P L D 1961 (W (PLP)

S. Nasiruddin for Respondent. Dates of hearing: 6th and 7th October. 1959. MUNSHI, J.‑--Disagreeing with the opinion of the assessors the learned 2nd Additional Sessions Judge, Jacobabad, has convicted Tado son of Tahir by caste Jakrani of the offence punishable under sections 302/34, P. P. C. and 19‑E of the Arms Act and has sentenced him to death under the former and to R. I. for 2 years under the later. The case for the prosecution briefly stated is as under:‑ On 13th October 1958 deceased Khawand Bux and his two sons Mir Khan and Yar Muhammad were sleeping in the court yard of their house when a little after mid‑night the last two got up on a gun report to find that their father Khawand Bux had been shot dead. They saw two men namely the appellant and one Wadho both armed with guns standing at the scene. The two brothers, according to them, proceeded towards the culprits but soon retreated as the culprits threatened them. Then it is said that the two culprits took to their heels and disappeared in the darkness. Thereafter the two brothers raised cries which brought Dad Muhammad and Haji Suleiman to the side who were informed of what had happened. Mir Khan then mounted a horse and went to Buxapur police station where he lodged his report at 7 a.m. with Sub‑Inspector Ghulam Kadir. After recording the report Ghulam Kadir repaired to the scene of offence where he secured ‑an empty cartridge. He also took possession of a hurricane lamp which was burning in the shed. After the investigation was over Mr. Gous Bux S. H. O., Buxapur, sent tip the papers in the Court of the Sub‑Judge and Ist Class Magistrate Kandkot for proceedings tinder section 302, Cr. P. C. Thereafter on 10th January 1959, appellant Todo was arrested and sent up on 12th February 1959 with the above result. The appellant denied his participation in the crime and stated that he had married a niece of the deceased who was subsequently declared Kari with one Khairo son of witness Haji Suleiman and that she was than killed by his brother Nazar Ali His case is that because his brother killed his wife as Kari, the prosecution have involved him in this case. He has further stated that his brother Dost Ali had filed a murder case against Hazaro one other son of the deceased in which Gul Muhammad brother of witness Dad Muhammad was sentenced to transportation for life. He has also stated that Mir Khan the first informant in this case and his brother Nur Khan had already deposed against him in a murder case in which he was acquitted. That Khawand Bux died of gun shot injuries is not disputed. The main question is whether the prosecution have been able to establish the guilt of the appellant beyond a reasonable doubt. In our opinion they have failed to do so. The entire evidence on which the judgment is based consists of the testimony of Mir Khan, Yar Muhammad, Dad Muhammad and Haja Suleiman. Of these the first two claim to be the eye -witnesses of the incident and the last two have been examined to corroborate the first two As said above Mir Khan and Yar Muhammad are sons of the deceased. Dad Muhammad is brother of the deceased while Haji Suleiman is his brother‑in‑law. There is no other evidence circumstantial or otherwise to connect the appellant with the guilt it is admitted that there is a deep‑rooted enmity between the parties. There have been several cases and counter cases between the parties the charge mostly being that one party had killed a member of the other. The learned Judge himself has accepted this position in his judgment and has further stated that enmity cuts both ways, but of this maxim he has given benefit to the prosecution, for doing so there was, in our opinion, no justification. The entire case of the prosecution rests on the identification of the appellant by two brothers Mir Khan and Yar Muhammad. The prosecution case is that they were able to identify the appellant and his companion with the aid of the light of a hurricane lamp that was burning not in the courtyard but in the shed. It is clear that whoever came to commit this crime had no reason to linger on after shooting the target. The two brothers themselves say that they woke up on the gun report and it is the case of the prosecution itself that only one gun was fired. " It is therefore difficult to believe that the culprit or culprits waited after shooting the man to death to be seen by the two brothers. If the two brothers were at the scene and if the appellant was concerned in this crime, he would have hardly left them alive. He had two reasons for killing them also one because of the deep‑rooted enmity and the other to destroy evidence against him. The learned Judge himself observes that Jakranis belong to that class of people who do not hesitate killing any member of the enemy party. Hero the two brothers, on getting up and challenging the culprits more or less offered themselves as a clear target to the appellant avid yet the latter has not taken advantage of that offer. It is said that one of the two brothers had a gun by his side and yet no attempt was made by the man to shoot the killer of their father. If he was afraid of being shot by the culprits when they were facing him there was nothing to prevent him from shooting at them they turned their back and took to their heels. The lamp with the aid of which the witnesses say they identified the culprits, as said above, was in the shed, and if we take the most favourable view of the prosecution case, the culprits were at least 12' away from the lamp. These two witnesses also were about 12' away from the culprits. It is difficult to believe that the lamp so situated would shed sufficient light as to enable the witnesses to see the faces of the culprits and mark their features. The mashirnama of the scene of offence contains a passage which is couched in a language which is capable of two interpretations. It says that a lamp was burning in the shed, and it was lighted, and it was found burning. If the lamp was already burning there was no necessity of lighting it. Therefore the passage is capable of the interpretation that the lamp was not burning when it was recovered. There is one other interpretation which could be put on this passage and that is that the wick of the lamp was too low to enable the police and the mashirs to say with certainty that it was burning. It had therefore to be raised in order to find out whether it was burning or not generally, people in the muffassil keep the lamp burning but usually the wick is kept low. The idea of keeping the lamp burning is that it could be immediately by made use of in time of emergency. But even if the lamp was actually burning in the shed it, in our opinion, could not have shed sufficient light for the two brothers to identify the culprits. As said above there is no other evidence to connect the appellant with the guilt. In the result we allow the appeal and set aside the conviction and the sentence of death imposed upon the appellant. The appellant is in jail, he is directed to be released forthwith. S. B. Appeal allowed.