P L D 1975 Karachi 107 (PLP)

FAKHRUDDIN G. EBRAHIM, J.‑Within half an hour of the murder of his uncle Haji Muhammad Hassan, the first informant Ghulam Muhammad, his nephew a police constable attached to the office of Superintendent of Police, Larkana, lodged the following First Information Report at the Town Police Station, Larkana on 29‑7‑1971 at 6‑30 a.m. "The complaint is that Mohd. Hassan is my uncle. He had no other issues. He had adopted me as his son. Haji Mohd. Hassan had a shop of Fruit Agency in Jiles Bazar. Karimuddin, Imamdin Mohajir, are his parents (sic) in the shop. Today early in the morning I and deceased Muhammad Hassan were going from our house to Jiles Bazar to the shop of deceased. Haji Muhammad Hassan had one basket of straws in his hands. When we reached near Municipal Cattle Pond at 6‑00 a.m. we heard challenges from behind, I saw, (1) Sahib son of Kourp, (2) Kouro son of Sahib, (3) Wazirali son of Baluch Khan, (4) Hassan Ali son of Bago all by caste Jatoi residents of Shahdadkot. From whom Sahib was armed with simple barrel gun and the rest were armed with hatchets. Sahib challenged us and said not to go, we will murder you. Saying this he instigated his co‑accused and said not to spare Muhammad Hassan. Accused Sahib fired his gun at deceased Muhammad Hassan which was hit on his back and fell down on the road. Accused Ali Hassan gave hatchet blow with the sharp side of the hatchet to the deceased which hit him on his forehead near his right eye. Accused Kouro and Wazirali gave hatchet blow with blunt :`" side of hatchet to the deceased. I raised cries of murder murder. On my cries Hasul Khan Jatoi, Abdul Nabi Jatoi and other road passers came running and challenging the accused. They witnessed the incident with their eyes. Thereafter the accused ran away with their arms towards Gharwah, Swat side. We saw deceased Mohammad Hassan had gunshot injuries on right eye on his forehead and was dead. One shoe of black colour of the accused and one empty cartridge was lying at the vardat. Then I left other witnesses at the corpse of Mohammad Hassan. Then I came to lodge report. The accused have committed the murder of my uncle Haji Mohammad Hassan because my brother Jan Mohammad enticed away Mst. Saidan, a close relative of the accused. She was returned thereafter to her parents. About 3 years ago the accused Wazir Ali, Hassan Ali and other Jatois had committed murder of my uncle Mohammad Bux. In this case the Sessions Court had acquitted the accused. The accused, after release from Jail, had given threats that they will take revenge of "Karach". I am complainant the investigation to be made."

2. As will be seen from the First Information Report four persons were named as accused, namely, appellant Sahib, his father Kauro, Hassan Ali son of a cousin of Kauro and Wazir Ali, massa of Hassan Ali. The last named accused Wazir Ali was declared an absconder.

3. Immediately after recording the complaint, Inspector Inayatullah P. W. 11 the then S. H. O. Town Police Station, Larkana proceeded to the scene of offence, which was on a road in Jiles Bazar, Larkana, the busiest possible road in the Larkana Town according to the Supervising Tapedar, Shafi Muhammad P. W.

1. The S. H. O. saw the dead body of Haji Muhammad Hassan lying on the road, secured blood‑stained earth, one empty basket of Peesh (straw), one. empty cartridge and one shoe from the vardat in presence of mashirs, Ghulam Hyder P. W. 3 and Soomar. An inquest was also held by the officer and he sent the dead body of the deceased to the Medical Officer Dr. Wahid Bux, Exh. 19, D. H. Q. Hospital, Larkana for post‑mortem. On the same day, the investigating officer recorded the statements of P. Ws. Hassul Khan and Abdul Nabi and on the following day, of Ghulam Rasool Bhutto and one Mitero, who had shops situated near the vardat. P. W. Karimuddin was examined on 1‑8‑1973. Under orders from the S. H. O. Inayatullah A. S. I. Abdul Sattar Exh. 1,8, arrested accused Kauro and Hassan Ali alongwith hatchets which were not blood‑stained, at 6 p.m. on 29‑7‑1971 and the appellant at about 10 p.m. on 8‑8‑1971 from Larkana‑Ratodero Road, alongwith a .12 bore gun in presence of mashirs Qalandar Bux and P. W. 7 Leeman. The S. H. O. sent the empty cartridge recovered from the vardat and the gun recovered from the appellant to the Ballistic Expert at Karachi for examination who later deposed Exh. 9, that the empty cartridge was fired from the .12 bore shot‑gun recovered from the appellant. The blood recovered from the vardat was analysed and found to be human blood. The investigation having thus concluded the three accused, the appellant, his father Kouro and Hassan Ali were sent up for trial to face charge under section 302 read with section 34, P. P. C. for the murder of Mohammad Hassan and the appellant was further charged with offence under section 13‑D of the West Pakistan Arms Ordinance, 1965 for being in possession of an unlicensed gun.

4. The learned First Additional Sessions Judge, Larkana gave the accused Kauro and Hassan Ali benefit of doubt and acquitted them but convicted the appellant for offence under section 302, P. P. C. and sentenced him to death and a further sentence of R. I. one year under section 13‑D of the West Pakistan Arms Ordinance, 1965.

5. The ocular evidence in this case consisted of complainant Ghulam Mohammad P. W. 7, Rasul Khan P. W. 8 and Abdul Nabi P. W.

9. Karimuddin P. W. 10 was examined in corroboration but I need not advert to him any further, for the evidence of this witness was to my mind rightly discarded by the learned Sessions Judge as unreliable inasmuch as his statement was recorded by the police on the 4th day after the incident and though he was according to his police statement an eye‑witness, before the Sessions Court his evidence was that he had heard gun‑report which brought him to the scene of offence. This witness is said to be a partner of deceased Muhammad Hassan and according to him, the deceased Mohammad Hassan was an accused in some murder cases. The learned Additional Sessions Judge found that P. W. Hassul Khan and Abdul Nabi were like the complainant, interested witnesses, and though present at the vardat, for they were at that time taking tea in the hotel of Karim Muhajir at a distance of 31 feet from the vardat, did not feel safe to rely on their evidence to convict Kauro and Hassan Ali in the absence of any corroborating evidence against them, for the hatchets recovered from them were not blood‑stained, and there was discrepancy in their evidence and that of the Medical Officer with regard to the two incised wounds and an abrasion on the person of the deceased. The discrepancy referred to was that according to the deposition of Hassul Khan and Abdul Nabi, Hasan Ali had given one hatchet blow to the deceased on forehead while accused Kauro and the absconding accused Wazir Ali had each given blows to the deceased with the blunt side of the hatchet and the doctor had found two distinct incised wounds and had attributed the abrasion to be by fall on the ground.

6. In so far as the appellant was concerned the Additional Sessions Judge held that strong corroboration was necessary in view of the interested eye‑witnesses, which was available against him inasmuch as empty cartridge left by him at the vardat had been recovered in the presence of mashirs Ghulam Hyder P. W. 3 and Soomar which empty cartridge was found to have been discharged from the gun secured from the appellant by A. S. I, Abdul Sattar in presence of mashirs Qalandar Bux and Leeman. Additionally, the motive alleged was considered by the Additional Sessions Judge to lend some corroboration with regard to the association of appellant in the crime alleged. 6‑A. Mr. Mohammad Hayat Junejo, the learned counsel for the appellant contended that the two prosecution witnesses Hassul Khan P. W. 8 and Abdul Nabi P. W. 9 were interested witnesses not only in the sense they were interested in the prosecution but more than that, namely, interested in obtaining a conviction against the accused ; and that the presence of the complainant Ghulam Mohammad at the scene of offence was more than doubtful. He further went on to argue that in any event the evidence of corroboration relied upon by the learned Additional Sessions Judge was insufficient inasmuch as P. W. Ghulam Hyder and Leeman the mashirs of the recovery of the empty cartridge from the scene of offence and the gun from the person of the appellant as interested or unlikely mashirs.

7. As regards the two prosecution witnesses Hassul Khan and Abdul Nabi, Mr. Hayat Junejo is undoubtedly right when he said they had made deliberately false statements to show that they were disinterested witnesses. The witness Hassul Khan denied any knowledge of a suit filed by one Samad Khan Jatoi against him and his brothers and also denied that accused Kauro had deposed for the plaintiff in that suit. This witness with a view to enhance his impartiality went on to state that accused Hassan Ali and Sabu were his massas, accused Kauro the husband of his maternal aunt and absconding accused Wazir Ali his maternal uncle, though no such relationship was alleged by him in his statement under section 164, Cr. P. C. or in his deposition before the Enquiry Magistrate. Though the defence failed to establish that this witness was related to the complainant party, there appears to be some truth in the allegation made, for the complainant in his cross?-examination while at one stage denied any knowledge as to whose daughter Mst. Mariam, the wife of the deceased Mohammad Hassan was, went on to state that she was the daughter of Hassul Khan but that Hassul Khan is another man. Again this witness though personally aware that the accused were on disputed terms with deceased Mohammad Hassan for the last seven years since the abduction of Mst. Saidan, in his examination‑in‑chief stated that it was only on enquiries made from complainant Ghulam Mohammad after the incident that he was told that the complainant's brother Jan Muhammad had abducted Mst. Saidan etc., and thus became aware of the enmity between the complainant and the accused party.

8. In so far as P. W. Abdul Nabi is concerned he categorically denied the allegation that he was an accused in a crime case under section 324, P. P. C. in the Court of the Resident Magistrate, Larkana and that the deceased Mohammad Hassan had stood surety for him in that case. The denials were demonstrated to be false. When questioned about his relationship with P. W. Hassul Khan, he stated that he was his friend though he was also his partner. He asserted that information relating to the motive for the murder of deceased Mohammad Hassan was conveyed to him by the complainant immediately after the incident, though he had in his police statement claimed personal knowledge.

9. The learned Assistant Advocate‑General without questioning the finding of the Sessions Court that the aforesaid two witnesses were interested contended that interested witnesses can be impartial. This is not doubt correct but then the impartiality must be such as to be uninterested in, what transpires as the result of their evidence. In other words they must be unprejudiced. The anxiety of the aforesaid two witnesses to suppress the evidence as regards their interest in the complainant party, and to heighten, at least in relation to witness Hassul Khan, his credibility by improved assertion of relationship with the accused party, the discrepancy between the medical evidence and their evidence on the question of injuries to the deceased make them more than interested witnesses and show their prejudice against the accused.

10. In support of his contention that the presence of the complainant Ghulam Mohammad was doubtful Mr. Mohammad Hayat Junejo invited our attention to the following observation of the learned Sessions Judge :‑ "The deceased was coming to his fruit agency shop early in the morning. This shop was situate in the fruit market Jalies Bazar, Larkana, The deceased was carrying his empty basket with himself for no other s purpose but for sending some fruit and vegetables in it to his house through complainant Ghulam Mohammad . Even otherwise it has come in the evidence of the complainant that the deceased was apprehending danger to his life at the hands of the accused. It is quite natural that the deceased must have taken the complainant who was adopted son and real nephew to assist him in case of any attack from the accused."

11. The aforesaid observations of the learned Additional Sessions Judge have no foundation in evidence and are, as contended by the learned counsel mere surmises. The complainant was at the relevant time a police constable working in the office of the Superintendent of Police, Lark and and though he was according to him residing with the deceased Haji Mohammad Hassan it has not been explained by him as to how and why he came to be with the deceased at 6 a.m. on the morning of the incident, when the deceased was proceeding to his shop in Jalies Bazar. Again the complainant was at pains to deny any kind of association with the other two prosecution witnesses Abdul Nabi and Hassul Khan though he must have known them as persons carrying on business in the same Bazar as the deceased, and at least in relation to P. W. Abdul Nabi, the knowledge that his adopted father, the deceased Mohammad Hassan, had stood surety for him.

12. As regards the motive for the murder, which according to the learned Additional Sessions Judge lent some corroboration with regard to the association of the appellant in the crime in question, the complainant alleged that his brother .Ian Muhammad had enticed away Mst. Saidan, a close relative of the accused which led to the conviction of Jan Mohammad who was sentenced to ten years' R. I. and while Jan Mohammad was in Jail the accused bad murdered his uncle Mohammad Bux in order to take revenge ; that the accused all the same went on demanding compensation for the Kato Kari between Mst. Saidan and Jan Mohammad but as the deceased Haji Mohammad Hassan was not prepared for a compromise the accused murdered him. To meet a plausible contention as to why Jan Mohammad did not become the obvious target of revenge, the complainant in his examination ?in‑chief went on to state that he was a T. B. patient and always remained indoor in his house, which was not his case in his deposition before the Enquiry Officer. Of the precise relationship between the said Mst. Saidan and the accused we have no evidence. Again the evidence of this witness too, does not confirm, as regards the two incised injuries caused to the deceased with that of the medical evidence. These facts and circumstances coupled with the fact that according to both the prosecution witnesses Hassul Khan and Abdul Nabi, Karim Mohajir, the owner of the tea shop where these witnesses were taking tea and from where they had seen the incident, had also seen the incident from the door of his hotel and the failure of the prosecution to examine Karim leads me to the conclusion that it is unsafe to rely on the evidence of the eye‑witnesses to convict the appellant. As pointed earlier the learned Additional Sessions Judge has himself proceeded on the basis that the prosecution witnesses were interested and it was, therefore necessary to have exceptional strong evidence in corroboration. The corroboration on which the learned Additional Sessions Judge relied upon. were, the recoveries of the empty cartridge from the scene of offence and the weapon of offence, namely, an unlicensed gun from the appellant The mashir for the recovery of the empty cartridge is P. W Ghulam Hyder. He admittedly is not the resident of the locality for he resides in a village about three mica from the scene of offence. In so far as the disputes between the complainant and the accused patty are concerned the witness was quite knowledge able. He was aware of the murder of Mohammad Bux, the brother of the deceased Mohammad Hassan and that there was a long standing dispute between the accused and the deceased on account of which enmity they did not visit each other. According to this witness he had come to Larkana for doing business at Bakra Piri which is at a distance of about 400 to 500 paces from the vardat, when he learnt of the murder of deceased Haji Mohammad Hassan which promptly brought him to the vardat. At the time when he reached the vardat, according to him many persons were present. According to the prosecution witness Ghulam Mohammad, the Tapedar may be about 100 or more persons were present. It is not understandable why the police picked up Ghulam Hyder as a mashir though lot of other witnesses of the locality were available. This witness was examined by the Additional Sessions Judge on 11‑12‑1972 but was, even on 9‑3‑1973 when complainant was being examined sitting in Court. In view of all this I am unable to place explicit reliance on the evidence of this witness as regards the recovery of the empty cartridge. The mashirs of the recovery of the gun is P. W. 7 Leeman. According to this witness the gun was found in the presence of the appellant at the time of the arrest at about 10 p.m. on 8‑8‑1971. The arrest was made on the Ratodero‑Larkana Road at a place 6 miles away from the village of this witness. According to this witness he met the other mashir Qalandar Bux by chance coming from the Larkana side and they were chit‑chatting with each other when the police arrived. He claims that he did not know the other mashir prior thereto. The police according to him enquired of their antecedents, made them sit in a jeep and took them along to some distance when the appellant was allegedly found and the gun recovered from him. The witness has not explained as to where he was going and how he happened to be on the Ratodero Road. The defence alleged relationship between the witness and the complainant party which, of course, was denied. In these circumstances it will be unsafe to rely wholly on the evidence of this witness as evidence of recovery of the gun in question from the appellant. Be that as it may, in view of my finding on the question of recovery of empty cartridge from the vardat, the recovery of the gun from the appellant is of little consequence.

13. The learned Assistant Advocate‑General in support of the recoveries made invited our attention to the evidence of S. H. O. Inayatullah who had secured the empty cartridge in presence of the mashirs and of A. S. I. Abdul Sattar, who had secured the gun from the accused. To begin with the law does not consider the evidence of the Police Officer connected with investigation entirely satisfactory for the purpose of proving recoveries, for otherwise provision contained in section 103 of the Criminal Procedure Code would be redundant. Moreover, S. H. O. Inayatullah does not appear to have shown the necessary anxiety in the investigation of the offence alleged. In spite of the fact that P. Ws. Hassul Khan and Abdul Nabi had allegedly seen the incident from the Hotel of Karim Mohajir, he did not even care to see this hotel nor could he say how far the hotel was from the vardat. Again though the name of Karim Mohajir appeared in the police statement of P. Ws. Abdul Nabi and Hassul Khan as the person who had seen the incident, he did not care to record his statement. Even according to this witness a large number of persons had collected near the vardat but he accepted as mashir Ghulam Muhammad who had happened to be at the vardat only accidentally. As regards, the evidence of A. S.

1. Abdul Sattar he was not examined before the Additional Sessions Judge for according to him, in a reply, to a Court question, P. W. Inayatullah stated that the Investigation Officer A. S. I. Abdul Sattar is dead, and in these circumstances evidence in the lower Court was taken on record by the Additional Session Judge. Mr. Muhammad Hayat Junejo contended that the mere statement of S. H. O. Inayatullah was not sufficient proof in law of the .demise of A. S.

1. Abdul Sattar, which must be strictly proved like any other ‑fact by clear, positive, convincing testimony and in the present case we have nothing more than the mere statement of the S. H. O. who does not even state whether his knowledge of the demise of the A. S. I. who personal knowledge or record. In my mind there is substance in the argument of the learned counsel. On merits, however, I find that there is a discrepancy between the evidence of Abdul Sattar and the mashir Leemo inasmuch as according to the latter they had gone in a jeep to arrest the accused while according to the former they had gone on foot. Again, according to Abdul Sattar he had spy information that the accused was going from the place from where he was arrested but he did not take with him any rnashir in what appears to be unlikely expectation that mashir would be available to him at 10 p.m. on Ratodero‑Larkana Road. In these circumstances I cannot concur with the Additional Sessions fudge that recoveries had not been proved in accordance with law or that they provided strong corroboration.

14. Finally according to P. W. Karimuddin the partner of the deceased Muhammad Hassan, the latter had been accused in some murder cases and the possibility therefore that he might have met his fate at the hands of his other enemies cannot be ruled out.

15. I will, therefore, allow this appeal and set aside the conviction of the appellant under section 302, P. P. C. and section 13‑D of the West Pakistan Arms Ordinance and acquit the appellant. TUFAIL ALI A. REHMAN, C. J.‑I agree. K. B. A. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?Appeal accepted.