1983 P Cr (PLP)

B. G. N. KAZI, J.

‑Muhammad Anwar son of Paryal Metlo who was tried by the Sessions . Judge, Khairpur for murder of Ghulam Muhammad alias Gulo son of Allan Metlo was convicted under section 302, P. P. C. and sentenced to death and also to pay a fine of Rs. 5,000 or in default to suffer R. I. for two years. There is reference for confirmation of the sentence of death imposed and there is also appeal filed under section 410, Cr. P. C. against the aforesaid conviction. Both the reference and appeal are being dealt with together. The case of the prosecution briefly stated is as under :‑ Complainant Bagh Ali son of Allan Metlo brother of deceased Ghulam Muhammad alias Gulo lodged F. I. R. at Police Station Baberloi in Taluka Khairpur on 16th October, 1978 at 9‑30 p: m. with A. S. I. Irshad Hussain stating that he has three brothers. He and his brother Ghulam Nabi live jointly together whereas his brother deceased Ghulam Muhammad alias Gulo and his younger brother resided with their father, some little distance from them. Deceased Ghulam Muhammad was a Hari and he had cultivated Juwar in the land of Ghulam Hussain alias Gulo Metlo.

2. Complainant Bagh Ali further stated that some 12 months before the incident of Nikah of Mst. Alma daughter of Muhammad Mithai Medo resident of village Pir Bux Metlo had been performed with the deceased and marriage was to take place one day after the date of incident. He further stated .that after the Nikah they all had came to know that accused Muhammad Anwar son of Paryal Metlo resident of Pir Bux Metlo village was on terms of illicit intimacy with Mst. Alma. On the day of the incident Bagh Ali was in his house and at sunrise time deceased Ghulam Muhammad and Ghulam Nabi had gone to their Juwar cultivation for cutting grass. After some time Ghulam Nabi came out of Juwar cultivation crying and running. At that time Ghulam Hussain alias Gulo son of Bagho Metlo was sitting with Bagh Ali when Ghulam Nabi narrated the incident stating that deceased Ghulam Muhammad had cut the grass and they were ready for taking the same home when Anwar son of Paryal Metlo armed with hatchet came from the southern side. At the time he came, Ghulam Nabi kept the bundle of grass on his own head and deceased Ghulam Muhammad asked accused Anwar Metlo to help put the other bundle of grass on his head. Anwar accused put the bundle of grass on the head of Ghulam Muhammad and while G6ulam Muhammad was holding the bundle of grass, Anwar gave hatchet blow on his neck. Ghulam Muhammad on receiving the blow fell down and his head was separated from the trunk by the accused with the hatchet. The accused then ran away towards the East. While leaving the scene of offence, the accused had shouted saying let him now marry Mst. Alma.

3. On hearing these facts from Ghulam Nabi, Bagh Ali and Ghulam Hussain went to the scene of offence where they found Ghulam Muhammad lying dead with his head cut off from his trunk. There was lot of blood lying on the scene of offence. While Ghulam Nabi and Ghulam Hussain alias Gulo sat near the dead body, Bagh Ali bad gone to lodge report with the Police. He stated in the F. I. R. that accused Anwar who was on terms of illicit intimacy with Mst. Alma, on hearing of her marriage with Ghulam Muhammad which was to take place the next day, .had killed Ghulam Muhammad by inflicting hatchet injuries on his neck. A. S. I. Irshad Hussain who was Incharge of Police Station, Baberloi recorded and registered the F. I. R. at 9‑30 a.m. on 16th October, 1978. He then immediately proceeded to the scene of offence which was pointed out to him by complainant Bagh Ali which was in the Juwar cultivation on the land of Ghulam Hussain Metlo in Deh Shah Ladhani. He saw the dead body of Ghulam Muhammad lying there with the neck severed and lying near the trunk. There was blood at the scene of offence and a bundle of Juwar grass and a sickle were lying there. He also found another bundle of Juwar grass there. He secured blood‑stained earth and sickle in presence of mashirs Habibullah and Gandol Khan and prepared mashirnama. He also prepared the inquest report of the dead body of Ghulam Muhammad in presence of the same mashirs and then he sent the dead body through Police Constable Habibullah with a letter to Medical Officer Piryale Dispensary Dr. Ali Nawaz for post‑mortem examination. Irshad Hussain then recorded statements of prosecution witnesses Ghulam Nabi, Ghulam Hussain alias Gulo and Muhammad Mithal in the otak of Muhammad Par3qh. On the same day prosecution witness Habibullah produced accused Anwar before him at the otak and he arrested the accused and secured blood‑stained shirt and loincloth from his person. The blood‑stained clothes of the accused were sealed in a parcel and the mashirnama of arrest and of securing of the clothes was prepared in presence of the same mashirs. On interrogation accused Anwar in presence of mashirs led A. S. I. Irshad Hussain to the south of the village and after covering a distance of about two furlongs he produced blood‑stained hatchet from cotton cultivation of Muhammad‑ Pariah. The blood‑stained hatchet was secured and sealed and mashirnama was prepared.

4. On the same day

3. H. O. Fazal Muhammad arrived at the scene of offence and verified the investigation already made.

5. On 17th October, 1978 A. S. I. Irshad Hussain produced accused Anwar ‑before Mr. Ghulam Kadir Soomro, the Hon. First Class Magistrate, Khairpur at about 10‑30 a.m. for recording of his judicial confession. The accused made confession which was recorded on 18th October, 1978. Irhshad Hussain got recorded statements of prosecution witnesses Ghulam Nabi, Muhammad Mithal, Ghulam Hussain and Habibullah under section 164, Cr. P. C. by the Hon. First Class Magistrate, Khairpur. He received post‑mortem notes from the Medical Officer and then be handed over all the papers to the S. H. O. who submitted challan in the Court of Civil Judge and F..C. M., Khairpur. Irshad Hussain had sent the blood‑stained clothes, blood‑stained hatchet and the blood‑stained earth recovered from the scene of offence to the Chemical Analyser through S. P., Khairpur and the Chemical Analyser gave a report indicating that there was human blood on all the items examined by him.

6. Accused Anwar in his statement under section 342, Cr. P. C. denied the allegations and professed his innocence. It was his plea that Ghulam Hussain who wanted to marry Mst. Alma got Ghulam Muhammad murdered and got him falsely implicated. The witnesses examined against him were all interested persons and inimical having been set up by Ghulam Hussain against him. He further alleged that the Police had maltreated him and his womenfolk who had been dragged to the Police Station. In his defence the accused examined witness Azizullah, Secretary Union Council Mori Taluka Khairpur to prove the Nikah of Mst. Alma solemnised with Ghulam Hussain and. the witness produced register of Nikah containing the entry.

7. We have beard the arguments of Mr. Azizullah Sheikh, Advocate for the appellant and Mr. Ghulam Ali Agha for the State and have perused the record of the case. The evidence against the appellant/ accused consists of ocular evidence of Ghulam Nabi brother of the deceased who was the only alleged eye‑witness of the incident supported by oral corroboration of P. Ws. Bagh Ali brother of deceased and Ghulam Hussain Metlo who is admittedly the Zamindar of the complainant party. There is also the evidence of judicial confession which was retracted and the evidence of Gandal Khan, mashir about the arrest of the accused, the securing of blood‑stained clothes and the securing of the blood‑stained hatchet. All these pieces of evidence will be discussed to consider whether the same constitute evidence sufficient to sustain conviction of the accused on charge of murder.

8. At the very outset it is observed that the evidence of motive brought on record is weak and unconvincing. It was the prosecution version that the accused had illicit intimacy with Mst. Alma before her Nikah was solemnized with Ghulam Muhammad deceased and he and the complainant's party came to know of the fact after the Nikah. It is further the prosecution case that the accused killed Ghulam Muhammad one day before the day fixed for marriage of Ghulam Muhammad with Mst. Alma. Ghulam Nabi the only alleged eye‑witness of the incident stated that Ghulam Muhammad deceased had requested the accused to help lift the bundle of grass and place it on his head and the accused after helping him with the bundle gave a hatchet blow on his neck while Ghulam Muhammad was holding the bundle with both hands on his head. The version is very improbable and does not sound true. In the rural areas of the province of Sind, where the tradition of "Kayo Kari" exists and is judicially recognized as existing among the village community it is difficult to believe that the deceased would ask the paramour of his betrothed bride to help him in lifting a load or to ask for any such favour. Once the version of the prosecution that the deceased and complainant's party knew that Mst. Alma had illicit relations with the accused is accepted, it is to say the least, difficult to accept the further version that after such knowledge the deceased still wanted to go through the ceremony of marriage with a 'Kari'.

9. It is admitted position that the only eye‑witness namely Ghulam Nabi is brother of the deceased and, therefore, an interested witness. Bagh Ali is also brother of deceased. There is also the admitted fact that Ghulam Hussain is the Zamindar of all these witnesses and of Gandal Khan, mashir. The prosecution evidence regarding motive gives the reason for enmity between the accused and the complainant's party and the defence of the accused is that Ghulam Hussain who shortly after the murder got married to Mst. Alma, had got Ghulam Muhammad killed and had falsely implicated him. Under the circumstances stated delay in lodging the F. I. R. has significance. Although according to evidence of Ghulam Nabi, the murder took place at sunrise, there is doubt about such timing as according to the evidence of the Medical Officer who performed the post‑mortem examination of the body of Ghulam Muhammad, semi‑digested food .and gases were found in small intestines, faecal matter and gases were present in the large intestines. It is, there fore, apparent that he had not yet had his breakfast and had not even gone for call of nature. Police Station Baberloi is stated to be only four miles from the scene of offence but the F. I. R. shows the time of report to be 9‑30 a.m. However, it is apparent that the report was actually finalized later as Bagh Ali states that it was read over to him at noon time. Again since Ghulam Nabi is alleged to be the eye‑witness and is a grown‑up person, there was no reason why he did not lodge the F. I. R. There is also evidence of Bagh Ali that there are 100 houses in the village and that there are houses of Syed Lal Shah, Minhoon Metlo, Allahdino Khalifo, Muhammad Saleli Metlo, Ghulam Metlo and Muhammad Aashim Metlo in. the same street in which he resides. He had also admitted that survey numbers adjoining the vardat belong to Laloo Metlo and Kabooter Metlo and lands of Karim Bakhsh and Ameen Ujjan are near their lands and land of Paromal is only four jarebs from vardat and on that land haris and labourers work in early morning hours. It is, therefore, not easily understood as to why no independent persons of the locality were examined even to give oral corroboration to the statement of Ghulam Nabi and why even such evidence was of interested persons, namely zamindar Ghulam Hussain and Bagh Ali. The statement of Bagh Ali that his zamindar had come to his house to ask him about cultivation does not sound plausible.

10. The evidence with regard to the judicial confession is also a. weak piece of evidence. The First Class Magistrate who recorded the confession subscribed himself as Hon : Magistrate which category of Magistrate is not envisaged by Cr. P. C. as amended. Even otherwise it does not appear from the form of confession filed up by Mr. Ghulam Kadir Soomro that he even told the accused that he was a First Class Magistrate. It is also apparent from the record that after recording the judicial confession, the appellant was handed over to the Investigating Officer who had brought him for confession. This is apparent from the admission of Irshad Hussain, A. S. I. in his deposition. It is true that Mr. Ghulam Kadir Soomro himself stated that the accused was sent to judicial lock‑up through his police process‑server Muhammad Jadal by name, but no such documentary evidence is forthcoming and there is no reason to disbelieve the Investigating Officer on the point. It is also the rule that time to be given to the accused for reflection before recording of his confession should succeed and not precede the warning. It was so held in Talib Hussain v. The State (P L D 1958 (W. P.) Kar. 383), a decision of the erstwhile High Court of West Pakistan Karachi Bench. In the instant case it is apparent that the precaution was not taken. There is admission of the Magistrate that there is only one room which is his chamber as well as Court. It is also apparent that the version in the confession is contradictory to the prosecution story. It was the version given by the appellant/accused that the hand of Mst. Alma daughter of Mithal Metlo had been given to him by her father and he had put his loincloth over her for that purpose and that again her father had given her hand to deceased Gulo and her Nikah was made with the deceased. The version is contrary to the prosecution case that the accused/appellant was on terms of illicit intimacy with Mst. Alma. The only person who could throw some light on the version with regard to the motive namely Muhammad Mithal Metlo was not examined by the prosecution.

11. The evidence of Ghulam Nabi the only eye‑witness about the number of hatchet blows given to the deceased by the accused is not corroborated by the evidence of Dr. Ali Nawaz who performed the post mortem examination of the body of the deceased. Whereas according to Ghulam Nabi three blows with hatchet were given, the Medical Officer found only one hatchet injury on the neck. The version given in the alleged judicial confession is that the accused gave two hatchet blows. The confession further mentions that he had narrated the incident to his maternal‑uncle Habibullah who had produced him before the Police but the aforesaid Habibullah was also not examined and Habibullah Kolachi who has been examined as the mashir, has not stated anything about the accused narrating the facts to him.

12. Since the accused/appellant has retracted from the confession the same requires corroboration before it could be used as evidence against him. It is well‑settled principle of appreciation of evidence that one weak piece of evidence is not sufficient to corroborate another such weak piece of evidence.

13. With regard to the evidence about recoveries the learned Sessions Judge, Khairpur in his judgment has not relied upon the evidence as incriminating articles were sent to the Chemical Analyser after more than one year and the possibility of substitution of the same was not ruled cut. It was further observed by the learned Sessions Judge that according to the Investigating Officer he sent the articles through S. P. concerned but there is nothing on the record to show why the aforesaid articles remained with the Police during the period of one year and, therefore, he had excluded from consideration the report of the Chemical Examiner.

14. Having discarded the report of the Chemical Examiner, the learned Sessions Judge, however, held that the evidence of recoveries does not lose its value to connect the accused with the crime. The only circumstance which could have connected the accused with the crime would have been the circumstance of bloodstains on the articles recovered and, therefore, having correctly held that the report of Chemical Examiner could not be considered, it was not logical to consider the evidentiary value of the assertion about the articles having been found from the possession of the accused. The learned counsel for the appellant/accused has further pointed out that the hatchet was allegedly recovered from an open place which was not under control of the accused.

15. As already observed there is ocular evidence of prosecution witness Ghulam Nabi only against the accused but for the reasons discussed above we find that there is no corroboration of his evidence by any reliable evidence. In Mumtazuddin v. The State (P L D 1978 S C 114), a decision of the Supreme Court it was inter alia observed that, "although a conviction can be based on the evidence of a solitary eye‑witness, as a rule of prudence, Courts do not base a conviction on the evidence of a solitary eye‑witness, unless that eye‑witness is absolutely reliable or unless his evidence is corroborated by reliable evidence".

16. In Abdul Qayyum v. The State (1977 PCr. LJ 980) a decision of this Court where ocular evidence was considered unreliable, the mere recovery of blood‑stained clothes was not considered sufficient to support conviction for murder. In the instant case however, even the evidence that the clothes were stained with human blood had not been proved for the reasons given by the learned trial Judge. In the decision referred to above, the version given in the F. I. R. was belied by medical evidence as in the instant case, and it was observed that ocular evidence which is unreliable and is sought to be corroborated by doubtful pieces, of circumstantial evidence is not sufficient to support conviction for murder and under the circumstances the accused is entitled to the benefit of doubt.

17. For the reasons already stated we do not consider the evidence appearing against the accused to be reliable enough to sustain conviction and we, therefore, give the benefit of doubt and acquit him of the charge. He is in Jail custody and it is hereby ordered that he may be set at liberty if he is not required in any other case. Appeal accepted.