P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

The five appellants have been convicted by the Sessions Judge: Jacobabad, for an offence under section 302 read with section 34, P. P. C. and each of them has been sentenced to death. They have come in appeal and their case is also before us for confirmation of the death sentence. In this crime one other person Allahwarayo is also alleged to be concerned. He is an absconder. He is the brother of the two appellants Shahal and Arsalah. The remaining three appellants are brothers inter se. The first two appellants are the maternal uncles of the remaining three. In this case three persons viz., Akhtiar, Suhrab and Dost Muhammad were murdered. Akhtiar and Suhrab are brothers. The parties are Umranis by caste and-live in the same village. One Qaisar, brother of appellants Shah Nawaz, Ali Madad and Pit Bux had some time before these murders, declared his wife as "Kari" with deceased Suhrab. The matter was settled as deceased Akhtiar's daughter was given in marriage to Qaisar, but Qaisar was not satisfied and he assaulted deceased Suhrab when he was shot dead by Suhrab's brother Meharullah who was convicted for that crime. The relations between the parties thereafter 'were strained and accordingly proceedings under section 107 Cri minal P. C., were instituted against the present appellants and absconder Allahwarayo. During the pendency- of these proceedings, these three murders were committed. This furnishes the motive for this crime. This offence was committed on the morning of 21st May 1956 at sunrise. The three deceased persons had left their village at dawn with two bullock-carts loaded with gram for Jacobabad. They were going along Shahpur Road. They were followed by complainant Thangai and witnesses Maulabux and Meharullah, who were going to Jacobabad on foot to do the free work for one Mr. Ghulam Qadir. When the deceased persons reached the bridge of the Kalati water course, the appellants and the absconder emerged from the bridge. They were armed with hatchets and they fell upon the three deceased persons and gave them serious blows Suhrab and Akhtiar died on the spot and Dost Muhammad became unconscious. He was subsequently sent up to the hospital where he died on 25th May. The cries of the victims attracted Thangai and the two witnesses, who went running up and witnessed the incident. It is alleged that these three people inquired from the appellants and the appellants and Allahwarayo told them that they had murdered these people as Suhrab was declared "Karo" with Qaisar's wife. The appellants then went away taking their hatchets with them. Leaving Meharullah and Maulabux at the scene of offence, complainant Thangai proceeded to Jacobabad and file his first report with the Sub-Inspector of Police at 8 a.m. The names of all the culprits were clearly shown there. The S. I. P. went to the scene of offence and inspected it in the presence of mashirs. He carried on the usual inves tigation. Dost Muhammad was unconscious and he was sent up to the hospital. The dead bodies of the other two were also sent for post-mortem examination. Meharullah and Maulabux were examined. On 23rd May the S. I. P., arrested four appellants out of whom appellant Madad led the police to a jungle near Mamul village and from a burnt bush he produced ashes of his burnt blood stained clothes. The S. I. P. secured the same. On 24th May, the same appellant led the police and the mashirs to the bank of Kalati water course and from a bush took out a blood-stained hatchet with a broken handle and produced it before the Police. This was also secured. The ashes and the hatchet were sent to the Chemical Examiner who found human blood on them. On 5th June the S. I. P. arrested appellant Shah Nawaz, who had a hatchet injury on his hand. It appears on 22nd May, Dost Muhammad had regained his consciousness in hospital and his dying declaration was recorded by a Magis trate and Dost Muhammad implicated the appellants and Allahwarayo in this crime. After requisite investigation the appellants were sent up to stand their trial. Allahwarayo remains absconding till this day. The appellants declared their innocence and alleged that they had been run in falsely. There can be no doubt that the three deceased persons died on account of the injuries received by them on that day, and the offence with regard to those injuries would definitely fall within the definition of murder. On the person of Suhrab there were six incised wounds and four of them were individually sufficient in the ordinary course of nature to cause death. On the person of Akhtiar there were four injuries caused with a hatchet and two of them were indivi dually sufficient to cause death in the ordinary course of nature. On the person of Dost Muhammad there were three hatchet injuries one of which was on the chest and was sufficient in the ordinary course of nature to cause death. Two of the deceased persons died on .the spot after receiving the blows. The main question concerned in this case pertains to the identity of the criminals, the crime itself not being disputed. Evidence connecting the appellants with guilt consists of the ocular testimony of complainant Thangai and witnesses Maulabux and Meharullah. This ocular testimony is corroborated in the case of appellant Madad only by the production of ashes and blood-stained hatchet by him. In the case of appellant Shah Nawaz it is sought to be cor roborated by the hatchet injury on his hand. There is also the dying declaration of Dost Muhammad against the appellants. We have heard the arguments of the learned advocate for the appellants and the learned Additional Advocate-General for the State and we have also gone through the entire record of the case. We consider it difficult to place any reliance on the ocular testimony. It is important to note that not a single disinterested witness has been produced in the case. These witnesses are no doubt related to both the parties but it is quite clear to our mind that they are more favourably inclined to the deceased per sons. They have even been guilty of making exaggerations. Their presence at the vardat at the time in question appears to be extremely doubtful. It has been seen generally in the mofussil that people carry their goods at the last watch of night to the District towns for sale. We are of the opinion that these people left their village long before the time alleged and that these murders were committed at a time when there was no body nearby. It is significant that the all three eye-witnesses also left on the same day soon after the appellants for no particular purpose for Jacobabad. Their statements on this point were also contradictory. It was stated in the First Report that all the three persons were going to Jacobabad to do the free labour for Mr. Ghulam Qadir. In their statements Meharullah and Maulabux stated that they were going for making purchases. If they had to make purchases at Jacobabad there was no necessity for them to leave so early in the morning ; they could have left much later very conveniently. These witnesses further say that on the cries they ran up to the vardat and inquired from the appellants as to why they had killed these people and on enquiry the appellants and the absconder disclosed to these witnesses the motive for this murder. They said that they had killed these people because Suhrab deceased had been declared "Karo" with Qaisar's wife. It is difficult for us to believe this statement. In that moment it was impossible for these people to make inquiries from the appellants, and it was further impossible that the appellants would actually disclose the motive. These witnesses further say that Suhrab had not yet died and he disclosed to them that the five appellants and absconder Allahwarayo gave them the blows. The learned judge himself came to the conclusion that these witnesses had exaggerated the matter. The scene of offence was far away from the village of these witnesses and there was no reason for them to be there at that time. It appears to us very clear that these murders were committed long before sunrise, at a time when nobody was nearby. Subsequently these dead bodies were found and then a report was made to the police implicating the five appellants and absconder Allahwarayo, apparently because the relations between the parties were strained. All the five appellants and the absconder were involved in section 107, Criminal P. C., proceedings and therefore immediately their names were cited. . There is no doubt that these people had a motive for committing these crimes and it may be that all or some of them may have committed this crime, but in absence of convincing evidence, it is impossible to convict the appellants on the ground of that motive alone. Before we convict them we must be satisfied that it was they and they alone who committed the crime. There should be no doubt in our mind on that score. We think the ocular testimony is not of that kind and we feel it will not be correct for us to convict the appellants on such evidence simply because there is motive for them to kill these people. It appears in evidence that some Lasharis, Khosas and Rinds had also subsequently come to the vardat on the cries, but there is not a single disinterested witness in this case. The learned judge came to the conclusion that these people could not have gone there because there was no village near the vardat except that of Mr. Ghulam Qadir himself which was also six furlongs away. It may be so, but then the village of the eye-witnesses was also far away from the vardat, and we think that they had no reason to be present at the vardat at the time. We are also not convinced regarding the pieces of evidence produced in corroboration of the ocular testimony. We are indeed surprised by the opinion of the Chemical Examiner who reported that the ashes of the burnt clothes were blood stained. If blood-stained clothes are burnt and their ashes are examined, we are not able to see how the ashes will sti111B bear the stains of human blood. The learned Additional Advocate-General has not at all satisfied us on this point. With regard to the production of the blood stained hatchet, even if believed to be quite true, we must say that this piece of evidence by itself will not be sufficient for the conviction of an accused person. It will be unsafe to convict on that ground alone. Besides, .the production by the accused of this hatchet may only prove knowledge on his part' that the hatchet was there ; it would c not prove in the absence of other evidence that the accused person has personally used that hatchet in the crime. With regard to the injury on the hand of appellant Shah Nawaz, the learned judge himself has stated that he does not consider this to be of any value in convicting the appellant with the crime. The appellant 'was arrested on the 5th June long after the crime, and his theory was that he got this injury while slaughtering a bullock. No one had-stated that any of the three victims had given any blow to appellant Shah Nawaz, and therefore the presence of this injury on his hand could not in any manner connect him with the crime. There remains the dying declaration of deceased Dost Muhammad in the hospital on 22nd May. The Magistrate who recorded this statement was examined and from his evidence it has been proved that there was somebody at the hospital in the service of the deceased. He must be a. relation and he actually gave water to the deceased before he was examined by the Magistrate. The First Report had already been filed one day previously and it is not difficult to suppose that this information must have been given to the deceased and he must have been asked to implicate all the five appellants and the absconder. We find it very difficult to believe this dying declaration implicitly. There is one other circumstance also which creates great doubt in our mind with regard to the presence of these three witnesses at the scene of offence. It is alleged that the three deceased persons were going in two bullock-carts when the culprits emerged from the bridge and gave blows to them. It is reasonable to suppose that in this case there must have been some blood-stains on the bullock-carts themselves. There is nothing of that kind. It is not there fore possible for us to say how and in what manner the crimes came to be committed. In view of all these reasons we consider the case of all the appellants to be very doubtful. Giving the benefit of doubt to them, we allow the appeal, set aside the convictions and sentences passed on the appellants. Appeal allowed.