PARIO Versus STATE
MUHAMMAD HALEEM, J. ‑‑‑.Appellants Pario and Sahib were tried for the murder of Kadir Bux, convicted under section 302 read with section 34, P. P. C. and each of them sentenced to death by the learned Sessions Judge Nawabsbah, vide judgment dated 30th of May 1974. They have appealed to assail their convictions while the learned Sessions Judge has referred their case for the confirmation of death sentence passed on them. This judgment will dispose of the appeal and the reference.
2. Hassan and his brother, deceased Kadir Bux owned 25 acres of land in Deb Allah Khai. Taluka Moro and resided jointly in the same house. They had their turn of water from 00.15 hours to 03.15 hours on 4th June, 1973, therefore both of them and their hart, Jummo alas Popat Korai after taking their night meals left for taking their turn of water at 11‑00 p.m. an hour and fifteen minutes before the scheduled time, carrying with them three lamps and spades. The deceased also took a hatchet with him. They took their turn of water from Lal Khan at the scheduled time and diverted the water towards their land. Thereafter Jumo left to "look after the water rotation" while Hassan and the deceased got busy in watering the field. At about 01.03 hours they saw Sahib and Juman son of Juwan approaching them from the South in the light of the lamps which were burning and as they came near, they told the deceased that they would not spare him as he had killed their relative Banhoo, which grievance they would avenge today. Saying so both of them caused hatchet blows to Kadir Bux, who on sustaining the injuries fell down in watercourse. On cries being raised. Jumo came running, who also saw the incident and identified the assailants. Thereafter the appellants escaped from there. Kadir Bux expired at the spot. Leaving Jumo at the wardat, Hassan went to inform his uncle Haji Mitho who resided in the same village whereafter he accompanied Hassan to the wardat. Ranjho, the brother‑in -law of the deceased, also came there to whom Hassan gave the facts. Leaving the others there, both Hassan and Haji Mitho proceeded to Police Station, 1Jaulatput and lodged the report at 05.30 hours the same day.
3. The enmity alleged was that the deceased had killed Bhanoo cousin of Sahib and Jumo twelve or thirteen years back on account of 'ghairat' in which case be was convicted but was released after undergoing the sentence.
4. The report was recorded by Mumtaz Ahmad S. H. O. who, there after, left for the wardat which was about two miles away. He saw the deceased lying in the watercourse with hatchet injuries and a lantern, a hatchet, and a spade lying at the wardat near the dead body. He also noticed blood on the ground. He took into possession these articles and blood stained earth vide mashirnama Exh. 13 and thereafter dispatched the dead body to the Medical Officer. Moro, for post‑mortem examination. Hassain and Jumo then produced two lanterns which were in working order and were taken into possession vide mashirnama Exh.
15. The S. H. O. next recorded the statements of Haji Mitho and Jumo and the others. Both the assailants evaded arrest that day, but on 6‑6‑73 they were produced by Haji Mitho at his otak and at that time both the appellants had their hatchet with them. They were arrested and the hatchets were secured from them vide mashirnama Exh. 17 and 18. The blood‑stained earth and the two hatchets were sent for chemical analysis anti all the articles were reported to be stained with human blood.
5. The autopsy on the dead body was performed by Mr. Dinal Shah who noticed the following injuries:‑
(1) An incised wound about 4" x 2" muscle deep over the back of the neck, left side.
(2) An incised would about 4' x 1' brain deep over the left temporal region near the ear obliquely.
(3) An incised wound about 2 1/3" x 1" bone deep over the left side face cutting the mazillary bone through and through.
(4) An incised wound about 4 " x 1' bone deep over tyre left side of the face and nose cutting the bone through and through.
(5) An incised wound about 3 " x 1' bone deep over the left side of the face and nose cutting the nose and done through and through transversly.
(6) An incised wound about 2 "x 1' bone deep over the right forearm at its middle cutting the bone through and through.
(7) An incised wound about 3" x 1' bode deep over the palm of the right hand. .
(8) An incised wound about 2 " x 1' muscle deep over the left' leg at its middle.
(9) An incised wound about 1 " x 3/4' muscle deep over the left shoulder.
(10) An incised wound 1 " x " muscle deep over the left shoulder upper region.
(11) An incised wound 1 " x " muscle deep over the left forearm at its middle."
In his opinion the injuries were caused by a sharp cutting weapon such as hatchet and that injuries 2 and 5 were individually sufficient to cause death in the ordinary course of nature and that the deceased suffered instantaneous death.
6. The appellants denied their involvement in the crime and pleaded enmity. Elucidating it, Sahib stated that Banhoon was murdered as Karo by the deceased and for this reason the deceased and Hassan had demanded compensation from him and Pario which they declined to pay and there fore they were not on visiting terms with the complainant. Besides, the deceased had a dispute over land with the relatives of Haji Idrees and the deceased may have been killed by one of these persons and they have been falsely implicated on account of suspicion. Enmity was further pleaded against Ali Muhammad Korai, who is related to P. W. Jumo. The masher is also partial as he is related to the complainant. He further pleaded that he was arrested on the fateful day and nothing was secured from him. Appellant Pario adopted the same defence.
7. Mr. Muhammad Hayat Junejo, on behalf of the appellants vehe mently urged that the established circumstance disprove the presence of both the eye‑witnesses namely, Muhammad Hassan and Jumo.
8. He pointed to the glaring instance of substitution of Patio instead of Juman son of Juwan who was one of the two assaillants named in the F. I. R. It is the case of the prosecution that the appellants were identified from within a distance of five feet in the light of lantern. Juman son of Juwan is alive and resides in the same village. Obviously there cannot be a mistake as to his identity when his father's name was also given in the F. I. R. His name was also disclosed to Haji Mitho immediately after the occurrence and the F. I. R. was also recorded in his presence at the police station. If at all he had mistakenly given out the name of Juman son of Juwan there was every likelihood of the mistake being rectified then and there but that is not the case of Muhammad Hassan who has taken the stand that he had not mentioned the name of Juman son of Juwan but that of Parial. He was confronted with the F. I. R. but he stated that he had not said so. The S. H. O. has testified that he had recorded the F. I. R. verbatim which was read over to Muhammad Hassan who thereupon put his thumb impression on it. There cannot therefore be an iota of doubt that in the earlier version Pario was not one of two assailants. It seems to us that after the statements of the witnesses were recorded by the S. H. O. that Pario was substituted. This feature materially affects the credibility of the occular testimony. There is material to' lend support to the inference that Jumo had not witnessed the occurrence if at all he had gone alongwith the deceased. In the F. I. R. it is stated that after taking the turn of water Jumo went to look after the water rotation leaving Muhammad Hassan and Kadir Bux in the field. In his testimony at the trial Muhammad Hassan admitted that Jumo was at a little distance which he gave as five feet. However, in cross‑examination Muhammad Hassan stated that Jumo had gone to the head of the watercourse to look after the turn of water which was half an acre away and had returned by then. But then he was confronted with the F. I. R. in which he stated that on cries being raised he came running which cannot be reconciled with his return earlier. Again Jumo has stated in cross‑examination that he was told to go to the head of the watercourse, five or ten minutes after taking the turn of water and while he was at a distance of half an acre away he heard the cries and he there upon returned. He specifically stated that he was not in the field when the occurrence took place. This admission militates against what Muhammad Hassan stated, namely that he was within five feet from the deceased when he was attacked. Again he has admitted in cross‑examination that the faces of the assailants were muted though later he clarified it by saying that their chins were only covered. The reason is not for to seek for Juman who was also named in the F. I. R. was substituted by Pario and for this he was equally responsible and therefore he gave out that their faces were muted to extricate himself from that position. If it was a witnessed crime then both Muhammad Hassan and Jumo would not give the name of a wrong assailant who was known to them instead of Pario. Again there are features which also go to show the absence of these witnesses at the time of the incident. It is the prosecution case that the deceased had taken the turn of water which flowed in the field for about an hour yet no water was seen in the field which belies their version. Again only one spade, a hatchet and a lantern were seen lying by the side of the dead body. What happened to the other two spades and the lantern when the S. H. O. visited the wardat has not been explained, though on the next day two lanterns were produced, which production is hardly of any value. Moreover Muhammad Hassan was a grazier though he denied this fact in his testimony but he was confronted with his lower Court statement in which he had admitted this fact and also that at times he helped his brother in cultivating the land. Though by itself this feature may not be of any value but considering the prosecution case as a whole it is doubtful whether he had at all accompanied the deceased for taking the turn of water that night when he was not concerned with the cultivation. Jumo is not a disinterested witness for one of his relatives. Ali Muhammad Koran has a dispute over land with Sahib who had been sending applications against him as well in regard to this dispute. The injuries on the neck and the head of the deceased suggest that whoever was the assailant had caused the injuries from behind which disabled him and the other hatchet blows must have been caused thereafter which resulted in his instantaneous death. The element of surprise cannot altogether be excluded and therefore it is doubtful whether it was possible for him to raise cries so as to attract Jumo even if he had gone alongwith him. The report of the incident was lodged four hours after the incident though the police station was hardly two miles away. The possibility of consultation and false implication, therefore, cannot be ruled out in view of the substitu tion of Pario immediately after the lodging of the report.
9. Haji Mitho who is a corroborating witness has supported the occular testimony but nothing can turn on it if the occular testimony itself is dubious and so his evidence will also be of no value. He has of course stated that Muhammad Hassan had given the names to him of Sahib and Pario but on the face of it the statement is false as in his presence the F. I. R. was recorded in which Muhammad Hassan had given out the name of Juman son of Juwan. If this was so, he would have had the mistake corrected but that was not done. His evidence therefore, could have no value otherwise. As for the seizure of the hatchets, the prosecution case is that the appellant went alongwith their hatchets to the otak of Haji Mitho who is uncle of the deceased from where they were arrested‑and the hatchets seized. Why at all they would go to Haji Mitho a relative of the deceased alongwith the weapons when they had time to discard these weapons is a circumstance which does not appeal to reason. Besides, Haji Mitho has admitted in his committal Court statement that the appellants were brought to the wardat in the morning of the fateful day by the police but he denied having stated so at the trial and he was thereupon confronted with his lower Court statement. Again he admitted having stated that in the evening he saw the appellants in the custody of the police in the village. If the appellants had been arrested earlier how could it be reconciled with the production of the hatchets two days later. What is again significant is that Haji Mitho has not stated about the appellants having come to his otak with their hatchets but the mashir Pir Bux has given out that he was present at the time which inconsistency again remains unexplained. Be that as it may, this piece of evidence appears to us to be suspicious and hardly any reliance can be placed on it. In the context of the inherent doubts in the prosecution case the guilt of the appellants is not established beyond reasonable doubt. The death sentence is not confirmed and the reference is rejected. The appellants should be at liberty forthwith unless required in some other case.
JAMALUDDIN H. AHMAD, J.‑I agree.
Appeal allowed.