1980 P Cr (PLP)

(1) The skull bone was cut at right occipital region thoroughly. (2) The Second cervicle vertibrae was cut through and through. (3) The brain membranes were cut and congested at occipital. (4) The brain matter was badly congested. (5) The spinal cord was cut thoroughly =at second cervicle verteb rae. (6) The heart was empty. (7) The stomach was empty.

9. According to the Medical Officer, injuries Nos. 1 and 2 appeared to have been caused by a spade; whereas injuries 3 and 4 were by a hatchet. All the external injuries were ante‑mortem, and were sufficient to cause death, in the ordinary course of nature, though injuries Nos. 1 and 2 were individually sufficient to cause death. The death of the deceased was instantaneous. The time between the death and the post mortem, as given by the doctor, was about 11 to 16 hours. Injury No. 1 Was over the back of the root of the neck‑‑and injury No. 2 was over the occipital region. Both the injuries give an indication of'‑ having been caused when the deceased was lying on the ground.

10. The direct evidence in the case is furnished by three eyewit nesses. The first is of the complainant Sahib Khan, brother of the deceased, second is of Sheral, his nephew, and the third is of Muhammad Saleh, son of the deceased. All of them had unanimously deposed to have seen the three appellants, giving blows, with the sharp side of the spade and the hatchets to the deceased.

11. In the F. I. R., the motive for committing the murder of the deceased, was that about two months before the occurrence, deceased Ghulam Qadir had fired at Ghulam Hyder, brother of appellant Ghulam Hussain. The matter was reported to Moro Police Station, but the police had let him off. However, Bakhsho son of the complainant, who was co‑accused with the deceased, was challaned in the Court under section 307, P. P. C. In the trial Court, it was further alleged, that applicant Mirzo and his nephew Ghulam Hussain had abducted Mst. Pari, niece of the complainant, but she was soon recovered and restored to her parents, which had annoyed the appellants, who committed the murder of the deceased.

12. From the statement of complainant Sahib Khan, we find that he bad gone for harvesting the wheat and was present in his wheat 'dera', at about 6 a. m. When he had heard cries of the deceased, he rushed towards him, and saw appellants Mirzo and Usman armed with hatchets and appellant Ghulam Hussain with a spade, attacking the deceased. At that moment P. Ws. Sheral and Saleh are stated to have reached there a minute before the complainant. The pre sence at the vardat of these three eye‑witnesses, who are closely related and are admittedly hostile to the appellants, is doubtful and it does not inspire confidence.

13. In the F. I. R. the complainant had stated that he and the deceas ed had left the house at one and the same time, and he (complainant) went to harvest the wheat crop, whereas, deceased Ghulam Qadir took the spade and went to water the chilli cultivation. It is also stated in the I. R. that P. Ws. Sheral and Muhammad Saleh "came running, from a distance, from their houses." Whereas, at the trial, this position was improved and changed. Complainant Sahib Khan deposed that he had left his house all alone, about 15 minutes after morning Azan. He was already standing in his wheat 'dera', at 6 a. m. when he heard the cries of the deceased. He had denied in the cross‑examination that he and the deceased had left the house at one and the same time. He also deposed that P. Ws. Sheral and Saleh were already present in their field and were giving water to their chillies at the time of occurrence. In the cross‑examina tion, he had maintained that he had stated in the F. I. R. that both the witnesses were present in their chilli cultivation. He denied what he had stated in the F. I. R. that they came running from their houses on the cries of the deceased. The complainant had shown the Tapedar point C (sketch Exh. 6) which was situated in the house of the complainant, as the place where P. W. Sheral and Saleh were said to be standing at the time of occurrence. The complainant did not show the tapedar, the land, where chillies were cultivated. This aspect of the facts gives rise to a presumption that the complainant had repudiated his F. I. R. in order to place himself and P. Ws. Sheral and Saleh at the vardat, as eye‑witnesses. He goes further to depose that on the night of occurrence, the deceased had received his turn of water rotation, which after his turn, he gave it to P. W. Sheral, where after he returned home. Realis ing that it would damage the prosecution version, he voluntarily stated that the deceased went back again to attend to the water rotation in his chillies. This statement is inconsistent with his earlier stand and is palpably false. Their turn of water rotation began from 12‑45 a. m. to 5.15 a. m. They took the water, as per L. C. statement, from Sulleman Faqir and gave it to Shafi Muhammad, Punjabi and both were not examin ed. Ordinary farmers, who give and take their turn of water, are usu ally present at the watercourse. The party receiving the water is anxious to get it in time. We do not have any witness to support the version that the deceased had received the water from Shaft Muhammad and gave it to Bux and or whether the water had at all been given to the chilli cultivation belonging to the complainant and the deceased,

14. P. W. Sheral is nephew of the complainant being his sister's son. So is P. W. Saleh, who is the son of his brother Yousif, which fact, though is denied by the complainant, as well as, Saleh himself, who claimed to be the son of the deceased. Yousif was murdered, and the deceased, Ghulam Qadir was arrested and ehallaned in the Court, for his murder. The complainant had admitted this fact in the com mittal Court in these words "Satoh is son of Yousif, who was murdered and deceased Ghulam Kadir was challaned in the said murder case", (Extract 10), Why P. W. Satoh was put up as the son of the deceased is understandable. His father Yousif was murdered and the deceased was accused of it. The case against him was also challaned in the Court. Saleh must have had the grudge to avenge the murder of his father. He is a Khoso Baloach by caste. Baloach tribes staunchly believe in the principle of murder for murder. Saleh is a young boy and could have been pursuaded to align with whatever theory, the complainant had put forth, in order to avoid being .a suspect himself, of the murder of the deceased. It is noteworthy that not a single independent witness was produced in support of the prosecution case to provide corroboration to the statements of interested and hostile witnesses. The deceased and P. W. Sheral were 'haris' of Shafi Punjabi. The complainant was 'hari' of Malik Jalaluddin, whose village consisted of 10/12 houses, which was only one 'athas' (1150 feet) away from the vardat. There are other villages of Khosas at a calls distance from the vardat. Early in the morning or at mid‑night and thereafter, a cry for help could easily be heard from a distance of one mile. No one from any of the villages around, had responded. It strengthens the doubt that no alarm was raised and no one had witnessed the alleged crime.

15. From the cross‑examination, it is evident that a determined, effort was made by the complainant to repudiate, in material particulars, his First Report to the police, as well as, his deposition in committal Court. The deceased was a previous convict. He was convicted of an offence of abduction of a girl and was sentenced to undergo R. 1. for 7 (seven) years. This fact was admitted by the complainant before the committal Court. (Extract Exh. 14) ; but at the trial, he disowned, having made such a statement. The dead body of deceased Ghulam Kadir was lying in the land belonging to Mullah Hassan Dapar, which fact was admitted by the complainant in the trial Court. He further stated that Mullah Hassan Dapar had given the land, on lease, to a Punjabi, whose name, he did not know. The Tapedar Barkat Ali (P. W. 1) also did not state to whom the land at point `A' in the sketch Exh. 6 belonged, where the dead body was lying. The deceased Ghulam Kadir had spade with himself. He did not seem to have used it in his defence, as no injury is found on the person of any of the appellants,

16. In view of such a situation, when the place of occurrence is not certain, and the eye‑witnesses had deliberately suppressed the truth and made improvements in their statements, it reflects adversely to the credibility of the prosecution version.

17. Next is the evidence of the other two eye‑witnesses Sheral (P. W. 4) and Saleh (P. W. S). Their version is almost the same as that of complainant Sahib Khan. They were in their respective houses. On hearing the cries of the deceased, they bad come running to the Vardat. Their version that they were present in the chilli cultivation, is not correct and they . were confronted with earlier statement, made by them either before the police or under section 164, Cr. P. C. About the vardat Sheral, in his statement before committal Court, had clearly stated that it was about two blocks away from the place of harvesting. It is evident that the witnesses had been deliberately shifting the vardat each time, when their statements were earlier recorded by the police and before the committal Court. At the time, the police had arrived, the ‑ dead body of the deceased was stated to be lying in the land of Inayat Punjabi, who is the Zamindar of the complainant to show that the deceased was murdered in the land that was cultivated by them and the witnesses were present there. The dead body was, in fact, lying in the land of Mullah Hassan Dapar and definitely not in the land owned by Inayat Punjabi. P. W. Sheral had further admitted that at the time of occurrence, other farmers were also present and were harvesting the wheat crop in .their lands, surrounding the vardat. On cries, many persons, working in their fields, had come there ; whom the incident was narrated by the complainant, but none were produced in the Court as eye witnesses. In his statement Sheral had made so many contradictory statements in respect of his own presence and that of the complainant and P. W. Saleh, that it is unsafe to place explicit reliance on his version. He was also involved in a police case of Naushehro P. S. for having caused injuries to one Siddik Khoso.

18. The evidence of P. W. Muhammad Saleh is not at all credit worthy. He had disowned his father Yousif, though he had admitted this fact, in his statement before the police as well as before the Magis trate when his statement under section 164, Cr. P. C. was recorded. His presence at the vardat is doubtful. His statement is full of contra dictions. In the police statement; his version was that complainant Sahib Khan, P. W. Sheral and he himself were present in their houses, when the deceased raised cries in the field and they went running sub sequently this version went on changing and improving before the commit tal Court, where he had stated that they seen all the appellants present in their lands at the time, when they were going for water rotation before the occurrence.

19. Mr. Allah Dino Memon has criticised the evidence of the three eye‑witnesses, which according to him, were interested and not worthy of any credit. It is argued that their presence at the vardat was doubtful. Moreover, the contradictions and the discrepancies, in the evidence clearly indicate a conscious effort on the part of the three witnesses to present near the vardat, when actually, they were not any where close by, to witness the crime. In his statement before the committal Court P. W. Saleh had stated that there was no wheat dera of the complainant and the harvesting of the wheat had not yet started. As a result of assessment of their evidence, the testimony of the three witnesses does not inspire confidence. 20, The corroborative evidence is of recoveries of blood‑stained articles. Two shirts from each of the appellants Mirzo and Ghulam Hussain and two hatchets each by Mirzo and Usman. All these articles were opined to be stained with human blood. The recoveries were made in presence of P. W. Makoro, who had acted as a moshir. His version was that the police had arrested all the three appellants at 1.00 p.m. from their houses in their own village, on the next day of the occurrence and had secured blood‑stained shirts from the person of Mirzo and Ghulam Hussain, who were found wearing them. After their arrest, Ghulam Hussain produced the spade and the remaining two produced hatchet each whereas the version of P. W. Saleh was that all the three appellants were arrested on the same day of the occurrence, in the evening and the police had brought them at the vardat with hatchets and spade. The police then took them, as well as, the dead body to the police station, accompanied by the eye‑witness as P. W. Makoro was the surety of Buxo, son of the complainant in 307, P. P. C. case. filed by Ghulam Hyder, brother of appellant Ghulam Hussain, Makoro had admitted in the committal Court that "on the next day he was called by the police from his village. It is doubtful therefore whether the appellants were arrested in his presence and the articles were recovered by the police as is alleged. The evidence of Makoro is not of an independent and reliable quality to provide corroboration to the testimony of the eye‑witnesses. There is no doubt that the police officer S.H.O. Ayaz Ahmed, who had arrested the appellants and had made the recoveries is a competent witness, but in this case, where the credibility of the mashir is found to be doubtful on the point of arrest and recoveries and also ‑ being closely associated with the party of the complainant, the evidence of the Investigating Officer who had selected and sent for the mashir, after staying for the whole day at the vardat, should be of an unimpeachable character. All the circumstances of the case put together throw doubt on the testimony of the Investigating Officer. The evidence of recoveries made by him, by itself is a weak piece, and cannot corroborate the eye‑witness account, when there appears to be a conflict in the testimony of the mashir and also the eye-witnesses. In absence oaf convincing evidence on the point of recovery of blood‑stained articles, it cannot be used as a corroborative piece of evidence.

21. Appellants Mirzo and Usman are brothers inter se and lived with their family members in the same house. Appellant Ghulam Hussain also resided with his parents. The F. I. R, was lodged at 10 a.m. The police bad reached the vardat at 11 a.m. and prepared the mashirnama Exh. 43, at 11.10 a.m. The houses of the appellants were close by; but their arrest and recovery of blood‑stained articles is shown in the mashirnama to have been made on 14th April, 1974. Nee, time of arrest is shown in the mashirnamas, No satisfactory explanation is given by the S. H. O. why he had arrested the appellants on the next day and not on 13th April, 1974. The arrest and the recoveries are, therefore, not free from doubt, particularly when the S. H. O. had reached the place of occurrence at 11 a.m. and had remained the whole day there and had stayed the night at the otaq' of Ch. Jalaluddin, Zamindar of the complainant. The S. H. O. did not find any wheat crop in the area of 10/15 paces where the dead body was lying. The portion of the land was ploughed. It further throws doubt on the authenticity of blood found on the clothes and the weapons. The blood‑stained articles were secured on 14th April, 1974. They were kept at the police station for one month and 20 days, whereafter they were sent to the Government Analyser for opinion on 4th June, 1974.

22. The medical evidence, likewise, also does not provide the required corroboration to the eyewitness account. The dead body was received by the doctor on 13th April, 1974 at about 5‑30 p.m. Post mortem was started at 5.35 p.m. and was completed at 6.10 p.m. on the same day. The time, between death and post‑mortem was about 11 to 16 hours. It is possible that the murder was committed between 2 and 5 a.m. On 13th April, 1974 which was the period, when the complainant had his water rotation and the deceased had attended to it. From the medical evidence, it is clear that injuries Nos. 1 and 2 caused by the spade, and were individually, sufficient to cause death, in the ordinary course of nature and it is difficult to believe that such injuries were caused, when the appellant was standing or walking. It is more likely, that these injuries, coupled with injuries Nos. 3 and 4 were caused while the deceased was asleep. 23: Consequently, as a result of the above discussion, the prosecu tion has not proved the case, beyond all reasonable doubt, against the appellants. The appeal is, therefore, accepted and their conviction and sentence is set aside. They shall be set at liberty forthwith, unless required in any other case. Appeal accepted,