P L D 1967 Karachi 39 (PLP)

H. T. RAYMOND, J.-The six appellants in this case were originally tried and convicted by Mr. Abdul Kadir I. Kazi then Additional Sessions Judge, Jacobabad, of offences under sections 302/149, 147, 148, 323, 325 and 452, P. P. C. and were sentenced to varying terms of imprisonment under the remaining sections whereas under section 302/149, appellant Ghafooro was sentenced to death and the rest to transportation for life. Criminal Appeal No. 196/64, was filed on behalf of these appel lants against their conviction and sentences which was heard by us along with Confirmation Case No. 40/64, in March last. Inasmuch as it then appeared to us that the provisions of section. 309, Cr. P. C. had not been complied with by the trial; Judge we then remanded the case back to him under a short order dated 26-3-1965 in which we directed that- "this case be remanded to the Court of Mr. Abdul Qadir I Kazi now Additional Sessions' Judge, Karachi, who, after re-calling the same assessors and securing the presence of the appellants, .will take -the opinion of these assessors on each charge as required by section 309(1), Cr. P. C. He shall then re-hear the arguments on all the charges and write a fresh judgment. The case shall be disposed of by him within a month from the date of the receipt of the records." The learned Additional Sessions Judge complied with these directions and after hearing fresh arguments in the matter he delivered his judgment on 24-4-1965, in which he convicted all the six appellants under sections 302/149, 1.47, 148, 323, 325 and 452, P. P. C. Under section 302/149, P. P. C., .he sentenced the appellant Ghafooro to death and the rest to transportation for life. Under the remaining sections he imposed a sentence of one year's R. I. upon each except section 325 where the sentence was two years R. I. on each of the appellants. The present appeal is from these convictions and sentences. The matter is also before us as Confirmation Case No. 33/65, for considering whether the death sentence imposed upon appellant Ghafooro should be confirmed. This judgment then will dispose of both the appeal as well as the murder reference.

3. The case for the prosecution is that complainant Piyaro is a resident of Badani in Taluka Kashmore. His relations including Abdul Khalik and the other prosecution witnesses as well as Mitho deceased resided in the village of Biland Samejo in Makhan Beloo. The appellants are also Samejos by caste and are closely inter-related. Appellants Manoo, Dino and Ghafooro are brothers, appellant Abdul Haq is their uncle and appellants Sabu and Yaroo are their cousins. These Samejos were all followers of the Pir of Bharchundi Pir Abdul Rahman but after his death prosecution witnesses responded to the call of Pir Abdul Karim the younger son of deceased Pir Abdul Rahman. Now Abdul Rahim was the eldest son of Pir Abdul Rahman but as he had displeased his father in his life-time the late Pir Abdur Rahman conferred the Gaddi on his younger son Pir Abdul Karim and hence the prosecution witnesses were the followers of Pir Abdul Karim. Pir Abdul Rahim resented this preferment of his younger brother to him and hence there was animosity between the two brothers. A year prior to the incident in this case Pir Abdul Rahim had visited the village of these prosecution wit nesses and had canvassed his cause with them but all to no purpose. This refusal on their part to owe allegiance to Pir Abdul Rahim annoyed him and he threatened them with dire consequences. Some g or 10 days after this incident appellant Manoo and others had pulled the beard of Ilyas P. W. 11 an elder among the Samejo prosecution witnesses. Ilyas had filed a case against appellants Mano, Dino, Yaroo and eleven others is the Court of Sub-Judge and F. C. M. Kandhkot in which deceased Mitho figured as a prosecution witness. In this case the accused were acquitted and since then they vowed vengeance against deceased Mitho.

4. On the day of the incident in question, namely, 27-1-1963, at about noon time complainant Piyaro was seated in his house when Wali Muhammad son of Abdul Khalik P. W. 12 rushed up and informed him that his father Abdul Khalik P. W. 3, his mother Mst. Pathani P. W. 5 and his uncle Yakub P. W. 4 while working on their onion cultivation had been attacked by the six appellants armed with lathis, Wali Muhammad further informed the complainant that the appellants then went in the direction of the house of Nooh P. W. 10 where they gave laths blows to deceased Mitho after which they ran away to their houses in the vicinity. Complainant Piyaro accompanied Wali Muhammad back to the scene when on reaching the onion cultiva tion he observed blood marks but found that the injured had been removed to their houses. From there he proceeded to the house of Nooh where he found Mst. Janat P. W. 8, Mst. Jiwai P. W. 9 injured there present along with Mst. Ashraf P. W. 7, Nooh P. W. 10 and deceased Mitho lying murdered. He made enquiries from them and they informed him of what had happened. They gave him the names of the six appellants and told him how these appellants after having attacked Mst. Pathani, Yakub and Abdul Khalik in their onion cultivation with lathis chased deceased Mitho who took shelter in the house of Nooh bolting the door from the inside. The appellants then entered this house by removing a part of the Kandhi fence and attacked the inmates with the lathis they were then carrying. Complainant Piyaro was then advised to go and lodge a report with the police which he did at Buxapur police station at 5-30 p.m. that same evening.

5. S. H. O. Abdul Khalik P. W. 14 after recording the F. I. R. of complainant Piyaro returned with him to the vardat in village Biland Samejo some ten miles away. As it was dark he could not carry on any investigation that night but early next morning he examined the scene and found that there were really two vardats one in the onion cultivation near the well of Jam Paryo and the other in the house of P. W. Nooh a furlong away. Here, he found the dead body of deceased Mitho lying in a pool of blood and an aperture in the Kandhi fence surrounding this house. He prepared the relevant mashirnamas of the two vardats examined the prosecution witnesses and prepared mashirnamm of their injuries. He prepared an inquest report of the dead body of deceased Mitho and sent it to the Mashmore Dispensary for post-mortem examination. On 5-2-1963, he arrested appellants Manoo and Dino and some ten days later on 16-2-1963, he secured appellants Abdul Haq, Ghafooro and Sabu. On concluding his investigation into this case he challaned the appellants in Court showing appellant Yaroo as an absconder who later surrendered himself before the Committing Magis trate.

6. The appellants in their statements in the two Courts below denied each and every allegation put to them. They denied that there was any prosecution filed against them in which deceased Mitho had figured as a prosecution witness. They attributed their implication in this case to the animosity between Pir Abdul Rahim and Pir Abdul Karim the two sons of deceased Pir Abdul Rahman of Bharchundi claiming that whereas they were the followers of the former the prosecution witnesses are Murids of the latter and hence they have falsely been involved in this case at the instance of Pir Abdul Karim. They also alleged enemity with the prosecution witnesses over land disputes. Appellant Manoo further stated that as he had married Mst. Chutto sister of deceased Mitho against the wishes of the latter, he was wrongly been involved in this case.

7. Now the case for the prosecution rests upon' the oral testimony of eight eye-witnesses and on nothing else. There is on this record not a jot or little of corroboration in support of the oral testimony of these eight prosecution witnesses in this case. Five of these eight prosecution witnesses, namely, Mst. Ashraf P. W. 7, Mst. Janat P. W. 8, Mst. Jiwai, P. W. 9, Muhammad Nooh P. W. 10 and Wali Muhammad P. W. 12 speak of the incident in the house of Nooh resulting in the murder of deceased Mitho and injuries to Mst. Janat" and Mst. 'Jiwai; 6 whereas the remaining three witnesses, namely; Abdul Khalik P. W. 3, Yakub P. W. 4 and Mst. Pithani P. W. 5 speak of the incident in the onion field where all three of them sustained injuries. There is in addition the evidence of complainant Piyaro P. W. 2 and Ilyas P. W. 11 neither of whom were eye-witnesses. It is of interest to note here that these prosecution witnesses are all closely inter-related. Complainant Piyaro P. W. 2 is a Phupat of deceased Mitho. Abdul Khalik P. W. 3 is a maternal uncle of deceased Mitho, Yakub P. W. 4 is brother of Abdul Khalik P. W. 3 and Mst. Pathani P. W. 5 is wife of Abdul Khalik P. W. 3, Mst. Ashraf P. W. 7 is wife of Mitho and daughter of Nooh P. W. 10, Mst. Janat P. W. 8 is wife of Ilyas P. W. 11 (Masat of deceased Mitho) and cousin of Mst. Ashraf P. W. 7, Mst. Jiwai P. W. 9 is daughter of Nooh P. W. 10 and sister to Mst. Ashraf P. W. 7 Muhammad Nooh P. W. 10 is the father-in-law of Mitho deceased and father of P. W. 7 Mst. Ashraf and P. W. 9 Mst. Jiwai, Ilyas P. W. 11 is a Masat of deceased Mitho and Wali Muhammad P. W. 12 is the son of Abdul Khalik P. W. 3 and Marot of deceased Mitho.

8. The evidence of the three eye-witnesses to the first incident of that day namely the attack upon them in the onion cultivation is of a piece. These three eye-witnesses Abdul Khalik P. W. 3, his brother Yakub P. W. 4 and his wife Mst. Pathani P. W. 5 speak of how they were s6t upon by the appellants while transplanting onions in their land near the well. According to the earlier statements of these witnesses the appellants were armed only with lathis and it is of significance to note that probably after receipt of the medical evidence they introduced in Court for the first time a hatchet in the band of appellant Ghafooro. However, the injuries sustained by these three witnesses P. Ws. 3, 4 and 5 show that they bore no incised wounds at all. These witnesses claim to have raised cries at the time of the attack upon them and it is strange that not a single witness from the village turned up on their cries.

9. With regard to the second incident, namely, the murder of deceased Mitho in the house of Nooh and injuries :caused to Mst. Janat and Mst. Jiwai there are five eye-witnesses as mentioned in para. 7 above. They are all related to deceased Mitho and they ail speak of how the appellants chased Mitho into the house of Noon where Mitho took shelter closing the front door. The appellants, however, entered through an aperture made by them in the Kandhi fence which surrounds this house and attacked' deceased Mitho as well as Mst. Jiwai and Mst. Janat who had gone to them holding Holy Quran in their hands. According to these five eye-witnesses the appellants in a body fell upon deceased Mitho and while five of them held him down appellant Ghafooro dealt him hatchet blows. The description of these witnesses as to how five of the appellants held down deceased Mitho strikes us as almost fantastic. Appellant Yaroo and Sabu are said to have held Mitho by his legs, Dino and Abdul Haq held Mitho by his arms, appellant Manoo held him by the hair of his head leaving appellant Ghafooro to inflict hatchet blows upon him. The injuries sustained by deceased Mitho as testified to by the doctor are not such as could be caused in the circumstances testified to by the prosecution witnesses. It seems to us that if deceased Mitho was held down in the manner described by the prosecution witnesses by five appellants leaving the sixth appellant to inflict hatchet blows upon him, it is strange that none of these blows fell upon any one of the other five appellants who were then holding Mitho down. In the case of these five eye-witnesses to the murder of Mitho, their evidence also shows contradictions from their previous statements made tea the police., exaggeration and improve menu which serve to raise doubts in our minds as to whether we can implicitly rely upon this evidence by itself. Having, therefore, closely and carefully scrutinized the evidence of then; eight eye-witnesses, it seems to us that by reason of the infirmities of this oral testimony it would be unsafe to base a conviction upon it in the absence of any other corroborative evidence.

10. Mr. A. R. Kazi the learned Advocate appearing on behalf of the State frankly conceded that he could floe support the conviction of the appellants in this case. He explained that on account of the late arrests made by the police it was not possible to recover any incriminating articles of weapons from the appellants accused. He, however, added that the oral evidence contained exaggerations and contradictions with previous statements and was, therefore, such as would require corrobo ration before it could be relied upon. In the absence of any such corroboration in this case, he admitted, that he could not support the conviction of these appellants.

11. Agreeing with the submissions of the learned State counsel we announced a short order in Court at the conclusion of the arguments allowing this appeal and setting aside the con viction of the appellants. This judgment contains the reasons for that short order. K. M. A. Appeal accepted.