1997 PLP 260 (MLD)

(5) Small intestines was healthy and it contained semi‑digested food material. (6) Bladder was found healthy and empty. On external and internal examination of the dead body, he was of the opinion that death of deceased Ali Asghar was due to haemorrhage, shock and disturbance of function of vital train. External injuries Nos.l to 3 appeared to have caused by sharp cutting weapon such as hatchet while injury No.4 appeared to have been caused by hard/blunt substance like Lathi or back side of hatchet. All injuries were ante‑mortem in nature. Injuries Nos. l, 2 and 3 were collectively sufficient in the ordinary course of nature to cause death. In cross‑examination he has stated that deceased might have taken his food about two hours before his death. He produced post‑mortem report as Exh.II‑A. Witness No.6 Exh.12 Ghulam Rasool was examined who produced sketch of Wardat Exh.12‑A. P.W.7 Abdul Ghani Exh.13, stated that he was associated by Police Umerkot on 1‑9‑1990 to act as Mashir in this case and on the same day police inspected the place of incident which was situated on the eastern side of the land of the complainant where the dead body of Ali Asghar was found lying with hatchet injuries on his person. There was uncultivated land around the place of Wardat. Blood stains were found around the dead body. Police secured blood?stained earth and sealed the same and prepared Mashirnama which he produced as Exh.13‑A which was same correct and bears his signature. Police also prepared the inquest report which he produced as Exh.13‑C. Accused Mataro was arrested on 4‑9‑1990 from near his house. Police prepared Mashirnama which he produced as Exh.13‑D which bears his signature. On interrogation by police Matro produced one blood‑stained hatchet and police prepared Mashirnama which he produced as Exh.13‑E. Accused Arbab was also arrested on the same date near from his house. Police prepared Mashirnama. On interrogation Arab also led the police and produced one blood‑stained hatchet which was produced as Exh.13‑G which bears his signature. In all such Mashirnamas one Ali Ghulam acted as co‑Mashir. A.S.I. Nandlal P.W.8 stated that on 1‑9‑1990 he was A.S.I. at P.S. Umarkot when Muhammad Ilyas came there and lodged the report with regard to the murder of his son Ali Asghar. F.I.R. was recorded, read over to the complainant which is Exh.7‑A. He visited place of incident which was located in uncultivated land in Deh Vehro. There were blood stains on the ground where the dead body of Ali Asghar was lying. He secured blood‑stained earth in presence of Mashirs ‑‑ Abdul Ghani and Ali Ghulam and prepared Mashirnama as Exh.13‑A. He also prepared inquest report in presence of the Mashirs as Exh.13‑B. He also referred the dead body of deceased Ali Asghar to local Medical Officer Taluka Hospitah, Umerkot through Police Constable Roshan Ali for the purpose of conducting post‑mortem examination. After the post‑mortem examination dead body of Ali Asghar was handed over to complainant Ilyas, whereas clothes of the deceased were deposited before him he secured such clothes under Mashirnama Exh.13‑D and on the same date he recorded statements of P.Ws. Gul Hassan'and Soomar and made search for the two accused who were named in the F.I.R. On 4‑9‑1990 he arrested accused Matro near the hedge of house prepared such Mashirnama as Exh.13‑D which bears his signature. On interrogation Mataro voluntarily produced from his house one blood‑stained hatchet which was secured and sealed under the Mashirnama Exh.13‑E. He also arrested co‑accused Arbab from near his house and prepared Mashirnama as Exh.13‑F which bears his signature. On interrogation Arbab voluntarily produced one blood‑stained hatchet from the hedge of his house which was secured and sealed under Mashimama Exh.13‑G and Abdul Ghani and Ali Ghulam had acted as Mashirs. He had referred all the articles viz. blood?stained clothes, blood‑stained earth and the two blood‑stained hatchets to the Chemical Examiner, Karachi and produced report as Exh.14‑A. On 4‑9‑1990 he produced two accused and two eye‑witnesses Gul Hassan and Soomar for the purposes of recording of judicial confessions .and 164, Cr.P.C. statements respectively. On conclusion of investigation he submitted the challan in the Court. On 26‑5‑1992 D.P.P. closed the side on behalf of the prosecution as Exh.15. Statement of Mataro was recorded as Exh.16. He denied the prosecution allegations and stated that he and his relatives were subjected to maltreatment and humiliation by police for extorting confession from him. Statement of Arbab is Exh.17 in which he denied the prosecution allegations and stated that he and his relatives were subjected to maltreatment and humiliation by police for extorting confession from him. Exhibit 8 is the list of defence witnesses furnished on behalf of the learned counsel for the accused. Dadu son of Tharu examined as Exh.19. He has stated that he knows the accused Mataro and Arbab. They are cousins inter se and are residing at the distance of three miles from his village. He also knows complainant Muhammad Ilyas and his deceased son Ali Asghar. They are also residing at equal distance. Both the parties are on visiting terms with him. On 1‑9‑1990 he had left his house to graze his cattle. During the process he came across accused Mataro to the jungle who was also grazing his cattle. He and Mataro came to their village where they reached at 4/5 p.m. where he stayed over night with him at his village and in the morning they came to know that Ali Asghar has been murdered and they were not informed that who has killed Ali Asghar. At the request of Mataro to accompany him to the police station he accompanied him to P.S. Umerkot. Police Officer Incharge of the P.S. confirmed that the name of the accused Mataro was mentioned in the F.I.R. so he was detained there thereafter he was allowed to go. D.W.2 Shafique Shah has been examined as Exh.20. He stated that he was serving as Serishtedar in the Court of Mukhtiarkar and F.C.M. and has brought the monthly diary for the month of September, 1990 from 1‑9‑1990 and produced the same as Exh.20‑A in two leaves. Jaffar Ali Exh.21 D.W.3 who was serving as Constable at P.S. Umerkot and he produced diary of P.S. Umarkot pertaining to the year 1990. Under the instructions of S.H.O. Ghulam Rasool Soomro, according to him at Serial No.6 it is mentioned that A.S.‑I. Nandlal after getting the confession of the accused recorded returned to the P.S. and accused were got confined in the lock‑up. At Entry No.7 it is mentioned that at 11‑00 hours the report was prepared with regard to remand of the accused Mataro and Arbab for 14 days in jail custody. Exhibit 22 the statement of defence counsel gave up D.Ws. Bhuro and Hussain Shah. At the conclusion of the trial, the learned trial Court convicted the appellants as mentioned hereinabove. Mr. A.Q. Halepota, learned counsel for the appellants has contended that the evidence laid down on behalf of the prosecution and evidence adduced on behalf of the appellants has not been properly considered. Evidence of complainant Muhammad Ilyas, P.Ws. Soomar and Gul Hassan is not sufficient to base the conviction. Evidence of arrest and recovery does not furnish corroboration to the ocular testimony. Confessions are not to be considered the same were retracted and same suffer from infirmities and illegalities in recording the same. Evidence of Abdul Ghani is also not trustworthy. Evidence of Mukhtiarkar regarding confession is also full of infirmities and does not inspire confidence. The investigation carried on by A.S.‑I. Nandlal is not above board as according of entry produced in defence shows that after recording of the alleged confessions accused were handed over to A.S.‑I. Nandlal who has brought them at police station, who locked up them there. The ocular evidence of Muhammad Ilyas, complainant that Soomar and Gul Hassan are son‑in‑law of Muhammad Ilyas and both are brother‑in‑law of deceased Ali Asghar. Evidence of close relatives requires strict scrutiny therefore it can hardly be accepted. Tapadar visited the Wardat on 12‑9‑1990 after eight days of the incident. That Muhammad Ilyas has no land in Deh Vehro. That Wardat is situated in jungle. That admittedly Gul Hassan has a shop and at about 10‑30 it is not a time when he should go to look after his goats. Three different versions have been furnished by the P.Ws. for their presence at the Wardat. Mr. A.Q. Halepota learned counsel for the appellants has referred PLJ 1974 Cr.C. (Lah.) 405 and 406, 1993 PCr. LJ page 227‑228, 1985 SCMR page 11, 1981 SCMR page 1232, 1978 PCr.LJ page 369‑372, 1979 PCr.LJ page 747‑751. 1992 SCMR page 96? 102, PLD 1990 Kar.275, 1985 SCMR page 463‑458, 1982 SCMR page 41, ??????????? 1981 PCr.LJ page

169. Mr. Muhammad Sarwar Khan, learned Assistant Advocate‑General has contended that ocular evidence so furnished is reliable and trustworthy, arrest is supported by recovery even if recovery is disregarded ocular evidence is enough to sustain conviction, medical evidence is in conformity with ocular evidence. He has supported the judgment. He has referred the following cases 1991 PCr.LJ page 419 (2) 1985 SCMR page 203 and (3) 1991 PCr.LJ page

980. We had considered the contentions of Mr. A.Q. Halepota learned counsel for the appellants, that the ocular evidence furnished by the complainant Muhammad Ilyas, P.W. Muhammad Soomar and P.W. Gul Hassan is of interested witnesses. No doubt complainant in his evidence has only stated that he knows P.W. Muhammad Soomar and Gul Hassan, they are his co‑villagers. In his evidence nowhere he stated that both the P.Ws. are his son‑in‑laws, whereas P.W. Muhammad Soomar in his evidence has stated that complainant Muhammad Ilyas is his uncle and father‑in‑law so also P.W. Gul Hassan has stated that complainant Muhammad Ilyas is his father‑in‑law and deceased Ali Asghar was his son that means deceased was his brother‑in‑law. Mere mention of P. Ws. by the complainant as his co‑villagers is a clear attempt on his part to conceal their relationship with him which fact otherwise has been disclosed by the two witnesses even in their own examination‑in‑chief. Admittedly P.W. Gul Hassan was running a shop in the village and at the time of incident so suggested, he should have been available at his shop dealing with his customers but explanation furnished by the complainant Muhammad Ilyas that the P.W. Gul Hassan has no regular shop and he keeps few articles in his house is hardly appealing or convincing one. P.W. Ali Ghulam Mashir of this case is also son?-in‑law of the complainant which fact has admitted by the complainant in cross?examination which clearly shows that the evidence adduced by the prosecution consists of persons having interest and inter‑relationship with each other that means or the P.Ws. are their own kith and kin. The reasons furnished by the complainant that they had gone to the land to weed out the unnecessary grass. Grass is weeded out by small spade which was already lying in the land but the fact is that police has not secured any spade from the Wardat, Mashimama on this point is silent. The reason furnished by the eye‑witnesses that at that time they were taking their goats for grazing is also not convincing because Muhammad Soomar in his cross‑examination has admitted as follows: "It is fact that my cattle and the cattle of Gul Hassan is grazed and looked after by our paid servant. I have forgotten his name just now. But he is Mangrio by caste. He has further stated in his cross‑examination that: "There are two paths for going to place Padhrio Tobho. But we had adopted this path as we intended to see the crop of complainant Ilyas. Muhammad Soomar has stated in examination‑in‑chief that: "At such time I and P.W. Gul Hassan were taking our goats for grazing. We were passing by the side of the land of the complainant. At such time we heard cries of complainant Ilyas. " This version of Muhammad Soomar is contradicted by P.W. Gul Hassan eye?witness who in his evidence has stated that they were returning after seeing their cattle when this incident took place. They had gone to see their cattle by adopting another path and that their cattle is grazed by Bhaiyo Mehar and their grazier Bhaiyo Mehar was available at Padhrio Tobho. He is their joint grazier but this Bhaiyo Mehar has not been cited by the prosecution as an eye‑witness of the occurrence. Nandlal, Investigating Officer has stated that accused were arrested on 4‑9‑1990 and blood‑stained hatchets were recovered at their instance and in all such events Abdul Ghani and Ali Ghulam had acted as Mashirs. It is strange enough to note that this version of I.O. and Mashirs is belied by complainant Muhammad Ilyas, the father of deceased Ali Asghar who has stated in cross‑examination "both the accused were arrested by the police on the following night on the same day" that means according to prosecution incident took place on 1‑9‑1990 and on the night of 1‑9‑1990 they were taken into custody, whereas according to I.O. both accused were arrested on 4‑9‑1990 and thereafter recoveries were effected on their pointation from the house of Mataro and from ad joining to the house of Arbab the accused. The complainant in his cross‑examination has stated that he was at the distance of about one acre from the place of incident and that he did not take the spade or any other weapon to attack the accused which otherwise is quite unnatural, spade is sometime used in the rural areas for weeding out grass or for doing excavation of the land which has a sharp‑edged blade which can easily cause injury of incised nature. Had there been spade with the complainant while seeing attacking his own son he could have at least used the same against the accused assailants because apart from blade of about 4/5 inches, the same is fixed in the wooden handle of not less than 2/3 ft. which can easily be used at the time of emergency/necessity. The version of P.W. Soomar and Gul Hassan that they had taken their goats for grazing though they had their own paid grazier Byaiyo Mehar is also not appealing to common sense. In view of the above facts no implicit reliance can be placed on such weak type of evidence which is furnished by inter‑related witnesses and is not free from improbabilities and material contradictions. The learned trial Court has taken into consideration and relied upon the judicial confessions of the accused ?recorded by the Mukhtarkar namely Ahmed Din Dogar but the confessions were retracted by the accused during the trial. If the evidence of the Mukhtiarkar recorded by the learned trial Court is considered minutely the same is liable to be discarded and consequently confessions so recorded cannot be relied upon. The evidence of Mukhtiarkar in cross‑examination is as follows: "Both the accused were present at one and same time while I recorded the confession of the other???Both of them were sitting together during reflection time. I did not make any enquiry to ascertain as to for how many days the accused had remained in police custody . ........... I had not put any other questions to any of the two accused persons besides those contained in the printed proformas Exh.10‑C" He has also stated that mandatory certificate as required under section 164 (3), Cr.P.C. has not been signed or attached with the confessions for the sake of convenience. The actual words of the Magistrate to this effect are as under: " ....It is fact that on the last page of each of confession there is printed form of the Certificate to be given by tote Magistrate under section 164(3), Cr.P.C. It is fact that I have not filled in such pro forma, nor I have given any Certificate. It is not mentioned in any of the two confessions if I had read over their contents to the accused and if they had accepted their contents as correct before putting signature/L.T.I. thereon." The learned Magistrate has denied the suggestion that two statements as Exh.10‑C and Exh. 10‑D were recorded by him under of Ali Muhammad Kumbhar a big influential person of that area. As pointed out hereinabove Abdul Ghani and Ali Ghulam Mashirs are closely related to the complainant and deceased Ali Asghar and police arrested Mataro near his house and recovered blood‑stained hatchet from room of his house and also arrested accused Arbab from near his house on interrogation he produced blood‑stained hatchet from hadge of his house. The I.O. in cross?examination has admitted that there would be 10/15 houses in village Mian Jan Muhammad and he did not try to associate any person from that village for acting as Mashir. The I.O. in his cross‑examination has admitted that in the Mashirnama Exh.13/A there is no mention if there was any cultivation, whereas contention of Muhammad Ilyas was that they had left to lookafter their Gawar and Bajra cultivation. The I.O. has denied the suggestion that both accused persons were detained by Police on the very first day which fact has been admitted by the complainant in his evidence recorded by the learned trial Court; Accused had examined D.Ws. and Jaffer Ali D.W.‑3 Exh.21, is necessary witness. The witness was serving as constable at Police Station, Umerkot and had brought the diary of Umerkot pertaining to the year 1990 under the instructions of S.H.O. Ghulam Rasool Soomro. The relevant portion of his evidence is as follows: "At Serial No.6 it is mentioned that A.S.‑I. Nandlal after getting the confession of the accused recorded returned to the P.S. and the accused were got confined in the lock‑up. The time is mentioned as 10‑45 hours. At Entry No.7 it is mentioned that at 1‑00 hours the report was prepared with regard to remand of the accused Mataro and Arbab for 14 days, in Jail custody." This fact unequivocally establishes that after recording of the judicial confession both the accused were handed over to Nandlal, A.S.I., the Investigating Officer of the crime who confined them in the lock‑up. Whereas it has been held so many times by the superior Courts that after recording of the confession accused person is not to be handed over to the concerned Investigating Officer or police but accused is ought to be remanded to jail custody except through the same police. The contention of Mr. A.Q. Halepota, Advocate that the evidence so furnished by the prosecution is interested and is not of such character and substance on which implicit reliance can be placed is forceful. The reason so furnished by the complainant and witnesses for their presence at the proper time and place is also not convincing. The witnesses namely Gul Hassan and Soomar have themselves contradicted each other which is pointed out hereinabove. The version of complainant that he and his son has left to look after the Gawar and Bajra cultivation is denied by the Mashimama of Wardat. Nandlal, I.O. has, admitted that there was no cultivation. The arrest of the accused/appellants on the night of 1‑9‑1990 is admitted by the complainant but in police papers arrest of the accused is shown on 4‑9‑1990. This delay shown in the paper clearly put serious doubts on the veracity of the recovery and confessions so recorded by the learned Magistrate. The admission of the learned Magistrate that both the accused were present together when their confessions were recorded and that no other question except the questions which are available on the printed form were put to the accused persons renders the confessions unreliable. The non‑availability of certificate or signature of Magistrate as required under section 164(3), Cr.P.C. proves that the confessions were not properly recorded and due to this inherent lacuna the confessions are not worth reliance and learned trial Court has placed reliance on these confessions without considering and analysing the inherent defects in recording of the confessions. The case‑law relied upon by Mr. A.Q. Halepota, Advocate is relevant and applicable to the facts of the present case. Whereas the contention of the learned Assistant Advocate‑General that ocular evidence so furnished is reliable and trustworthy is not convincing and that arrest is supported by recovery and that even if recovery is discorded ocular evidence is enough to sustain the conviction, is also not getting support as discussed above. According to the complainant accused were arrested on 1‑9‑1990 whereas according to the police papers and Nandlal I.O. accused were arrested on 4 9‑1994 and the recoveries so effected were in presence of Ali Ghulam and Abdul Ghani who are closely related to the complainant Muhammad Ilyas. The contention of learned Additional Advocate?-General that medical evidence is in conformity with the ocular evidence is not sustainable inasmuch as medical evidence is only to show the injuries sustained by the deceased or the weapon with which the same were caused but injuries cannot speak about the identity of the assailants. Learned A.A.‑G. has referred 1991 PCr.LJ 419 (Aziz Masih alias Kuddi v. The State). The facts of this case are that occurrence took place in playground situated in Ward No.10, Kahror Pacca Town and F.I.R. was recorded on statement of Muhammad Ramzan maternal uncle of the deceased. According to the prosecution case at the eventful time Muhammad Abbas deceased, Muhammad Nawaz P.W.7, Muhammad Rafiq P.W.8 were present in Hockey ground when Aziz Masih alias Kuddi appellant armed with Chhuri, Kala, acquitted accused armed with Chhuri, Heera accused armed with Chhuri and Babu accused empty‑handed came there and raised Lalkara that they will teach lesson to Muhammad Abbas deceased for insulting Aziz Masih alias Kuddi. Babu accused caught hold of the deceased. Aziz alias Kuddi appellant inflicted Chhuri blow on the chest of Muhammad Abbas who fell down on the ground. Kala, acquitted accused gave Chhuri blow on the chest of Muhammad Nawaz P.W. Heera accused also gave Chhuri blow on the chest and index finger of the left hand of Muhammad Nawaz P.W. Muhammad Rafiq P.W.8 tried to intervene but Babu accused gave a brickbat blow on his face. The alarm raised by the P.Ws attracted Muhammad Ramzan P.W.9, Fayyaz and Rasool Bakhsh (both not produced) to the spot. The accused decamped carrying their weapons with them. Muhammad Nawaz P.W. received three incised wounds, whereas Muhammad Rafiq P.W.8 sustained one lacerated wound, two witnesses received injuries during the incident whereas in this case unfortunately none has received the injuries and their presence at the spot is not convincing and plausible. Therefore this authority in my humble view is not applicable to the facts of the present case. In the case of Riaz Ahmad and 8 others v. The State 1991 PCr.LJ

980. In this case occurrence took place in Street No.3, Mohalla Eidgah, Jaranwala Town, District Faisalabad, at about 4‑15 p.m. wherein Abdul Rahman aged 60 years was killed and Jamil and Mehenga P.Ws. were injured. Khalil‑ur-?Rehman, complainant nephew of Abdul Rahman reported the incident through statement to S.‑I. Muhammad Salim at Tenkiwala Chowk, Jaranwala at the same day at 4‑45 p.m. on the basis of which formal F.I.R. was subsequently drawn at Police Station Jaranwala by H.C. Abdul Ghafoor P.W.5. In my humble view this authority is also not relevant to the facts of the present case, incident has taken place in Jaranwala Town wherein apart from deceased Abdul Rahman, Jamil and Mehenga P.Ws. were injured, whereas in this case in my humble opinion none is injured except unfortunate Asghar Ali who was killed. In the case of Muhammad Ali v. The State 1985 SCMR 203 the observations of the Hon'ble Supreme. Court is as follows: "The evidence on record leaves no manner of doubt that the occurrence had taken place in the Kotha of the deceased and as such the presence of at least Mst. Zubeda, wife of the deceased, is not open to doubt. She could identify the culprits who were known persons. She had come out of the Kotha when the injuries were inflicted on the deceased and thus could see the assailants from a close distance. It is true that she had received no burns but she had explained that she had wrapped cloth around her and her children." This authority has no relevancy to the facts of the instant case. The upshot of the above discussion is that case against the accused/appellants is not free from reasonable doubt. Consequently the appeal of the appellant is accepted and reference of the learned Sessions Judge for confirmation of death sentence is rejected after hearing the learned counsel for the parties by a short order appeal was allowed and reasons were to follow. Unfortunately in this matter judgment was to be dictated by my learned brother Muhammad Aslam Arain, J, as he then was but due to his retirement the reasons were not recorded and the State preferred an appeal before the Hon'ble Supreme Court and the matter has been received for giving reasons in the light of decision in a case Ghulam Hussain v. The State PLD 1981 Kar. 711 and these are the reasons for the same. N.H.Q./M‑132/K??????????????????????????????????????????????????????????????????? Appeal accepted.