P L D 1965 (W (PLP)

S. A. MAHMOOD, J.‑

This appeal is by Sallah (30) and his brother, Abdul Rehman, Nihal (55), and his sister's son, Wazir (22), who have been convicted for the murder of Shah Bux and Bux Ali. Sallah and Abdul Rehman have been sentenced to death under section 302/149, P. P. C. and the others to transportation for life. Under section 325/149, P. P. C. they have all been sentenced to one year's R. I. and under section 323/149 P. P. C. to one year's R. I. They have also been sentenced to one year's R. I. under section

148. These sentences have been ordered to run concurrently. The case of Sallah and Abdul Rehman is also before us for confirmation of the death sentences under section 374 of the Code of Criminal Procedure. The appeal and the reference will be disposed of by this judgment. It may be mentioned that Umar and Sanwan have remained as absconders.

2. The incident under consideration happened on the 3rd of June 1963, at about sunset time in deh Retti, taluka Jacobabad. Rasul Bux (P. W. 7), who belongs to village Wali Muhammad, had come to the house of the complainant at about Bipahri time in order to purchase chaff from them. At about sunset time, Shah Bux and Bux Ali deceased, Rasool Bux (P. W. 7), Saifal (P. W. 9), Mst. Sharaf Khatoon (P. W. 10) and Loung (P. W. 11) were sitting in the house of Saifal P. W. when the appellants called Saifal from outside the house. The two deceased went out in answer to the call, followed by Saifal, who found the appellants standing at the back of their houses on the watercourse known as Begari Baridas. At the time all the four appellants were armed with hatchets. Saifal did not find any other person accompanying them. Rehman appellant told Bux Ali that they should leave the daughter of Nihal called Mst. Zamur who was betrothed to Bux Ali since her childhood. Nihal wanted that Bux Ali should release his daughter so that he should give her in marriage to Rehman. Nihal is the brother of Saifal and Loung. He used to reside with them, but had shifted from their village and had gone to live in the village of Rehman, which is about half a mile from the spot. There was some noise and altercation which attracted Rasul Bux (P. W. 7), Mst. Sharaf Khatoon (P. W. 10) and Loung (P. W. 11). The appellants had come on two bullock carts which were also standing close by. According to Saifal, all the accused gave hatchet blows to Bux Ali to begin with, and he fell down. Shah Bux began to run out of fear of his life, and Saifal went to his rescue. Mst. Sharaf intervened to save her son Bux Ali, whereupon the accused gave her injuries. All the four accused then gave hatchet blows to Saifal, as he intervened, and he fell down. Rehman appellant gave a hatchet blow with such force on the head of Shah Bux deceased that it stuck in the head, and he could not pull it out. After the accused had left, Rasul Bux P. W. pulled it out from his head. The four accused after giving hatchet blows went towards the western side. The incident was witnessed by Rasul Bux, Saifal, Mst. Sharaf Khatoon and Loung, P. Ws. A little later, Imam-bux Khoso came to the spot, and the witnesses narrated the incident to him. The two deceased and Saifal were taken on two bullock carts along with Mst. Sharaf Khatoon to Mouladad Police Station, which is 12 miles from the spot, where Loung P. W. made a report Exh. 25, at 6 a.m. on the following morning. This report was recorded by A. S. I. Ghulam Kadir (P. W. 13). He also prepared injury statements of Bux Ali, Shah Bux and Saifal in the presence of mashirs Isso and Saffar. Bux Ali and Shah Bux were both unconscious. He also recorded the statements of Mst. Sharaf Khatoon and Saifal. Mst. Sharaf Khatoon produced a blood‑stained hatchet before the A. S. I. who took possession of it, vide mashirnama, Exh.

19. He then sent the injured persons to the hospital, and himself proceeded to the spot which was shown to him by Muhammad Panah. It was about 70 or 80 paces from the house of Saifal. He found blood and marks of struggle at the place of occurrence. The mashirnama of the spot is Exh.

28. The appellants appeared before the A. S. 1. and were arrested on 4‑6‑1963, in the presence of Abdul Ghafoor (P. W. 12). He removed a blood‑stained shirt from the person of Sallaha appellant on the same day vide mashirnama Exh. 31, and a shirt from the person of Abdul Rehman appellant, vide mashirnama Exh.

29. The former's shirt has been found to have been stained with human blood, vide Exh.

33. The origin of blood on the latter's shirt could not be determined as human blood due to disintegration. Bux Ali died on the way to the hospital. Shah Bux died in the hospital at 3 a.m. on the 5th June 1963.

3. Dr. Fazal Ahmed, Exh. 34, performed post‑mortem examination on the body of Bux Ali on the 4th of June 1963, and found the following injuries on the body.‑‑ (1) An incised wound 3'' x 1" muscle deep on the back of right shoulder; (2) One incised wound 4" x 3" cutting the radius and ulna over back of left fore‑arm in the middle. These injuries were caused by a sharp cutting weapon such as a hatchet within about six hours, and were ante mortam. On internal examination, the left radial artery was found severed under injury No.

2. There was also a fracture of the left ulna and radius under injury No.

2. Death was due to shock and haemorrhage as a result of injury No.

2. He might have survived if medical treatment was given to him immediately. None of the injuries were sufficient in the ordinary course of nature to cause death, if immediate medical treatment was given to him.

3. Doctor Fazal Ahmed also examined Shah Bux on the same day and found the following injuries on his person:-- (1) An incised wound 5" x 1 " cutting the entire thickness of right parietal bone over right parietal region with brain matter coming out of it. There was bleeding from the right ear, and ecchymosis around the right eye. The injury was caused by a sharp cutting weapon like a hatchet. On internal examination, a fracture of right parietal bone and intracranial haemorrhage was found. The membrances over the right cerebral hemisphere and right cerebral cortex were severed. Death was due to shock and intracranial haemorrhage due to the injury which was sufficient in the ordinary course of nature to cause death.

4. Doctor Fazal Ahmed also examined Saifal on 4th June 1963, and found the following injuries on the body:‑-- (1) One contused wound 2" x 1/4" x scalp deep over left parietal. (2) One contused wound 2 " x " x scalp deep over left parietal region posteriorly. (3) One contused wound 2 1/2" x 1/8" x scalp deep over left parietal region anteriorly. (4) One contused wound 1/4" x 1/8"x skin deep over middle occipital region. (5) One contusion 5" x 3" over back of right hand, right wrist and lower part of right forearm with suspected fractures of carpal bone X‑ray film was taken. It shows fracture of lower end of right radius. All the injuries were caused by a hard blunt object such as a lathi or the blunt side of a hatchet. Injury No. 5 was grievous. He was admitted as an indoor patient and discharged from hospital on the 20th June 1963, though he was not fully cured. Exh. 5/E is the X‑ray film along with the report.

5. The same doctor examined Abdul Rehman, and found one contusion 3" x 1/2" lying obliquely over right side of chest on nipple. The injury was caused by a hard blunt substance like a lathi. It was simple and of about 48 hours duration.

6. The appellants denied the prosecution allegations and pleaded that they were innocent. Sallah admitted that Rehman was his brother. A daughter of Hazoor Bux, Mst. Suhni was given to Rehman but the complainant's party was not willing to give her hand to him, and due to this enmity a false case had been made out against him.

7. The report in this case was considerably delayed. The incident happened at about sunset time on the 3rd of June 1963, but the report was not made until 6 a. m. The report is vague and does not contain any particulars as to the persons who caused injuries to Shah Bux and Bux Ali, deceased, and Saifal, P. W. Sallah, Nihal and Wazir were stated to have been armed with hatchets and Umar and the unknown person to be armed with lathis. They were stated to have simultaneously attacked and injured the two deceased and Saifal, P. W.

8. The motive stated in the report was that Mst. Suhni, daughter of Huzur Bux, brother of Mst. Sharaf Khatoon, was betrothed to Abdul Rehman appellant, and when they called out Saifal and the two deceased went to them ahead of him, they had abused him and said why they were not giving the hand of Mst. Suhni to Rehman. It was denied in Court that Suhni was betrothed to him. Instead, the motive alleged was that Mst. Zahmur daughter of Nihal appellant was betrothed to Bux Ali deceased, and Nihal having shifted to the village of Sallah and Abdul Rehman, wanted to give her hand in marriage to Rehman. This did not find any mention in the F. I. R. Thus the prosecution has been unable to establish any motive for the appellants attack on the deceased and Saifal.

9. The evidence of the witnesses as well as the plan, Exh. 4, show that Bux Ali was killed at a distance of about 100 feet from, the house of Loung, and Saifal, and that Shahbux deceased went even further from the house by another 160 feet, and was killed at a distance of 260 feet from their houses. There is no satisfactory explanation why the two deceased should have gone all this distance. In fact, it appears that for some particular reason which has not been explained, and has been deliberately withheld from Court, the two deceased and Saifal P. W. went towards the accused, and something happened which led to the incident, and the two deceased were killed at two different places. The prosecution evidence does not explain how Shah Bux was killed at a distance of 160 feet from Bux Al:. In Court an attempt was made by Saifal to explain it by saying that he ran, but this fact did not find mention in the F. I. R. Exh.

25. There, a simultaneous attack is stated to have been delivered injuring the two deceased and Saifal with hatchets and lathis. This is not the evidence of the eye‑witnesses in Court.

10. The evidence of the eye‑witnesses is discrepant and highly unsatisfactory. It is also interested evidence. Loung and Saifal, P. Ws. are brothers. Mst. Sharaf Khatoon is wife of Loung. Rasul Bux is stated to have come to their house as a guest to purchase some Chaff. Rasul Bux is a chance witness and there is a contradiction in the evidence as to the time at which he had come and whether he had come previously or not. While he claims that he lived at a distance of one mile from the complainant's village, and used to visit the complainant since 2‑3 years, whom he knew since 10 or 11 years. Mst. Sharaf Khatoon stated that he had never visited their house previously. She also stated that he had come to their house early in the morning, and had passed the day with them. According to Rasul Bux and Saifal, he had reached the complainant's house at Bipahri time, that is, in the afternoon. According to Loung he had come at tripahri time. His statement was not recorded by the Police until the third day of the incident, and he had remained in his village all along. Taking all the circumstances of the case into consideration, we do not consider it safe to rely on his testimony. He is a chance witness and is not likely to have been present at the spot. His evidence in Court is discrepant from his statement under section 164, where he named all the accused to have assaulted the two deceased and Saifal. In Court, he stated that only Sallah and Abdul Rehman gave injuries to the deceased and Saifal.

11. In the F. I. R. the name of Mst. Sharaf Khatoon P. W. was not mentioned as an eye‑witness. She stated in evidence that first of all Sallah and Rehman gave hatchet blows to Bux Ali when Shah Bux ran, and Sallah gave him a hatchet blow on the head. Rehman also gave him hatchet injuries. She tried to intervene and the accused gave her blows with the back side of the hatchet. Saifal tried to save his son, and all the four accused attacked him with hatchets. The injuries on Saifal were all caused by blunt weapons and he could not have been caused injuries with hatchets. According to the F. I. R. the injuries were caused by a lathi. Mst. Sharaf Khatoon does not bear any injuries. In the circumstances of the case, it is unsafe to rely on her testimony and we ignore her evidence.

12. The substance of the testimony of Saifal has been narrated above. He is an injured witness, and there is no doubt about his presence at the spot. According to him, all the four appellants were armed with hatchets, and they all gave hatchet blows to Bux Ali and Shah Bux deceased, and to him, and injured them all. It was Rehman's hatchet which got stuck in the head of Shah Bux, and was removed by Rasul Bux. Loung (P. W. 11) stated that there were only two persons at the spot, namely, Sallah and Abdul Rehman, and that Wazir and Nihal were not there. Sallah and Rehman had given hatchet blows. First they killed Bux Ali with hatchets and then they killed Shah Bux. When Saifal ran to save his son Shah Bux, he also received injuries at their hands. Mst. Sharaf Khatoon was also injured at their hands. He was confronted with his version given in. the F. I. R. where he did not say that Rehman had a hatchet or that Nihal who had betrothed his daughter to Bux Ali in childhood, wanted to give her instead in marriage to Rehman. He denied that he had stated in the F. I. R. that the accused had said why they were giving the hand of Mst. Suhni daughter of Hazur Bux in marriage to Rehman. Thus his evidence excludes the presence of Wazir and Nihal. Sharaf Khatoon had stated that it was the hatchet of Sallah which had pierced the head of Shah Bux, while according to Saifal, Abdul Rehman's hatchet got stuck into the head of Shah Bux. The evidence of the eye witnesses is highly unsatisfactory, and cannot be relied upon. It is apparent to us that they have not given a correct version of the incident, and have suppressed material parts of the prosecution story, for reasons best known to them.

13. We are not satisfied on the evidence of the eye‑witnesses, that the appellants came to deliver an attack on the deceased or Saifal. If it was so, the injuries would have been caused to them at the house of Saifal and Loung. Instead the incident happened at a considerable distance from their houses. The alleged story of call of Saifal on which the two deceased preceded him seems to be a fabrication, and something else happened on which the two deceased went and met the culprits whoever they were. There being no case of deliberate attack, there was no common intention or an unlawful assembly and no vicarious responsibility. It appears that the trouble started over some matter and blows were struck. The prosecution has failed to explain how and when the blows were struck, or who struck whom. While according to the F. I. R. and the evidence of Saifal, all the four appellants gave injuries to the two deceased and Saifal, according to the two deceased and Saifal, according to the remaining eye‑witnesses, Sallah and Abdul Rahman appellants alone caused these injuries to them. Loung in fact stated on the other hand that Wazir and Nihal were not there. In the F. I. R. Loung stated that Umar and another unknown person was also there, but Saifal did not see any other persons except the four appellants.

14. There is reason why Wazir and Nihal appellants have been saved by Loung P. W. and also no blow ascribed to them by the others. Nihal is a real brother of Loung and Saifal P. Ws. Wazir is their sister's son. It is not surprising therefore that the witnesses have tried to save them at the cost of Sallah and Abdul Rehman. They are also cousins of Nihal appellant and Loung and Saifal P. Ws., but Loung and Saifal P. Ws. have every reason to get Abdul Rehman hanged because Suhni daughter of Huzur Bux was betrothed to him, and they did not want to marry her to him. Sallah is his brother. We are not, satisfied that they have caused the specific blows attributed to them with regard to the injuries caused to the deceased and Saifal. The injuries of Saifal could not have been caused by them with hatchets, and were in all likelihood caused by a lathi. No confidence can, therefore, be placed on the evidence of any of the eye‑witnesses.

15. In the F. I. R. which was a belated one, no particular part was attributed to any of the appellants. An attempt has been made to attribute the fatal injuries of the two deceased to Sallah and Abdul Rehman. This is an improvement in Court for which there is ample reason. As already stated, it is not safe to accept the testimony of the eye‑witnesses, or to hold on their evidence that Sallah and Abdul Rehman gave the injuries to them.

16. There is no corroborative evidence against Sallah appellant because Abdul Ghafoor, (P. W. 12) the mashir of the recovery of his shirt, states in Court that the shirt alleged to have been recovered from him, was not recovered in his presence. We therefore find no corroborative evidence against him or even against Abdul Rehman. The alleged recovery of his shirt also took place in the absence of Abdul Ghafoor. His shirt was also not found stained with human blood. He bears an injury, but there is no evidence that he received it in the incident.

17. It is not established that Sallah and Abdul Rehman gave the fatal or other injuries to the deceased. The participation of Wazir and Nihal in the incident is rendered doubtful on the statement of Loung (P. W. 11). There are many unsatisfactory features of the prosecution story. We cannot ascertain what actually happened and who struck whom. We have come to the conclusion that the material parts of the story have been withheld and the witnesses have not told the truth. Too man persons were involved in the F.I.R. for the offence. In these circumstances, we are not satisfied about the guilt of anyone of the appellants. We give them the benefit of the doubt, and acquit them. K.B.A. Appeal accepted.