1976 P Cr (PLP)

ABDUL HAYEE KURESHI, J.‑‑On the conclusion of the hearing of this case we had by a short order allowed this appeal, acquitted the appellants and declined to confirm the sentence of death imposed on the appellants. I now proceed to record my reasons for the same.

2. The 3 appellants Abdul Ghafoor, his brother Soonharo and maternal uncle Hussain Bux were tried on a charge under section 302/34, P. P. C. by the Second Additional Sessions Judge, Sukkur, and on being found guilty were by a judgment dated 22‑6‑1974 sentenced to death, subject to confirmation by this Court. The appellants filed an appeal through Mr. Nooruddin Jatoi who appeared for them and the State was represented before us by Mr. Murtaza Hussain. The Additional Sessions Judge has also submitted the case for confirmation of the sentence of the death, so that the confirmation reference and the appeal have been heard together.

3. The brief facts of the case are that on 23‑I0‑1970 at about 3‑30 p.m. deceased Murid and complainant Jummo were near the well of one Kishnomal in Deh Kotlo, Taluka Mirpur Mathelo, and at that time witnesses Jafar and Sujjawal were irrigating their land. Hussain Bux and Soonharo appellants armed with hatchets and Abdul Ghafoor appellant who was unarmed reached the place and appellant Abdul Ghafoor grappled with deceased Murid while appellants Soonhdro and Hussain Bux caused 10 hatchet injuries to deceased Murid resulting in his instantaneous death. Deceased Murid is stated to have bitten appellant Abdul Ghafoor during the grappling at the time of incident. Complainant Jummo left witnesses Jafar and Sujjawal at the wardat and proceeded to Mirpur Mathelo Police Station where he lodged the report at 8 p.m. and the same was recorded by A. S. I. Shahnawaz. The police officer reached the scene the same night and inspected the scene. The dead body of deceased Murid was sent for post‑mortem examination to Dr. Abdul Rashid at Mirpur Mathelo. Of the 3 appellants Abdul Ghafoor anti Soonharo were arrested in the village either on the same evening or on the following day and at that time Abdul Ghafoor was wearing a blood-stained shirt and loin cloth while soonharo was wearing a blood‑stained shirt. These incriminating articles were recovered in the presence of two mashirs, one of whom is P. W. Gamman. The articles were later sent to the Chemical Analyser who has given a report that the same were stained with human blood. Soonharo had also produced a hatchet from his house and the same found by the Chemical Analyser to be stained with human blood. Appellant Hussain flux appeared at Mirpur Mathelo Police Station on 31‑10‑1972 and was arrested and a blood‑stained hatchet was produced by him. Such hatchet was however not sent to the Chemical Analyser. Appellant Abdul Ghafoor was also produced before Dr. Abdul lab for examination of the injuries as a result of biting by deceased Murid and he was found to have one biting mark on each one of his arms and one contusion on the tip of the left thumb. Abdul Ghafoor, a Tapedar had also visited the scene of occurrence on 24‑1‑1973 and prepared a sketch of the scene of occurrence. On the completion of investigation the three appellants were sent up for trial which has resulted ire the conviction and sentence as aforesaid.

4. Each one of the three appellants had denied the entire prosecution case but led no evidence in defence. They alleged enmity against the pro secution witnesses. Appellant Soonharo had stated that appellants had denied the entire prosecution case but led no evidence in defence. They alleged enmity against the prosecution witnesses. Appellant Soonharo bad stated that appellant Hussain Bux was a witness in a case of dacoity against Ghulam Qadir, a brother of P. W. Jaffer and the said Ghulam Qadir was convicted to that case. Appellant Abdul Ghafoor explained the injury on his person by stating that he received the same while cutting fodder on the day preceding the murder.

5. On such state of facts the evidence against the appellants is mainly ocular testimony of complainant Jummo and witnesses Jaffer and Sujjawal. The prosecution also seeks to corroborate their testimony by recovery of blood‑stained shirt and loin cloth from Abdul Ghafoor and blood‑stained hatchet and shirt from Soonharo. The recovery of hatchet from appellant Hussain Bux is not of much value in this case as the same was not sent to the Chemical Analyser.

6. I proceed to consider the evidence of the three eye‑witnesses in the first instance. In that context I may initially mention that the learned State counsel has pointed out that there was no enmity of witnesses against the appellants and therefore their evidence should be accepted. In such context appellant Hussain Bux had stated that he had appeared as a witness against Ghulam Qadir, the brother P. W. Jummo in a case of dacoity, but the learned Sessions Judge had disbelieved such allegation on the premises that such allegation could be proved by documentary evidence, but the same bad not been produced. It may therefore seem that witnesses Jailer and Sujawal bear no enmity against the appellants. However, I am of the view that in all criminal cases the mere absence of enmity does not add to the value of the prosecution evidence though the existence of enmity may reduce such value. The real test in criminal cases is examination of the prosecution minutely in order to arrive at the conclusions to regard to credibility and intrinsic value of the evidence of witnesses and then consider the question of enmity as a matter of caution. But, if the evidence of the witnesses is otherwise incredible the question of lack of enmity is hardly of any consequence.

7. In this case, the version of the prosecution is that appellant Abdul Ghafoor was unarmed whereas Hussain Bux and Soonharo were armed with hatchets. Curiously Abdul Ghafoor who was Unarmed is said to have started grappling with deceased Murid who had a spade with trim. What is more surprising, is that the evidence discloses the causing of hatchet injuries by Hussain Bux and Soonharo, while the grappling was in progress. In that context complainant Jummo stated that appellant Abdul Ghafoor left Murid i.e. stopped grapling, after the remaining two appellants had stopped inflicting hatchet blows and it is added that deceased Murid fell on the ground there after. In the same words is the evidence of P. W. Jaffer but with a slight variation and it would be of benefit to reproduce the actual words from his deposition which read as follows :‑‑ "As soon as Ghafoor grappled with Murid the other two accused gave hatchet blows to him. Deceased had over‑powered Ghafoor and had fallen down on the ground. Murid was over Ghafoor when the accused continued inflicting blows by hatchets." Sujjawal again gave a different version by stating that while deceased Murid and appellant Ghafoor were grappling, Murid bit Abdul Ghafoor on which the latter cried and called the other two appellants to inflict more hatchet blows to Murid. This witness had not stated in the committal court that Murid had bitten Abdul Ghafoor. His evidence is again conflicting with the evidence of complainant Jummo and he has stated that appellants Hussain Bux and Soonharo caused hatchet blows to deceased lurid after the latter had fallen down. It would thus seem that in regard to the evidence leading to the death of Murid the 3 witnesses have given divergent versions. Apart from this divergence it appears highly improbable that Abdul Ghafoor appellant who had a grudge against deceased Murid would come empty‑handed alongwith the remaining appellants who were armed with hatchets and start grappling with deceased. What is more surprising is that while the grappling should have been going on between Abdul Ghafoor and Murid, the remaining two appellants namely Hussain Bux and Soonharo should have caused hatchet injuries because thereby there was a grave likelihood of an injury being caused to Abdul Ghafoor himself. The medical evidence discloses that no less than 10 hatchet injuries were caused to deceased Murid and these injuries are on various parts of the body ; some on the neck, some on loin and some on the shoulders. The dimensions of these injuries are also substantial and at least live out of these ten injuries bear a length exceeding three inches. It would in such circumstances be most improbable for Hussain Bux and Soonharo causing hatchet injuries while their companion Abdul Ghafoor was grappling with Murid. Additionally, the evidence of Dr. Abdul Rab shows that all the injuries on the person of the deceased could be caused while he was in "lying position." On statement of medical evidence a grave doubt is cast on the ocular testimony and in my view this circumstance alone robs the prosecu tion evidence of the major part of its credibility. I may also advert to another aspect of the case that the mashir or Investigating Officer have not stated that they saw any marks of grappling alt the scene of occurrence.

8. I have also entertained grave doubts in regard to the presence of the witnesses at the time of the death of Murid. Complainant Jummo as well as witnesses Jaffer and Sujjawal state that at the time of the incident each one of theta was carrying a spade. If three spades were available I would expect some resistance being offered by the deceased or the witnesses to the assault made by appellants or at least at the time of initial grappling by Abdul Ghafoor ; which according to the prosecution case preceded the causing of hatchet injuries. What is more surprising is that the village where the parties lived is very near and persons of 10 or 15 different castes live in that village, but according to the prosecution witnesses none came at the time of incident. Jummo complainant has gone on to state that several persons had come at the scene only when police arrived, which would show that for about 4 or 5 hours after the murder no person even came to the scone. Witness Sujjawal has again stated as has been stated by complainant Jummo that cries had been raised by them at the time of incident, but none came there ; and it was only after an hour of the departure of Jummo for lodging the report that some people came to the scene. According to the evidence of Tapedar Abdul Ghafoor the houses of the parties were at a distance of about 475 feet from the scene and the same witness has also stated that there are about 150 houses in the village and the lands around the scene were under cultivation. It, therefore, seems to me that no cries were raised by any one at the time Murid met his death, and the circumstance would clearly point to an inference that the witnesses were not available at the time of incident. In such context I may also briefly refer to the post‑mortem notes which have been produced and proved by Dr. Abdul Rab. Such report shows that the stomach of the deceased was empty. Such state of digestion is clearly indicative of the fact that deceased Murid did not meet his death at 3‑30 p.m. as is stated by the witnesses but probably in the very early hours of the morning. If he dad died at 3‑30 p.m. in all probability he must have taken his lunch, the normal time for such meal being 1 or 2 p.m. in the month of October. There is still a further reason that persuades me to doubt the time of incident as given by the prosecution in this case. The explanation for the presence of Sujjawal and Jaffer at the scene is that they had to obtain their turn of water from deceased and Jummo. The deceased and Juaimo were partners in cultivation of wheat. According to the first information report witnesses Jaffer and Sujjawal got their turn of water after Fajar prayer time. If that was so there was hardly any interest for complainant and deceased Murid to remain present on the land if they had handed over the turn of water to Jaffer and Sujjawal. This circumstance also reduces the credibility of the evidence of these witnesses.

9. It has also been urged by Mr. Nooruddin Jatoi that the first informa tion report in this case was belated and in such regard the following facts have to be keep into consideration. I will for the sake of argument assume that the incident took place at 3‑30 p.m. There is a police out‑post by name Dad Leghari at a distance of two miles, but according to the Investigating Officer Shahnawaz, the complainant had not gorse to the police out‑post, and instead had come directly to Mirpur Mathelo Police Station at a distance of 13 miles. Complainant Jummo was cross‑examined on that point and be stated that he had gone to Dad Leghari police out‑post where a Constable was present who gave him a letter addressed to Mirpur Mathelo Police after obtaining all the facts of the case and the names of the accused persons. Complainant Jummo did not name that police constable and the Investiga ting Officer has clearly stated that the complainant had not brought any letter from Ada Leghari out‑post but had directly come to the police station. This would show an anxiety on the part of the complainant to explain the delay in lodging the first information report. The complainant has also not stated as to what conveyance he had obtained for reaching Mirpur Mathelo, but it can be safely presumed that be must have gone to the police station in some conveyance and in such case a delay of 4 hours in reaching the police station is per se suspicious. In this context I may also refer to very strange conduct on the part of the complainant. He has stated that after the murder of deceased Murid he did not even go to the village to inform the father and the mother of the deceased in regard to the incident. This is indeed surprising and there is no explanation for such conduct. It would appear that the complainant has distorted the version in regard to tire time of the incident. Coupled with the fact that in spite of cries no one could have come from the village, the circumstances indicate that this was an unwitnessed crime.

10. I may also advert to the point of motive in the present case. According to the complainant Jummo be had no knowledge in regard to any dispute between the parties until the day of incident. However, he had stated that the appellant had demanded the hand of the daughter of one Gullan, the uncle of the deceased for marriage to his brother, appellant Soonharo ; and he had offered money for the hand of the girl but such offer was refused and deceased Murid had refused to give the girl in marriage to appellant Soonharo. Better evidence on the point of motive could have been available to the prosecution by examination of the father and the mother of the deceased who must have known about such matrimonial dis pute. However, even this motive as is alleged is not at all convincing because deceased Murid was closely related to appellant Abdul Ghafoor as the appellant was married to the niece of deceased Murid who had again got a niece of appellant Abdul Ghafoor in exchange for such marriage. On such premises it would appear very doubtful that in spite of existence of relationship between appellant Abdul Ghafoor and deceased Murid, and in spite of appellant offering money to deceased Murid for the hand of the daughter of Gullan, the deceased should have refused such offer. The motive apart from being week is absolutely unconvincing.

11. Having dealt with the occular testimony I proceed to consider the circumstantial evidence in regard to recoveries. The prosecution case in relation to the recoveries is also not above suspicion. Mashir Gamman while under examination had deposed that appellant Soonharo produced a blood stained hatchet and then the Public Prosecutor incharge of the case in an attempt to elicit evidence in regard to blood‑stained clothes asked the mashie if anything else had been recovered from appellants Abdul Ghafoor and Soonharo to which the mashie replied that nothing had been recovered. Thereafter, the contents of the mashirnama were read over to the witness who was asked if the same bore his signature and it was then that mashir Gamman stated that the blood‑stained shirt of Soonharo and blood‑stained shirt and loin‑cloth of Abdul Ghafoor were secured by the police. In cross‑examination, in relation to time of arrest of appellants Abdul Ghafoor and Soonharo, mashir Gamman stated as follows :‑‑‑ "Police had brought them at about 3 p.m. I do not remember to have stated before the L. C. that accused Abdul Ghafoor and Sunharo were arrested on the same day at night time. (Confronted stated so). I do not remember to have stated before L. C. that 'accused were sitting alongwith police in my but when I was called from my house'. (Confronted stated so), Police had taken me to the house of accused on the night of the incident." The above passage in cross‑examination would indicate that the mashir Gamman had staled in the lower. Court that appellants Abdul Ghafoor and Soonharo were arrested can the same day at night time. In the next breath same witness stated that he did not remember leaving stated before the Magistrate that the appellants Abdul Ghafoor and Soonharo were sitting alongwith the police in his but when he was called from his house. In the immediately next sentence he still gave a third version by stating that the police had taken him to the house of the appellants on the night of the incident. In such context Investigating Officer Shahnawaz had stated that he had reached the scene at 11 p.m. on 23‑11‑1970 and he went on to state that he arrested appellants Abdul Ghafoor and Soonharo at 8‑30 p.m. without specifying the date but as the Police Officer had reached the scene at 11 p.m. on 23‑10‑1970, this evidence would indicate that he had arrested appellants Abdul Ghafoor and Soonharo on 24‑10‑1970. However, the mashirnama of arrest which also speaks about the seizure of blood‑stained clothes bears the time at 3 p.m. on 24‑10‑1970. Now, if the evidence of Gamman is taken into consideration it would appear that appellants Abdul Ghafoor and Soonharo had been arrested on the night of the incident and that being so there was hardly any justification for delay in securing of the blood‑stained clothes which were on their person. On the other hand, if Investigating Officer Shahnawaz is to be believed there is hardly any justification for the delay in the arrest of the appellants who were in the village. The time of arrest as given by mashir Soonharo, the mashirnama of arrest, and the Investigating Officer Shahnawaz is discrepant in the extreme, and causes serious doubt on the prosecution story. With regard to the recovery of hatchet from the house of appellant Soonharo the position is hardly any the better. Because, if the appellants had been arrested at 8‑30 p.m. on 24‑10‑1970 as stated by Shahnawaz, the hatchet could not have been recovered at 3‑30 p.m. as is stated in the mashir nama. Mashir Gamman has not given any time in regard to the seizure of hatchet. The evidence in regard to the recovery of incriminating articles is therefore not above suspicion and is not reliable. In fact, this evidence indicates padding on the part of the prosecution.

12. As a result, I am of the opinion that the evidence of the three eye-witnesses is unreliable and their very presence at the time of the occurrence is open to serious doubt. According to me this was an unwitnessed crime. I am also of the view that the evidence in regard to the incriminating recoveries is absolutely conflicting and unreliable showing attempt at padding on the part of the prosecution. The evidence with regard to motive is, besides being weak not convincing or reliable. In the result, the case against the appellants is not proved and I set aside their conviction and the con sequent sentence and acquit them. The reference for confirmation of death sentence is rejected. The appellants shall be released forthwith if not requir ed in any other case. Appeal allowed.