P L D 1980 Karachi 22 (PLP)

Z. A. CHANNA, J.-The Appellant was tried along with one Qurban by a learned Additional Sessions Judge, Khairpur, on the charge of committing murder of Allah Wasayo, and while Qurban was acquitted, the learned Sessions Judge, by his judgment delivered on 11-8-1975, convicted the appellant of an offence under section 302, P. P. C. and sentenced him to imprisonment for life.

2. Shortly stated, the prosecution case is that on 8-9-1973, deceased Allah Wasayo went to visit the shrine of Ubhan Shah, in Taluka Kotdiji, District Khairpur. As he failed to return even by night time, his father, Gul Muhammad, went out in search for him alongwith Panjal Kandbiro and Allah Obhayo Kandhiro. It is alleged that at about 6-30 a. m. when the search party reached near jungle of Ubhan Shah,- they heard cries of "Murder! Murder!" whereupon they ran id the direction from where the: cries were coming are said to have seen the appellant inflicting hatchet blows upon the deceased. The appellant, on seeing the search party coming to rescue the deceased, ran away towards his house. In consequence of the injuries sustained by him, Allah Wasayo fell down and died on the spot. The motive for the fatal assault on the deceased is stated to be the fact that the appellant suspected the deceased to be maintaining illicit relations with the daughter of his father's sister and consequently had been repeatedly threatening him. Leaving Panjal and Allah Obhayo with the dead body, Gul Muhammad proceeded to Kotdiji Police Station, which is 4 miles away from the scene of offence, and lodged his first information report the same day at 10-15 a. m.

3. The case was investigated by A. S. I. Anwer Beg. He proceeded to the scene of offence from where he secured bloodstained earth, one pair of sponge chappals and one lathi. The A. S. 1. also found some footprints at the scene of offence which were shown by him to the police tracker. Apparently Panjal and Allah Obhayo were not present at the scene ef offence, hence their statements were recorded by the A. S. 1. on 11-9-1973. On the same day, at 16-30 hours, the appellant was arrested from the garden of Kakeem Ali Shah near Ubhan Shah. He is said to have led the police and mashirs Karim Bux and Wadero Wabid Bux, to some bushes, some 200 paces from his house, and produced one blood-stained hatchet, one blood-stained shirt, one blood-stained loin cloth and a pair of tyre chappals. The co-accused Qurban was also arrested. On completion of the enquiries, the police challaned both the appellant and co accused Qucban.

4. The appellant has stoutly denied the prosecution allegations and has stated that he has been falsely implicated. His explanation for being involved in this case is as follows: "My father died in my childhood and had left considerable landed property which was taken over by Karim Bux and "my mother was got married to Rabab, a cousin of P. W. Karim Bux. After I had grown up I demanded from P. W. Karim Bux the return of the property of my deceased father and also asked him to render accounts for the last so many years during which he had been in possession of the same. On this he got annoyed and become inimical to me and falsely implicated me in this case with the help of other relations and the police. I am innocent. I pray for mercy."

5. We have no doubt that deceased Allah Wasayo was murdered by being"given two hatchet blows in the jungle of Ubhan Shah, where his dead body was found by the police. During the post-mortem examination, which was conducted by Dr. Muhammad Ali Shah, Medical Officer, Kotdiji, following external injuries were found on the body: (1) Multiple incised wounds irregular 7' x 1 /2 x 3" x brain matter out n the head left side fracturing frontal bone, parietal bone, occipital bone and left mestoid bone extending to the neck posteriorly. (2) An incised wound 2" x 1/2" x fracturing left ulna on the left forearm middle 1/3rd posteriorly.

6. The doctor has opined that the above injuries were caused by a sharp cutting weapon such as a hatchet and that external injury No. 1 was individually sufficient to cause death. He has further stated that the stomach of the deceased was empty, but the large intestines contained gas and faeces. He has also stated that the time that elapsed between injuries and death may be about 1 to 2 minutes and between death and post-mortem about 10 hours. This latter time is important as according to the doctor he had started the post-mortem examination at 2-SO p. m. while according to the F.

1. R. the fatal assault on the deceased was committed at 6-30 a. m., i. e. some 8 hours earlier. Thus the time of death as given by the medical officer appears not to tally with the time of death as given in the F. I. R. and by the witnesses. The fact that the large intestines of the deceased were found full of faeces at the time of the post-mortem examination shows that he had not ceased himself and this would appear to us to be a further factor indicating that the murder was committed much earlier, perhaps sometime in the night.

7. The direct evidence in the case has been furnished by first informant Gul Muhammad Panjal and Allah Obhayo, who claim to have actually seen the fatal assault on the deceased. We have carefully examined their evidence but we are not impressed with their veracity and are of opinion that apparently they came upon the dead body subsequently or were informed in respect of it by some other persons. We have already referred to the fact that the time of death as given by the medical officer is about two hours earlier than what is stated by the eye-witnesses. We are conscious of the fact that the time of death based on post-mortem examination can only be approximate but this is not the sole circumstance which impels us to the conclusion that this was an unwitnessed crime. The prosecution case is that the deceased bad not returned from the shrine of Ubban Shah for the whole night of 8th September, 1973. While it would be natural for his relations to be anxious at his non-return and consequently to have organised a search for him it is too much of a co-incidence to expect that the search party would turn up at the place of murder at the exact time when it was about to be committed. It looks as if some supernatural force was trying to hold the hands of the culprits until the witnesses came in sight. The role of supernatural forces in murder matters is not lightly to be assumed in this mundane world.

8. The other circumstances which make us to doubt the testimony of the eye-witnesses are in that the three eye-witnesses are admittedly closely interrelated and also related to the deceased. First informant Gul Muhammad is the father of the deceased. He has admitted that P. W. Allah Obhayo is his maternal-uncle. He was rather reluctant to admit his relationship with P. W. Panjal, but he had finally to admit that his wife, the wife of Allah Obbayo and Panjal's wife are real sisters. Not only the alleged ocular witnesses are closely inter-related, but there is admitted hostility between them and the appellant. P. W. Karim Bux, who is mashir of the alleged recovery of the incriminating articles at the pointation of the appellant, and is admittedly a relation of the first informant, has admitted that there is enmity between him and the appellant on account of property dispute. This admission of his thus supports the contention of the appellant that because be demanded the restoration of his ancestral property hence he has been falsely involved in this case.

9. The first informant Gul Muhammad has admitted that any persons from adjoining areas had come to the place of the incident on the cries of his son. He has also admitted that there is an American Camp near the vardar and 7 to 8 tents have been set up there. It is significant that none of these persons were examined nor their statements were recorded by the Police but only chance and interested witnesses have been examined. First informant Gul Muhammad has further admitted that neither Panjal nor Allah Obhayo bad accompanied him from the village in search of the deceased, though they are all residing in the same village and are neighbours. He has admitted that P. W. Panjal met him near the abrine of Ubhan Shah while P. W. Allah Obhayo met him on the way. This double chance meeting seems to us rather unnatural and too coincidental to be believed.

10. Another strong reason which clearly indicates that little reliance can be placed on the testimony of the eye-witnesses is the fact that they have falsely implicated Qurban whose name does not even transpire in the F. I. R. They have gone to the extent of saying that be had given blows with an iron-plated lathi to the deceased. They are falsified by the medical evidence which shows that only two blows were given to the deceased and that both of them were with a hatchet.

11. As far as the footprint test is concerned, such evidence is of little significance. In the first place the footprints at the vardat were admittedly shod. Furthermore, the tracker was a policeman. In the circumstances,' the learned Additional Sessions Judge rightly discarded this evidence.

12. The only other piece of evidence in the case is the alleged recovery of blood-stained hatchet and clothes at the pointation of the appellant. We have already shown that mashir Karim Bux, who has been examined to establish the recoveries, is not only not an independent witness, being related to the first informant, but is hostile to the appellant having long standing enmity with the appellant on account of property disputes. Furthermore, it is not established that the incriminating articles were either in the exclusive possession of the appellant or that the appellant had the sole knowledge of their place of concealment. Mashir Karim Bux has admitted that one police constable was standing near the lushes and pointing out the articles lying therein. If this was so, and we have no reason to doubt? what the witness has stated on this point, it means that the recovery was? engineered. We are rather surprised that the learned Additional Sessions Judge has thought it fit? to discard the admissions made by the mashir in favour of the appellant and only relied upon those pieces of evidence which incriminated the appellant without taking into consideration the whole picture. We regret to note that by doing so he has failed to correctly appraise the evidence according to the standards applicable to criminal trials. The fact that mashir Karim Bux is a relation of the complainant is admitted both by the mashir himself and the complainant. This strong circumstance together with the admitted position that mashir Karim Bux was living at some distance from the scene of offence should have put the learned Additional Sessions Judge on guard against accepting the evidence regarding recoveries, without there being satisfactory and reliable evidence in support thereof. No doubt, there was another mashir, by name Wadero Wahid Bux, but he was examined by the prosecution for reasons which are not apparent on the record. Possibly he did not want to give evidence or to support the prosecution. It may, however, be mentioned that very likely he too was a relation of the complainant, for the latter has admitted in his cross-examination, that P. W. Wahid Bux is his maternal uncle. Apparently, P. W. Wahid Bux, to whom the complainant was referring, and Mashir Wadero Wahid Bux are one and the same person, since there was no other P. W. Wahid Bux in the case.

13. We have found it extremely difficult to believe that the appellant . if had been seen in the act of inflicting fatal injuries to the deceased, would have preserved intact the clothes worn by him after he had taken them off. Since the appellant was not caught on the apot, it would have been easy for him to destroy the incriminating articles.

14. For the reasons stated by us above we consider that the prosecution have failed to establish their case against the appellant. We accordingly t accept his appeal, set aside his conviction and sentence and direct that the appellant should be set at liberty forthwith unless he is required in any other case. Before closing this judgment we would like to point out that it appears that the first informant Gul Muhammad has given false evidence and has falsely implicated Qurban. Let notice issue to him to show cause why he should not be prosecuted for giving false evidence. S. G, D.???? Appeal allowed.