1976 P Cr (PLP)

DORAB PATEL, J.‑--The appellants were tried with one Bhoro and his father, Allah Rakhio, by an Additional Sessions Judge, Nawabshab, for the murder of Saban deceased, and for causing injuries to P. W. Daim. The said Bhoro and Allah Rakhio have been acquitted, whilst the appellants have been convicted under section 302/34, P. P. C. for the murder of Saban and sentenced to death. The appellants have also been convicted under section 307/34, P. P: C. for causing injuries to P. W. Daim and sentenced to five years' R. I. Finally, the appellant Rahim has also been convicted under section 13‑D of the Arms Act and sentenced to one year's R. I. The Additional Sessions Judge has naturally directed that the sentences of imprisonment are to run only in the event of the death sentences not being confirmed. The appellants have, therefore, filed an appeal against their convictions, and the case is also before us for confirmation of the death sentences passed against them. Accordingly, we will dispose of the appeal as well as the reference by this judgment.

2. Saban deceased was murdered in the house of one Pyaro on 19‑3‑1972 in the village Mahmood Mangsi, Taluka Sakrand, and the prosecution case is that about a year before the murder, P. V. Muhabat, who resided in village Jutto Mangsi, "got the hand of Mst. Bangui, daughter of Allahdino for my brother Jhando". The betrothal had been performed on 19‑3‑1972, after which P. W. Muhabat had returned to his own village. Although, he had to return to village Mahmood Mangsi on 23‑2‑1972 for the marriage ceremony, the next day he again went to village Mangsi in order to deliver some fuel wood, which was required for the marriage ceremony. P. W. Muhabat was accompanied by his brothers, P. W. Shah Nawaz and Saban (deceased) and his cousin P. W. Daim. The party had gone with the fuel wood in two bullock carts and reached village Mangsi Mahmood at about 1‑00, or 1‑30 p. m. As they were unloading the fuel wood under a tree outside the house of Pyaro (who was not examined), they saw the appellants coming with the two acquitted accused. And we may explain here that the second appellant and Allah Rakhio, the acquitted accused, were brothers, whilst the first appellant and the acquitted accused Bhoro were sons of Allah Rakhio, the other acquitted accused. Now, according to the F. I. R., the appellants were armed with guns, whilst the two acquitted accused were armed with hatchets, and, as they threatened the party of P. W. Muhabat, P. W. Muhabat raised cries, and he and his party ran for refuge into Pyaro house, which was at a distance of 200 paces from the neem tree, under which they had been unloading their bullock carts. P. W. Muhabat, Saban and P. W. Daim managed to reach the compound of Pyaro's house, but the party of the appellants also rushed in. Further, adjoining Pyaro's house were the houses of P. Ws. Ahmad and Bhai Khan, and, according to the F. I. R., P. Ws. Ahmad and Bhai Khan also came to the wardat on account of the alarm raised. The appellant Rahim then fired his gun at Saban, who fell down and died. The other appellant then fired his gun at P. W. Daim, who was also hit and fell down. The appellants and the acquitted accused then ran away with the weapons which they were carrying. P. W. Muhabat went to lodge the F. I. R., but he first went to report the occurrence to his Nekmard Abdullah Khan Jamali. The Nekmard was not at his house; therefore P. W. Muhabat went on to Sakrand Police Station and the F. I. R. (Exh. 8) was recorded at about 7‑00 p. m. by P. W. Bolha Khan, A. S. I. P. After recording the F. I. R., P. W. Bolha Khan went to the wardat, prepared the 'Mashirnama' Exh. 14 and commenced investigations. The appellants and the acquitted accused were arrested in due course, and the appellant Rahim produced a gun, which was secured by the 'Mashirnama' Exh. 18, whilst the other appellant produced a gun, which was secured by `Mashirnama' Exh.

19. These three 'Mashirnamas' were witnessed by P. W. Haji as well as Abdullah Khan Jamali, the Nekmard of the party of the first informant. The guns thus secured were sent together with an empty, which had been secured from the wardat, to the Ballistic Expert, but, unfortunately, his report went against the prosecution case. Be that as it may, after investigations had been completed, the appellants and the acquitted accused were tried as stated.

3. In order to prove the occurrence, the prosecution examined as eye‑witnesses P. W. Daim, who was injured by a gunshot wound, and P. Ws. Mubabat, Shah Nawaz, Ahmad and Bhai Khan. Bolha Khan, A. S. I. P. had died, so the prosecution proved the F. I. R. (Exh. 8) through P. W. Kallandar Bakhsh Shah, S. H. O. of Sakrand Police Station, and only one of the Mashirs P. W. Haji was examined to prove the recoveries from the appellants and the recovery of the empty from the wardat. Finally, the prosecution examined P. W. Dr. Jamil‑ur‑Rehman Ansari, who proved that the death of Sajjan had been caused by a gunshot wound, and that P. W. Daim had been injured by a shot fired from a gun.

4. The appellants and the acquitted accused denied the allegations against them and alleged enmity between them and the Nekmard of the party of the first informant. They also alleged enmity on the part of P. Ws. Ahmad and Bhai Khan, and, their plea, in this respect, was that these two eye‑witnesses had been Haris of Allah Rakhio, the acquitted accused, but, as Allah Rakhio had dismissed them and taken away their land, they had a grudge against him therefore they had given false evidence against him as Well as his sons, brother and nephew. They denied the recoveries of the guns, as contended by the prosecution, and the appellant Rahim stated that he was living with his grand father Musoo, who bad a licensed gun, and that the police had merely secured his gun. Similarly, the other appellant Majnoo stated that the police had seized his licensed gun. Finally, we have to explain here that the prosecution took inconsistent stands with regard to the motive for the crime attributed to the appellants and the acquitted accused, but the case of the prosecution in the lower Court very clearly was that the appellants and the acquitted accused had enmity with the party of the first informant, because one of them wanted the band of Mr. Baghul, and, in order to disprove this allegation, the learned counsel for the accused had filed an application for the examination of Allahdino. The application stated that the hand of Mst. Baghul had been demanded by Pyaro. But, as the application sought the examination of Pyaro as a Court‑witness, the learned Additional Sessions Judge dismissed it on the ground that the defence counsel could have examined Pyaro as a witness. As Pyaro had been shown as a prosecution witness, but had been dropped, it is obvious that the accused were not required to examine him as their witness. They should, however, have sought his cross‑examination, which should, in any event, have been permitted by the Court. Be that as it may, as their application was refused, the appellants and the acquitted accused did not produce any other evidence.

5. The learned Additional Sessions Judge was impressed by the ocular evidence, and he even appears to have, placed some reliance on the guns recovered from the appellants, even though they were licensed guns and even though the Ballistic Expert's report was not produced on the ground that it was negative. But the ocular evidence clearly showed that the attack by the party of the appellants was a planned attack. Now, although the learned Additional Sessions Judge had no hesitation in accepting the ocular evidence, he acquitted the acquitted accused on the ground that they had not themselves inflicted any injury on any one. He accordingly acquitted them, but the State failed to file an appeal against their acquittal. In this background, we will now examine the submissions of Mr. J. M. Hayat, the learned counsel for the appellants in support of their appeal.

6. We would first examine the question of motive, and, as we observed, the prosecution case in the lower Court was that the party of the accused had a motive for the murder, because Jhundo, the brother of the deceased and of P. Ws. Muhabat and Shah Nawaz, was marrying Mst. Baghul in whom the appellant Rahim and Bhoro, the acquitted accused, were interested. But P. W. Shah Nawaz said in his examination‑in‑chief, "I know all the four accused prior to the above incident. We had taken the hand of Mst. Baghul for marriage to our brother Jhundo. The accused were not interested in getting the hand of Mst. Baghul for marriage, nor they had talked to us in this behalf". In these circumstances, it is not surprising that P. W. Muhabat had dropped this allegation of motive in his evidence in the Sessions Court. However, it was unfortunate that the prosecution had attempted to attribute a false motive of enmity to the accused. On the other hand, the enmity attributed by the appellants to P. Ws. Ahmad and Bhai Khan has been proved by the admission of these witnesses. A P. W. Bhai Khan was cross‑examined on this enmity. He only admitted that his brother had left the service of Allah Rakhio, the acquitted accused, and he professed not to know why this was so. This is difficult to believe. P. W. Ahmad, However, admitted, but only in cross‑examination, "after accused Allah Rakhio had taken the land from my cousin, we were there after not on visiting terms with the accused". In these circumstances, the evidence at least of P. Ws. Ahmad and Bhai Khan cannot be accepted without corroboration, and, unlike P. W. Muhabat and his brother, these witnesses were natural witnesses, because their house was at the wardat. Now, in this background, the question of delay becomes relevant, and the learned Additional Sessions Judge has failed to appreciate that P. W. Muhabat lodged the F. I. R. more than seven hours after the occurrence. The witness was cross‑examined on this delay, and his explanation was that he had first returned to his village in order to inform his Nekmard, but that, as the Nekmard was not in his house, he bad, thereafter, proceeded to Sakrand Police Station, where he lodged the report. Now, this Nekmard, Abdullah Khan Jamali, was also one of the Mashies of the recoveries, and, as we will presently show, the other Mashir did not really support the evidence of the recoveries. The Investigation Officer was not examined, because he was dead, and, on the other hand, the appellant had alleged enmity between him and this Nekmard. In these circumstances, we agree with Mr. J. M. Hayat that the failure of the prosecution to examine this Nekmard leads to an adverse inference against its case. Mr. J. M. Hayat also referred us to an admission by P. W. Haji in his cross- examination and it is to be noted that this witnesses was examined after the evidence of the eye‑witnesses had been recorded. P. W. Haji said in his cross‑examination, "I am Massat of complainant Muhabat and live 9n the same village . . . . . . There is a Police outpost at Khadar, which is about three miles away from the place of incident." We find it impossible to believe, in view of this admission, that P. W. Muhabat did not know that there was a Police Station only three miles from the wardat, and, as the F. I. R. was lodged after a delay of about six hours, we agree with Mr. J. M. Hayat that there was great delay in reporting the murder.

7. With these observations, we now turn to the ocular evidence, and, as the trial Court was very highly impressed by the evidence of P. W. Daim, we will examine it first. Of the presence of this witness at the occurrence there cannot be any doubt because of the injuries to him. He supported in his evidence the prosecution case about the manner in which he and his brothers had taken fuel wood to the wardat on the fateful afternoon. He also said that, as they were unloading wood, he heard the abuses of the party of the accused, and that appellants had guns, whilst the acquitted accused Allah Rakhio had a hatchet and the other acquitted accused Bhoro had a revolver; therefore Mr. J. M. Hayat drew our attention to the fact that, according to the F. I. R. the said Bhoro only had a hatchet with him. Then after referring to the weapons with which the assailants were armed, the witness stated that they had all run into. Pyaro's house, followed by the assailants, and that the appellant fired at Sajjan with his gun and hit him on the chest, whilst the other appellant fired at him and he was hit on his right arm. The witness then went on to state that he became unconscious on account of his injury, and that he had learnt the next day only that P. Ws. Ahmad and Bhai Khan had come to the wardat. The only impression we can form from his examination‑in‑chief is that he knew and had identified the assailants before he became unconscious, but in cross‑examination he was compelled to admit, "I did not know any of the accused prior to the above incident. No identification test was held by the Police." When we referred the Assistant Advocate‑General to this admission by the witness, the reply was that the evidence of the witness could be ignored, but we cannot agree with this view. The witness had deliberately tried to persuade the Court to believe that he had identified the assailants, but this was not true.

8. We now turn to the evidence of P. W. Muhabat ‑khan. His evidence is consistent with his statement in the F. I. R., except that, like all the other eye‑witnesses, he said that Bhoro, the acquitted accused, had a revolver with him. But as only two shots were fired in the occurrence and in the circumstances discussed the presence of the acquitted accused is extremely doubtful. Yet, as emphasised by Mr. J. M. Hayat the State filed no appeal against the acquittal. The Assistant Advocate‑General's only reply was that the description of the occurrence by all the eye witnesses was similar and therefore fit to be accepted. Now, it is true that all the eye‑witnesses said that the first appellant fired at Sajjan deceased and the second appellant thereafter fired at P. W. Daim. But the wardat had two entrances, and, for example, as pointed out by Mr. J. M. Hayat, the statements of the witnesses who claimed to be eye‑witnesses about the entrances from which the appellants and the acquitted accused came to the wardat are discrepant. Much more important is the fact that whilst P. Ws. Mohammad and Shah Nawaz claimed to have seen P. Ws. Ahmad and Bhai Khan and whilst P. Ws. Ahmad and Bhai Khan also claimed to have seen the whole occurrence, P. W. Daim, who is the only witness about whose presence there can be no doubt, said that he had not seen P. Ws. Ahmad and Bhai Khan.

9. But, according to the learned Assistant Advocate‑General, P. Ws. Ahmad and Bhai Khan were natural witnesses, and P. W. Daim may not have seen them entered before becoming unconscious. This is difficult to believe and even though the two witnesses are natural witnesses, because they resided at the wardat, as we showed earlier, they had enmity against the party of the appellants; therefore it would not be safe to rely on their evidence. The learned Assistant Advocate‑General also conceded that the evidence of P. Ws. Ahmad and Bhai Khan could not be accepted without corroboration. But the guns recovered from the appellants were, as claimed by them, licensed guns. Secondly, the report of the Ballistic Expert was negative. Thirdly, according to the 'Mashirnama' of the Wardat, Exh. 14, an empty was recovered, but P. W. Haji, the Mashir, denied this recovery in his examination‑in‑chief and only admitted it when confronted with the 'Mashirnama' in his cross‑examination. Apart from this circumstance, which disturbs us, according to the 'Mashirnama' "there was smoke in the empty cartridge". The Assistant Advocate‑General could not explain this statement which would imply that the empty was of a cartridge which had been fired very shortly before the 'Mashirnama' had been prepared. But this would completely falsify the time of the occurrence, and it is nobody's case that the occurrence had taken place just before the arrival of the Investigation Officer at night. In these circumstances, the failure of the prosecution to examine the other Mashir, the Nekmard Abdullah Shah Jamali, becomes significant, and here Mr. I. M. Hayat referred us to another circumstance which has not been explained by the prosecution evidence. According to all the eye‑witnesses, both Sajjan and P. W. Daim collapsed when they were hit by the shot fired at them, but, according to the Mashirnama, they were both lying on cots, and this was confirmed by P. W. Haji in his evidence. There is no evidence as to who had moved the deceased after he had fallen down, nor did P. W. Daim say who bad put him on a cot after he bad fallen down. All these circumstances cast doubt on the investigation of the case, and far from corroborating the evidence of P. Ws. Ahmad and Bhai Khan, the circumstantial evidence casts further doubt on it.

10. Mr. J. M. Hayat also drew our attention to another inconsistency between the ocular evidence and the medical evidence which is dis tinguishing. According to the sketch of the wardat, the fatal shot had been fired at Sajjan. deceased, from a distance of 40 feet, whilst the shot which bit P. W. Daim had been fired from a distance of nearly 60 feet. P. W. Ahmad was expressly cross‑examined on this point,, and be said that the appellant had fired at the deceased from a distance of about 20 paces, whilst the other appellant had fired at P W. Daim from a distance of 30 to 35 paces. But, according to P. W. Dr. Jamil‑ur‑Rehman Ansari, who carried out the post‑mortem of the deceased, the wounds of the deceased were lacerated, and so were those of P. W. Daim. Thus, the medical evidence completely falsifies the ocular evidence on an extremely material particular.

11. It is true that P. Ws. Muhabat and Shah Shah Nawaz were not cross‑examined about this discrepancy; therefore Mr. J. M. Hayat challenged their presence at the wardat. As they lived in a village six miles away, and as the occurrence took place at time when the villagers would be working, the burden of proving their presence at the wardat was clearly on these witnesses. Their explanation was that they had to come in connection with the marriage of their brother to Mst. Baghul, daughter of Allahditto. Here Mr. J. M. Hayat rightly criticised the failure of the prosecution to examine this Allahditto. Additionally, the witnesses had been at the wardat the previous night and the plea, that they had come to deliver fuel wood, is somewhat unusual. Unusual things, however, happen, but they have to be proved. Now, as the witnesses claimed to have brought fuel wood, they could, at least, have examined Allahditto to prove this allegation and, further, it was their own case that they had brought the fuel wood in two bullock carts, nor did they say that they had taken the bullock carts back immediately after the occurrence. But the bullock carts are not mentioned in the 'Mashirnama' and the Mashir P. W. Haji admitted that there were neither any bullock carts nor any fuel wood at the wardat. In these circumstances, the presence of P. W. Muhabat and Shah Nawaz is doubtful, and, on the other hand, as explained, the evidence of P. W. Daim, whose presence is proved, does not support the prosecution case.

12. In all the circumstances discussed, in our humble opinion, the prosecution has failed to prove beyond reasonable doubt the guilt of the appellants; accordingly we set aside their convictions, allow their appeal and direct their release unless required on any other charge. Appeal allowed.