P L D 1969 Karachi 196 (PLP)

Date of hearing : 7th November 1968. KHAMISANI, J.‑The appellants Jhando and Jurio have been convicted under sections 302, 324 and 460, P. P. C. and sentenced to death, rigorous imprisonment for one year and fine of Rs. 200 in default rigorous imprisonment for six months and rigorous imprisonment for three years and fine of Rs. 300 in default rigorous imprisonment for one year each respectively. Qaim, Jumoo and Suleman, who had been tried along with them, have been acquitted. The appellants have filed this appeal. The matter is also before us for confirmation of the sentence of death passed on the appellants. We shall dispose of the appeal filed by the appellants and the murder reference under this judgment.

2. The facts of the prosecution case briefly are that Mst. Nazan owned about 40 Jaribs of land which used to be cultivated by Achar, her son‑in‑law, and his brother Haji. Achar and Haji also lived on the land with Mst. Nazan. Jhando and Jurio, who are cousins, objected to Achar and Haji exploiting Mst. Nazan and misappropriating the produce of her land. They claimed that she was the sister of their fathers and as such they were the rightful persons who would inherit the property after her death. Manthar, who was also the brother of Haji and Achar, came to the house of Mst. Nazan on 7th August 1964, and stayed there for the night. On the night between 7th and 8th August 1964, it is alleged that while Manthar, Haji, Achar, Mst. Nazan and Achar's wife were sleeping in the compound of their house, five persons came there armed with hatchets and lathis and caused injuries to Manthar, Haji and Achar, telling them that they would not let them live any longer there as they had enjoyed the property of Mst. Nazan for sufficiently long time. On the cries raised by these persons, Shah Ali, Ali Sher and Gullan came to the scene of offence to whom the facts were given and the names of the appellants and the acquitted accused were also disclosed. Information was also given by Ali Sher to Gul Hassan Shah P. W.

5. Haji then went and filed his first information report Exh. 7, on 8th August 1964, at Faizganj Police Station, which was at a distance of one and a half miles from the scene of offence, at 10 a.m.

3. The police during the course of investigation visited the scene of offence and prepared its mashirnama. They also recorded the statements of the witnesses. Jhando, who was arrested on 9th August 1964, allegedly produced a hatchet which was secured under mashirnama Exh. 17, in the presence of mashir Shah Ali P. W.

7. Jurio was arrested on 14th August 1964, when he is said to have produced a lathi which was secured under mashirnama Exh. 20, in the presence of the same mashir. The hatchet produced by Jhando and laths produced by Judo were sent to the Chemical Analyser whose report Exh. 29 shows that there was human blood on both of them. After the usual investigation was concluded, the appellants and the acquitted accused were challaned.

4. The appellants, when questioned, denied the allegations made against them and attributed the filing of this case to enmity with the witnesses. They have examined no witness in defence.

5. The question whether Manthar, Haji and Achar sustained injuries and the question whether Manthar died on account of the injuries sustained by him are not disputed. The evidence of Dr. Ramchand Hotwani Exh. 24 also shows that there were as many as six injuries on the person of Manthar which were ante mortem and sufficient in the ordinary course of nature to cause death. His evidence also shows that there were injuries on the persons of Haji and Achar. The evidence of the witnesses has also established this issue beyond doubt.

6. The only question, therefore, that needs to be decided in this appeal is whether the appellants caused injuries to Manthar, Haji and Achar. The prosecution for the purpose of proving their case have relied upon the evidence of Haji P. W. 2, Achar P. W. 3 and Mst. Nazan P. W.

4. Haji and Achar are injured persons. Their presence, therefore, at the scene of offence cannot be disputed. They are both brothers and they have both stated that the appellants and the acquitted accused came to the house of Mst. Nazan where they lived and caused injuries to them. They have also stated that they caused injuries to their brother Manthar who had also come there and had stayed for the night. They have further stated that‑the appellants had caused injuries to them because they resented at their cultivating the land of Mst. Nazan and living with her. Mst. Nazan, however, has not supported the case of the prosecution although she has stated that she was present in the house and saw five persons giving injuries to Manthar, Haji and Achar. She has stated that she could not identify the culprits as she had weak eye‑sight and the night was dark. Her statement recorded in the Committal Court was, therefore, brought on record under section 288, Cr. P. C. On being confronted with her statement before the Committal Court, she stated that she bad made the statement implicating the present two appellants and the acquitted accused because she had been coerced by Haji and Achar to do so. The evidence of these three witnesses, apart from being discrepant to the extent mentioned above, has been held by the learned Judge to be interested and inimical. There have been cases also between the parties before this incident. There was also admittedly a dispute between the parties over the land belonging to Mst. Nazan. 7 he evidence of these witnesses on these considerations, was, therefore, not held to be sufficient against the accused Daim, Jumoo and Suleman because their evidence was not corroborated against them by any other independent evidence on record. The question, therefore, which will be required to be considered in the present appeal is whether the evidence of these witnesses against the present appellants also stands corroborated so as to be accepted against them. The only evidence in corroboration of the evidence of these witnesses brought on record is the evidence of the production of hatchet by Jhando on 9th August 1964, and lathi by Jurio on 14th August 1964, which were secured under mashirnamas Exhs. 17 and 20 in the presence of mashir Shah Ali P. W.

7. Hatchet and laths produced by the appellants were sent to the Chemical Analyser whose report Exh. 29 shows that there was human blood on them. Shah Ali mashir P. W. 7, however, has given a go‑by to the prosecution and has stated that the hatchet was not produced by appellant Jhando in his presence. According to his evidence, the police had shown him that hatchet and had told him that it had been produced by the appellant Jhando. The production of hatchet in these circumstances allegedly made by appellant Jhando would have no evidentiary value against him for the purpose of corroborating the evidence of the witnesses. So far as the production of the lathi by Jurio is concerned, the evidence of Shah Ali P. W. 7 is that it was not produced by appellant Jurio but was secured by the police on search of his house. The fact of lathi said to have been produced by Jurio, therefore, in view of what has been stated by Shah Ali will not be of much consequence in so far as its corroborative value is concerned. The net result, therefore, of the evidence on record will be that the evidence of the witnesses cannot be construed to have been corroborated by any other evidence on record even against the present appellants.

7. Apart from that, the evidence of Haji has been belied by Shah Ali who admittedly was their Nekmard. Shah Ali P. W. 7, has in his evidence stated that when he was informed about the incident by Haji he was told that the assailants bad no a been identified on account of the night being dark. According to Shah Ali's evidence, the names of the appellants or anyone else had not been disclosed to him. The evidence of Haji and Achar also stands belied by the evidence of Gul Hassan Shah P. W. 5 who is totally a disinterested witness. His evidence is to the effect that Ali Sher had informed him that the assailants had not been identified on the night of the incident. The evidence of the witnesses, Haji and Achar, on consideration of the evidence of Shah Ali and Gul Hassan Shah would also, therefore, not be such as would inspire confidence. The F. I. R. is also a belated one and there is no explanation as to why it was filed late.

8. The evidence against the appellants discussed above, in our opinion, is therefore doubtful. Giving the benefit of the doubt to the appellants, we accept their appeal and acquit them. They are in jail and shall be set at liberty forthwith if not required in any other case. A. E. Appeal accepted.