1968 P Cr (PLP)

G. SAFDAR SHAH, J. Ghous Bux accused, aged 45 years, son of Badlo, has been convicted by the Additional Sessions Judge, Jacobabad under section 304, Part 1/34, P. P. C , and sentenced to 10 year' R. I. for two murders, one of his daughter Mst. Hawa and another of Darbhani at village Bahalkani, Taluka Kandhkat District Jacobabad. Through this appeal he has questioned his conviction and sentence. It may be stated that his son Laloo, a co‑accused, was also tried on the same charges but acquitted while his brother Gullo accused absconded.

2. The brief facts of the prosecution case were that at noon time on 9‑4‑1965, deceased Darbhani, along with Laloo P. W., went to the house of Ghous Bux accused to collect Rs. 160, which he owned to Darbhani deceased. On arrival at his house, they found him present, along with Gudlo and Phuloo accused, with whom after exchanging the usual salutations Darbhani deceased demanded from Ghous Bux accused the refund of Rs.

160. The accused not only refused to pay but admonished Durbhani deceased as to why he had come to his house as he was a bad character. Hot words were then alleged to have been exchanged between them whereupon, all the three accused brought hatchets from their house and attacked Darbhani deceased. Ghous Bux accused is alleged to have threatened Laloo P. W. that Darbhani deceased was a Karo with his daughter Mst. Hawa and if he raised an alarm he would be killed. As a result of hatchet injuries inflicted on his person, Darbhani deceased, instantly died, whereafter the accused attacked Mst. Hawa, the daughter of Ghous Bux accused, and also killed her with hatchets. Laloo P. W. is then alleged to have returned to his village and informed Ali Beg and Jatoi P. Ws. of the incident whereafter, all three proceeded to the house of Ghous Bux accused, where on arrival they saw the dead bodies of Darbhaai and Mst. Hawa deceased lying in pools of blood. After having picked up the dead body of Darbhani deceased and placing it on a cot, Laloo P. W. is alleged to have proceeded to Kandhkot Police Station to lodge F. I. R. of the incident. On the way he met S I. P. Maqbool Ahmad S. H. O., P. W. 6 at Tangwani Police Station, to whom he reported the details of the incident, on the basis of which F. I. R. Exh. 8 was recorded. It may be mentioned that no motive for the crime was alleged by the prosecution except that, when Darbhani deceased demanded the return of his loan of Rs 160, from Ghous Bux accused, an altercation ensued between them which ended up in the murder of Darbhani deceased.

3. S. I. P. Maqbool Ahmad P. W. 6 stated at the trial that, on 9‑4‑1965, he was returning from Kandhkot to Tangwani Police Station when Laloo P. W. stopped his jeep, about one furlong from the scene of occurrence and reported to him the details of the incident. After recording F. I. R. Exh. 8, and having forwarded it to Tangwani Police Station for the purpose of its' being formally recorded, he proceeded to the house of Ghous Bux accused. On arrival there he found the dead body of Mst. Hawa, lying on the ground, in a pool of blood, while the dead body of Darbhani was lying on a cot outside the house. He prepared Exhs. 19 and 20, the inquest reports of the dead bodies, secured the blood‑stained earth from the scene of occurrence vide mashirnama Exh. 18, and then sent the dead bodies to Kandhkot Medical Officer, under the escot of M. P. C. Shah Ahraf P. W.

2. On 16-4‑1965, he recorded the statements of Ali beg and Jatoi P. Ws. while on 20‑4‑1905, their statements under section 164, Cr. P. C. were recorded by the Mukhtiarkar and F. C. M., Kandhkot. On 23‑4‑1965, he arrested Ghous Bux and at his pointing out from a nearby sand (dune) a blood stained hatchet was recovered which was taken in possession vide mashirnama Exh.

21. On 4‑5‑1965, he, arrested Phuloo alias Badlo, accused and on 7‑5‑196% he challaned both the accused.

4. Dr. Ghulam Hussain Exh. 23 who performed the post -mortem examination on the dead bodies of Darbhani and Mst. Hawa deceased in the early hours on 10‑4‑1965, found on their person the following injuries: DARBHANI (DECEASED) "(1) An incised wound about 4" x 1" x 2" on the upper part on the back of the neck, transverse cutting away the skin, muscle and first cervical vertebrae. (2) An incised wound, 6" x 2" x 3"' about 1" below And parallel to injury No. 1, cutting the corresponding skin muscle vessels, second cervical wound vertebrae and spinal cord. (3) An incised, 5" x 2" x 2", oblique in direction, starting from the right neck and ending on the middle part of back of the neck, cutting away the right maxillary bone neck of right mandible, along with corresponding muscles and vessels. (4) An incised wound about 4" x 1" x 2", .on the middle part of back cutting away the 4th cervical vertebrae along with spinal cord, corresponding muscles and vessels. (5) An incised wound, 3" x 1" x 2" about 1" below and parallel to injury No. 4 causing fracture of fifth vertical vertebrae cutting spinal cord, muscles and vessels. (6) An incised wound 3 " x 1" x 2" about one inch below and parallel to the 5th injury cutting away the 6th cervical vertebrae, spinal cord, along with corresponding muscle and vessels. (7) An incised wound about 3" x 1" x 1", on the middle side of the lower one‑third left forearm, causing fracture of the left ulna. (8) An incised wound about 3 " x 1 " x bone deep, on the postero-medial aspect of the upper one‑third of the left forearm causing fracture of the upper one‑third of the left ulna. (9) An incised wound 1 " x " x skin deep on the upper most part of the back of left shoulder. (10) An incised wound about 1" x " x ", on the lateral aspect of the middle one‑third of right forearm, causing fracture right radius. (11) An incised wound about 4" x " x skin deep, on the back of the left side chest." In his opinion the death was. caused due to shock and haemorrhage, as a result of hatchet injuries Nos. 1 to 6, each one of which was individually sufficient to cause death in the ordinary course of nature. Mst. HAWA (DECEASED) "(1) An incised wound, 3 " x 1" x 2 ", transverse on the middle part of front of the neck about 1 3/4" above the sternum‑clavicular joint, cutting away the wind pipe, other structures along with 5th cervical vertebrae and spinal cord. (2) An incised wound, 3 " x 1" x 1 ", starting from the cheek of the left side face and ending on the upper part of the left side neck, cutting away the angle of left mandible, along with muscles and vessels of the part. (3) An incised' wound, 2" x 1" x ", about " above and parallel to the lateral half of the injury No. 1, on the front of the neck. (4) An incised wound, 1" x " x ", over the lateral side of the thyroid cartilage causing its damage." In his opinion the death was caused due to shock and haemorrhage as a result of hatchet injuries. Injury No. 1, according to him, was sufficient to cause death in the ordinary course of nature.

5. Ghous Bux accused, in his statement under section 342, Cr. P. C., stated at the trial that his daughter Mst. Hawa was murdered as karl, of Darbhani deceased by his nephew, Ahmad but he denied that Darbhani deceased was murdered in his house or that he had any hand in it. He further stated that he was falsely implicated in the crime on account of enmity.

6. The prosecution relied on the ocular evidence of the only eye‑witness of the occurrence, namely, Ali Beg P: W. 4, and the recovery of hatchet. He was a cousin of Darbhani deceased, but in order to show his dis‑interestedness he stated in examination‑in‑chief at the trial that, he was only his caste fellow. However, in cross‑examination, and in his statements before the Committing Court and the Police he admitted that the deceased was his cousin. Even Laloo P. W. 2 confirmed that position. At the trial he supported the prosecution version in minutest details but in cross‑examination he admitted that, when he and Darbhani went to the house of Ghous Bux accused, the latter accused Darbhani that he was a bad character and admonished him as to why he had come to his house. In answer to a question, as to on what account Ghous Bux accused owed Rs. 16u to Varbhani deceased, he replied that the deceased had sold him a bullock. however, he had made no such mention either in statement, under section 164, Cr. P. C., Exh. 12, or before the Committing Court or even before the Police. In fact what he did state was that, when the Police arrived at the scene of occurrence, about evening time on the day of incident, he and Jatoi P. W. ran away, apprehending that the Police might put them in trouble. In answer to a question, if he knew one Ahmad Jat, he stated that he heard his name for the first time in Court although he had stated in the Committing Court that Ahmad was related to Ghous Bux accused. He further admitted in cross‑examination that, both he and Jatoi P. W. were accused of Ahmad's murder and were on that account arrested and were still in custody. In answer to a further question, that he and Jatoi P. W. had murdered Ahmad Jat as the latter had murdered Darbhani deceased, as the Karo of Mst. Hawa, he replied that it was incorrect. He also denied the suggestion made to him in cross‑examination that he was not a witness of the occurrence. However, he admitted that soon after killing Darbhani and Mst. Hawa deceased, when the accused left their house, he raised an alarm which attracted many persons to the scene of occurrence, but strangely enough not even one person from them was produced by the prosecution.

7. S. I. P. Maqbool Ahmad P. W. 6, admitted in cross examination that, when he arrived at the scene of occurrence, at evening time on the day of incident, he could not secure the attendance of Ali Beg and Jatoi P. Ws., as they were arrested by Kandhkot Police on the charge of having committed the murder of one Ahmad Jat, a relative of Ghous Bux accused. He further admitted that Ahmad Jat was murdered on the same day (at evening time) when Darbhani and Mst. Hawa deceased were murdered. He further admitted that he had arrested Ghous Bux accused from his house. In this view of the matter it appears that the statement of Ali Beg P. W. 4, that after the Police arrived at the house of Ghous Bux accused, he and Jatoi P. W. ran away, as they were afraid the Police would put them in trouble, was not only false but a very significant statement. According to S. I. P. Maqbool Ahmad, P. W. 6, they had already been arrested by Kandhkot Police on the charge of having committed the murder of Ahmad Jat, a relative of Ghous Bux accused a fact which he tried to hide. I am of the view that the statement of Ghous Bux accused under section 342, Cr. P. C. appears to be sufficiently plausible that Darbhani and Mst, Hawa deceased were murdered by has nephew Ahmad deceased as Karo‑Kari. The fact that Ahmad himself was murdered the same day, after not a very long interval, is a circumstance which must be given its due importance. 'Therefore, it can be safely presumed that his murder was not simply a co‑incidence but was the result of a pre‑conceived design on the part of deceased Darbhani's relatives. Whether Ali Beg and Jatoi P. Ws. were responsible for his murder was a matter to be determined at another forum in case they were to be committed to it to answer that accusation.

8. The learned Additional Sessions Judge came to the conclusion that Darbhani and Mst. Hawa deceased were murdered while having been found in a compromising position. I entirely agree with him as there was plentiful material on record to sustain that conclusion. The Medical Officer, Ghulam Hussain P. W., had taken slides of the contents of private parts of Darbhani and Mst. Hawa deceased which, at least in Darbhani's case, were found by the Chemical Examiner to be stained with semen. The conclusion therefore, becomes irresistible that Darbhani deceased had gone to the house of Ghous Bux accused with a view to having illicit intercourse with his daughter Mst. Hawa and the contrary prosecution story and the evidence of Ali Beg P. W. 4, was altogether baseless. The learned Additional Sessions Judge also disbelieved Ali Beg P. W. 4, on that part of the prosecution case but nevertheless did not doubt his presence when Darbhani and Mst. Hawa deceased were murdered. He was of the view that he must have accompanied Darbhani deceased, as his body guard (as according to him this was a common feature in that part of the country) when he set out in pursuit of the unholy mission on that fateful day. I am afraid I have not found any evidence on record which could sustain any such conclusion. After having disbelieved him on material aspect of the prosecution case, the learned Additional Sessions Judge should have wholly discarded his evidence unless he could find firm basis in support of that part of his testimony on which he was going to rely. The learned Additional Sessions Judge has given no indication as to why after disbelieving him on the material aspect of prosecution case, he accepted his presence at the scene of occurrence. I have anxiously analysed his evidence with a view to finding some basis on which the conclusion of the learned Judge could be sustained but I have found none. On the contrary the close scrutiny of his evidence left me in no doubt that the witness was a lier. He stated in cross‑examination at the trial that after murdering Darbhani and Mst. Hawa deceased, when the accused left their house, he raised an alarm which attracted many persons to the scene of occurrence. The fact that not a single person from them was produced by the prosecution is by itself a powerful circumstance which must cast a serious doubt on the prosecution case. Furthermore the witness was a close relative of Darbhani deceased and was arrested for the murder of Ahmad, the nephew of Ghous Bux accused, at evening time of the day Darbhani and Mst. Hawa were murdered. The learned Judge failed to advert to this part of the case which was bound to prejudice the accused. In that view of the evidence, and considering that Gullo accused, the brother of Ghous Bux accused, absconded soon after the murder of Darbhani and Mst. Hawa, it was possible that Ahmad deceased and Gullo accused (the absconder) were the murderers and that Ghous Bux accused had no hand in the crime.

9. The learned Additional Sessions Judge also relied on the evidence of Lal Muhammad P. W. 3, who according to him corroborated the evidence of Ali Beg P. W.

4. Lal Muhammad P. W. was admittedly wit a witness of occurrence and was informed of the incident by Ali Beg P. W. 4: Apart from the fact that he was closely related to Darbhani deceased, his evidence, which had its basis in the information, conveyed to him by Ali Beg P. W. 4, whom I have already disbelieved, had no merit whatever and was, therefore, of no avail to the prosecution.

10. The alleged recovery of hatchet, at the pointing out of Ghous Bux accused appears to be equally unsatisfactory. Apart from the fact that it was wide after about LO days of the occurrence, the evidence of recovery witness also appeared to be unsatisfactory. Ghulam Muhammad P. W. 5, a witness to the recovery of hatchet. (Mashirnama Exh. 18) admitted in cross-examination at the trial that he and one, Baloo Jat, a cousin of Ghous Bux accused, had filed cases against each other after a fight. Furthermore he had stated in the court of Committing Magistrate that when the blood-stained hatchet was recovered by the Police, it was not sealed on the spot, although he deposed to the contrary in the trial Court. He further stated that the hatchet was recovered at noon time but according to S. I, P, Maqbool Ahmad P, W, 6, it was recovered at 7 a.m. For all these reasons I am of the view that the recovery was doubtful and therefore, had no corroborative value in spite of the report of Chemical Examiner that it was stained with human blood.

11. I have disbelieved the P. Ws, and have also doubted the recovery of hatchet alleged weapon of offence. The statement of Ghous Bux accused under section 342, Cr. P. C., that Darbhani and Mst. Hawa were murdered by his nephew Ahmad, who himself was murdered after a few hours, appears to be, plausible. Considering that his brother, Gullo accused absconded soot after Darbhani and Mst. Hawa were put to death, lends sufficient support to his statement that possibly Ahmad deceased and Gullo accused were responsible for their murders. Therefore, while giving the benefit of doubt to the accused, the appeal is allowed, and his conviction and sentence is set aside. It is ordered that he shall be released forthwith unless required in some other case. Appeal accepted.