1976 P Cr (PLP)

MUHAMMAD HALEEM, J.‑Appellant Ali Nawaz was tried for the murder of Loung and attempted murders of Rahib and Dadan, convicted under sections 302 and 307/34, P. P. C. and sentenced on the first count to death and on the second, the five years' rigorous imprisonment and to pay a fine of Rs. 2,000 or in default to suffer rigorous imprisonment for two years, by the learned Additional Sessions Judge, Dadu, vide judgment dated 18th April 1974. The appellant has appealed to assail his conviction and sentence, while the learned Additional Sessions Judge has referred the case for the confirmation of death sentence passed on him. This judgment will dispose of the appeal and the reference.

2. The deceased was the nephew of complainant Allan, whose brother is Dadan. Rahib is the cousin of Allan. Allan and the deceased jointly cultivated their unsurveyed land with Juwar. Adjacent to it is the land of Dadan and Rahib, who also jointly cultivated it with Juwar. 1n the morning of 22nd February 1972, the deceased went to his land taking his licensed gun along with Dadan and Rahib to cut grass and look-after Juwar cultivation. At 'tripahri' time while Allan was going to the shop of Mohammed he heard gun reports and also cries of murder being raised by Rahib and Dadan from the unsurveyed land of Karimbux Babar, where upon he ran towards that side and having reached there he saw the appellant and the absconding accused Shah Pisand, Kehar and Sawan escaping from there who were armed with guns and tiring tax the air. He saw the deceased lying on the ground, who had suffered gunshot injuries on his chest and stomach and bad died. His broken ken was lying near him. Both Dadan and Rahib told him that after cutting grass they left for the village. The deceased was ahead of them and had his gun on his shoulder while they were behind him, and as they reached the unsurveyed land of Karimbux Babar. the appellant and the absconding accused, who were hiding in the ditches and the bushes nearby, suddenly emerged from infront. The appellant thereupon challenged and told them that they had come to take revenge as they had filed a robbery case against them and saying so they fired guns at the deceased, who having received gunshot injuries fell down and died. They also fired at them, but the shot missed as they had concealed themselves in the ditches. Rahib further stated that he had fired in the air in 'self‑defence'. The appellant and the absconding accused thereafter went towards the north. Two other persons, Taj Mohammed Babar and Lalbux Babar, from the adjacent village were also attracted to wardat by the gun report rind the crier, to whom the same facts were given. Leaving Rahib, Dadan and others at the wardat, Allan went on foot to Dadu to inform Sardar Mohammad Bux Khan Jamali and reached there in tile morning and after informing him about the incident, he lodged the F. I. R. at 12‑30 p.m. on 23rd February 1972 at police station Johi, which is 26 miles away from the wardat.

3. Muhammad Mithal, Head Constable, recorded the F. I. R, but the time at which he recorded it is stated to be "12‑30 night". Thereafter he went to police outpost Phulji and from there he toots Ghulam Ali, Head -constable, and went to the wardat, from where he secured seven crime empties, one pellet, blood‑stained earth and a gun lying beneath the dead body vide mashirnarna, Exh.

20. After despatching the dead body to the Medical Officer, Dadu, he recorded the statement of Rahib, who produced five crime empties, which were secured vide mashirnama, Exh.

22. He then recorded the statement of Dadan, who produced the gun licence of the deceased. which was also secured 'vide mashirnama, Exh.

23. Lastly, he examined Haji Umar and Sahib who were at the wardat. On the next day, he examined Mohammed Khan and then looked for the appellant and the absconding accused, but was unable to apprehend them as they had deserted their houses. 'I hereafter he handed over investigation of the case to Raja Abdul Majid S. H. O. but he was also unable to apprehend them. On his transfer Muhammad Hasan took over from him as S. H. O., Johi and he succeeded on 14th December 19 f 2 in arresting the appellant from his village Wali Muhammad‑jo‑Gandho, but nothing incriminating was secured from him.

4. Dr. Radhomal performed autopsy on the dead body and noticed the following injuries:‑ "(1) Abrasion 1/4' x ' on the middle of left thigh on its lateral side. (2) Abrasion 3/4' x 1/4' on left thigh 1' above and interior to injury No. 1. (3) Circular abrasion 1/4' in diameter on umblical region of abdomen, 4' below and lateral to umblicua. (4) Two pellet wounds 1/4' in diameter on the upper part of chest in left interior axillary line. (5) One; pellet wound 1/4' in diameter on posterior axillary line. (6) Three pellet wound 1/4' diameter on lateral side of upper part of left upper arm (the wound of entrance). (7) Three pellet wounds of exit 1/4' in diameter each on medial side of upper part of left upper arm, (8) One pellet wound 1/4' in diameter in left posterior axillary line. (9) One pellet wound 1/4' in diameter on top of left shoulder." Except for injuries 1, 2 and 3, which were opined to have been caused by contact against hard and rough surface, the others were stated to be caused by the discharge from a firearm, which were individually and collectively sufficient to cause death in the ordinary course of nature. 5. 'The appellant pleaded his innocence and ascribed his false implica tion due to enmity with Rahib and Dadan on account of a robbery case having been filed by there. He admitted his arrest from his house, but alleged enmity with Allan on account of a dispute over water and his false implication in a case under section 307, P. P. C. in which he was acquitted.

6. The trial Court, upon its appraisal of the evidence, hold the ocular testimony of Dadan and Rahib to be unimpeachable which, in its opinion, was not only corroborated by the testimony of Haji Umar and Mohammed khan, who had arrived at the wardat soon after the occurrence, but also by the abscondence of the appellant.

7. While scrutinising the evidence with the assistance of the counsel for the parties, we find that there are strong reasons to hold that it was an unwitness crime. In the first place, there is considerable delay in the lodging of the F. I. R. Admittedly, it was lodged on 23rd February 1972 at 12‑30 p.m. at police station Johi, but for some reason best known to Mohammad Mithal Head constable who had recorded it gave out the time as 12‑30 "night". In the F. I. R. the word 'night' is not mentioned to give impression that it was recorded after midnight of the day of incident. There appears to be no explanation as to why Allan did not lodge the report at police outpost Phulji, which is 6 miles away, if it was a witnessed crime. The journey on foot to Dadu for the sole purpose of informing Sardar Mohammed Bux Jamali about the incident cannot he regarded as sufficient justification for the delay. Admittedly, be had contacted him in the morning Of 23rd February 1972 and it was thereafter that he went to police station Johi to lodge the report. Therefore, the attempt to show by Mithal Head -constable that it was lodged on the day of occurrence after midnight was to do away with the delay and is a highly suspicious feature. What is more of importance is that Sardar Mohammed Bux Jamali has not supported Allan in regard to his giving out the names of the assailants. What he stated was that Allan informed him that the deceased had been murdered by some 'Mastois', whereupon he directed him to lodge the report. It is only in the context of the absence of knowledge of the persons who had fired at deceased that his journey to Dadu can be explained, for he must have one there to consult him, which adversely reflects on the entire prosecution case. This feature of the case unfortunately did not receive due attention nor was the evidence of Sardar Mohammad Bux Jamali considered by the trial Court.

8. Before the committal Court Dadan stated that they left at morning prayer time, but in his testimony at the trial he gave the time as a 'pahar' after a sunrise and he was thereupon confronted with his earlier statement Which, of course, he denied having so stated. Taking therefore that they had left even at early morning time still it is not expected that they would not have taken any meal during day time, and surprisingly enough the stomach of the deceased was found to be empty. This does not seem to be consistent with the time of his murder, for if he had taken mid‑day meal, his stomach would not be empty at 'tripahri' time. Another feature of importance is that both Rahib and Dadan stated that they had gone to the field to cut grass and to lookafter the Juwar cultivation. But again, if that was the purpose, then there was no reason to carry their guns, and if Dadan and Sahib were armed then there was no reason for them not to fire at the appellant and the absconding accused in self defence. It is equally beyond comprehension that if the appellant and the others had fired at them, how was it possible for the shots to have missed them. Again, the gun of the deceased was found broken and there is no explanation for it. This was not possible unless some one of the assailants had struck it with some blunt object. If the object of the visit of the deceased had the two witnesses was to cut grass and that in fact, according to them, they had cut grass and were carrying it in bundles, then how is it that neither the bundles nor the sickles were seen there. Rahib even vent to the extent of saying that he had taken the cattle to grass them, but no one saw the cattle there. There is therefore no corroboration of their version in this essential respect and it becomes suspicious whether they had at all accompanied the deceased. Again Rahib stated that he tired in the air in self‑defence, which is also Absurd, for in such circumstances, the natural conduct would be to fire at the assailants and not in the air to scare them away. The abrasions on the deceased, though stated to have been caused by a fall on a hard and rough object is not explained by the witnesses and the reason given by the doctor is merely an opinion. The possibility of struggle with one of the assailants, in which such abrasion could have been caused even by nails cannot be eliminated.

9. There is another feature that the crime empties were recovered from the bushes, which again gives an impressions that whosoever was the assailant had fired while they were still hiding in the bushes and it is, therefore, that the deceased suffered gunshot injuries from an angle while it was given out in the F. I. R. that the assailants had emerged from the bushes and had fired at the deceased, which is not consistent with this feature of the case. The gunshot injuries on the deceased are not oven consistent with the number of shots fired, for there was a likelihood of many more pellet injuries on the deceased and not merely six, which could either be the result of one or two shots.

10. Cumulatively, the shortcomings an the evidence do not support the prosecution version and belie the ocular testimony. Therefore, it is not possible to accept that it was a witnessed crime. Apparently it seems that the deceased was ambushed late at night and thereafter his dead body was found when he had failed to return. "The delay, therefore, is consistant with this probability and on no other hypothesis can it be explained.

11. Admittedly, there was enmity between the parties. Not only did Allan implicate the appellant in a case under section 307, P. P. C. but he was also implicated in a robbery case. 'The possibility of dispute over water cannot be excluded though it is denied by Allan. In these circumstances, the possibility of false implication of the appellant cannot also be excluded. As for the abscondence, it is on record that he teas wanted in other cases, and therefore, even it he bad gone in hiding, that circumstance could not be taken to corroborate the ocular testimony. If the circumstance itself was doubtful, then no reliance could have been placed, which factor appears to have been ignored by the trial Court. It is also not possible to rely on the testimony of Haji Umar and Mohammed Khan, for their names neither appear in the F. I. R. nor can their evidence be of any value, for it rests on the ocular testimony which has inherent defects and cannot, therefore, be regarded as being unimpeachable to sustain conviction in the context of enmity. It would have been desirable for the trial Court to leave followed the principle of appraisal laid down by the Supreme Court in Bagh Ali and 4 others v. The State (P L D 1973 S C 321 ).

12. The prosecution bus accordingly failed to establish its case against the appellant, and while accepting his appeal we would give to him the benefit of doubt and acquit him. The death sentence is not confirmed and the reference is rejected He shall be released forth with unless required in some other case. Appeal allowed.