1976 P Cr (PLP)

JAMALUDDID H. AHMAD, J.‑At the conclusion of the hearing of this case we announced judgment setting aside the conviction and sentence imposed upon the appellant, both under section 302, P. P. C. and under section 13‑D, Arms Ordinance for which separate appeals had been filed, and we are now recording hereunder the reasons for that decision. The appellant had been sentenced to death for the murder of one Ghous Bux Brohi and Mst. Nihallan widow of Ali Jan Brohi, and was sentenced to two years' R. I for possessing the '29 bore SBBL gun which was alleged to have been used as the weapon of offence in committing the said murder. This matter was also before us for confirmation of the death sentence, which now stands disposed of.

2. The F. I. R. in this case was filed by Mir Khan, a nephew of deceased Ghous Bux, who was not an eye‑witness of the incident, but to whom the information was given by P. W. Mureed, maternal uncle of Ghous Bux, who had himself seen the occurrence, and had admittedly accompanied Mir Khan to the Police Station. As the prosecution story was subsequently materially altered from its original version, it would be worth while to describe the contents of the first report in some detail. The place of incident was at a distance of 6 miles from Ghari Khairo P. S, but P. W. Mureed covered 6 miles distance to inform Mir Khan in his village who again came to the surzamine before going to the Police Station and therefore the report of murder that had taken place at 10 a.m. on 27‑2‑73 was recorded after a lapse of 5 hours. According to the F. I. R., deceased Ghous Bux was plucking peas in his field when, at about 10 a.m. the appellant and one Dost Ali son of Bijar Brohi, both armed with guns came over to him. Dost Ali accused him of theft of his bullock and asked him to return the same, and as the deceased Ghous Bux denied this allegation there was exchange of hot words and both the appellant and Dost Ali fired four shots from their guns at deceased Ghous Bux who fell down raising cries. Both Dost Ali and the appellant then went to a distance of about three survey numbers from this spot where Mst. Nihalan wife of Ali Jan Brohi was plucking peas. They both murdered her also with their guns and then placed her dead body at a distance of two Jarebs from the dead body of Ghous Bux and went away saying that they had killed Ghous Bux and Met. Nihalan as they were Karo‑Kari. Karim Bux son of Saindad and Abdul Rehman son of Mitho both Brohis also came running to the place of incident, and Mureed narrated the incident to them. All the three then saw deceased Ghous Bux and found that he had received four gunshot injuries and had died. Mureed had left Abdul Rehman and Karim Bux by the side of the dead body and had gone to inform Mir Khan. On the wardat Mir Khan had seen the dead body of his uncle Ghous Bux and found 4 empty cartridges lying there, He did not mention about any talk with Karim Bux and Abdul Rehman, but stated that the Karo‑Kari blame against his uncle Ghous Bux and Mst. Nihalan was false and that in fact Bijar Brohi had a hand in the murder of his uncle Ghous Bux and had made a plan and got him killed. Thus according to this report Mureed was the only eye‑witness of the occurrence, who related the story to Karim Bux, Abdul Rehman and there after to Mir Khan. The motive of this crime was, a plan of one Bijar Brohi who bad a band in this and the main part was assigned to one Dost Ali while appellant was only his companion. The identity of Bijar Brohi was not established in the case but Dost Ali was described as the son of Bijar Brohi. It is also admitted that this Dost Ali was the brother of Mst. Nihalan, the deceased. The S. H. O. Haji Mohammad arrived at the surzamine and took up the investigation at about 4 p.m. and as the mashirnama of arrest shows, within 20 minutes thereof, the appellant was secured from his house which was situated near the wardar, and taken into custody. Even the mashirnama of the wardat was prepared subsequent to his arrest. Dost Ali whose name was also given in the F. I. R. was however not arrested and the reason given by the S. H. O. in his evidence was that no witness implicated him. However. the S H. O. secured two empty cartridges of '20 bore lying near the dead body of deceased Ghous Bux, and two more such cartridges lying near the dead body of deceased Nihalan, which he sealed on the spot in presence of mashir Mir Hazar and Dil Murad Khan. The two dead bodies reached the Civil Hospital. Jacobabad at midnight, and the post‑mortem was done in the morning on 25‑2‑

73. The Medical Officer suspected sexual intercourse to have been committed and he took urethral swab and slides were sent to the Chemical Analyser, Karachi for detection of semen. The Chemical Analyser's report in respect of these swabs and slides was not produced in evidence as it was not available. The medical officer further took out three pellets from the body of deceased Ghous Bux and 17 pellets from the body of deceased Mst. Nihalan which he sent to the Investigating Officer. The learned counsel for the appellant pointed out that after the arrest of the appellant Punah on 27th February 197.1, and sending the dead bodies over to the Medical Officer, there was apparently no further progress in the investigation by the S. H O. Haji Mohammad except that on 12th of March be got the state ments of witnesses Mureed and Karim Bux recorded under section 164, Cr. P. C. and immediately on the next day i.e. 13th March 1973, he went to Ghari Khairo lock‑up to interrogate the appellant, he who was taken to a place near Gul Shakh from where he led the police to some bushes nearby and produced the gun; a mashirnama of the securing of this gun was prepared, but was signed by Allah Dino son of Mitho Khan Constable No. 232 and Abdul Sattar son of Noor Mohammad H. C. No. 577 as mashirs thereof. This was a '20 bore SBBL gun and as the appellant had no licence for it nor did he claim to have any, a case under section 13‑E, Arms Ordinance was also registered against him by the S. H. O. According to the S. H. O. there was considerable delay in sending the gun to the ballistic expert as he had to procure the test empties of '2.0 bore cartridges which were not easily available, and he was able to get them after three months. The ballistic expert however received the parcels on 9th June 1973 from the S. P., Jacobabad containing four crime empties and five extra‑cartridges for test. The crime empties arid the test empties were of the same company and in his opinion the crime empties had been fired from the '20 bore SBBL sent to him by that Investigating Officer. On 14th March 1973. the S. H. O. also got the state ment of the remaining witness Abdul Rehman recorded under section 164, Cr. P. C. where-after he submitted the interim challan of the appellant in Court on l5th March 1973. At the trial the prosecution examined Mureed, Karim Bux and Abdul Rehman as witnesses of the incident. Mir Khan was the first informant and his evidence was intended to corroborate Mureed who had given him the infor mation about the murder. These witnesses are all admittedly closely related, to the deceased Ghous Bux, and the trial Court held that all these four witnesses were absolutely independent and uninterested, because the appellant had not been able to show any motive or enmity to justify any inference of false implication by them. This may be correct, but at least, as Abdul Rehman and Karim Bux were not shown as eye‑witnesses of the incident in the F. I. R., their evidence requires a more careful scrutiny, and even a little doubt about their presence at the spot at the relevant time would make their evidence untrustworthy irrespective of the fact whether any enmity shown by the appellant or not. In the first place complainant Mir Khan has nit described these two witnesses, as eye‑witnesses. According to him they had both come running to the spot when it is Mureed who had narrated to them what had occurred. In reply to a question by Court, he again stated, that Abdul Rehman and Karim Bum had told him that they were coming. from their houses, which are 30 Jarebs away from the scene when they had heard the gun shot reports and were attracted to the scene of offence. Abdul Rehman himself admitted that they had covered a distance of one survey number from their village when they heard the report of the gun shots. This witness had in the Committal Court given the distance of his village to‑, be one mile from the wardat, but in the trial Court he shortened it to one survey number; and although Abdul Rehman says that they saw Ghous Bum, lying dead and the appellant running away, his companion insists that they bad seen the appellant firing with his gun while it was Ghous Bux who was running away. What is more striking is that while Mureed, who admittedly was nearer the spot says that Mst. Nihalan was murdered after Ghous Bum had already been shot dead, these two witnesses have in unequivocal terms said that on reaching the spot they found Mst. Nihalan already dead and her body lying in the Karia. It is not their case that they saw the appellant firing at Mst. Nihalan who therefore must already be dead. Surprisingly, in cross‑examination Abdul Rehman admits about Mureed relating to them what transpired between the appellant and deceased Ghous Bux and also about the appellant firing at Ghous Bux. He admitted that Ghous Bux had fallen down before they had reached the wardat. Thus when Mureed claims to have witnessed the two murders, these two witnesses did not actually see the appellant firing at Mat. Nihalan or for that matter according to one, even Ghous Bux. Whether they saw the appellant running from the wardat is also rendered doubtful by their conflicting. statements. It appears they did come to the place of incident and were there after informed about what had happened by Mureed, who was there already. In this respect, Abdul Rehman seems to be more truthful when he says "Mureed had already arrived there and was standing near the dead body of Ghous Bux. Mureed told us that Punnah had killed Ghous Bux and ran away," and this is reconcilable with the statement of Mir Khan complainant made in his F. I. R. as well as in Court. Probably therefore Mureed who helped the Tapedar to prepare the sketch of the wardat did not point out any place where these two witnesses might be standing, as none is noted by the Tapedar. On this point, the three witnesses are not consistent even in their evidence in Court, and each has given a different version about their location at the time of the murder being committed. In these circumstances it is difficult to believe that these two witnesses, saw the actual commission of the offence. The learned counsel for the appellant also pointed out that witness Karim Bum had falsely deposed that the appellant bad produced the gun from his house in his presence. He contended that it clearly shows that the witness is out to implicate the appellant and this clear expression of malice makes it reasonable not to believe this evidence at all. The other eye‑witness whose evidence requires consideration is Mureed who claims to have seen both the murders being committed within his view but before doing that it might be useful to refer to the evidence of Dilmurad who was made mashir of the wardat and who is a Pathan by caste, engage in private service, as Kamdar, with Agha Nooruddin, on whose land these murders had taken place. His evidence read with the medical evidence is suggestive of this being a case of un-witnessed Karo‑Kari murders. According to him, he was at a distance of only 100 paces from the scene of offence, in his own Dera, with some others including Sarwar Khan and Habib, when attracted by the gunshot report they came running to the wardat. He in clear terms stated that witnesses Mureed, Karim Buz and Abdul Rehman came later. Thus these witnesses were the first to arrive, but the prosecution did not examine any of these witnesses, probably because they did not name any one as the murderer. The S. H. O. had stated that according to Baloach custom people are reluctant to give evidence in such cases, by which he obviously meant Karo‑Kari cases; but these were non‑Baloachi witnesses and would not have hesitated to name any person if they had seen some one committing the murders or even running away. This witness Dilmurad knew the appellant before as be states that he was present at the spot alongwith Dost Ali when the police arrived in the evening and both were arrested there. On the other hand, the medical evidence shows that deceased Ghous Bux had in all seven injuries while deceased Mst. Nihalan had four. The former, in the opinion of the Medical Officer must have received five to seven gunshots while the latter three gunshots. The nature and the position of the injuries on both are such that they could be compatible with an inference about their being in a compromising position and the Medical Officer himself suspected that intercourse was committed by the deceased Ghous Bux and: Mst. Nihalan and he therefore took the urethral swabs and slides which he sent for chemical analyses. As complainant Mir Khan, the nephew of the deceased is examined by the prosecution to corroborate Mureed, his evidence may also be considered side by side with Mureed. According to, Mureed, the appellant started the dialogue with the deceased Ghous Bum about a one year old theft of his bullock, and on the latter's denial of the accusation, he was immediately fired at and given four gunshots. Mir Khan does not support him but says that he was given two names, Dost Ali and the appellant in this respect. The accusation of theft was made by Dost Ali. and not by the appellant and both had fired at the deceased after some exchange of harsh words. This also is the case in the F. I. R. Mureed then says that the appellant proceeded to his own land three Jarebs away, where Mst. Nibalan was plucking peas, and he killed her, whereafter he said that he had declared her Kari. On this aspect also Mir Khan fails to corroborate him, as he says that he was informed about both Dost Ali and appellant having shot her dead. Mir Khan further stated that Mureed had told him that Bijar Khan had planned to get Ghous Bum killed, and this statement he also made in the F. I. R., but Mureed denies having made such a statement to him. Admittedly, between him and deceased Ghous Bux there was a. watercourse and the height of the bank of this watercourse given by him was 6 feet, and as admitted by him, a man working on one side of the bank would not be able to see a man sitting on the other side. The witness attempted to explain by saying that he stood up on hearing the talk between the appellant and the deceased, and was thus able to see, but this admittedly was not his case before the police. Strangely enough in the lower Court he denied even the declaration of Karo‑Kari being made in his presence. The evidence of Mir Khan, instead of corroborating Mureed, has the effect of creating very serious doubt about his credibility. After all the appellant had no motive for murdering Mst. Nihalan, and a twelve months old theft of bullock was hardly a believable reason for killing Ghous Bux. Except the two witnesses Mir Khan and Mureed, all the other witnesses have said that the body of Mst. Nihslan was in the dry watercourse; and that could be a congenial place where the two deceased persons might have been in a compromising position. Mureed has deliberately avoided to admit that position in Court by alleging that Mst. Nihalan was in the field and not in the dry watercourse. His first version to Mir Khan was also as if a Karo- Kari case was concocted by Dost Ali and the appellant although the suggestion that a brother could murder his innocent sister only to provide a pretext for the murder of Ghous Bux, is nothing but an absurdity. However. these two witnesses have not succeeded in this effort to prevent the impression which is definitely created that this was a case of Karo‑Kari murder. Dost Ali was the brother of Mst. Nihalan and if any person had a cause for murdering her in such a situation. it was he. His name was taken in the beginning but thereafter mysteriously eliminated and even the police did not arrest him although his name appeared in the F. I. R. The learned counsel for the appellant has vehemently argued that the circumstances do show that these murders were not witnessed at all, but since this was a Karo‑Kari case, the suspicion was primarily on the members of the family of Nihalan. It was therefore suggested in the F. I. R. that Dijar Khan had planned to get Ghous Bux murdered and the name of Dost Ali was mentioned too. Perhaps the affair between the two deceased was already being suspected. Attempt was also made at the earliest to show a different motive but that did not prove to be plausible. In any case by changing the story from time to time the witnesses only exposed themselves and destroyed the effect of the so called ocular evidence, that was examined in the case. The contentions of the learned counsel are not without force, and it is obvious that this set of Witnesses can not easily be believed. In fact the conflict in their versions is so prominent that the question at once arises, as to which story to believe and which to discard, resulting in a state of doubt about the whole prosecution case. The learned counsel referred to the treatment given by the trial Court to this diversity of the prosecution story, involving Dost Ali at the initial stage and protecting him subsequently. The learned Sessions Judge said, "it is just possible that Dost Ali's name might have been added by Mir Khan by way of innovation. Moreover, the possibility of these murders having been ‑committed by more than one person also cannot be ruled out. Two persona were killed with several gunshots, hence it is just possible that Mohammad Punnah might have been accompanied with Dost Ali at the relevant time but the witnesses for reasons best known to them are now screening him." Learned counsel contended and very rightly that having formed this opinion about the evidence of the prosecution witnesses. it was all the more necessary that the trial Court should not have relied on their evidence and totally discarded the same as untrustworthy. On the other hand if it was still possible to consider this evidence, it would be only if materially corroborated by some further evidence but then the corroboration should be such as effectively could criminate any doubts about possible false. implication of the appellant. In the present case the prosecution has examined the evidence of mashers P. C. Allah Dino and S. H. O. Haji Mohammad to prove that the appellant led to the discovery of the 20 bore SBBL gun which was found by the ballistic expert to have been used in the commission of these murders. Now ‑this piece of evidence by which corroboration of the ocular evidence was sought to be made, has also several defects making the whole act doubtful. In the first place, this discovery of the gun was suddenly made after 14 days of the arrest of the appellant when he is alleged to have been contacted in the lock-up and readily agreed to take the police to the place of discovery. As is already stated the investigation had remained as if suspended from 27th of February and for no apparent reason the S. H. O. thought that the appellant would supply this evidence. Secondly, the mashers selected for this important evidence were both Police Officers and no public man was called to act as such. The S. H. O. admitted that no person from the public was with them when the appellant was taken to the place of discovery. The explanation of the S. H. O. in this regard was again very peculiar and most unconvincing. He admitted that he deliberately did not pick up a public man as in such cases they do not give an evidence according to Baloach custom. Now this very S. H. O. had taken up mashirs who were non‑officials for the purpose of preparing mashirnamas of the Surzamine, arrest and search of the appellant and the inquest etc. He had discarded non‑Bloach witnesses of the Surzamine and selected Brohis to depose against the appellant, as already discussed. In that context this reason was improper and was itself sufficient to create a doubt about the fact of the discovery of the gun itself. Apart from this time taken to send this gun for examination by the ballistic expert is also not properly explained. The S. H. O. stated that this being a gun of unusual bore i.e. of bore 20, he was having difficulty in obtaining the cartridges which he wanted to send to the expert for test purposes. According to him, he took three months for securing these, and only thereafter he was able to send the gun to the ballistic expert. All these circumstances show that not only the securing of the gun was not beyond suspicion but even the process o1 obtaining of the expert opinion was not completely reliable. This is particularly so because the ballistic expert himself said that the crime empties received by him did not bear the signatures of the mashers, and the mashie Dilmurad on the other hand deposed that the mashirnama to the extent o: securing of the cartridges was wrong as the same were not secured or sealed in his presence. The overall result is that we find that the prosecution evidence is not free from doubt, and to the benefit of which the appellant is entitle. He was therefore acquitted and the reference also disposed of as such. The evidence in Criminal Jail Appeal No. 207 of 1974 with regard to the recovery of the gun was the sane except that instead of Constable Allah Dino, the of the mashir H. C. Abdul Salim was examined. For the same reasons therefore the appellant was acquitted in that case also. MUHAMMAD HALEEM, J.‑I agree. Appeal allowed.