P L D 1967 Karachi 791 (PLP)

Azizullah K. Shaikh for Appellant. Usman Ghani for A. A.-G. for the State. Date of hearing: 16th February 1966. The Appellant Ayo, son of Muhammad Ali, has been convicted by the Additional Sessions Judge, Sukkur, under section 302/149, P. P. C. and sentenced to transportation for life. He bas also been convicted under section 307/149, P. P. C. and sentenced to 7 years R. I. A further conviction under section 19-E of the Arms Act was recorded under which he has been sentenced to 9 months R. I. The sentences are to run concurrently.

2. The prosecution case is that the appellant Ayo along with four others namely Miral, son of Malook, Bhagio, son of Noubat, Shafoo, son of Noubat and Ali Gul son of Pathan, by caste Jakhranis, formed an unlawful assembly, all of them being armed with unlicensed guns with the common object of committing murder by firearm in pursuance of that common object shot dead Hayat and caused injury to Ilyas P. W.

4. The accused are Jakhranis by caste and lived in deh Nizam Thareri. Not far from them lived the deceased Hayat and Ilyas, P. W. 4 and Jamsher; P. W.

6. They are Esanis and lived at a place about 300 yards away from the scene of occurrence and they had their land which was under cultivation near the scene of the offence. Two of the persons who were said to be the members of the unlawful assembly, namely Shafoo and Bhagio lived at a distance of about 200 yards from the scene of offence and at one time the other members of the alleged assembly had lived at a distance of about 50 yards from the scene of the offence but they had abandoned their houses which were lying deserted. The appellant Ayo had his landhi at a distance of about 760 feet from the scene of offence. On 16th December 1961 at Bipahri lime which would be between 12 and 1 noon the deceased Hayat accompanied with Ilyas, Jamsher and one Alim were having a round of their fields near the abandoned houses of the Jakhranis. Hayat was ahead of all: followed by Ilyas and the other two Alim and Jamsher were further behind and they saw Miral, Bhagio, Shafoo, Ayo (appellant) and Ali Gul, all Jakhranis armed with guns who gave a challenge and Miral fired his gun at Hayat which hit him and Bhagio fired at Ilyas which also injured him. Hayat collapsed and died on the spot, but Ilyas ran away and hid himself in a field. Ali and Jamsher also ran away and the five persons kept on firing for sometime in the air and then they retired. Alim who was the brother of Ilyas then went to his cousin Bhano who lived at a distance of a mile and informed him of what bad happened and then Bhano proceeded to the scene of the offence, and from there to the police station Sultan Kot about 20 miles away where his report was recorded at 10 p.m. The Sub-Inspector came on the scene and made the necessary inquiries. He sent the dead body of Hayat for post-mortem examination and also sent Ilyas for treatment and examination. The later was treated only for a day when he left the hospital. His injuries were simple. Out of the 5 persons named in the F. I. R. the first to be arrested was the appellant on 26-3-62 and he was sent up for trial alone, the other accused being treated as absconders. One of these, namely Ali Gul was subsequently apprehended and was tried by another Additional Sessions Judge Mr. Fazle Ellahi Ansari who acquitted him by his judgment dated 19-2-65. The other three accused persons have not yet been found.

3. The evidence against the accused consisted of the testimony of Ilyas and Jamsher, P. W. 4 and P. W. 6 respectively who were both examined in the committal Court as well as the Sessions Court. They supported the prosecution case as set, out above and in fact tried to improve their version by attributing a definite part to Ayo who was on trial by saying that his shot had also hit Hayat in the field. Alim, the man who had gone to Bhano was examined in the committal Court whereafter be has also absconded and so has Bhano so that their statements made before the Committal Court were brought on record by an order of the learned trial Judge. Alim had figured as an eye-witness being one of the party of four, namely Hayat, Ilyas and Jamaher. Bhano and one Din Muhammad, P. W. 7, were examined as witnesses who came on the scene after the incident and who were told that the above named 5 persons had killed Hayat and inured Ilyas. It is a matter of admission and this question has been dealt with by the learned Additional Sessions Judge that there have been feuds between the party of the accused Jakhranis on the one hand and the Esanis to which the complainant patty belongs on the other and there gave been several murders on each side in the course of years. The motive for the attack in question is said to be the fact that three of the party-men of the Jakhranis had been murdered and in this they had suspected Ghous Bux, Gada Ali, Imam Bux and Khamiso of the complainant party as the assailants. These four persons had been challaned and their case had been referred to Jirga. It is who case of the prosecution that the accused party were annoyed against the complainant party on that account and in order to take revenge they killed Hayat and also attempted to kill Ilyas. This has been brought out fully in the examination-in-chief of Ilyas himself. The prosecution witnesses in this case are inter related. Alim and Ilyas are brothers whereas Hayat and Bhano are cousins of Ilyas. Jamsher is a caste fellow and belongs to the party of the complainant.

4. The evidence of the eye-witnesses and the gist of it as stated in the F. I. R. was that there was a ditch in which Miral, Bhagio and Shafoo had been hiding and they emerged from it and Miral fired at Hayat who fell down and Bhagio fired at Ilyas. Ayo and Ali Muhammad were stated to be standing behind a Babool tree and what was attributed to them was that they were firing in the air. The subsequent addition of a part to Ayo that he had also hit Hayat in the feet was an improve ment upon the story given in the F. I. R. and in the statement in the committal Court. According to Ilyas, the firing took place from a distance of about 100 paces. Hayat was a few paces ahead of Ilyas. However, according to the evidence of Jamsher the accused were at a distance of about 25 paces when they fired. The mashirnama showed that a ditch had been freshly dug and it was in this that the assailants were evidently hiding. This is supported by the fact that all the empty cartridges, about 35 in number, were found near-about that ditch. Now, if a ditch had been dug under a design to give a hiding place for the persons who were going to shoot, it is difficult to see as to why two persons out of the said assailants, namely the present appellant Ayo and the acquitted accused Ali Gul, should have been hiding behind a Babool tree. There is a further circumstance which makes the evidence a little difficult to believe on the point of identity of the appellant. There can be no doubt that there were more than two persons in the assault. There may well have been five because a large number of empty cartridges were found near the ditch from where the firing took place. Now, when the first round was fired in which it" is alleged that Miral hit Hayat and Bhagio hit Ilyas, those who are said to have accompanied these namely Ali and Jamsher who were much behind must have run for their lives as indeed they admit to have done. Even Ilyas got the shot on his buttocks and that would indicate that when Hayat was hit Ilyas had turned back and was running away. In this situation it would be difficult to implicitly rely on the identification of those members of the party who had not actually fired those shots which hit Hayat and Ilyas. The firing, in my opinion, took place from considerable distance so far as Ilyas is concerned because had it not been so the injury would not have been simple as it turned out to be. Hayat was obviously much ahead of Ilyas and so he got the full blast. But I do not think the others who were behind could have sufficient opportunity of identifying the other members of the shooting party. They could have identified them but having regard to what must have happened when the volley of fire started it is reasonable to hold that the identification might not be free from doubt. Apart from this, this is a case of a kind of blood feud between two parties and the evidence is not only of persons who are inter related but who are admittedly in the came opposite to that of the accused. Therefore, some kind of corroboration would have been necessary so as to remove such doubt as might attach to the evidence of the partisan eye-witnesses and also removing such doubt as attached on the point of identification. The learned trial Judge has recognised this fact and has said that the evidence of the prosecution witnesses in a case of this kind has to be looked upon with caution. He has, however, gone on to hold that corroboration was found in the evidence of Bhano and Din Muhammad and in the fact that the names of all the five assailants were mentioned in the F. I. R. I do not think this would amount to corroboration of the kind required in a case of this nature. Bhano and Din Muhammad were also of the same party but in any case they only stated what had been said to them by Ilyas, Alim and Jamsher. Therefore, that would not be much of a corroboration. The fact that their names were mentioned in the F. I. R. also does not necessarily provide a corroboration because the report was made at 10 p.m. whereas the incident had taken place between 12 and 1-0 in the noon. It is true, the distance was 20 miles but if the complainant party had wanted to have some consultation there was sufficient time for it. There was one circumstance in this case which might have provided the necessary corroboration to the evidence of the witnesses named above. This would have been the circumstance that the appellant had absconded after the incident and was not arrested until 26-3-62. However, unfortunately there is no evidence on record to justify the finding that the appellant had absconded. It is strange that no question was put by the Additional Public Prosecutor to the two police officers Gul Sher Muhammad, P. W. 8, and Ghulam Muhammad, P. W.

9. Gulsher Muhammad does not say a word about his having looked for any of the accused named in the F. I. R. and not found them to the place where they should have been found. 1n fact there is no mention of this aspect of the matter in his evidence at all. The next witness Ghulam Muhammad S. H. O. merely states that he had recorded the F. I. R. on 16-12-61 and he arrested the accused Ayo on 26-3-1962. No question was asked of this witness as to why hey had not been able to arrest him before. There is thus no evidence brought on record with regard to the abscondence of the accused. It is a pity that no attempt in this regard was made by the prosecuting agency. In the absence of any material I cannot presume that the accused was absconding.

5. For the reasons given I am of the opinion that the complicity of the appellant in the incident is not free from doubt. I accordingly allow his appeal, set aside his conviction and sentence and order that he shall be set at liberty unless required in connection with any other case. K.B.A. Appeal accepted.