1992 P Cr (PLP)

4. The appellants did not step into the witness-box in disproof of the charge. They, however, examined H. Muhammad Akil (D.W.1), Muhammad Jafar (D.W.2), and Allah Bux (D.W.3) in their defence.

5. On the assessment of evidence available on record the learned Additional Sessions Judge found the appellants guilty and convicted them accordingly. It is in these circumstances that the present appeal has been filed.

6. I have heard Mr. A.Q. Halepota, learned counsel for the appellants, Mr. A.H. Lakho, learned counsel for complainant Mubarik Ali, and Mr. M. Hayat Qureshi, learned counsel for the State, who has not supported the case of the prosecution.

7. The fact that deceased Palyo Khan died an unnatural death is not in dispute. Besides the evidence of Mubarik Ali (P.W.1), Nihal (P.W.2), Lai Khan (P.W.3), and Abdul Ghafoor (P.W.4), which I will discuss at the proper time, there is evidence of Dr. Muhammad Saleh Almani (P.W.8) to prove that deceased Palyo Khan died due to injuries sustained by some sharp-cutting weapon like hatchet. Like all other material prosecution witnesses Dr. Muhammad Saleh (P.W.8) is also Almani by caste and is closely connected with complainant Mubarik Ali. There is however, convincing evidence on record to prove that deceased Palyo Khan had died after sustaining hatchet injury/injuries. 7-A. The case of the prosecution against the appellants hinges upon the following items of evidence:-- (i) Direct testimony consisting of Mubarik Ali (P.W.1), Nihal Khan (P.W.2) Lal Khan (P.W.3) and Abdul Ghafoor (P.W.4). (ii) Recoveries of blood-stained hatchet and clothes at the instance of appellant Manzoor Ali and blood-stained hatchet at the instance of appellant Shamsuddin. (iii) Motive.

8. Complainant Mubarik Ali (P.W.1) is brother of deceased Palyo Khan. He resided with Palyo Khan in the same house and his presence at the place of Wardat on the relevant date and time cannot be said to be by chance. Likewise Nihal (P.W.2), Lai Khan (P.W.3) and Abdul Ghafoor (P.W.4) resided in the same village where deceased Palyo Khan resided. Their presence at the place of incident at the relevant time, therefore, cannot be doubted. In evaluating the evidence of these witnesses the important consideration is, (i) whether they had any reason to depose falsely against the accused persons, and (ii) whether there is anything inherently improbable or unreliable in their evidence. The learned Additional Sessions Judge examined the evidence of all these four witnesses in relation to accused Nizamuddin and Rajib (since acquitted) and finally came to the following conclusion:-- "... while the participation of other two accused, namely, Rajib and Nizamuddin appears to be doubtful in view of the circumstances of the case, and the evidence of P.Ws. is discarded to their extent. Obviously, it is general practice that due to high degree of animosity all the able bodied members of family are roped in the criminal cases alongwith real culprits in order to face the clutches of law and tardy Court proceedings."

9. While summing up the discussion in para. 22 of the impugned judgment the learned Additional Sessions Judge has observed in clear terms about the false implication of accused Nizamuddin and Rajib in the following words:- "In view of my findings on points Nos.1 to 3, I have formed definite opinion on the basis of evidence on record that there is room for false implication of accused Rajib and Nizamuddin and they are entitled to benefit of doubt as a matter of right and accordingly they are acquitted of the charges under section 265-H(1), Cr.P.C. ... "

10. The evidence which has come on record makes it clear that there was previous hostility between the parties and complainant Mubarik Ali had the support of one Sher Muhammad Almani, a retired Secretary to Government of Sindh, Irrigation Department and his son Muhammad Alam Almani, a Superintending Engineer, Irrigation Department, Government of Sindh, who besides being senior, Government officials are big Zamindars of the locality and were interested to purchase the lands of the appellants. Allah Bux (D.W.3) who is also a Zamindar of the locality, has testified about the dispute between the parties. His evidence shows that Muhammad Alam Almani has raised construction of a bungalow on the lands abandoned by the appellants and their brothers after this case.

11. Bearing in mind the above admitted position and the fact that the prosecution story was disbelieved by the learned Additional Sessions Judge in respect of two out of four accused persons, it is now to be seen whether the above four witnesses can be believed against the appellants when obviously the case of the prosecution is found to be manufactured one in respect of two accused persons. Where the falsehood is merely an embroidery to a story, that would not be enough to discredit the whole of the evidence of such witnesses, but if the witnesses are found to have perjured themselves against two persons on a charge inviting capital punishment, it will be highly risky to base conviction on such testimony alone. The salutary principles, therefore, on which the Court should work are the one which are laid down by the Supreme Court in the case of Ilahi Bux v. The State reported in 1982 S C M R 57, as follows:- "No doubt it is open to the Court to sift grain from the chaff. But before relying only on certain portions of the statements of the prosecution witnesses who have deliberately perjured themselves with regard to another portion of the prosecution story, the Court must of necessity seek unimpeachable and wholly independent evidence to corroborate the portion of their statements on which it wishes to rely,"

12. The prosecution has sought corroboration of the testimony of Mubarik Ali (P.W.1), Nihal (P.W.2), Lal Khan (P.W.3) and Abdul Ghafoor (P.W.4), against the appellants from the evidence of motive and recoveries of blood-stained hatchets and clothes from their possession. The evidence of motive has come on record from the mouth of same witnesses whose evidence needed corroboration and whose testimony is tinged with hatred against the appellants. No reliance can, therefore, be placed upon such evidence, as it is a settled principle of law that one tainted piece of evidence cannot corroborate the other tainted piece of evidence.

13. The prosecution has examined Yar Muhammad (P.W.6) who has acted as one of the Mashirs of these recoveries and Nisar Ahmad A.S.I, (P.W.9) who is alleged to have made these recoveries. Yar Muhammad (P.W.9) was working as Oversear in Irrigation Department and was posted at Jamshoro during the days when this incident took place. His evidence shows that the house from where the alleged recoveries were made was jointly occupied by all the four accused. It will not be out of place to mention here that Alam Khan Almani, a supporter of complainant Mubarik Ali is the Superintending Engineer in the Irrigation Department in which department this witness works. He is, therefore, not an independent person.

14. In the case of Bajoo and 2 others v. The State reported in P L D 1974 Kar. 199, a Division Bench of this Court discarded the evidence of such recoveries in the following -words:-- "This is one more factor which has led me to the conclusion that it would be unsafe to record a conviction in this case upon the oral evidence alone without corroboration. I have already dealt with the corroboration as to blood-stained clothes and, as to the hatchets, it suffices to say that they were found from the house of all the appellants who lived together and it is difficult therefore to attribute any of them to any one amongst the appellants. I have therefore, come to the conclusion that there is not sufficient reliable evidence in this case to justify the convictions and, although I am conscious that the case against one or more of the appellants might well be true, any possible miscarriage of justice is at least partly due, I think to the careless investigation conducted by the police."

15. The recoveries in the circumstances mentioned above were disbelieved in the cases of Lalan and 2 others v. The State reported in 1976 P Cr. L J 52, Rasool Bux and another v. The State reported in 1980 S C M R 225, Muhammad Naseem 'v. The State reported in 1981 P Cr. L J 1292, Muhammad Afzal v. The State reported in 1983 S C M R 1, and Allah Rakha v. The State reported in 1985 S C M R

453. It may be added that co-Mashir Rohail who is Siyal by caste was given up and instead Yar Muhammad (P.W.6) a highly interested witness was examined to prove the recoveries. No reliance can, therefore, be placed upon such evidence.

16. It is again an admitted position that the incident took place on 11-5-1983. It, therefore, does not appeal to reason as to why the appellants kept these articles intact with them for 11 days. In somewhat similar circumstances recoveries of incriminating articles were disbelieved in the case of Mujahid Hussain v. The State reported in 1985 S C M R 1573.

17. In view of the above discussion, I am satisfied that the case of the present appellants is at par with the case of co-accused Nizamuddin and Rajib (since acquitted. Both the appellants are also entitled to an acquittal. I would, therefore, allow the appeal, set aside the convictions and sentences of both the appellants. The appellants who are in custody be released forthwith, if not required in any other case. N.H.Q./1686/M-K Appeal allowed.