PIARO Versus STATE

DORAB PATEL, J.‑ The appellants have been convicted by the Sessions Judge Nawab Shah under section 302, P. P. C. for the murder of Miral Shah deceased and sentenced to transportation for life. They, therefore, filed an appeal against their convictions and sentence and this appeal was heard and allowed by us, for the reasons given herein, on 25‑9‑1974.

2. According to the prosecution, on Monday, morning (10th August 1971) at about 6. a. m. the deceased together with his son and P. W. Bans had set forth from their village, Dali, for the National Highway in order to catch a bus. On the way the party met P. W. Modal Shah, the brother of the deceased, and one P. W. Haji Khan. As they knew each other, all these five persons were walking together along the brick road from Dali to the National Highway. Suddenly, near the garden of one Haji Mahmood, the three appellants appeared armed with hatchets, challenged Miral Shah and gave him hatchet blows so severe that his head was severed from the body. The appellants then ran away with their hatchets. P. W. Shah Muhammad, the son of the deceased, left the other eye witnesses to look after the body and went to Bhiria to lodge a report at the police station, but as the A. S. I. was not present at Bhiria Police Station, P. W. Shah Muhammad went to Naushabro Feroze and lodged the report (Exh. 19) at that police station. The report was recorded by P. W. Ghulam Haider who went to the vardat and commenced investigations. He began recording the statements of the witnesses on the same day, and the next day he arrested the three appellants from their houses in a village which was about one mile from Dali village. He secured from all the appellants blood‑stained hatchets and clothes all of which were stained with human blood, according to the Chemical Analyser's report (Exh. 30), therefore, in due course, the appellants were challaned under section 302, P. P. C. and the prosecution examined in support of its case the son of the deceased, the brother of the deceased and P. W. Bano and Haji Khan as eye witnesses. The prosecution also examined the Investigation Officer and proved the recovery of the blood‑stained articles for which purpose it also examine P. W. Abdul Majid Memon, who was the mashir of the recoveries. Finally it produced the Chemical Analyser's report (Exh. 30) and medical evidence.

3. The plea of all the appellants who are closely inter‑related, was of denial and enmity. This plea has been fully set out in the section 342, Cr. P. C. statement of the appellant Piaro, which reads as follow':‑

"We have enmity with Memons of Dali who have involved us in several cases. Yousaf and Usman memons were accused in the case of murder of my brother Arab. Haji Umar Memon had filed eases of theft against us and in the case filed by Miral Shah against us Memons were his witnesses. Haji Khan and mashir Abdul Hamid are Memons and are relatives of the above persons. Miral Shah was man of Imamali. Haji Khan Memon is his Kamdar and Bano is servant. They have been set up by them. Mira] Shah bad enmity with other Syeds in the same family over matrimonial affairs and due to the murder of Suleman Shah. This murder might have been committed by those Syeds and we have been implicated on account of suspicion."

The appellants also produced some documentary evidence in support of this plea of enmity, and as P. W. Haji Khan had denied being the Kamdar of one Imam Ali Shah, they examined P. W. Mahmood Ahmed who had been the Sub‑Inspector of Nausharo Feroze in 1969‑70 and this witness proved that P. W. Haji Khan had been the Kamdar of Imam Ali Shah. Finally I have to point out here that the learned counsel for the appellants had ably cross -examined the eye witnesses on plea of enmity relied upon by the appellants, and on the further allegations that these witnesses had not been present at the occurrence, and in this connection it would be sufficient to observe here that the statement of the eye‑witnesses were not free from the discrepancies.

4. The learned Sessions Judge was impressed by the evidence of the eye‑witnesses and he rejected the plea of enmity which was advanced by the appellants. Ho was also satisfied about the presence of the witnesses at the occurrence and was further of the opinion that the ocular evidence was corroborated by the evidence of the recovery of the blood‑stained articles which were proved to have been stained with human blood. Accordingly, he convicted the appellants as stated.

5. In appreciating the ocular evidence, it is necessary to bear in mind that according to the F.I. R. (Exh. 19) the motive for the murder was revenge, and P. W. Shah Muhammad, who lodged the F. I. R. was compelled to admit that two years before the occurrence the brother of the appellant Piaro had been murdered, and, even according to the witness, the appellant had suspected that the murder had been committed by the deceased. A cask had therefore, been registered against the deceased and his brother P. W. Motial A Shah, but that case had been dismissed. However, the very fact that the case had been filed against the deceased and his brother make it obvious that at least P. Ws. Shah Muhammad and Motia) Shah were not disinterested witnesses. In this connection I would refer especially to the cross- examination of P. W. Motial Shah. This witness was not only compelled to admit that the deceased and he bad been charged for the murder of the appellant's brother and acquitted, but he also said "it is also correct that against that case Motial Shah had filed counter case in which 11 Kalhoras were accused." Now as the appellants are Kalhoras, this cross‑examination of the prosecution witnesses has proved‑not merely that there was enmity bet ween P. Ws. Shah Muhammad and Miral Shah and the appellants, but it also raised the possibility of enmity between the castes .of the appellants and of the prosecution witnesses.

6. Whilst on the question of enmity, I would also refer here to a passage in the cross‑examination of P. W. Shah Muhammad with regard to the claim of the appellant Plaro in his section 342, Cr. P. C. statement that the deceased had enmity with other members of his own family. The learned Sessions Judge thought this admission was of no importance, but Mr. Juoejo submitted that it was important because it showed that the deceased might have been murdered by his own relations and that the appellant had been falsely implicated in order to conceal a scandal in the family. In this connection the witness, who was in Government service, stated: "I know Suleman Shah, who is my maternal uncle. His where abouts are not known for the last about S or 9 years. Sheral Shah is brother of Suleman Shah. It is correct that Sheral Shah filed a case against my father about the murder of Suleman Shah and my father obtained bail before arrest from Sessions Court but I do not know how long ago it was from the incident." A part from the fact that the deceased thus had other enemies, I am unable to understand bow a son could not recollect when his father had obtained bail before arrest on a charge of murder. This statement is patently false and I am astonished that the Sessions Court was highly impressed by the evidence of this witness, the more so as he admitted in his cross‑examination with reference to his family's relations with the appellants that "bitterness was going on between us and the accused persons."

7. In this background the question whether the F. I. R. was lodged promptly becomes important, and although the occurrence took place at 6 a.m. the F. I. R. was lodged three hours later. Now the learned Sessions Judge has explained away the delay on the ground that P. W. Shah Muhammad had lodged the F. I. R. not at Bhiria Police Station but at Naushabero Feroze Police Station, and that three hours were reasonably required for reaching Naushahro Feroze Police Station. But the witness himself said that he had first gone to the Bhiria Police Station, therefore, the real question is whether he was justified in not lodging the report at that police station. In the F I. R. the witness merely said that he had come to lodge the report at the Naushahro Feroze Police station because A. S. I. was not available there as he had gone out." The witness realised that this explanation was absurd, therefore, he stated in his evidence in the Sessions Court "I first came to the outpost Bhiria where Sub‑Inspector was not avail able and I was directed to go to Police Station Naushahro Feroze." The witness did not specify who had given him this absurd direction, nor did the prosecu tion examine any such person, therefore, I reject the explanation as false, and this means that there was delay in lodging the F. I. R. which the witness tried to explain away by giving a fake mason. Mr. Junejo further submitted that Naushahro Feroze Police Station was near Padidan, what; the witness lived and worked, and, according to the learned counsel, the real reason, for lodging the F. I. R. at Naushahro Feroze was that the witness had never been at the vardat, that he had been informed at Padidan of the occurrence was, therefore, he had rusted to lodge the report at the nearest police station namely, Naushahro Feroze. I will presently consider the question of the presence of the witnesses at the vardat, but whilst I am on the questions of the F. I. R., I would refer here to a circumstance to which Mr. Junejo referred us and which arouses very great suspicion. The F. I. R. refer to the presence of P. W. Bano and Haji Khan at the occurrence, and this was the circumstance which impressed the trial Court very much, Now the F. I. R. describes P. W. Bano as the son of Samano Jeehejo r/o Bhuria and P. W. Haji Khan as s/o Muhammad Ibrahim Memon. But in a very able cross‑examination, P. W. Shah Muhammad was compelled to admit that as both P. Ws. Bano and Haji Khan were strangers to him, he was not aware of the names of their fathers when he lodged the F. I. R. (Exh. 19). How then are the names of the fathers to be found in the F. I. R.? Mr. Junejo pointed out that the first informant was in Government service and the explanation of the discrepancies, according to the learned counsel, was that the F. I. R. had been pre‑dated and that it had been prepared after the statement of the witnesses had been recorded by P. W. Ghulam Haider. As P. W. Ghulam Haider was not cross-examined on this allegations, I would only observe that the F. I. R. invites great suspicion and this casts very great doubt on the investigation agency.

8. I now turn to the learned counsel's admission that the murder had not been witnessed by any of the so‑called eye‑witnesses examined by the prosecution, and 1 may first refer to P. W. Shah Muhammad's description of the occurrence. Thus after stating that the appellants had challenged his father, he said "Thereafter all the three accused persons attacked my father with hatchets. The head of my father was severed . . . . . . . . we did not interfere. Similarly, in the F. I. R. (Exh. 19) the witness had stated with reference to the appellant . . . "within our sight they felled down my father by giving him hatchets blows, and severed his head from his trunk." There is no suggestion in either of the statements that the appellants had inflicted any hatchet blows on the deceased after he had fallen down, nor is there any such suggestion in the evidence of P.Ws Bano and Haji Khan. I will now compare this description of the murder with the evidence of P. W. Dr. N. Ahmad who described the injuries to the deceased as follows:‑

(1) One incised wound 7" x 5 ' x separating the head from the neck starting from the nape of neck to below the chin. Bone i.e. 1st vertebrae muscles, vessels, nerves, spinal cord and all other structure of the neck were cut.

(2) One incised wound 6 ' x 1" 1 ' starting from the left `side chin towards left. cutting the mandible and part or' occipital bone.

(3) One incised wound 4 " x x bone deep over the left parietal bone cutting the bone and damaged the brain which was coming out.

(4) One incised wound 2' x 1" x scalp deep posterior to injury No. 3.

(5) One incised wound 2' x 1 ' x over the left arm.

The injuries to the deceased were ghastly and the blow, which severed his head from the body, could not conceivably have been inflicted on him whilst he was standing. Similarly, any of the first three injuries must have been sufficient to knock down the deceased, yet he had fallen down, according to P.W. Shah Muhammad after receiving all his injuries. Secondly P.W. Shah Muhammad and the other, eye‑witnesses claim to have been walking with the deceased, yet none of them dad any blood stains on their clothes. This too is impossible to believe, as submitted by Mr. Junejo. Above all, it is credible that the soil and the brother of the deceased would not have rushed to his help? The explanation of P.W. Shah Mohammad is that he was frightened. But it is impossible to believe this application, and in this connection the fact that P. W. Shah Muhammad did not have any blood stains on his clothes is very significant. After all would he not have gone near his father after the appellants ran away? Additionally P. W. Shah Muhammad and Motial Shah admitted that the deceased had a revolver. As he had so many enemies, would he have set out from his house so early in the morning without being armed? Again P. Ws. Bano and Haji Khan claim to have been returning to their own village, and in this connection P. W. Bano claims to have arrived the previous evening at the house of the deceased. Is it credible that he would have come without a laths or a hatchet? Additionally the mashirnama of the vardat shows that there was a struggle. In all the circumstances discussed, I find it impossible to believe P.W. Shah Mohammad's story that he did not move a finger to help his dying father because of fear, Land I am satisfied that the witness was never present at the occurrence.

9. I now turn to P. W. Motial Shah's evidence. The witness was teacher. He stated in his evidence that the appellants had cut off the head of the deceased after he had fallen down, but Mr. Junejo drew, our attention to the fact that he had not said so in his lower Court statement. Secondly the witness worked as a teacher in another village and he admitted that the vardat was not on the road to that village, His explanation of his being at the vardat was that he was not going, to his school on that morning but to Bhiria. Thus as submitted by Mr. Junejo he was a chance witness; but a chance witness may not be a false witness, His evidence, however, must be scrutinized with great care. Bearing in mind his description of the occurrence in the lower Court and the very unnatural plea advanced by him that he did not attempt to help his dying brother, I am doubtful of his presence at the vardat, the more so in view of his admitted enmity with the appellants.

10. There remains for consideration the evidence of P. Ws. Bano and Haji Khan, and Mr. Murtaza relied on the fact that they were dis‑interested witnesses. But they were dig‑interested witnesses only in the sense that they were not Sayeds. On the other hand, both of them have given the same false description of the murder as P.W. Shah Mohammad. Secondly P.W. Bano's presence is more than doubtful. He was also a chance witness because he lived in other village, and his explanation of his presence in his evidence was that as the daughter was ill he had come the previous evening at 6.00 p.m. to obtain an amulet from deceased. Then he said that having come to the deceased, he stayed the night with him, therefore: he was with him at the time of the murder. He was by occupation a labourer, and P. W. Shah Mohammad admitted that he was a stranger to the family, therefore, the story that he stayed the night at the house of the deceased is difficult to believe, tile more so as he justified his presence in the village on the ground of his daughter's illness. After all, if his child was sick, would he not have returned to the same evening especially as the village was only three or four miles from Dali village. Additionally, as the witness had stated in the lower Court that he had come to the house of the deceased at 6‑00 A. M. the previous day, he was cross‑examined on this discrepancy, anti Mr. Junejo rightly pointed out that the explanation of the witness was most unsatisfactory, yet the learned Sessions Judge was satisfied about the presence of the witness. The learned Sessions Judge did not care to compare the description of the occurrence by the witness with medical evidence nor the credibility of the plea that the four persons with the deceased did not lift a finger to save him. I, therefore, regret my inability to agree with trial Court's evidence and I accept Mr. Junejo's submission that the presence of this witness is also doubtful. Then as to P. W. Haji Khan, the witness has falsely denied having been the Kamdar of Imam Ali Shah and the trial Court thought that this discrepancy was not material. That may be so, but the description of the occurrence by the witness was false like that of P. W. Shah Mohammad. Again, as I am, satisfied that neither P. W. Shah Mohammad nor P. W. Motial Shah were present at the occurrence, the evidence of P. W. Band and Haji Khan that these two persons were present is false.

11. Finally the learned counsel criticised the evidence about the recovery of blood‑stained articles from the appellants. I have earlier expressed my grave doubts about the investigation agency, and with reference to the blood‑stained articles recovered, P. W. Ghulam Haider's statement was so unusual that it deserves to be mentioned. I would, however, first recall here that according to the so‑called eye‑witnesses the appellants had run away with the hatchets after the murder. Then, according to the prosecution, they were not traceable for a whole day and P. W. Ghulam Haider arrested them the next day, from their village which was about a mile from Dali village. And he said that all the three appellants were standing at their otaks in their blood‑stained clothes and with their blood‑stained hatchets when he arrested them. The 'statement borders on the absurd, but it is not necessary to examine further the question of corroboration because the ocular evidence does not inspire confidence, therefore, the question of corroboration is irrelevant.

12. In the result, the prosecution has failed to prove the guilt of the appellants. Accordingly, we allow the appeal of the appellants, set aside their convictions and order their release unless required in any other charge.

Appeal allowed.