P L D 1964 (W (PLP)

FEROZE NANA GHULAMALLY, J.

‑The appellants Dadan and Umar who are brothers have been convicted by the learned Addi tional Sessions Judge, Nawabshah, under section 302 read with section 34, P. P. C. and each of them sentenced to death by hang ing. Appellant Umar was also sentenced to 3 months R. I. under section 323, P. P. C. Both the appellants have appealed from jail against their conviction. This judgment will dispose of the reference for the confirmation of the death sentences passed on the appellants and also their appeal from jail.

2. The incident in this case took place on the 17th of May 1962 at about 7 p. m. in what is described as a cotton cultivation near Sadwah bridge, a short distance from the Padidan Railway Station. The victim, Abdul Hafiz, was a resident of village Chiho about two miles from the Padidan Railway Station, but was employed as a teacher in Kotdiji in the Khairpur District. Abdul Hafiz had returned to the village for the Eid holidays, and two days before the incident, had gone to Bucheri to meet his sister's husband, Abdul Latif. He returned to Padidan by train at about 5 p. m. on the day of the incident, and was met by his brother Abdul Hamid, to whom he entrusted his bag, and sent him to his village with a message to the first informant, Muhammad Hanif that he would be returning to the village later. Muhammad Hanif is a Railway employee, and was on duty to receive the passenger trains arriving at Padidan. He was on duty from about 7‑30 that morning, and after the passenger train at 5 p. m. had arrived at Padidan, he returned to his village, when Abdul Hamid met him. At about 7 p. m., Nazar Muhammad, a cousin of the appellant, accompanied by Allahdito and Sahibdino, came to the complainant Muhammad Hanif and informed him that he (Nazar Muhammad) and the deceased Abdul Hafiz were on their way to the village from Padidan Station, when they were joined at the Sadwah bridge by Ali Nawaz. Both Ali Nawaz and Nazar Muhammad resided at Chiho village, and as the trio, including the deceased, proceeded from the Sadwah, and dah gone some distance, they were challenged by the two appellants. Daud alias Dadan being armed with a hatchet, and Umer with a hockey stick. There upon, appellant Umar struck Nazar Muhammad a blow with the hockey stick, which fell him down. Abdul Hafiz took to his heels, and he and Ali Nawaz were both pursued by the appellants, who ultimately reached him about 100 yards away, and felled him down with hatchet and hockey stick blows. Ali Nawaz escaped towards the Railway Station. On being thus informed, Muhammad Hanif, accompanied by Nazar Muhammad, Allahbux and Sahibdino, came to the scene and found the deceased lying dead in a pool of blood with injuries on his person. Muhammad Hanif then went to the Padidan Police Station, about 1J miles from the scene, and lodged his F. I. R. at about 9 p. m. with S.H.O. Ghulam Abbas, who proceeded to the scene, but inspected it the following morning, when he recorded the statements of Ali Nawaz and Allahbux. That night, however, both the appellants were arrested. Their houses were searched, and so were their persons. Nothing incriminating was found. The next morning, the state ments of Nazar Muhammad and others were recorded, and Nazar Muhammad was sent to the Hospital as he had injuries on his person. Later, after the investigation was completed the appellants were challaned.

3. It appears, however, from the record of the case, and through the testimony of P. W. Ramzan, described as a drumbeater by profession, living in the Chiho village, who was made a mashir, that a hatchet was produced by appellant Daud. The mashirnama of this is Exh. 19, and Muhammad Ramzan has stated that the mashirnama was not read over to him, and that although the mashirnama states that appellant Daud produced a hatchet concealed under a heap of manure, lying in the courtyard of his house, there was no blood on it. However, in the course of the proceedings and as referred to by the learned Additional Sessions Judge in the course of his judgment, a hatchet does appear to have been produced, which was mysteriously sent to the Chemical Analyser, whose report the S. H. O., P. W. Ghulam Abbas produced, and what is amazing, is that the Chemical Analyser's report refers to item No. 2 being a hatchet with a handle, which together with the earth in the earthern pot being item No. 1, was certified as being stained with human blood. We must observe in fairness to the learned Additional Sessions Judge that this circumstance was discarded by him in considering the case of the appellants, as the S. H. O. has not referred to any hatchet being sent to the Chemical Analyser, and as admittedly there was no blood on the hatchet, and this circumstance was disposed of in the judgment by the following remark :‑ "it appears that by mistake some other hatchet had been sent, which was not connected in this case."

4. Reverting to the prosecution case detailed earlier, the motive for the alleged act of the appellants, is that some 5 or 6 months before the incident, the deceased Abdul Hafiz had abducted Mst. Hidayat Khatoon, a sister of both the appellants. This woman was later restored to her parents, and was married to one Muhammad Ishaque son of Haroon Soomro. Abdul Hafiz, however, persisted in his claim to have Mst. Hidayat Khatoon, and had filed a case against the appellants, their father Abdul Ghani and Ishaque to whom Mst. Hidayat Khatoon had been married, and in the course of those proceedings, had obtain ed a search warrant for the production of Mst. Hidayat Khatoon. She, however, testified that she had been lawfully married to her cousin Muhammad Ishaque with whom she was living, was happy with him and was not being wrongfully detained by him, and that her father and brothers had been falsely implicated by Abdul Hafiz, who was trying to disgrace her, as her father had not given her hand in marriage to him. She denied that she had ever been married to Abdul Hafiz. The complaint of the deceased, which appears to have been filed in the Court of the Sub‑Civil Judge and F. C. M., Nausbahro, was dismissed in default of his absence, under section 203, Cr. P. C. on the 15th of February 1962. It is the prosecution case that owing to this conduct of the deceased in bringing the appellants,. their father and Hidayat Khatoon's husband to Court they harboured a grievance against the deceased and, therefore, belabored him to death on the day of the incident.

5. The defence of both the appellants during the committal proceedings, is that they had been falsely implicated, although they admitted the previous litigation instituted by Abdul Hafiz on account of Mst. Hidayat Khatoon, and contended that the prosecution witnesses were deposing against them owing to enmity.

6. In the trial Court, appellant Dadan in a joint statement, contended that the deceased was a bad character, and had many enemies. They denied that they were responsible for inflicting the fatal injuries on the deceased Abdul Hafiz. Appellant Dadan in the trial Court also produced copies of the affidavit of Hidayat Khatoon, the order dated the 15th February 1962, dismissing the deceased's complaint against the appellant and their relations and also a certified copy of the deposition of Hidayat Khatoon, recorded on the 10th of December 1962.

7. The learned Additional Sessions Judge framed the consequential points for determination, as to whether Abdul Hafiz died as a result of the hatchet and lathi injuries inflicted on his person, whether on the day of the incident and at the same time Nazar Muhammad had received simple injuries and finally whether the appellants were responsible for inflicting the fatal injuries on Abdul Hafiz, and simple injuries on Nazar Muhammad.

8. We have had no difficulty in concluding that Abdul Hafiz died as a result of the injuries which have been described by Dr. Ahmed Ali, the Medical Officer at Padidan, and performed the post‑mortem examination on the day following the evening of the incident, as follows (1) An incised wound measuring 5" x 1 " deep to the carnial cavity on the left side of the head cutting the left temporal and left parietal bones with brain matter visible. (2) An incised wound 4" x 1 " x 3 " deep oblique on the right side of the back of the neck cutting the main blood vessels of the right side of neck. (3) An incised wound 6 " x 1 " x deep on the left side of the back of the neck starting from the middle of back of neck and going forward and ending before the chin cutting the main blood vessels of the left side separating the vertebral column from the cranial cavity and also cutting the gullet. (4) An abrasion about 2" x " on the back side of right shoulder. (5) An abrasion 2 x 1" on the back of the right leg, and (6) A contusion 2 " x " oblique on the left illiac region frontal aspect. These injuries were about (15) hours old at the time of my examination and were ante mortem. Injuries 1 to 3 appeared to have been caused with some sharp‑cutting weapon such as a hatchet, while the remaining injuries were caused by a hard blunt weapon like a lathi. On internal examination, there was a fracture of the left temporal and the right parietal bones in connection with injury No. 1 from the external and the internal examination, the doctor concluded that the deceased had met his death due to shock and haemorr hage as a result of the external injuries, of which injuries 1, 2 and 3 were individually and collectively sufficient in the ordinary course of nature to cause death.

9. On the 19th of May, Dr. Ahmed Ali also examined P. W. Nazar Muhammad, and he noticed one injury, a contusion measuring about 3" x " on the left side of back of the neck, on his person, and was about 36 hours old. It was simple in nature and appeared to have been caused with a hard and blunt substance like a lathi. In cross‑examination, the doctor has testified that this injury on Nazar Muhammad could be self‑suffered, but not self‑inflicted.

10. There is no doubt, therefore, that the deceased Abdul Hafiz died of the injuries he had received, and although we can not doubt the existence of the injury described by the doctor on the person of P. W. Nazar Muhammad, we propose to refer to this injury later on, in consequence of the effect it has on the prosecution case, with the dominant consideration of the admission of the doctor that it could be self‑suffered, but not self‑inflicted.

11. From what we have heard, it is quite clear and indeed it is admitted by the learned counsel for the State, Mr. Haleem, that the entire prosecution case rests on the testimony essentially of the two eye‑witnesses, directly implicating the appellant, P. Ws. Nazar Muhammad, a teacher by profession, and Ali Nawaz, a Machi and a Malhi by occupation, and a servant or employee of Ahmed Khan, a Zamindar. The third witness is the first informant, P. W. Muhammad Hanif. According to this witness, the appellants are sons of his sister, but we are quite clear in our mind that whatever this witness has testified to is heresay, all the information having been given to him by P. W. Nazar Muhammad. Essentially, therefore, the prosecution case rests on the testimony of P. Ws. Nazar Muhammad and Ali Nawaz.

12. In the context of what we have heard, we have arrived at the conclusion that both these witnesses are chance witnesses, and it is for this reason that we have examined their evidence with great care and caution. It is true that P. W. Nazar Muhammad states that the appellants are his cousins, being the sons of his maternal uncle, and has testified to the relations of the appellant and the deceased in the context of enticement of Hidayat Khatoon by Abdul Hafiz, but Nazar Muhammad's evidence is that on the day of the incident at about 5 p. m. he had gone to the Padidan Railway Station, about 1 miles from his village, to buy some Soda water for his brother, who was ill. There he met the deceased, Abdul Hafiz. At about 6‑45 or 7 p. m., this witness and the deceased, Abdul Hafiz left the Railway Station and proceeded towards their village, and on their way at Sadwah bridge, which is stated to be a furlong from the Railway Station, they were met by P. W. Ali Nawaz Machi. Together they bad proceeded about a furlong, when they were suddenly accosted by the two appellants who challenged them, appellant Umer being armed with a hockey stick, and appellant Dadan with a hatchet. Immediately appellant Umer struck Nazar Muhammad a blow with his hockey stick on Nazar Muhammad's neck, felling him down. Abdul Hafiz, the deceased, ran towards the south, and was pursued by the appellants and the prosecution case is that at a distance of about 100 yards or so, the appellant Dadan reached the deceased and inflicted hatchet blows on him, and appellant Umer rained hockey blows on him, felling the deceased down, as a result of which the deceased died.

13. It does not appear from Nazar Muhammad's evidence nor has he stated that he lost consciousness but apparently he was able to rise on his feet again and ran towards his village, whilst Ali Nawaz ran towards the Station. When Nazar Muhammad reached his village, he gave the information to Muhammad Hanif, who lodged the report. He also related the incident to Allahbux and Sahibdino, whose houses were adjacent to his, but neither Allahbux nor Sahibdino have been examined by the prosecution.

14. P. W. All Nawaz's testimony is that he was returning from the Padidan Railway Station on his way to his village, when at Sadwah bridge, he met P. W. Nazar Muhammad and the deceased and. joined them. They had gone a distance of a furlong where they were met by the two appellants, when P. W. Nazar Muhammad was struck by Umer appellant with his hockey, and thereafter both the appellants chased the deceased Abdul Hafizand struck him down. P. W. Ali Nawaz headed towards the Railway Station, and states that he later learnt that Abdul Hafiz had died. Thereafter, Ali Nawaz continued to remain at the Padidan Railway Station till midnight, and in between did not relate the Incident to any one, not even to his master, Ahmed Khan, although he states that whilst he was escaping towards the Railway Station, he had met one Islam Machi and related the incident to him. His statement was recorded that night by the police at the scene, and in cross‑examination he has stated that on Nazar Muhammad falling down, he had started to run, and noticed Nazar Muhammad fleeing from the scene, but did not notice whether Nazar Muhammad had any Soda water bottles In his hand. Further that he was sitting at the hotel of one Aslam at the Padidan Railway Station, till midnight when he was sent for through one P. G. Idris. It must, at the very outset, be stated that we axe far from convinced of the veracity of the evidence of these two eye‑witnesses, and there are several circumstances, apart from the contradictions in their testimony, that makes us extremely hesitant to accept their testimony, as being eye‑witnesses to the incident.

15. The incident has taken place in broad‑day‑light, and certainly much before sunset. From the testimony of the tapedar P. W. 1 Saindad, and from the admissions of the prosecution witnesses and the eye‑witnesses themselves, it is quite clear that Padidan Police Station is about 1 miles from the scene, and the Railway Station is about half a mile from it. There is a Madrasa of one Moulvi Taj Muhammad 179 paces from the scene. This is a residential Madrasa with a hostel attached to it. The Madrasa teaches its inmates the Quran. About 80 paces from the scene, is the house of Muhajir Ibrahim. A survey .number from the vardat, is the main road from Padidan to Naushahro Feroze, and public buses ply on this road. Besides, the mashir nama, Exh. 16, which has been produced through P. W. Hajl Din Muhammad, Exh. 15, who is a Zamindar and lives at Chiho, and was a mashir of the scene, indicates that there is a dera of one Haji Chiraghuddin towards the west of the scene, about half a call's distance from the scene. The existence of the Madarsa and the house of Taj Muhammad close to the scene, is admitted by the complainant, Muhammad Hanif, in his cross‑examination. We, therefore, expected in these circumstances, other evidence of natural witnesses, and of a more reliable nature to be available, and which should have been examined. The Railway Station is about a furlong away from the scene, and we were time and again confronted with the fact that no witness, other than P. Ws. All Nawaz and Nazar Muhammad, have been examined by the prosecution.

16. We will now proceed to examine the circumstances that arise out of their testimony. Both the witnesses have admitted that the appellants challenged the deceased, Nazar Muhammad and Ali Nawaz, before they struck at Nazar Muhammad, and later on followed the deceased and felled him down. It is natural that the deceased and Ali Nawaz must have raised cries, whilst being pursued by the appellants, who were armed with a hatchet and a hockey stick and who were obviously out to wreak vengeance. These hakals would naturally attract the attention of persons residing at or near about the scene. Besides, we find it difficult to believe that P. W. Ali Nawaz was able to see the deceased actually felled down by blows given by the appellants. Nor indeed, do we think it was possible for Nazar Muhammad to do so. If the case of the prosecution is accepted, as indeed it must be, that the deceased had filed a case against the appellant's father and Ishaque and had brought disgrace on them, on account of which they had a grievance against him, and for which reason they allegedly lay in wait for him and attacked him, It is to us strange conduct that on accosting the deceased and his companions, the appellants should first attack Nazar Muhammad instead of taking the earliest opportunity of wreaking vengeance on the person against whom they had a grudge. It is extremely difficult to believe if the appellants had a grudge against the deceased, that they would seek to wreak vengeance in broad‑day‑light, and in such close proximity of those round about the scene.

17. Reverting to the evidence of P. W. Nazar Muhammad; we observe from the testimony of P. W. Muhammad Hanif that P. W. Nazar Muhammad is a Zamindar owning land, and having an otak and servant in Chiho. Nazar Muhammad's reason for going to the Station, was that his brother was ill, and he needed Soda water for the purpose and, therefore, he had gone to bring Soda water from the Padidan Railway Station. We find it extremely difficult to believe that this is a feasible reason to bring Nazar Muhammad to the Railway Station, for the incident took place in the midst of the blazing summer beat of the Naushahro sub‑division, and it is highly improbable that Nazar Muhammad having a servant would walk all the way, a distance of two miles, to the station, to buy Soda water for his brother, and not send his servant instead. Besides, if it was necessary for him to go to the station to buy Soda water, and if the necessity was urgent, no explanation has been given as to why he should have lingered on at the station for almost 1f hours before he met Abdul Hafiz, and with him wended his way towards the village. During the course of the investigation, no Soda water bottles were produced. No explanation has been given as to what happened to them when Nazar Muhammad was felled to the ground with the hockey stick, and P. W. Ali Nawaz states that he did not see any Soda water bottles in the hands of Nazar Muhammad.

18. We find further in the context of P. W. Ali Nawaz's evidence, that P. W. Nazar Muhammad states he got up after being struck down and then hurried to his village, instead of taking shelter at the nearest place, namely, the railway station. In these circumstances, the first reaction of a human being is not to run to a place some distance from the scene, but to take shelter at a place from where he would get immediate and adequate protection.

19. We now pass on to the evidence of P. W. Ali Nawaz. The evidence of this witness, according to us, is entirely Unreliable and his conduct extremely strange. This witness was returning from the Padidan Railway Station when he met P. W. Nazar Muhammad and the deceased, and after the incident took place, he ran to the Railway Station. If the incident took place at about 7 p. m. We find it difficult to believe that until midnight, Ali Nawaz should have stayed on at the Railway Station without informing anyone of the incident in the course of which according to him, he had seen Nazar Muhammad being struck down with a hockey stick and the deceased felled to the ground and killed with hatchet and hockey stick blows. He did not even relate this incident to his master, Ahmed Khan who resides only half a mile away from the railway station.

20. It is also a strange circumstance that all the eye‑Witnesses in this case, Nazar Muhammad and Ali Nawaz should have gone to the Railway Station on the day of the incident, and it is from this place, according to them, that they were returning, p, W. Muhammad Hanif is a Railway employee, and in spite of the prosecution case that the deceased alighted from the passenger train coating from Butcheri at 5 p.m. the deceased did not meet this Muhammad Hanif. Besides, what the deceased did after alighting from the train at about 5 p. m. until 6‑45 p. m. when he met Nazar Muhammad and accompanied by him left the railway station has not been explained. It is a small circumstance, but we feel it is indicative of the falsity of the two important prosecution witnesses, that to their 164 statements both of them had stated that they had started all together from the Padidan Railway Station. P.W. Ali Nawaz's contention of meeting the deceased and Nazar Muhammad at Sadwah is a later thought in an attempt by the prosecution to make the evidence a little more natural and acceptable.

21. We are cognizant of the fact that the strongest circum stance of the prosecution case is the existence of the injury on P. W. Nazar Muhammad, earlier described as a contusion on the left side of his neck inflicted with a hard blunt substance like a lathi. This would tend, to a certain extent, to support the prosecution case that he was one of the eye‑witnesses to the incident, and that his evidence should be believed. We are convinced, however, that the mere existence of this injury on Nazar Muhammad does) not make his testimony reliable, for we find that the injury was a B simple one, and as the doctor has admitted it could be self suffered. The existence of this injury, therefore, in our opinion does not in any way better the case of the prosecution on the overriding consideration that we do not believe either that this witness or that P. W. Ali Nawaz were in fact eye‑witnesses to the incident.

22. This is one of those matters in which the utmost that could be said is that the case against the appellants is suspicious, but where the overwhelming circumstance is that it was possible for the prosecution to produce natural witnesses. Only two witnesses, P. Ws. Nazar Muhammad and Ali Nawaz have been examined, and with the background of enmity of the appellants with the deceased, it is not possible to accept this evidence, which we cannot see how we can rely upon, in confirming the sentence of death imposed on both the appellants, even if it is accepted that these two witnesses have no grievance against the appellant. We cannot, therefore, agree with the findings of the learned Additional Sessions Judge that the testimony of these two witnesses is reliable, and ought to be accepted. Nor do we agree that the contradictions in their statements are not of material particulars. They are material for the assessment of the prosecution case. As we disbelieve the testimony of Nazar Muhammad and Ali Nawaz, there is no other evidence to sustain the conviction of the appellants, for as we have already stated, that the whole of P. W. Muhammad Hanif's testimony was merely hearsay, and the case, therefore, becomes1D one of no evidence against the appellant.

23. We also consider it a matter of additional consequence that the three assessors who sat with the learned Additional Sessions Judge,. were unanimously of the opinion that the appellants were not guilty. Presumably, the assessors also were not impressed with the veracity of these P. Ws. Nazar Muhammad and Ali Nawaz.

24. For these reasons, we cannot uphold the conviction of the appellants under section 302 read with section 34, P. P. C., and of appellant Umer under section 323, P. P. C. We decline to confirm the sentence of death passed on the appellants, and in consequence we set aside the conviction and the sentence passed on the appellants, and order that they be set at liberty forthwith, if they are not required in any other case. K. B. A. Appeal accepted.