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Criminal Appeal No.38 and Confirmation Case No. 6 of 1986, decided on 16th April, 1987.
---S.302/34--Motive, whether corroborative--Previous murder of brother of one of accused by complainant party--Another person of Khaskheli tribe also murdered in same case--Accused having animus against complainant party for avenging said murder--Complainant party having enemies from two quarters i.e. accused and Khaskhelis--Motive, held, would operate against accused for making murderous assault on deceased rather than leaving towards complainant party for falsely implicating accused--Mere motive, however strong it might be, would not stand by itself to afford corroboration to interested and inimical ocular evidence in circumstances.
---S.302/34--Ocular evidence--interested and inimical--Appreciation of--Eye-witness account given by two witnesses, one of them close relation of deceased and other close friend of witness--Eye-witness informing complainant, his grandfather about occurrence, giving all details of accused and part played by each of them--Complainant and witnesses going to place of occurrence before lodging report--Both eye-witnesses found to be chance witnesses--Statements of such witnesses recorded on next day--Parties inimical towards each other- Complainant's evidence only of corroborative nature, derived from information given by one eye-witness--Medical evidence though conforming to violence on deceased as described by witnesses but F.I.R. lodged after seeing dead bodies--Evidence of eye-witnesses and corroborative evidence of complainant, held, would need independent corroboration to inspire confidence--Medical evidence would not constitute independent corroborative evidence to support the ocular evidence in circumstances.
---S.302/34--Recoveries Corroborative evidence--Crime weapons recovered from all accused--Blood-stained clothes recovered from two of the accused persons--Crime empty recovered from spot Weapons found stained with human blood and crime empty matching with pistol - recovered from accused--Accused arrested on different dates-
Recoveries IIso on different places but same Mashirs always available- Mashirs living 4/5 miles apart from each other--Many, other persons available but same related Mashirs picked up each time Investigation not found honest-Evidence of recoveries found clouded with suspicion--Reports of Chemical Examiner and Ballistic Expert, would not advance case of prosecution--Mere relationship of witness would not constitute unimpeachable evidence as incredible but statements of such interested witnesses would not constitute unimpeachable evidence as to afford corroboration to interest ocular evidence -----Acquittal ordered in circumstances.
Muhammad Hayyat Junejo for Appellants.
Azizullah K.Sheikh for the complainants.
Nazir Alam for the State.
-the appellant Shakal, Rahim, Ghulam Muhammad and Mevo were tried alongwith one Shauk in the Sessions Court Sanghar on the charge of offence punishable u/s 302 read with Section 34/149, PPC in Session Case No.128/83. The appellant were convicted and awarded sentence of death hanging by neck and also imposed fine of Rs.5,000 each, or to suffer rigorous imprisonment for two years in default, They were also ordered to pay Rs.5,000 each as compensation a/s 544-A. Cr.P. C. to the heirs of the deceased, and in default there of undergo rigorous imprisonment for six months more. The co-accused Shauk Was acquitted the impugned judgment is dated 25-2-1986'.The appellants have preferred appeal. The Sessions Judge, Sanghar' has also' made reference u/s 374, Cr.P. C. for confirmation of death sentence. Both the appeal nad the referenc3e for confirmation of death sentence have been heard together and are being disposed of together.
The case' against the appellants was reported at P.S Sinjhoro in District Sanghar by Eadan son of Haji Khan dahio on 20-8-1983 at 5.30 p. m. He alleged that his daughter's son Noor Muhammad and- one Muhammad Khan Rind were involved in murder of ore Ahmed Bugti-about four months before and the case against, them was pending in Session Court. He further alleged that his son Haji Khan and grandson -Muhammad .Moose, had gone to Sinjhorb that day morning on a motor , cycle and, he was informed in the afternoon by his daughter's Was "'Muhammad and his friend Umed Ali that, while Haji Khan and his son Muhammad Moosa were returning to their village by 'he road by means of their Motorcycle and they were following them on their own Motorcycle, they were waylaid, at Dr. Manzoor Ahmed Bux Road, by Shakal, Rahim Bux, Ghulam Muhammad and Mevo Bugtis and Haji Khan and Muhammad Moosa were shot by Shakal bugt from a pistol and they fell down from the Motorcycle and were thereafter belaboured with hatchet blows by the associates of Shakal. He also alleged that Haji Khan anti. Muhammad Moosa were, done to death at the instigation of Shauk Bugti in. revenge of murder of his son Ahmed Bugti.
The crime was registered by Muhammad Fazil ASIP, who was incharged Police Station' Sinjhoro at that time. He proceeded to, the wardat and inspected it in presence of Mashirs Ghulam Hussain and Taj Muhammad He found there dead 'bodies of the deceased Haji Khan and Muhammad Moosa and their Motorcycle and some articles. He recovered an empty shell of 12 cartridge. He prepared inquest report, of the corpses and despatched them to Civil Hospital, Sanghar, through. Faqeer Hussain P.C, for their post-mortem examination, He recorded statements of witnesses Wali Muhammad, Umed Ali, Sodho and Khuda Bux on the next day viz. 21-8-1983. He arrested appellants Shakal and Rahim Bux in presence of same Mashirs Taj Muhammac and Ghulam Hussain on 22-10 1983. he arrested appellants Shakal and Rahim Bux from the roof of his house arid blood-stained shirt and loin-clothes produced by the, same appellant. He seized a .12 bore pistol produced by the appellant Shakal from a stool box lying in his house. He arrested appellant Ghulam Muhammad from his house in Deh 22Jamrau in presence of same Mashirs on 25-8-1983 and recovered from him a blood-stained hatchet which was produced from a place used for keeping utensils and he also recovered blood stained shirt shalwar from the appellant Mevo. All the recoveries were affected in presence of same mashirs Ghulam Hussain and Taj Muhammad. After completion of investigations the appellants were sent up to stand trial Blood Stained articles were forwarded to Chemical Examiner while the pistol and the crime empty were referred to Ballistic Expert.
Prosecution examined at the trial complainant' Eadan (PW.1; Wali Muhammad (PW.2), Umed Ali (PW.3), Tai Muhammad Mashlr (P.W.4) Medical Officer Dr. Eatan Kumar (PW.5), Tapedar Muhammad Arif (PW.6) Muhammad Fazil ASIP (PW.7) and Mushtaq Ahmed SHO-(PW.8) and corpse-bearer Faqeer Hussain(PW.9).
The appellants, in their statements under section 342 Cr.P.C. made denial of their involvement in the murder of the deceased Haji Khan and Muhammad Moosa. They alleged false implication. They did not adduce any evidence in defence.
The learned Sessions Judge, held, bay his Judgment dated 25-2-1986 both the deceased Haji 'Khan and Muhammad Moosa were done to death by the appellants in furthereance of their common intention and convicted them of the offence punishable a/s 30.2 r/w section 34, PPC and sentenced them to death and imposed on them fine as mentioned above; while he did not find sufficient evidence of complicity of the co-accused Shauk (since acquitted) in commission of the crime.
The factum of homicidal death of the deceased Haji Khan and Muhammad Moosa stands proved by the 'Medical evidence. Autopsy on their corpses was conducted by Medical' Officer Dr. Ratart Kurhar, who has described the injuries found on them as under
(1) Incised wound measuring 14 c.m. and 12 c.m. deep situated on the back of neck cutting spinal cord right juglar vein and right carotid vein artery and cervical vertebra wound extending 7 c.m. behind the laryngeal eminence on the right side of neck to the middle of lower part of back of neck.
(2) Incised wound on the back of neck 9 c.m, 4c.m. x 6 c.m. deep. It extends from the level of left labule of ear to the paint 7 c. m. below and left "to the occupital protaberence.
(3) Incised wound measuring 6 x 2 c.m. Scalp deep situated cat the right frontal region of head. It was transverse in direction.
(4) Incised wound measuring 7 x 1 c.m. at the middle of front of right leg. It was transverse in direction. Wound penetrated z mm into the tibia bone of right leg.
(5) Abrasion wound measuring 5 x 1 c.m. longitudial in direction at the lateral part of left lumber region.
(6) Abrasion 5 x 1 c.m. and 4 x 1 c.m., V shaped, st the lateral part of left thigh 5 c. m. below and lateral to left anteria superior illiac spine.
Internal Injuries.
(1) Fifth survical vertebra cut.
(2) Spinal cord cut through and through at the level of fifth survical vertebra.
(3) Lower part of thyroid cartilage and upper part of trachea cut.
(4) Right carotid artery, right juglar vein, left and right vertebrae, artries cut.
(5) Oesophagus cut at the level of 5th. survical vertebrae.
2. HAJI KHAN.
External Injuries.
(1) Incised wound measuring 9 x 2 c. m., curved shaped behind the right ear at the mastoid area of head cutting the upper cartilaginous part of right ear, wound extends from about downwards.
(2) Lacerated wound at the right parietal region of head measuring 4 x 1 c.m. It is scalp deep and transverse in direction.
(3) Lacerated wound 4 x 1 c.m. at the middle of parietal region of head. It is scalp deep and transverse in direction.
(4) Lacerated wound 2 x 1 c.m. at the central part of scalp. It is scalp deep and longitudial in direction.
(5) Lacerated wound 3 x 1 c.m. at the left parietal region of head. It is scalp, deep and oblique in direction.
(6) Incised wound at the right side of upper part of neck measuring 5 x 2 c.m. in oblique direction.
(7)Wound of entry of fire-arm situated at the front of right chest 2 c.m. below the right nipple. It measures 3 x 2 c.m.
(8) Wound of entry of fire-arm measuring 8 x 5 m. m., situated 1 c.m. to the right of injury No.7.
(9) Wound of entry of fire-arm measuring 8 x 8 mm, situated 1 c.m. below the Injury No.7.
(10) 3 wounds of entries of fire-arms, each measuring 8 x 5 m.m. situated 2 c.m. above the injury No.7.
INTERNAL INJURIES.
(1) Fracture of right 3rd and 4th ribs, near their cartileges in front of chest.
(2) Fracture of right 6th and 7th ribs at the back of right chest 8 c.m. away from the spinal line.
(3) Right lung congested and perforated at various places, clotted blood in the long cavity seen.
(5) Ruptured right pulmenary vein and artery.
The Medical Officer has opined that the deceased- Muhammad Moosa had died due to shock and haemorrhage and arrest of respiration due to cutting of right juglar vein, right carotid artrea, right and left vertibral arteries and cutting to traches caused by injury No.l which was sufficient to have caused death in ordinary course of nature. According to the Medical Officer, the cause of death of deceased Haji Khan was shock and haemorrhage on account of rupture of right pulmenary artery and vein. The Medical evidence leaves no doubt to the death of both the deceased Muhammad Moosa and Haji Khan by violence.
Involvement of the appellants in the double murder rests on ocular evidence of PW Wali Muhammad and Umed Ali, corroborative evidence of complainant Eadan, Medical evidence, recoveries of crime of weapons and motive. Motive when alleged, constitutes an important element in evaluation of evidence. The words "motive" is defined in the Concise Oxford Dictionary, New Edition as (i) tending to initiate movement and (2) what induces a person to act e.g. desire, fear, circumstance". The meaning of the word "motive" in Chambers 20th Century Dictionary, New Edition is "incitement of the will: a consideration or emotion that excites to action".- In Black's Law Dictionary, 5th Edition, the term "motive" is defined as "caused or reason that moves the will and induces action. An inducement that which leads or tempts the mind to indulge a criminal act". It has, been explained further that "motive" is that which incites or stimulates a person to do an act". Therefore, "motive" in a criminal case is that element which excites the mind to counteract an offensive act. In the instant case, it is alleged that one Ahmed Bugti, a brother of appellant Shakal and acquitted co-accused Shauk, a brother-in-law of appellant Rahim Bux and uncle of appellant Ghulam Muhammad and a relation of appellant Mevo, was murdered somewhere in April, 1983. One Khameeso Khaskheli also was murdered in the same incident. Report of the incident was lodged by co-accused Shauk (since acquitted) against Noor Muhammad, a brother of PW Wali Muhammad and grandson of complainart Eadan (through his daughter), and one Muhammad Khan Shar. The incident of this case took place on 20-8-1983 i.e. within about four months of the incident of murder of Ahmed, Bugti. Obviously, the appellants did have animus against thel complainant party as well as against Muhammad Khan Shar for avenging murder of Ahmed Bugti and that fact constituted motive for assault on the deceased. At the same time, the relations of Ghulam Hussain IA Khaskheli, who also was murdered in the same incident in which l Ahmed Bugti was murdered, also had grievance against the complainant party and Muhammad Khan Shar. Thus, the complainant party had enemies from two quarters viz. Bugtis (i.e. the appellant /accused Party) and Khaskhelis. Likewise, the complainant party also happened to be inimical towards the accused/appellant party. The prosecution evidence is therefore to be examined in that perspective.
The ocular evidence Comprises that of Wali Muhammad (PW.3) and limed Ali (PW.2). Both have stated that they had gone to Sinjhoro and they came across both the deceased Haji Khan and Muhammad Moosa there and they set out for 'their village together. They have stated that both the deceased undertook journey on one Motorcycle and they i.e. the witnesses followed them by means of another Motorcycle. They have alleged that both the deceased were waylaid on the road near a Bus Stand as Dr. Manzoor's place by the appellants Shaleal, Ghulam Muhammad, Rahim Bux arid Mevo. They have further alleged that the appellant Shakal was armed with a pistol and he shot Haji Khan from his pistol and both the deceased fell down from their Motorcycle and thereafter appellant Ghulam Muhammad, Rahim Bux and Mevo who were armed with hatchets and they chased them and belaboured them with hatchet blow. According to them, Wali Muhammad informed his grandfather Eadan complainant and took him to the wardat. Complainant Eadan (PW.1) has stated that he was informed of the insider t by PW Wall Muhammad both the deceased Haji Khan 'and Muhammad Moosa were done to death by the appellants Shakal,,Rahim Bux, Ghulam Muhammad and Mevo, while they were returning to their village by means of a Motorcycle. These-facts were; stated in the FIR lodged by him at P.S;.Sinjhoro at about 5.30 p.m. Eadan's. evidence is therefore of corroborative nature. Evidence of all the three witnesses Wali Muhammad, Umed Ali and Eadan has been assailed on several grounds. The learned counsel for the appellants has argued the complainant Eadan arid PW Wali Muhammad are admitted closely: related to the deceased and there were enmity between the parties and they are interested,, and: biased witnesses. He has also attached the evidence of Umed Ali as an interested witness, or, account of his;' admitted friendship with FW Wali Muhammad. The learned counsel has further argued that PWs Wali Muhammad and Umed Ali are unnatural witnesses as PW Wali Muhammad was admittedly, serving near Bhit Shah and PW Umed Ali was residing .at a place near Tando Adam, beta the places being about 46 miles away from, the place of.incident: and they had no occasion to have been present at the Wardat or near about in normal course of events. He has also argued that PW. Wali Muhammad, who is a brother of Noor Ahmed, an accused, in the murder of Ahmed Bugti, would have been in target of the assailants if he had actually been there. As mentioned above, PWs Wall Muhammad and Eadan (complainant) are very close relations of the deceased. There existed enmity between the parties, PW Umed Ali; is admittedly a friend of PW Wali Muhammad. Obviously all the three, witnesses Wali Muhammad, Eadan and Umed Ali .are interested witnesses. It is also admitted fact that PW. Wali Muhammad was serving as a; Tax Clerk at a place four miles away, from Bhit Shah and eight miles from Tando Adam. Both Wali Muhammad and Umed Ali have stated that Umed Ali was a Taxi Driver and both of them had gone to Tondo Adam and taken lunch there and then proceeded to Sinjhoro, at place about 25 miles away from Sinjhoro; on a Motorcycle and met the deceased there and thereafter had undertaken journey alongwith them towards their village. PW Wali Muhammad has stated in cross-examination that he used to visit. his village after 10./15 days and his friend timed Ali gone to him at his place, of posting on the previous day and they had made a programme for going to his village 'i.e. Wall Muhammad's village .on the next day, on which the ;incident took place. Both eye-witnesses Wali Muhammad and Umed Ali were obviously chance witnesses. The evidence, of complainant Eadan is based on the information, derived by him from PW Wali Muhammad. Of course, the learned counsel' for the State has" urged that the evidence of the three witnesses Wali Muhammad, Umed Ali and Eadan is natural and believable as they must not have substituted the appellants for real culprits. But' the question is whether the incident had been witnessed by PWs Wali Muhammad arid Umed Ali. The learned counsel for the State has sought corroboration to their evidence from the medical evidence arguing that the medical evidence conforms to the violence on the deceased described by them. No doubt, the deceased Haji Khan had sustained fire-arm injuries as well as hatchet injuries and the deceased Muhammad Moosa had sustained hatchet injuries as alleged by PWs. Wall Muhammad and Umed Ali. But the prosecution case is that both the witnesses as well as complainant Eadan had seen the corpses of both the deceased before report was lodged with Police. Moreover, the statements of the witnesses Wali Muhammad and Umed Ali -were recorded on the next day of the incident. The accumulative effect of, all the circumstances discussed above is that the evidence of the two eye-witnesses Wali Muhammad and Umed Ali and corroborative evidence of complainant Eadan needs corroboration by independent evidence to inspire confidence.
The corroboration evidence is sought from the medical-evidence, the recoveries, of crime weapons, and- motive medical evidence has already been dealt with above and its corroborative evidence is to the extent that; the deceased Muhammad Moosa, had died due to injuries caused by means; of a sharp cutting weapon such as hatchet and the deceased Haji Khan had sustained fire-area' and sharp weapon injuries resulting in his death and its effect depends upon the credibility of the ocular evidence, but it does not constitute independent corroborative evidence to suppress the ,ocular evidence of Wali Muhammad and Umed Ali and corroborative evidence of Eadan. The element of motive also has been discussed above. No doubt, the alleged motive does operate against the appellants for making murderous assault on 'the deceased rather than leaning towards the complainant party for falsely implicating the appellants. However, mere: motive, however strong it may be, does not stand by itself as to afford corroboration to the ocular evidence discussed above.
Lastly, is the evidence of recoveries alleged to have been effected by Muhammad Fazil in presence of Taj Muhammad and Ghulam Hussain mashirs. Mashir Taj Muhammad, (PW.4) and Muhammad Fazil ASIP (PW. ) have stated that the appellants Shakal and Rahim Bux were arrested on-22-8-1.983 i.e. on the third day of incident and .12 bore pistol was recovered, from the appellant Shakal, and the blood-stained hatchet and blood-stained shirt and loin cloth were recovered from the appellant Rahim Bux They have further stated that the appellant Ghulam ,Muhammad was ,arrested, on.,25-8-1983 and a hatchet, a shirt and a Shalwar, all stained with blood were revered from him. They have also stated that the appellant Mevo was arrested on 2-8-1983 and blood-stained hatchet was recovered from him. Chemical, Examiner's, report put in evidence as Ex.36 indicates that all the articles were stained with human blood. The pistol was referred to the Balistic Expert whose report Ex. 37 shows that the crime empty was from that pistol the mashirs and the Investigation officer have thus implicated all the four appellants that the crime weapons were recovered from all the four appellants and blood-stained clothes were recovered from the appellants Rahim Bux and Ghulam Muhammad. Their evidence has been assailed on the ground that the mashirs were selected persons as they are closely related to complainant and the deceased and their choice by the Investigating Officer smacks of foul play. There is no doubt that both the mashirs are related to the complainant and the deceased. Mashir Taj Muhammad is admittedly a grandson of complainant Eadan and obviously a very close relation of the deceased co-mashir Ghulam Hussain also is related to the complainant and the deceased. Of course, mere relationship of the mashir with the complainant party does not make his evidence incredible, nevertheless his evidence is to be examined with rr,ore care and caution on that ground. It has been indicated above at the appellants were arrested on different dates. The two mashirs Taj Muhammad and Ghulam Hussain had been living in different, at about 4/5 miles distance apart from each other. Surprisingly, the same mashirs, who are closely related to the deceased were available to act as mashirs everywhere. It is on the record that many other persons were available at the time these mashirs were picked up to witness the recoveries. In the circumstances, the investigation does not seem to have been conducted honestly as only it-ions of the deceased were associated even in effecting recoveries of crime weapons and other incriminating articles. In the wake of the evidence to the alleged recoveries clouded with suspicion, the reports of she Chemical Examiner and the Ballistic Expert cannot advance the prosecution case as regards the alleged recoveries. Such interested evidence does not constitute unimpeachable evidence as Afford corroboration to the interested ocular evidence.
Prosecution evidence disclosed above does not prove guilt of the appellants in commission of crime beyond reasonable doubt. Accordingly the appeal is allowed, and the impugned judgment f the trial Court is set aside. The reference for confirmation of death sentence is rejected. The appellants are acquitted. They shall be released forthwith unless required to be detained in any other case.
S.A./S-68/K Appeal accepted.
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