SAIFAL Versus STATE
MUHAMMAD HALEEM, J.‑ Appellants Saifal and Azizullah, who are cousins inter se, were tried for the murder of Sobho, convicted under section 302 read with section 34, P. P. C. and the former sentenced to death while the latter, to imprisonment for life by the learned III Additional Sessions Judge, Sukkur, vide judgment dated 5th June 1973. By the same judgment Saifal was convicted under section 13‑D of the Arms Ordinance and sentenced to suffer rigorous imprisonment for one year. They have appealed against their conviction while the learned Additional Sessions Judge has referred the case of Saifal for the confirmation of death sentence. This judgment will dispose of the appeal and the reference.
2. According to the prosecution, the incident occurred on the land of Nooral Marfani in deh Hamid Jagir, Taluka Garhi Yasin, District Sukkur, at 7 a.m. on 6th March 1972 while the deceased had just started ploughing the land. Saifal, who was armed with a single‑barrel gun, and Azizullah, who had a hatchet, gave a hakal to the deceased from across Unar Wah and Saifal fired his gun, upon which the deceased fell down. Just at that moment Rind and Kadoo, who had also arrived there to plough their adjoining land, witnessed the incident. Both of them raised cries, on which the appellants ran towards the north and escaped. They then saw the deceased who expired a little later. He had pellet marks on his right chest and on the throat. Rind thereupon hastened to inform Nooral who lived in his village about a mile away, and after giving to him the facts proceeded to Police Station Garhi Yasin, where he lodged the first information report at 9 a.m. the same day.
3. The enmity given out was that one Ali Nawaz, a cousin of the appellants, committed the murder of Daim, brother of the deceased, on the accusation that Daim was a Karo. In that case, deceased Sabho was the complainant. On being acquitted Ali Nawaz and the two appellants took exception to the humiliation caused to Ali Nawaz and demanded a faisla', on which the deceased did not agree as he told them that Daim was not a Karo, which annoyed the appellants. It was this annoyance which impelled them to murder the deceased.
4. Abdul Majid A. S.I. after recording the report left for the wardat where he found the dead body of the deceased and secured blood‑stained earth from there and one empty cartridge which was lying in the bed of Unar Wah vide mashirnama, Exh. 18, in the presence of mashir Kehar. He also noticed a pair of bullocks standing "duly yoked in the plough" and the land appeared to have been ploughed "to some extent". The dead body was sent for autopsy to RUBT hospital, Shikarpur and the A. S. I. there after examined Kadoo, Nooral, Farid and Moula Bux. He arrested Azizullah on 7th March 1972 and secured a hatchet from him. Again on 14th March 1972 he arrested appellant Saifal from the jungle of Hamid Jagir and seized from his person an unlicensed gun and four cartridges vide mashirnama, Exh. 21, in the presence of mashir Chutto. The blood‑stained earth was sent for chemical analysis which on examination was found to be stained with human blood. The gun and the empty cartridge were sent to the forensic laboratory for examination and it was reported that the crime empty was fired from the gun secured from Saifal.
5. Dr. Ghulam Sarwar performed autopsy on the body of the deceased. He found the following injuries on him:‑
(1) Lacerated firearm wound " in diameter on the back right scapular area.
(2) Seven lacerated firearm wounds ' in diameter on the back left scapular region
(3) Two lacerated firearm wounds " in diameter on the right and front of chest on upper part.
(4) Lacerated firearm wound on the right side of neck near the mid ".
(5) Lacerated firearm wound on the middle of right shoulder 1/4" X 1/6" which in his opinion were caused by the discharge from a firearm, such as gun and that injuries 1, 2 and 3 were individually and collectively sufficient to cause death in the ordinary course of nature.
The appellants proclaimed their innocence and denied the prosecution case. Appellant Saifal denied his arrest alongwith the unlicensed gun. While disputing the enmity alleged against him, Saifal in the same breath stated that the prosecution witnesses were interested and inimical towards him without disclosing the nature of the enmity. Appellant Azizullah disclosed want of knowledge as to the enmity alleged against him but again in the same breath expressed that the witnesses were related inter se and inimical towards him.
7. The learned Additional Sessions Judge held Rind and Kadoo "to be natural witnesses and their evidence to be natural, convincing and trust worthy". As for Kadoo being declared hostile, his evidence was given due credence in spite of his not having supported the prosecution case to its hilt, and those portions of his evidence which went against the prosecution were disposed of as obligation admissions. While accepting the motive as one leading to the murder of the deceased the learned Judge held as under:‑
"According to me the accused have got the motive to murder Sobho as the had appeared as a complainant against their near relative Ali Nawaz in. the murder case of Daim. Sobho brother of Daim was their direct enemy as Ali Nawaz was challaned in the Court on his complaint. This motive appears to be more natural and more probable."
The recovery of the crime empty and the seizure of the gun from Saifal was held to be credible and when read alongwith the evidence of the ballistic expert, it was regarded as sufficient corroboration so far as the participation of Saifal is concerned. As for Azizullah in spite of the learned Judge hold ing that there existed enmity yet accepted the uncorroborated evidence against him.
8. Examining the evidence with the assistance of the learned counsel for the parties we find features which reflect on the credibility of the eye‑witnesses so as to make their presence doubtful. We now propose to deal with those features. It is the prosecution case that only one shot was fired at the deceased whereafter the appellants has tended to escape on cries being raised There was no pursuit and the prosecution witnesses, though in the adjoining field, were at a distance from the appellants. In the absence therefore of the evidence to indicate that the gun was reloaded we find no reason why the crime empty would be abandoned by Saifal and that too in the bed of Unar Wab, which was away from the place where the appellants were said to be standing. This circumstance makes the seizure of the crime empty highly suspicious. Again five cartridges were sent to the ballistic expert for com parison with the crime empty but only four cartridges were used for compari son. What happened to the fifth is again obscure, which leaves room font doubt as to the bona fides of the test and the identity of the crime empty. On this footing the possibility of the fifth cartridge being substituted for the crime empty cannot altogether be excluded. While scrutinising the medical evidence we noticed that the deceased suffered as many as five gunshot injuries, of which injuries 1,2, 4 and 5 were on the back of the deceased while injury No. 3 was on front of chest". Necessarily therefore two shots must have been fired as it is impossible to uphold that the injuries could be the result of one shot. In the F. I. R. all that is said is that Saifal aimed his gun and fired at the deceased without disclosing whether the deceased was facing the appellants or not. While in the examination‑in‑chief Rind took the same stand but in the cross‑examination he stated that the back of the deceased was towards the assailants with the object of making it consistent with the injuries on his back. The impression given in the F. I. R. was that he had only suffered injuries on the front aspect of his body but not on hi back. Kadoo, the next eye‑witness, has also failed to give any indication on this aspect of the case except that Saifal had fired at the deceased. The prosecution has failed to elicit from the doctor as to whether such injuries, Could have been caused by one shot. We asked the learned counsel for the State whether the injuries could be the result of one shot but he failed to convince us. On our part we are inclined to view that such injuries could not have been received as a result of one shot if we were to accept the prosecution stand. This aspect of the case has not received any treatment in the judgment of the learned Additional Sessions Judge which, in our opinion, belies the stand of both the eye‑witnesses that they had at all witnessed the occurrence. What apparently appears to us is that two guns were used from different positions, necessarily implying that there were two assailants who were armed with guns, or else only one assailant may have fired two shots, one from the back and the other from in front. In either case, such a possibility is not testified by the witnesses, which feature heavily weighs against the credibility of the eye‑witnesses, both in regard to their claim as to having witnessed the incident and also the number of assailants involved in the crime. It is also not understandable why Azizullah would not use his hatchet if he was so armed. The prosecution case, therefore, lacks assurance. Another feature which weighs against the credibility of these witnesses is that both the witnesses claimed that they bad reached in time to witness the occurrence as they had also gone to plough the adjoining land, but there is no evidence to sustain that their bullocks or the plough were seen on the adjoining land. As to what happened to them, is again obscure. Apparently having regard to the stomach of the deceased which was empty and there being faecal matter in his intestines it is manifest that he had not eased himself and, therefore, it must be in the very early hour of the morning that he must have gone to plough the land. It was then that be was shot at and killed. The presence of other witnesses at that time is highly doubtful as there is no assurance from the record to sustain their presence. It is also a matter of chance if we were to accept their case that they had just reached in time which is again beset with improbability in the context of their relationship with the deceased, We are, therefore, inclined to give weights: to the contention of the learned counsel for the appellants that it was an un-witnessed crime. The conviction of Saifal under section 13‑D of the Arms Ordinance cannot also be upheld, for he was charged for being in possession of an unlicensed firearm at the time of occurrence, but the prosecution has failed to establish his participation in the crime.
9. Again we have noticed that Kadoo has minimised his evidence in allowing room for doubt as to the identity of the assailants, which goes to show that be is not truthful. The evidence of Nooral is merely corroborative and cannot stand independently of the evidence, of the other two eye‑witnesses, which we have disbelieved.
10. As for the enmity, the reason for the murder does not appeal to us. It was the deceased's brother who was killed and if at all there was reason to avenge it then it must be the deceased himself who could have taken the revenge. Mere humiliation itself is not a decisive feature which could weigh as a motive. There is also on record an equally good reason, namely that Mohils could have also avenged their grievance by killing him as his son alongwith the others had killed four Mohils about four years back. We are, therefore, not inclined to accept the view of the trial Court as to the existence of the alleged motive for the murder.
11. Lastly, before parting with this judgment we may express our disapproval over the delay caused in sending the weapon and the crime empty for examination to the ballistic expert. In the instant case some eleven months expired without any good reason for which we find no justification.
12. In the result, for the foregoing reasons we give to the appellants the benefit of doubt and acquit them. The appeal is accepted. The sentence .of death is not confirmed and the reference is rejected. The appellants shall be released forthwith unless required in some other case.
Appeal allowed.