P L D 1967 Karachi 612 (PLP)

K. N. S. N. AWAN, J.‑This is an appeal by the State under S. 417, Cr. P. C. against the acquittal of 3 opponents namely Ahmedali, Ghulam Umer and Turkali.

2. Prosecution case, in brief is that, Ali Bux, deceased was murdered by these three opponents in the afternoon of 13‑10‑62 on the bank of Hamid Shakh. This incident was witnessed by Jiand and Nuruddin. P. W. Pir Bux had found these three opponents armed with blood‑stained hatchets running away from this Sarzamin. On his inquiry they made no reply though they had informed others that they had murdered Ali Bux. He was suspected of illicit intimacy with Mst. Baghbhari wife of opponent Ahmedali and sister of Turkali. These two opponents are cousins to each other and resided in the village of Ahdi Khan father of this Bhagbhari. Opponent Ghulam Umer is friend of Ahmedali and he resides in village Dopatti which is about 12 miles away from this village. After seeing this incident Jiand came to the dera and informed Ghulam Sarwar who is said to be `Mama' of the deceased. He rushed to Warah and lodged his report there.

3. Police made usual inquiries. Muhammad Pinjal, S. H. O. after recording the first report came to Sarzamin where he found the dead body of Ali Bux and his blood‑stained cycle. He went to village Ahdi Khan on 14‑10‑62 and both Ahmed and Turkali were produced before him at 4‑45 p. m. He secured the banyan worn by Ahmedali as it was found to be stained with blood. Thereafter he led the police party to his house and produced a blood‑stained hatchet and loin‑cloth. On the following day Ahmedali was produced before the 1st class Magistrate Warah for making confessional statement. He then went to Jehan Khan village arrested Ghulam Umer and secured the shirt and loin‑cloth worn by him as these were found to be stained with blood. He produced a blood‑stained hatchet lying in his otak. He made his confessional statement before the same Magistrate on 16‑10‑

62. Report of the Chemical Examiner recites that two hatchets only were found to be stained with human blood. They were challaned on 26‑1062.

4. When examined in both the Courts below all the three opponents had denied to have murdered Ali Bux. Similarly allegations were denied by them. Regarding confessional state ments stand taken by them was that they had made these statements under coercion and `Zulum' as their women folk including Mst. Baghbhari (wife of opponent Ahmedali) were called to the police station and dishonoured. They have alleged enemity with all these witnesses who according to them are interested. They had produced several documents in support of their version. No witness was examined by them in defence.

5. Ocular evidence corroborated by the medical evidence proves the death of Ali Bux. It has thus been established that he had mat his death by violence. Medical evidence shows that he had received four injuries which, in the opinion of the doctor Allah Bux were ante‑mortem and further that injury No. 1 was individually sufficient to cause death in the ordinary course of nature. He had further opined that the cause of death was shock and haemorrhage and injury to the brain substance which was the result of hatchet. His death is not disputed. We are therefore satisfied that Ali Bux had died an unnatural death as a result of injuries received by him in the afternoon of 13‑10‑1962.

6. Material point for our consideration is whether these three opponents are guilty of murdering Ali Bux or their have been properly acquitted by the Sessions Judge, Larkana. It is evident from the facts stated above that the material piece of evidence relied upon by the prosecution is ocular evidence of Jiand and Nuruddin. This evidence has been rejected by the trial Court and we find that sound and convincing reasons have been assigned by it. Both these witnesses appear to be chance witnesses and they had no reason to be at the Sarzamin at the time of incident. They have contradicted each other on material points. Conduct of Jiand is unnatural. His evidence is to the effect that on the day of incident he had gone to Warah and from there he was proceeding to village of Rasul Bux to inquire about the health of his son. This story appears to be false. He had admitted in his cross‑examination that it was for the first time when he had deposed in the trial Court that he had gone to Warah on the day of incident and further that from there he was proceeding to village of Rasul Bux. It is also admitted by him that if he wanted to go to this village directly from his .own village there is shorter route and if he had followed it he would not have passed along the Sarzamin. In his cross -examination he has further admitted that "I spoke truth in lower Court and I now admit that. 'I went from my village to Rasul Bux village . . . . . . I did not raise cries nor challenged the accused. 1 can assign no reason why I did not go near the dead body when the accused fled away. I know Muhammad Nuruddin and Pir Bux. I knew their names as well as their castes. I did not see them at the wardat. I did not wait to see that some body sits over tie dead body . . . . . . People met me but I did not tell them of incident. I passed several villages and was on foot. I did not inform any one in those villages that I had seen the incident . . . . . It is correct that I am witness falsely set up by police and on the day of incident I was at Warah. I did not go to enquire Rasul Bux's health after this incident. I did not see any person giving challenge to accused. Even the deceased did not raise cries . . . . Ali Bux was my cousin's son." It is clear from this passage in his evidence that this is not the conduct of a normal man. He is related to the deceased. He had seen him being murdered by three opponents but had raised no alarm. He had not even cared to see after the culprits had run away whether the deceased was alive or not. Nor he made any arrangements for any person to sit near the dead body though evening was to fall shortly. He informed nobody about this incident while passing through villages in spite of the fact that he had met several persons. His evidence further shows that he had not seen the other two material witnesses, namely, Nuruddin and Pir Bux at the wardat nor he had heard the alarm raised by anybody. Evidence of Pir Bux shows that he did not find Jiand at the wardat. '

7. Next eye‑witness is Nurudddin. His evidence is to the effect that on the day of incident he had left his village at about tripahri time and was going to have a pair of bullocks from Ali Nawaz Buriro. He heard commotion coming from Hamid Shakh (Canal). He went running there and found three opponents giving hatchet blows to Ali Bux. He had seen this incident from a distance of about 20 paces. He challenged them but he was given threats by opponent Ghulam Umer. Thereafter Turkali ran away to North and his two accomplices towards west. He had found Jiand coming to this Sarzamin but he had not actually reached the Sarzamin as he had turned away from some distance. Sometime later he met Pir Bux and informed him about this incident. He has also deposed about the intimacy of the deceased with Mst: Bagh Bhari wife of opponent Ahmedali. He had not stated about motive in his statement under section 164, Cr. P. C. He had added chat lie had heard about this suspicion after this incident.' He is also caste fellow of the deceased. He had admitted that he would not have seen the incident if he had not heard the cries. Evidence of the tapedar shows that his village is about one mile away from the Sarzamin. The evidence of this witness further shows that after he had hardly covered the distance of 30 paces when he heard the alarm and saw this incident. It is impossible for him to halve seen this incident from such a long distance or to have identified the three accomplices and their victim. His evidence further shows that all the three opponents had assaulted Ali Bux while be was still on his bicycle. He had no talk with Jiand. Opponents Ahmedali and Turkali are by caste Marfani while the deceased is Cholani by caste. Enemity between them is admitted. He had also admitted that he would not be able to point out the place where he had seen the murder. For all these reasons he has been rightly disbelieved by the trial Court.

8. Muhammad Pinjal S. H. O. had deposed that he had examined Jiand on 13‑10‑62, though the evidence of Rand shows that he was called to the wardat on the following day and was then examined by police. One of them must be false.

9. Last witness is Pir Bux. His evidence is to the effect that he was in his field which is about 200 paces away from the Sarzamin when at about tripahri time he found opponent Ahmedali and Ghulam Umer running away towards the west. They passed about 10 paces from his field. They were carrying blood- staind hatchets and on their inquiry they made no reply, though they had told the other persons that they had murdered Ali Bux. He had heard this extra Judicial confession. He then went to Sarzamin and found Nuruddin there. In his cross‑examination he has given a different story which shows that he had gone to Sarzamin after he had beard the alarm raised by Nuruddin. We have already pointed out that he has deposed that he had not found Rand there, nor he was informed by anybody that Rand had come to the Sarzamin. It is strange to find that he had heard the extra Judicial confession but he does not know the names of those Witnesses. He has admitted that his eye‑sight is weak end his age is shown about 60 years. He is interested in the deceased and so he is not an independent witness. His evidence as discussed above shows that it is not convincing. He has improved upon the story which he bad stated under section 164, Cr. P. C.

10. These are the three material witnesses who were examined by the prosecution to prove the guilt of these three opponents for murdering Ali Bux. The trial Court in its judgment referred iii details to the improvements and discrepancies in their evidence. We have already pointed out that their conduct and behaviour is unnatural. Both Nuruddin and Rand appear to be chance witnesses. Apparently they bad no reason to be at the Sarzamin at the time of the incident. Most strange part of the story is that Rand did not care to see whether Ali Bux had succumbed to the injuries or he was alive. No arrangements were made by him to look after him if alive or his dead body if he was already dead. For all these reasons the trial Court has rightly rejected their evidence as all these reasons appear to be sound and convincing. It would not be safe to rely upon their evidence.

11. Next piece of evidence relied upon by the prosecution is the confessional statements made by Ahmedali and Ghulam Umer on 15‑10‑62 and 16‑10‑62 respectively. Both were arrested one day earlier. We find that the learned Magistrate in recording these statements bad not property followed the pro visions of section 164 (2) (3) r/w section 364 (3) and provisions contained in Chapter VI Part C of the Federal Capital and Sind Courts Criminal Circulars. In this respect defence had relied upon two cases reported in 33 Cr. L J 847 and Said Begum v. The State (P L D 1958 Lah. 559) Evidence of Muhammad Ashraf Exh. 5 1st Class Magistrate who had recorded these two confessional statements shows that he had not recorded all the questions put to these two opponents in body of this statement specially men tioning that he was a Magistrate and that even if they did no make any such statement they would be sent to judicial custody and not to police custody. It further appears that second warning was not given by him to these two opponents. Ghulam Umer in his statement has not referred to his movements after his arrest. They have retracted from these two statements and the stand taken by them is that they had made these statements under police coercion and Zulum. Evidence on record shows that Mst. Bagh Bhari was examined by the S. H. O. It is quite likely that she might have been called to the police station for this purpose. Apart from these defects we find that the contents of these two statements are not true. Both these statements do not refer to the threats alleged to have been given to Pir Bux. Nor these two statements mention extra Judicial confession made by them to persons referred to by Pir Bux. Names of eye‑witnesses do not appear in these statements. Story given by them appears to be different and contradictory, to the evidence of the alleged eye‑witnesses. Both the eye‑witnesses have stated that all the three opponents had assaulted Ali Bux while he was still riding his bicycle but these two statements show that Turkali had reached the Sarzamin later on and he was informed how the other two had assaulted Ali Bux. Apart from these defects we have shown that these statements were not made voluntarily. Thus even the confessional statements are neither true nor were made voluntarily. Proper and the correct procedure was not followed by the Magistrate while recording these statements. We have also referred to the discrepancies between these two statements and the ocular evidence. For all these reasons we agree with the trial Court that these two statements were not made voluntarily and further that their contents are not true.

12. Next piece of evidence is the recovery of clothes and production of two hatchets which were found to be stained with human blood. Amanullah Mashir and Muhammad Pinjal, S. H. O. have proved the securing of blood‑stained clothes and the production of two hatchets by Ahmedali and Ghulam Umer. This evidence too was not found satisfactory by the trial Court for the reasons that Ghulam Umer had produced the hatchet from 'Chan' of the otak of his village. It is commonly known that in villages hundreds of people visit such otaks and this fact is proved by mashir Amanullah. This hatchet was lying under the heap of straws and this otak is open on all sides. Ahmedali is alleged to have produced the hatchet which was lying on a wooden desk in his house where his brother Ghulam Mustafa also resides. The trial Court for all these reasons had found this evidence not satisfactory. Apart from this fact it is corro borative in nature. The main piece of evidence is the ocular evidence and it has been rejected for the reasons stated above.

13. Lastly there is the motive. It is alleged by the prosecution that Ali Bux deceased was suspected of having love affairs with Mst. Bagh Bhari wife of opponent Ahmedali. This fact appears in the two confessional statements referred to above. Ghulam Sarwar has deposed about this fact. But he has admitted that he never feared that opponents would murder the deceased for this reason. It is also admitted by him that he had not complained to their tribal sardar namely Sultan Ahmed Chandio. He had never asked Ali Bux if lie was suspected of having love affairs with this woman. Next witness who has deposed about motive is Nuruddin. His evidence shows that he had learnt about this suspicion after this incident. For all these reasons this piece of evidence has also been, rightly rejected by the trial Court and we have agreed with it. Apart from this fact it is only corroborative. Ocular evidence has been rejected and if at all there is any truth in this evidence it would not by itself prove the guilt of these three opponents.

14. All this discussion shows that prosecution has failed to prove the guilt of these three opponents beyond a reasonable doubt. The conduct of the two alleged eye‑witnesses is very doubtful. They have not acted like a normal person. No other man in these circumstances would behave as they bad done. Con fessions have been rightly rejected for the reasons stated above. Production of the two hatchets which was found to be stained with human blood, by the Chemical Examiner, is not reliable. Motive by itself would not prove the guilt of these three opponents. It is thus evident that the findings given by the trial Court do not appear to be perverse or unreasonable. For all these reasons we find no material or substance in the appeal which is dismissed. Oral order was passed on 25‑11‑1965, and the written Judgment is being signed today. K. B. A. Appeal dismissed.