P L D 1965 (W (PLP)

2. Appellant Khair Muhammad belonged to the village of Nur Muhammad Kalhoro, while deceased Shahul was resident of the village of Muhammad Sharif Nunari. The distance between the two villages was about ten miles, although they were within the limits of two different districts. It is said that on the 17th of February 1962, in the morning, the appellant and his brother accused Lalon went to the house of accused Taj Muhammad, where Shahul was staying as a guest along with his cousins and brothers‑in‑law Arbab and Mian Dad, in connection with the purchase of a buffalo, and demanded the payment of the money due to them in connection with some earlier dealings. Shahul tried to put them off by saying that he would pay up their dues later on. Thereupon, an altercation took place between Shahul on one side appellant Khair Muhammad and his brother accused Lalon on the other.

3. At that time, appellant Khair Muhammad was armed with a stick, while his brother Lalon had a hatchet in his hands. In course of the altercation referred to above it is alleged, accused Taj Muhammad instigated them to attack Shahul. Thereupon according to the prosecution, appellant Khair Muhammad gave him two or three stick blows, while his brother accused Lalon is said to have used the back side of his hatchet in causing some injuries‑ to him. This occurrence was witnessed throughout by Arbab and Mian Dad, who, along with Shahul, as already pointed out were staying in the house of accused Taj Muhammad as guests.

4. After this occurrence, Mian Dad went out of the village in order to find out if he could secure any help to remove Shahul to their own village Muhammad Sharif Nunari. While he was waiting there, he came across, P. W. Jamal, who was passing by in a bullock‑cart, and requested him to help them in removing their cousin and brother‑in‑law Shahul to his house. Jamal agreed to do so and actually took Shahul along with Mian Dad and Arbab, to their village in an unconscious state. On their arrival at Muhammad Sharif Nunari village, at about midday, P. Ws. Mian Dad and Arbab informed Kauro, father of Shahul, how he had been attacked and injured by the appellant and his brother Lalon at the instigation of Taj Muhammad. Kauro, in his turn, approached his Zamindar, P. W. Muhammad Sharif who took Shahul and others to Thul dispensary in the bullock‑cart of P. W. Jamal. The doctor in charge of this dispensary, however, found that the condition of Shahul was becoming rather serious and, therefore, advised the persons,, who were attending on him, to remove him to Civil Hospital at Jacobabad. Accordingly, they took him to the Civil Hospital at Jacobabad in a Jeep and thereafter P. W. Muhammad Sharif went to and lodged a report with the police at City Police Station, Jacobabad.

5. The defence of appellant Khair Muhammad, like that of his brother Lalon, who has been acquitted along with Taj Muhammad, was to the effect that he, along with his brother and cousin Taj Muhammad, had been falsely implicated in this case by the prosecution witnesses such as Arbab, Mian Dad; Jamal and Muhammad Sharif, who had been put up against them by Ali Nawaz Kalhoro, who was their enemy. No evidence, however, has been produced by appellant Khair Muhammad in support of this defence. Nothing has come out even in the cross‑examination of the prosecution witnesses to bear him out on this point. Thus, his defence really amounts to denial and false implication without any evidence in support of the stand he hastaken.

6. In view of this position, ‑the only question for considera tion is‑ whether the conviction of appellant Khair Muhammad is justified by the evidence adduced by the prosecution. As already indicated according to the prosecution, Mian Dad and Arbab are the‑two eye‑witnesses of the occurrence under consideration. It vas Jan‑al in whose cart, at the request of Mian Dad, Shahul had been removed from the scene of offence to his house in Muhammad Sharif Nunari village. Kauro, father of Shahul, and their Zamindar Muhammad Sharif, according to the pro secution again, had been informed by Mian Dad and Arbab how and by whom Shahul had been attacked and injured. Immediately after they had brought him back to his village. It may also be mentioned here that Shahul himself, according to the pro secution itself had remained unconscious throughout and, therefore, had not been in a position to disclose before his death what had exactly taken place at the scene of offence.

7. Mian Dad and Arbab are cousins and brothers‑in‑law of Shahul. According to their version, they had accompanied him when he had started from his village for the purchase of a buffalo on the day previous to the date of the occurrence. They have deposed to the effect that pasting through several villages, while proceeding towards Nur Muhammad Kalhoro Village, they had come across many persons and made inquiries from them here and there whether any buffalo was available for sale. 7 heir inquiries however, had proved of no avail and ultimately they had reached Nur Muhammad Kalhoro village and stayed at the house of Taj Muhammad, who was acquainted with Shahul, and went on making inquiries if any buffalo was available for sale in that village. They had not, however, succeeded in their mission till the following morning when appellant Khair Muhammad, accompanied by his brother Lalon, came over and demanded the payment of his dues. It was in course of this demand that a quarrel had taken place between Shahul on one side and appellant Khair Muhammad and his brother Lalon on the other. According to Arbab and Mian Dad, as already indicated it was in course of this quarrel that at the instigation of Taj Muhammad, appellant Khair Muhammad and his brother Lalon had attacked Shahul and caused him some injuries. As has been referred to earlier, according to their version, it were Arbab and Mian Dad who had informed Jamal and Muhammad Sharif how and by whom Shahul had been attacked and' injured. Their evidence, therefore, independent of what Mian Dad and Arbab had deposed to, does not carry the prosecution case any further. The learned Additional Sessions Judge has not relied on the evidence of Arbab and Mian Dad so far as Lalon and Taj Muhammad are concerned, ignoring the evidence of Jamal and Muhammad Sharif, and has accordingly acquitted them.

8. According to the learned counsel for appellant Khair Muhammad, neither Arbab nor Mian Dad had witnessed how and by whom Shahul had been attacked and injured and that after he had been brought back to his village, a false story had been concocted against appellant Khair Muhammad and his relations at the instance of Ali Nawaz Kalhoro who was their enemy. He has also urged that the evidence of both Mian Dad and Arbab should be discarded as false, as their version through out appeared to be unnatural and, therefore, unbelievable. In this connection, he has urged that if they were with Shahul at the time when he was making inquiries regarding the availability of a buffalo from the residents of the village, he had passed through on his way to Nur Muhammad Kalhoro village, they would have been in a position to name at least some of the persons from whom such inquiries had been made by any one of them. He has further urged that if Shahul had gone out to purchase a buffalo, as given out by Mian Dad and Arbab, he would have taken with him a few hundred rupees for the purpose. He had, however, not done so as is evident from the fact that only forty rupees were recovered from him when he was taken back to his house and no suggestion whatsoever had been made that any one had misappropriated the rest.

9. It is not disputed by the learned counsel for appellant Khair Muhammad that Shahul was actually injured at the house of Taj Muhammad and brought back to his house on the day of the occurrence itself, although according to his view, it was not in the bullock‑cart of Jamal that he had been removed to his house, because his (Jamal's) name does not appear in the first information report lodged by Muhammad Sharif and it was improbable that he was passing by Nur Muhammad Kalhoro village at the time when Mian Dad was looking round for some help for the purpose of removing Shahul to his village.

10. It would thus appear that according to the learned counsel for appellant Khair Muhammad himself Shahul had been attacked and injured at Taj Muhammad's house, when neither Mian Dad nor Arbab was present, and had subsequently been removed by someone or the other to his own village when a false story had been concocted against him (appellant Khair Muhammad) and his relations, probably at the instance of Ali Nawaz Kalhoro, who was their enemy. In view of the discre pancies pointed out by the learned counsel for appellant Khair Muhammad in their statements and the improbabilities of the case, as emphasised by him, their version appears to be very doubtful. Both of them, as has been indicated earlier, were closely related to Shahul. If they were present at the scene of offence at the time when he was attacked by appellant Khair Muhammad and his brother Lalon, as alleged, they would certainly have joined him in repelling their attack. In any case, it could hardly be believed that although they were present at the time when he was attacked, they had neither intervened in order to pacify the parties, nor raised any cries for help at the time when he was actually attacked. Besides, they have, not been able to explain why such a serious quarrel had‑ taken place between Shahul on one side and appellant Khair Muhammad and his brother Lalon on the other. They were unable even to throw any light on the demand alleged to have been made by appellant Khair Muhammad and his brother Lalon regarding the payment of their earlier dues. In view of these considerations, it appears rather improbable that they had actually witnessed the occurrence under consideration.

11. Besides, as already pointed out, the learned Additional Sessions Judge had disbelieved their version both against Lalon, brother of appellant Khair Muhammad, and his cousin, Taj Muhammad, although they had deposed to the effect that the former had given a hatchet blow to him and thereby caused him some serious injuries and the latter had instigated both the brothers to attack Shahul. If their evidence could not safely be accepted against Lalon and Taj Muhammad, it is obvious that it could not justifiably be relied upon against appellant Khair Muhammad.

12. In view of these considerations, I allow this appeal and acquit appellant Khair Muhammad setting aside his conviction and sentence. K.B.A. Appeal accepted.