1968 P Cr (PLP)

H. T. RAYMOND,‑J.‑By this judgmant both the appeals of Muhammad Bux Janwari and his two nephews Muhammad Jam and Sher Khan from their convictions by the Additional Sessions Judge, Larkana under section 302/34, P. P. C. and the sentences of death on Muhammad Bux and Sher Khan and of trans portation for life on. Muhammad Jam as well as the reference for confirmation of these death sentences will be disposed of.

2. The deceased in this case are two brothers Ghulam Rasul and Arbab who with their third brother complainant Ganhwar P. W. 3 about a year before the incident in this case had migrated from their village Belati in taluka Kambar, District Larkana to village Teju Janwari where they took employment as cultivators with zamindar Ali Hassan P. W.

5. The reason for their migration was that one Abdul Rasul, a close relation of these appellants was murdered and in respect of that murder deceased Ghulam Rasul and complainant Ganhwar were challaned as accused but were acquitted by the Court of Sessions, Larkana. Fearing reprisals from the family of Abdul Rasul, the deceased in this case and their brother Ganhwar shifted from their original village Belati to village Teju Janwari.

3. On the day of the incident in this case, namely, 25‑12‑64 the two deceased Ghulam Rasul and Arbab had as usual gone to sleep at the dera of Wadero Ali Hassan some, 200 paces away from Teju Janwari village in order to keep guard over the paddy then stored in this dera. Deceased Ghulam Rasul had gone off to sleep whereas his brother Arbab was still half awake he heard the sound of footsteps and flashing his torch he saw the present three appellants approaching them, Muhammad Bux and her Khan armed pith gun and Muhammad Jam with a hatchet. Sher Khan immediately fired at and killed Ghulam Rasul as he was sleeping and Muhammad Bux fired his gun at Arbab injuring him on the left side of his neck. Arbab raised cries on account of which the assailants ran away from the scene. Complainant Ganhwar P. W. 3 and Didar P. W. 4, a nephew of Ganhwar' s wife came running up and Arbab related the incident to them giving them the names of the assailants. They informed Arbab that they themselves had also' seen the assailants running away with their respective weapons, had challenged them on which they threatened Ganhwar and Didar not to come nearer for fear of meeting with the same fate, adding that they bad taken their revenge for the murder of their relation Abdul Rasul. Thereafter Wadero Ali Hassan P. W., 5 and 'Sher Muhammad P. W. 6 also arrived at the scene and were informed by Arbab as well as by Ganhwar and Didar of what had happened. Wadero Ali Hassan advised Ganhwar to lodge a report with the Police whereupon Ganhwar taking the injured Arbab with him injured Arbab was transferred to the Liaquat Medical College Hospital, Hyderabad for further treatment but he died there before the commencement of the Sessions trial. Dr. Abdul Qaiyum is positive that the gun shot injury sustained by Arbab on his neck was dangerous to life and was an injury of such a nature that at any time a complication would arise and prove fatal.

7. The sole point of importance for determination in this appeal is whether the guilt of the appellants has satisfactorily been brought home to them. The sum total of the evidence against them, such as it is, consists of the testimony of complainant Ganhwar P. W. 3, his wife's nephew Didar P. W. 4, his cousin Wadero Ali Hassan P. W. 5 and Sher Muhammad P. W. 6 and uncle of the wife of Imdad maternal first cousin of complainant Ganhwar. Then, we have the alleged dying declaration Exh. 11/A of deceased Arbab recorded in the Miro Khan Dispensary by S. H. O. Fazal Muhammad. There is also the deposition of Arbab in the Committal Court which has been brought on to the record of the Sessions Court under section 33 of the Evidence Act as Exh. 1S/A. Finally, there is the motive for this double murder:

8. The evidence of the two witnesses Ganhwar and Didar g Ws. 3 and 4 which has already been noticed when setting rut the prosecution story in para. 3 above has been discredited and disbelieved by the learned trial Judge for reasons which we find sufficiently adequate and even weighty. Apart from the fact of the distance between their places of residence and the scene of offence and the further fact that it was a dark night, there are other circumstances which go to indicate that these two witnesses could not have arrived at the scene while the assailants were still there. According to both Ganhwar and Didar they came running. to the scene on hearing the cries of this injured Arbab: but as pointed out by the trial Judge it is of significance to note that Ganhwar neither in his F. I. R. nor in his statement in the Committal Court mentioned that he had heard these cries which brought him to the scene. Didar in his deposition in the Court of Sessions states that Ganhwar had told him that he heard the cries of injured Arbab: but neither in his police statement nor in his deposition in the Committal Court has Didar stated so. It has also been pointed out by the learned trial Judge that it is most unlikely that the assailants, close relatives of deceased Abdul Rasul and who had come there that night to avenge that murder, after shooting and killing Ghulam Rasul who had been challaned for the murder of Abdul Rasul but acquitted should have spared Ganhwar who was also an accused and tried with deceased Ghulam Rasul for the murder of Abdul Rasul. Thus, we are satisfied that the evidence of these two witnesses Ganhwar and Didar has rightly been excluded fr9tn consideration.

9. There remains, then, the evidence of Wadero Ali Hassan and Sher Muhammad P. Ws. 5 and 6 and that of Arbab who died before this case could reach the Court of Sessions. With regard 'to Ali Hassan and Sher Muhammad we have already mentioned above that they are closely connected with complainant Ganhwar Wadero Ali Hassan being his cousin and Sher Muhammad the uncle of the wife of Ganhwar' s maternal first cousin Imdad. Besides, the two deceased Ghulam Rasul and Arbab were then working for Wadero Ali Hassan. But, even otherwise, the evidence of these two witnesses Ali Hassan anti Sher Muhammad cannot serve to carry the prosecution case very far as against these appellants for the simple reason that they arrived on the scene after the assailants had made good their escape so that their testimony is mere hearsay evidence. They repeat what they were told by Arbab and by Ganhwar and Didar. But, the evidence of Ganhwar and Didar having already been discarded, there remains only the evidence of Arbab who claims to have seen and identified the assailants and to have passed on their names to Ali Hassan and Sher Muhammad. Thus, Arbab is the only eye‑witness as it were and it, therefore, becomes necessary to examine his evidence with extreme care and caution.

10. Now turning to the evidence of injured Arbab the first point that struck us is that he has come out with a deliberate falsehood in maintaining that he lost consciousness at no time after sustaining the injury on his neck which ultimately turned out to be fatal.: S. H. O. Fazal Muhammad has stated that Arbab was brought to him at his police station by complainant Ganhwar and having examined his injuries he could not record his statement because he could not then speak. The mashirnama of the injuries of Arbab Exh. 10/A prepared at 3 p. m. on the afternoon of 26‑12‑64 also mentions that "Injured Arbab is lying unconscious": The medical evidence concerning injured Arbab would also disclose that the injury sustained by him on his neck resulted in profuse haemorrhage and severe shock as a result of which he may have lost consciousness soon after receiving this injury. A second point that struck us when considering the evidence of‑Arbab is the close similarity between the F. I. R. of Ganhwar and the dying declaration Exh. 11/A of Arbab as recorded by S. H. O. Fazal Muhammad. This similarity extends not only to the sequence of events but even to the language used and this becomes more pronounced when these two documents F.

1. R. Exh. 6/A and dying declaration Exh. 11/A are read in the original Sindhi language in which they were recorded. Again with regard to this dying declaration Exh. 11/A Mr. Muhammad Hayat Junejo, the learned counsel appearing on behalf of the appellants has forcefully argued that it is no dying declaration at all because injured Arbab survived and was examined as a prosecution witness in the committal proceeding arising out of this murder. He has also invited our attention to the case of Niamat Khan and others v. Emperor (A I R 1930 Lah. 409) in which it was held that:‑‑ "A previous statement which is not made in Court and at the trial can be used only for the limited purpose of corroborat ing or contradicting a witness and does not become substantive evidence in the case." We are reluctant to accept the evidence of Arbab and to use it as the only basis on which the conviction of these appellants can rest. We are alive to the fact that the incident took place on a dark night, the identification of the assailants by Arbab was through his torch when at that very moment Arbab sustained a very serious injury which ultimately turned out to be fatal and for all these reason we feel that the possibility of mistaken identity cannot be satisfactorily excluded. Added to all this is the further circumstances that there exists an old long standing enmity between the complainant and the accused party in this case. This enmity has been deposed to by complainant Ganhwar as well as by Wadero Ali Hassan and the learned trial Judge in para. 13 of his judgment has summed it up in these words.‑ "That the relations between the complainant party and the accused have not been cordial for quite some years has been established. Usman, father of the deceased, had brought a theft case of his bullocks against Suhrab and Punhoon Janwaria. Suhrab who had been caught red handed was convicted but Punhoon was acquitted. The P. Ws. Ganhwar and Ali Hassan had appeared as witnesses for the prosecution in this case. The accused Muhammad Bux is brother‑in‑law of Punhoon and the accused Sher Khan is his step son. The accused Jam is a son‑in‑law of Punhoon. After this case one Muhammad Janwari, brother of Dosu was murdered and Imambux who was charged for the murder was acquitted. Dosu was the brother‑in‑law of the P. W. Ganhwar whereas Imambux is the maternal‑uncle of the accused Muhammad Sher Khan and Jam is cousin of the accused Muhammad Bux. About 3 years before the present incident Ganhwar and both his deceased brothers resided in village Belati where one Abdul Rasul was murdered. Ganhwar and. the deceased Ghulam Rasul were tried for the murder but were acquitted: The present accused party threatened them and the three persons came to settle in village Teju Janwari where the incident took place. Abdul. Rasool was step brother of the accused Sher Khan, the nephew of the accused Muhammad Bux and `Pupbat' of the accused Jam."

11. This enmity is supposed to constitute the motive for the commission of the double murder of Ghulam Rasul and Arbab by these three appellants: but, enmity is .a double‑edged weapon which can cut both ways. Hence we feel that the one and only eye‑witness Arbab in this case may have fallen a victim to this enmity and hens. given the names of the present three appellants as the assailants in this case. But, however that may be, we are not prepared to rest the conviction of these appellants on the sole word of Arbab without a jot or title of any corroborative evidence in support thereof. Hence we accept these appeals, set aside the sentences imposed upon the appellants and direct that they be set at liberty unless wanted in some other case: ' Appeal accepted