P L D 1959 (W (PLP)

M. B. AHMAD, J.‑This is an appeal by Umedo, son of Bingo, Shahmir son of Bingo, Duro son of Bahram, Mirbeg son of Janoo and Jaffar son of Khalair who have been convicted by the learned Additional Sessions Judge, Jacobabad, under section 302 read with section 149, P. P. C. and each sentenced to death. They have also been convicted under section 147, P. P. C. and sentenced to 6 months' R. I. They have further been convicted under section 148, P. P. C. and sentenced to R. I. for one year. Appellants Umedo and Mirbeg have also been convicted under section 19‑E, Arms Act, and sentenced to 1 year's R. I. The prosecution case as related in the F. I. R., Exh. 9, made by Mashgool son of Sherhan on 18‑7‑1957 at 8‑30. a.m. under sections 302, 148, 149 and 19‑E, Arms Act against (1) Umedo, (2) Shahmir, (3) Duro, (4) Janoo, (5) Mirbeg and (6) Jaffar, was that Amir Bux son of Sabzal, Faqir Bux son of Shadhan, Tagio son of Shadhan and Mangih son of Moosa are all related to him and they live along with him in the same village. On 18th July 1957, early in the morning they went to the paddy cultivation in Deh Kund. After a little‑while three gunshots were heard from the south side. He went running and saw at a distance of 3 survey numbers in the south Faqir Bux and Amir Bux lying dead They had gunshot and hatchet injuries. Tagio and Mangih were standing there. They told him that when they reached the spot, the accused persons came the rearmed with guns and hatchets They saw these deceased and witnesses and Umedo accuses challenged them and told them not to go but to give compensa tion for the murder of Hairo and Malhan. Saying this Umede. Jano and Mirbeg fired their guns and hit Fakir Bux and Amir Bux Tagio and Mangih ran away. Fakir Bux and Amir Bux fell down with gunshot wounds, The two witnesses stood behind the Karia (canal) and noticed the accused Shahmir Duro and Jaffar giving hatchet blows to Amir Bux and Fakir Bux. The witnesses fagio and Mangih stayed with the dead bodies and Mashgool went to make the report. In this report the reason of enmity was given. It was stated that about 10‑11 months back Hairo the brother of accused Umedo and Shahmir and Malhan the son of accused Jano were murdered and Umedo had filed a complaint against deceased Amir Bux and Fakir Bux and others for murder. In that case Sabzal the father of Amir Bux. and Imambux, the brother of Amirbux, and Jaluo the uncle of Amirbux and Faizc the cousin of Amirbux and Kakro and Muhammad Bux were prosecuted. It was stated that Umedo and others had murdered Fakir Bux and Amir Bux in revenge for the murders. The police registered a case under section 302, P. P. C. and started investigation. A. S. I. Karamuddin, (Exh. 19) wilo registered the report, went to the place of occurrence about 5 to 6 miles from the police station where he found the dead bodies of Amir Bux and Fakir Bux. He prepared Mashirnamas in the presence of Mashirs Ismail and Fauj Ali, and secured 5 empty cartridge shells from the spot. He also secured bloodstained earth from the place of occurrence. The Mashirnama is Exh.

11. He prepared another Mashirnama containing the inquest report on tire dead bodies which he sent for post‑inortem examination. He recorded the statements of Mangih and Tagio. On July 26, 1957, Ghousbux Mhargwar produced accused Umedo, Shahmir, Duro, Jano and Mirbeg whom he arrested. Shahmir, Mirbeg and Jano produced weapons. Shahmir pro duced one gun from the bushes of Khahi, vide Mashirnania Exh.

15. Accused Jano produced a hatchet vkle Mashirnamo Exh.

13. Thereafter Mirbeg produced another gun from under neath a hedge, vide Mashirnama Exh.

14. These 3 persons pro duced the weapons when they took the party singly. The final Challan in this case was sent by the A. S. I. on 3rd September 1957. The post‑mortem report of the doctor, Muhammad Naseem, Exh. 19‑A showed that the deceased persons had the following injuries :‑ Deceased Amirbux.‑ (1) An horizontal incised wound 8" x 1" x 1 " cutting the membrance of the brain, control parietal bones left side. (2) Three incised wounds each 6" x 8" long horizontally com mencing at the left eye and behind another commencing from 1" away from the left angle of the mouth and the other over the left jaw cutting the left ear, smashing the bones of the upper and lower jaws, the maxillary and the pertrous portion of the temporal bone and the big vessels and nerves. (3) Oblique incised wound 1 " x 1" muscle deep on the left shoulder. (4) Vertical incised wound 4" x 2" x 2" cutting the left shoulder joint. (5) Horizontal incised wound 1 " x " x muscle deep on the outer and upper part of the left arm. (6) Small incised wound " x 1 " x muscle deep 1 " below injury No. 5. (7) Horizontal incised wound 4" x 2" x 2" on the back of neck lower down. (8) Horizontal incised wound 6" x 4" x 3" at the back of neck cutting the 1st Thorax vertebra. Deceased Fakir Bux.‑ Injuries :‑There were 11 pellet wounds, circular on the whole of the abdominal region. One pellet on the left lateral side has broken 11th left rib. One pellet was found removed and pre served superficially from liver area. (1) Oblique incised wound 5" x 1 " x 2" deep, lower and start ing from stomach pit medially to the right nipple cutting 5 costal cartilages of 5 ribs (7th to 1 Ith). Right lung was cut. (2) Oblique incised wound 6" x 2" x 2" starting from 1" above left nipple cutting the third and 4th ribs. Upper part of shernum, left lung, cutting right collar bone. (3) Left hand is cut across at the wrist hanging by a skin. (4) Oblique incised wound small 1" x " x muscle deep on the redial side at the upper 1/3. (5) Oblique incised wound 3 " x 2" x 2" cutting both the ulnar and radius bones at the left elbow joint on extensor aspect. (6) Oblique incised wound 4" x 2" x bone deep at the upper 1/3 and outer aspect of right arm. (7) Oblique incised wound 5" x 2" cutting left shoulder joint. (8) Oblique incised wound 2" x 2" x muscle deep in front of left shoulder. (9) Three oblique incised wounds in an area of 9" x 5" x 3" deep one over the other cutting spinal column at 7th cervical vertebra on the left side of face and neck. (10) One exit wound of the pellet piercing the left scapula at the lower angle. (11) Oblique incised wound 2" x 21" x muscle deep on the outer and middle part of the left sole. In the case of Amirbux death was due to shock and haemor rhage as a result of injuries, while in the case of Fakirbux death was due to shock and haemorrhage as a result of gunshot wound, and deadly injuries dealt with on the person by a sharp‑edged weapon such as a hatchet. According to the doctor, death of Amirbux was due to shock and haemorrhage and injuries 1, 2,3 and 4 which were sufficient in the ordinary course of nature to cause death, and in the case of Fakirbux death dire to injuries 1, 2, 3 and 10 which were individually sufficient in the ordinary course of nature to cause death. On behalf of the prosecution, Tagio and Mangih have evidence of facts. Mashgool and Jagan gave evidence of circumstance, Jagan was the person in whose presence the accused gave weapons to the police. Accused Jano produced a hatchet from underneath the ground. Mirbeg produced a single barrel gun from the cattle- pen. Accused Shahmir produced one single barrel gun froth Khabar tree. Jagan put his thumb mark on Mashirnama Exhs. 13, 14 and

15. He said that the guns produced in Court were the same but the hatchet was not produced in Court. The accused denied the charge. They all said that they were being falsely implicated on account of enmity and due to litigation. Shahmir denied that he produced any gun. Mirbeg also denied having produced any gun. The accused did not produce any defence. The assessors were of the opinion that the accused were not guilty. The learned Additional Sessions Judge, however, found that the case against all the accused persons was fully established. During the course of tire ease, accused Jano died in jail. Against tire other persons the learned Judge was of the view that the prosecution case was fully supported by tire evidence of Tagio and Mangih who were corroborated by Mashgool who made the report. The learned Judge thought that enmity had been established between the party and that it was a double‑edged sword which cur both ways. Wairo and Malhan had been murdered and, therefore, the accused wanted to take revenge. According to the learned Judge Tagio and Mangih noted that the accused had tired live times and this was proved by the fact that five empty cartridge shells were recovered from the place of occurrence. The learned Sessions Judge was also impressed by the fact that Shamir and Mirbeg had pointed out and produced the guns before the police and there can be no other conclusion on the evidence adduced except that they had committed the murders of Amirbux and Fakirbux. For these reasons the learned Additional Sessions Judge did not agree with the unanimous opinion of the assessors and found the accused guilty. In appeal, the learned counsel for the appellants argued firstly that the prosecution witnesses were interested and their testimony was not supported by independent evidence. Secondly, there were contradictions in the statements of Tagio and Mangih prosecution witnesses and they were of a substantial nature. Thirdly, the recovery of weapons did not help the prosecution at all. The learned counsel appearing on behalf of the State pointed out that the eye‑witnesses should be believed because they were joint tenants along with the deceased and would naturaly go together for plantation for which the time had arrived. Secondly, there was sufficient motive for the appellants to cause the death of Amirbux and Fakirbux because Amirbux is the son of Sabzal who is the main accused in the cross case. Thirdly, the learned counsel for the State suggested that the contradictions pointed out by the learned counsel for the appellants were not material at all. Accordingly to him the witnesses had made mistakes on account of bad memory. We have heard at length the arguments of the learned counsel, and have also read the evidence in this case. In our opinion the prosecution story has not been established beyond reasonable doubt, and the appeal must be allowed. There are certain circumstances which have not beets explained by the prosecution and which give a legitimate and reasonable doubt in favour of the appellants. Firstly we have the fact of enmity admitted by the parties. The enmity is of recent occurrence due to the murders of Hairo and Malhan, in which Sabzal father of Amirbux is the main accused. It is true that enmity cuts both ways and could be motive for the appellants to attack Amirbux and Fakirbux, but it is also possible for the relations of Amirbux and Fakirbux and in the matter of that for other persons interested in the prosecution, to throw the whole burden upon the appellants who were the sworn enemies of the deceased. We should, there fore, examine the evidence to see if it can be relied upon. The position is that there are only two eye‑witnesses, namely Tagio and Mangih. They are both related to the deceased and they are both not on good terms with the appellants. The contradictions pointed out in their statements are: (1) It is said in the F. I. R. (p. 15) by Mashgool that Umedo alone among the appellants challenged the witnesses. Tagio witness (p. 9) has said the same thing, but Mangih (at p. 10) says that the accused "gave us threats of murder". It was pointed out that Tagio and Mangih were not sure as to whether one accused gave the threat or all the accused. (2) Tagio says that Umedo, Mirbeg and Jano fired 3 shots but in two stages. In all five rounds were fired. Mangih, how ever, says that shots were fired all at one time (p. 10). P. W. Tagio seems to suggest that on the first volley of shots both the deceased fell down, but Fakirbux got up and ran a little. He had run about 20 paces when two more shots were fired at him. This detail is not given in the evidence of Mangih. It is also not mentioned in the F. I. R. This in our view is certainly a discrepancy in the evidence which must be explained satisfactorily. (3) The 2 eye‑witnesses are not clear as regards the distance between the deceased and the accused. Taigo at p. 9 line 50 says that the accused were 5 paces away from the deceased when they fired at them. But both these witnesses say that they were also there along with the deceased persons, and it is sur prising that the 2 eye‑witnesses were left out completely and not molested. So far as Amirbux and Fakirbux are concerned they were said to be in front and, therefore, they were fired and shot, and the distance between these persons and the 2 witnesses was almost nil, and the accused persons if they really wanted to murder, should have murdered these 2 persons as well, so that the evidence of their crime might disappear. That, in our opinion, would have been the natural inclination of the assai lants when they were in a majority and had also the advantage of deadly weapons. There should have been no difference between Fakirbux and Tagio for that matter. Fakirbux deceased was the brother of witness Tagio, and Tagio should have been the next target, if he had really been there. Amirbux is the son of Sabzal. It is not clear why the accused persons should kill Fakirbux who was not so near a relation of Sabzal the person involved in the murder of Hairo and Malhan. (4) It has been pointed out that the recovery of weapons is as follows: On the 26th July 1957, Shahmir produced a gun and Amirbux produced another gun, while Jano accused (now deceas ed) produced a hatchet. According to the eye‑witnesses, Shahmir had a hatchet while he gave a gun to the police. Jano had a gun while he gave a hatchet to the police. Only the two eye‑witnesses are correct so far as the recovery of the guns are concerned. There is no blood found on the hatchet or on the clothes of the accused persons. (5) The doctor Muhammad Naseem, Exh. No. 20, has said that gunshots were fired from a distance of 100 yards (p. 26). Tagio witness says from a distance of 5 paces while Mangih says from about 8‑10 paces. If at least one shot was fired from a distance of 5 paces, the injury should have been different from the injury caused from a shot fired from a distance of 100 yards. It was said by the learned counsel appearing on behalf of the State that the Doctor was not a ballistic expert and could not give accurately the distance. At all events it has not been made clear from the doctor's evidence that shots were fired from a short distance as suggested by witness Tagio. (6) We feel that in this case when witnesses Tagio and Mangih say transplantation was going on everywhere and people had started doing their work, there was every possibility for the persons who had done transplantation near their houses in the neighborhood to hear of the occurrence or see the murder themselves. It is surprising that none of the persons of the locality who could be considered independent, could be found to give evidence for the prosecution. (7) It has been argued that the statement of the eye‑witnesses have been corroborated by the recovery of weapons, but as point ed out by us above, this recovery is of no use. No blood‑stains have been found on the person of the accused or on the earth on the spot where the murder took place. (8) There is a discrepancy in the statements of the witnesses about the recovery. The description is not the same. It is really not clear what weapon was recovered from each of them. The circumstantial evidence, therefore, is not of such a nature as to give an irresistible conclusion that the accused, and none else, committed this offence. Corroboration of circumstances would be necessary when enmity is admitted. (9) It has also not been made clear from the evidence at what time actually the murder took place. The F. I. R. does not specifically mention the time. It says" early in the morning". Tagio says "morning prayer time". It is possible to imagine that it was ordinarily time before sunrise. At that time people do not start going to their fields. Their Lordships of the Supreme Court in Ashraf and others v. The Crown (P L D 1956 F C 86) have held the view that corroboration of the interest ed testimony should be such as would remove the doubt that the accused had been falsely implicated. In that case it was held that the recovery of a single blank pistol cartridge from the scene of occurrence supported only the evidence that one of the assailants was armed with a pistol, and not the evidence that appellant A was that assailant. In the absence of evidence connecting the cartridge with appellant A, his conviction could rest only on the very evidence, the impartiality of which was doubted. In this case there is the recovery of the guns, and the evidence of recovery is somewhat at variance. In our view, the prose cution should in all cases where enmity exists between the parties, and where they can reasonably anticipate that impartiality of the witnesses would be challenged, make effort to see that indepen dent people residing in the area, or having cultivation round the, place of occurrence, are examined. We would not say that rela tionship with the deceased should be considered sufficient ground to discredit a prosecution witness. In this case, the Sub‑Inspector does not seem to have made any attempt to find out from indepen dent witnesses what had happened. When the prosecution could produce witnesses of circumstances who were not eye‑witnesses they could certainly find out who were living round about the area, and were able to give independent testimony, and if they were witnesses there were sufficient reasons for the same. We are also impressed by the fact that the eye‑witnesses were quite near the deceased when they were fired at between 5 and 12 paces as the witnesses say, and if Amirbux and Fakirbux could receive fatal injuries, there was no reason why the accused persons who were large in number should have left the eye‑witnesses safe. Either the witnesses were not there, or they were at a respectable distance from where they could not properly see. All the accused persons cannot be said to be interested in the murder of the sons of Sabzal. Umedo and Jano are the real persons whose relations Hairo and Malhan were murdered, and Sabzal was the person accused by them, including Ali Nawaz, Faizo, Kakro and Muhammad Bux. It is not revealed what interest the other accused persons had in Umedo and Jano. Under these circumstances we find that the unanimous opinion of the Assessors should be given some weight. The order of conviction is accordingly set aside, and the appellants are directed to be set at liberty. Reference for the confirmation of death sentences is not accepted, and their appeals are allowed. A. H. Appeals allowed.