumstantial evidence show that the deceased had received fatal blow at first and according to the evidence of the doctor, the death was instantaneous. As such, it has been argued on behalf of the accused that the deceased could not have raised cries. If the deceased did not raise cries, then the witnesses would not have reached the scene of offence and witnessed the inci dent. On this ground, the presence of the witnesses at the scene of offence becomes improbable." Cumulatively, therefore, the above features stand out against the presence of the witnesses and we are constrained to hold that it was an un‑witnessed crime.

7. The time of the incident is also doubtful, for, it cannot be accepted that the deceased would be cutting grass even after the sun had set. According to Gul Muhammad, the deceased, had taken his meal with him and had gone to the land at morning prayer time as he bad to scare away the birds. The medical evidence, however, shows that his stomach was empty; there fore, the incident must have occurred either before he had taken his meal or some 6 hours after he had taken it. The probability is that he must have taken it either at breakfast time or a little later, for, he could not have remained hungry; in which case, the incident must have occurred 2 or 3 hours before sunset. Such being the probability. Gulloo's version that he went to the land lei to 15 minutes before the incident does not fit in when the time of the incident is given as 6‑30 p.m. 1n this context we are constrained to hold that the lead body was discovered later on when the deceased has failed to return. The respondents examined photo in defence, who has testi fied that Gullo, Sardaro and 3 or 4 persons had come to him at H‑30 p.m. with lanterns in their lands and enquired about the deceased who had not returned to the house and that, therefore, they bad come to search for him; to which photo replied that he bad not seen him but went alongwith them and discovered the dead body in the Bejra cultivation. This witness has his "cotton khura" 2 survey numbers away from the cultivation of the deceased and was the most likely person to have known about his murder if the deceased had raised cries. The trial Court accepted his evidence as it was of the view that it is without any blemish, and we have no reason to differ from it. His version is most likely, for, if it was a witnessed crime than there would not be search for the deceased.

8. The respondents also resided 12 or 13 miles away from the place of incident and it is surprising that if they had come with the intention to kill they would have remained un‑noticed by anyone in the vicinity. This feature, also is a circumstance in favour of the respondents though no stress is laid in the judgment.

9. The trial Court has also not placed reliance on the recovery of the incriminating articles. While evaluating the evidence of the Mashir, Ashiq Ali, it has held that he has gene out of his way to support the prosecution case, for, even what was not recovered from Jurio, namely the clothes such a recovery was attributed and for that, the reason is not far to seek, for, he is a police mashir and has given evidence in that capacity 10 or 12 times before. The hatchet recovered at the instance of Jurio was also not blood stained. Hence, there is no evidence of any incriminating articles in his case. As for the recovery of the hatchet from Juwan, the trial Court noticed certain improvements in tile evidence of Ashiq Ali and that is, that at the committal stage he stated that he dug it out which statement was confronted to him at the trial where he only mentioned that it was produced by him from a hedge. Tire trial Court considered this improvement as an anxiety op his part to improve the prosecution case. The trial Court, however, did not place any reliance on the production of the hatchet as it came out in the evidence that the hedge was by the side of his house which was accessible to the public and to the other inmates of the house which had no roof and doors, and therefore, he could not be said to have an exclusive knowledge of the place where the hatchet was lying. We see no reason to differ from this conclusion and as such the recovery of hatchet loses much of its weight. The seizure of the clothes from Juwan was also not given any weight on account of certain contradictions and more so when the bona fides of the mashir was doubted. It is an unlikely feature that the accused would still be wearing clothes with blood marks though it was said that they had been washed at a public place such as a bus stand from where he was arrested. Be that as it may, since the ocular testimony is not worth any credence, the recovery of the incriminating articles by itself would not establish the guilt of Juwan.

10. Again, motive, even if accepted, is inconsequential to bring home the guilt by itself. In the result, we agree with the conclusion of the trial Court as it is based on a reasonable appraisal of the evidence. There is, therefore, no substance in this appeal which is dismissed. Appeal dismissed.