P L D 1966 (W (PLP)

H. T. RAYMOND, J.‑

The two appellants Sabu son of Niaz Muhammad and Azmat son of Gulsher both Sangis by caste were tried by the learned Sessions Judge, Larkana, along with the acquitted co‑accused Rahib son of Niaz Mohammad and Mohammad son of Allah Rakhio for offences under sections 148, and 302 read with section 149, P. P. C. In the result, the co accused Rahib and Muhammad were acquitted and the two appel lants convicted under section 302/149, P. P. C. and section 148, P. P. C. Under sections 302/149, P. P. C. they have each been sentenced to death and under section 148, P. P. C. to 12 months R. I. They have appealed from these convictions and sentences. This matter is also before us for confirmation of the death sentences. By this judgment we will dispose of both the appeals as well as the murder reference.

2. The brief facts giving rise to this case are that on 8‑5‑1964 complainant Mohammad Bachal Jatoi P. W. 4 who lives in Larkana had gone to the deceased Wadero Roshan at his village of Dodai for purchasing bullocks. As they did not agree over the price and it grew late Mohammad Bachal spent the night with Roshan and on the following morning (9‑5‑1964) they both set out for Larkana Town on foot. They had barely covered one and a half miles on the road from Larkana to Naudero when as they approached Ayub's well three men emerged from behind the well with hatchets in their hands. This was about Kachri Manjan Time and the sun being well up in the sky complainant Mohammad Bachal identified two of these three men as being the present two appellants. He did not know the third man. As these three men approached Bachal and deceased Roshan they were joined by two others who came from behind a tree on the eastern side and who, too, carried hatchets in their bands. Neither of these two were known to complainant Bachal. Appellant Sabu is alleged to have challenged, deceased Roshan with having killed his father‑in‑law and got away with it whereupon the five assailants attacked him with their hatchets each giving him one blow. Meanwhile, on the cries that were raised Kadir Bux P. W. 5 and Ali Dost P. W. 6 both Jatois came up and saw deceased Roshan being attacked by the five assailants. Kadir Bux and Ali Dost knew all five assailants and the story goes that these assailants after having attacked deceased Roshan ran away from the scene. Rosh an died on the spot as a result of the injuries sustained by him while complainant Mohammad Bachal proceeded to Larkana Town where he lodged his F. I. R. at 11‑45 a.m. with the A. S. I. P. Larkana Town Police Station Nabi Bux P. W. 10 in which, very strangely, he named only the present two appellants Sabu and Azmat and not the remaining three assailants although all five were known to Kadir Bux and Ali Dost the other two eye witnesses.

3. A. S. I. P. Nabi Bux after‑recording the F. I. R. returned to the scene with complainant Bachal, saw the dead body of Roshan lying in a pool of blood there, and prepared both a mashirnama of the scene Exh. 10‑A as well as an inquest report on the dead body Exh. 10‑B. He sent the dead body to the hospital for post‑mortem examination and there and then recorded the statements of Kadir Bux and Ali Dost who were then present at the scene of offence which was only one mile away from Larkana Town Police Station. He then went to Dodai village and arrested the two appellants there and secured the wet clothes they then had in their hands as also their hatchets which appeared to have been washed under mashirnama Exh. 11‑A. He then arrested the two acquitted co‑accused Rahib and Mohammad who also produced two hatchets which were secured under mashirnama Exh. 11‑B. He then recorded the statements of further prosecu tion witnesses and on 25‑5‑1964 held an identification test of the two acquitted co‑accused at which complainant Bachal picked them out. On completion of the investigation the four accused were challaned in Court by S. I. P. Fazal Karim P. W. 11 then S. H. O. Larkana Town Police Station.

4. In their statements in the two Courts below the two appellants deny bearing any malice against deceased Roshan on account of the murder of appellant Sabu's father‑in‑law and also deny having committed the murder of Roshan or producing their wet clothes and washed hatchets before the police. When asked why the prosecution witnesses are deposing against them they replied that they are false witnesses who are on terms of enmity with them.

5. That deceased Roshan died an unnatural death is not disputed in this case. Apart from the evidence of the eye witnesses, there is the evidence of Dr. Ali Raza then Sub Charge Civil Hospital, Larkana, who performed the post- mortem examination on his dead body. He found five external incised injuries all on the face and neck the first four of which were individual and collectively sufficient to cause death in the ordinary course of nature. On internal examination he found lacerations of the brain, fracture of the skull bone and spinal cord as well as of the left parietal and frontal bones and the third cervical vertebra. In his opinion, these external and internal injuries caused the death of the deceased.

6. The sole question of, importance for consideration in this appeal is whether the evidence available on the record establishes beyond all doubt the guilt of these two appellants in this case. This evidence consists of the oral testimony of the three eye witnesses to the murder complainant Bachal P. W. 4, Kadir Bux P. W. 5, Ali Dost P. W. 6 and witness Muradali P. W. 9 a brother in‑law of deceased Roshan who affirms that on the night proceeding the murder complainant Bachal had come to Roshan in his village and stayed for the night there in his Otak. This is the sum‑total of the evidence against the appellants in this case. As to the securing of their wet clothes and washed hatchets no importance can be attached for the simple reason that no blood was detected on any one of these articles. Thus, the fate of the appellants in this appeal rests upon the oral testimony of the three eye‑witnesses.

8. Now, the nature of the evidence of these three witnesses has already been disclosed when setting out the prosecution story in para. 2 above. In brief, it is that while deceased Roshan accompanied by complainant Bachal was coming from his village to Larkana Town he was set upon by five assailants who attacked him with their hatchets each giving him one blow. This incident was witnessed by Bachal who was accompanying the deceased and Kadir Bux and Ali Dost who were coming in the opposite direction and rushed up on hearing the cries. Of the five assailants, two, namely, the present two appellants were known to complainant Bachal whereas all five were known to Kadir Bux and Ali Dost. Immediately after the incident Bachal proceeds to the Larkana Town Police Station only a mile away where his F. I. R. is recorded by A. S. I. P. Nabi Bux at 11‑45 a.m. It is very strange that in this F. I. R. complainant Bachal mentions the names of only the present two appellants from out of the five assailants. He also mentions that Kadir Bux and Ali Dost both Jatois like himself were coming from Larkana side and saw the incident and challenged the assailants. In his evidence in Court Bachal states that before leaving for report he had no talk with Kadir Bux and Ali Dost but, Ali Dost, on the contrary, had stated in the Committal Court that Bachal had spoken to him before going to the police station for report and had told him that he had identified three men, yet Ali Dost and Kadir Bux did not tell him how many they had identified or that they had identified all the five assailants. It is because of the absence of the names of the two acquitted co‑accused Rahib and Mohammad from the F. I. R. that the learned Sessions Judge has given them the benefit of the doubt and has acquitted them. But, it seems to us, that precisely on account of the omission of the names of the two acquitted co‑accused in the F. I. R. the evidence of all three eye‑witnesses becomes doubtful and unsafe to rely upon unless substantially corroborated by other outside evidence. On the evidence of these three eye witnesses two of the four accused, have been acquitted and in accordance with the pronouncements of our Supreme Court it would be most unsafe for us to uphold the conviction of the present two appellants on the same evidence unless and until we find some other good and sound corroborative evidence in support of their oral testimony. We have closely examined the record of this case but we find no such evidence.

9. There is also another consideration that has weighed with us and has made us chary of accepting at its face value the oral testimony of these three eye‑witnesses and that is the prior antecedents of these witnesses themselves. Complainant Bachal has admitted in cross‑examination that he was sent up in a murder case in Khairpur District though not convicted. Kadir Bux has admitted that he was challaned in a dacoity case in which he was convicted and served out a seven years' term of imprisonment. Mashir Zaman Shah W. P. 8 has stated in his evidence that "Roshan deceased was a great Sarkash (uncontrollable) and was challaned in six or seven cases".

10. In view then of the antecedents of the deceased and of the prosecution witnesses we are most reluctant to accept the oral testimony of these witnesses in the absence of any sound or reliable corroborative evidence. We, therefore, accept this appeal,' set aside the convictions and sentences imposed upon the two appellants and direct that they be set at liberty unless wanted in some other case. K.B.A. Appeal accepted.