1995 PLP 1407 (MLD)

On appraisal of the evidence led before him he concluded that the present appellant Ali Muhammad was the person who had committed the murders of Sono and Allah Rakhi and, therefore, he found him guilty for an offence punishable under section 302, P.P.C. The trial Judge passed the sentence of the life imprisonment on the appellant in addition to payment of fine of Rs. 20,000 and ordered that in case the fine was recovered it should be paid to the legal heirs of deceased Sono and Allah Rakhi as compensation. The reason for not awarding the capital punishment to appellant, advanced by the trial Judge was that since appellant was head of the family, he was not sentenced to death. Benefit of section 382‑B, Cr.P.C. was also awarded to the accused. Against this judgment and sentence accused Ali Muhammad has preferred the present appeal. Learned counsel for the appellant Mr. Azizullah K. Shaikh has argued the appeal and advanced the reasons in support of his contentions in detail and has prayed that the judgment and sentence passed by the trial Judge is not worth sustaining, in view of the principles laid down by the superior Courts, consistently in many cases, for appreciation of evidence. Further, contention of the learned counsel for the appellant is that the evidence has not been properly read and appreciated by the trial Judge and that there contradictions, which render the evidence unreliable. Apart from this, there are glaring improbabilities and, therefore, evidence should not have been believed. Learned counsel for the State has also supported the contention of the counsel for the appellant, and not supporting the judgment, has stated that in the circumstances of the case, the trial Judge should have given the benefit of doubt to the accused. After giving due consideration to the arguments of the learned counsel of the parties, I have come to the conclusion that the judgment and sentence passed by the trial Judge should not be sustained, for the reasons enumerated as under:

1. While narrating prosecution story Muhammad Yousuf stated that he was present in his house alongwith his uncle Allah Dewayo and brother Gul Hasan on the day of incident when his other brother deceased Sono had left the house for attending to the "rotation of water" towards his lands. Muhammad Yousuf also followed after an interval of 15 minutes, alongwith Allah Dewayo and Gul Hasan. No specific reason has been given as to why Muhammad Yousuf, Gul Hasan and Allah Dewayo followed deceased Sono. In cross‑examination Muhammad Yousuf made it clear that his lands were separate from the lands of his uncle Allah Dewayo and that all the three had followed deceased Sono as he was already declared "Karo" by the appellant. He stated in unequivocal terms that they had followed Sono for the sake of his protection. After he stated this reason, he was enquired as to whether he and other witnesses had any weapons in their hands. In answer to the question Muhammad Yousuf stated that they were empty‑handed. This aspect creates serious doubt in the mind whether complainant Muhammad Yousuf, was speaking truth, and whether they had at all followed Sono after a period of 15 minutes so that they would conveniently become the eye‑witnesses of his death. In ordinary course of life, under such circumstances the witnesses must have carried arms with them. Therefore, this portion of evidence of Muhammad Yousuf lacks credibility.

2. Muhammad Yousuf also stated that Sono bad left for the lands to attend to the water rotation carrying a spade with himself, and he also stated that the said spade carried by Sono had been left at the place where Sono was murdered. The Investigating Officer, who visited Wardat and prepared the inventory of the place of incident did not notice any spade and, therefore, the same does not find mention in Mashirnama of the Wardat. The Mashir Misri, who was examined to prove the contents of the Mashirnama also stated in cross‑examination that he did not see any spade or hatchet lying near the dead body of deceased Sono.

3. The Mashir Misri has stated that the gun and the cartridges, which were secured by police on pointation by the accused in his presence were lying concealed at a distance of 5 paces from the dead body of deceased Sono. In other words accused Ali Muhammad while leaving the scene of offence had concealed the gun and the cartridges at the distance of 5 paces only from the place where he had shot at Sono and killed him. If he had concealed the gun at only 5 paces, the eye‑witnesses of the incident, who had seen Ali Muhammad committing the murder of Sono must have seen him leaving the gun and cartridges at a distance of 5 paces from the dead body. But it is not so, as none of the eye‑witnesses has so stated. Therefore, either the Mashir is not speaking truth or the eye‑witnesses are not truthful in giving the full details of the incident. There can be other explanation viz. the gun and the cartridges were concealed by accused at the place wherefrom the same were recovered, after the accused had committed the two murders. This is again hard to believe. The accused, who had committed blatant murders of two persons in presence of eye‑witnesses, had again gone to the same place where he had killed Sono (where the blood must also be lying) for the purpose of concealing the weapon of crime at a distance of 5 paces only. The place of recovery of the gun and the cartridges has been described as "bank of Lundi Canal" which is also used as a common path. He could have easily thrown the gun and the cartridges in the canal instead of leaving them in bushes so that the same may be conveniently retrieved and be made a piece of evidence against him in the trial. Besides, the place wherefrom the gun and the cartridges are said to have been recovered on the pointation of the accused has been described as a "common path" leading to Janan Village. A common path is excessible to many persons. Therefore, again the credibility of such statement is not free from doubt.

4. The second witness of the prosecution is P.W. Gul Hasan who, according to the prosecution story, was in company of Muhammad Yousuf and Allah Dewayo when in. their presence the accused Ali Muhammad had fired at deceased Sono. According to the complainant Muhammad Yousuf, after the incident of firing at Sono, he had left Gul Hasan to act as watchman on dead body of Sono and he himself alongwith Allah Dewayo had followed the accused Ali Muhammad, who had declared that he was going to kill Mst. Allah Rakhi. Thereafter, a distance of one mile was covered by the accused, followed by witnesses, and then Mst. Allah Rakhi was killed. There is no evidence to suggest that on the way the witnesses tried to call for some help, to restrain the appellant from killing Mst. Allah Rakni. Besides, witness being empty -handed, followed a person, who had committed a murder in their presence is hard to comprehend under ordinary course of nature. P.W. Gul Hasan, according to the complainant, had not covered the distance of one mile, and had not seen killing of Allah Rakhi, but surprisingly Gul Hasan himself has stated that he also followed accused Ali Muhammad alongwith Yousuf and Allah Dewayo up to the house of the accused where he killed his brother's wife Mst. Allah Rakhi in his presence and then returned back to sit over the dead body of deceased Sono to keep watch. This glaring inconsistency in the statement of two eye‑witnesses, who are also the interested witnesses, inasmuch as both of them are real brothers of the deceased, is not reconcilable. Again another reason which agitates the mind not to believe that complainant Muhammad Yousuf, Gul Hasan and Allah Dewayo could have been the eye witnesses of the two murders, is that the relations between accused and the complainant party were highly strained as accused is said to have declared deceased Sono to be a "Kayo" with Mst. Allah Rakhi, the wife of his brother. Therefore, it is not believable that complainant Muhammad Yousuf, who has seen his brother Sono being skilled by accused Ali Muhammad, going to the house of accused All Muhammad, who was armed with a gun while none of the witnesses were armed with anything. There must be severe animosity between the complainant party and the accused on account of the severe charge of being a "Kayo" with the wife of accused's brother and under these circumstances, considering the ordinary conduct of people living in the rural areas of the Province of Sindh, it is highly improbable that complainant alongwith his brother Gul Hassan and his uncle Allah Dewayo will proceed to B the house of the accused. Not only this, but P. W. Allah Dewayo is resident of village `Lesori' whereas Muhammad Yousuf and Gul Hasan alongwith Sono were residing in village `Jan Muhammad Mehar'. These two villages are admittedly at the distance of two miles from each other. Ordinarily P.W. Allah Dewayo should be present in his village at the time of the incident which is 8‑00 a.m. and no specific reason has been putforth in the evidence for the presence of P.W. Allah Dewayo in the house of complainant Muhammad Yousuf. An attempt has been made by complainant Muhammad Yousuf in cross‑examination to show the presence of Allah Dewayo in his house at the time of leaving of the place of incident to be a natural witness when he stated that "Allah Dewayo also resides with us". This is not believable as P. W. Allah Dewayo has given his place of residence to be "Goth Lesori" and he in his statement did not state that he lives at two places in village "Jan Muhammad Mehar" and "Goth Lesori". Therefore, taking the things from the point of view of ordinary villagers living in the Mufassil of this Province, presence of Allah Dewayo in the village of complainant at 8‑00 a.m. without any particular reason cannot be believed. The 4th witness examined by the prosecution is Misri, who has acted as Mashir in all the Mashirnamas prepared by the Investigating Officer in this case on different dates and time. He is a caste‑fellow of the complainant residing in his village belonging to the same tribe `Channer Mahar' while the accused is admitted to be of different tribe `Derajo Mehar'. His evidence in respect of the production of the gun and the cartridges on the pointation of the accused does not ring to be true firstly because he has been found convenient by the Investigating Officer to be made a Mashir on the first day of the incident and then again when the accused is arrested after a period of 3 days. Non‑availability of the empty cartridges lying near the dead bodies of Sono and Allah Rakhi does not connect the gun recovered at the pointation of the accused to be a crime weapon. 91

5. P.W. Misri, in respect of cartridges recovered on pointation of accused Ali Muhammad, has given confusing statement. In his examination‑in‑chief at one place he stated: "The accused produced guns and 4 live cartridges near Lundi Canal where the dead body of deceased Sono was lying." At the same time in the last sentence of his examination‑in‑chief, he stated in order to identify the case property. "The gun and empty cartridges present in Court are same . Under these circumstances, the matter of recovery of empty or live cartridges from the Wardat becomes doubtful. Under these circumstances, the appellant is entitled to the benefit of doubt, therefore, this appeal is accepted. The impugned judgment and sentence are set aside. The appellant be set at liberty if not wanted in any other case. N.H.Q./A‑1544/K Appeal accepted.