P L D 1960 (W (PLP)

INAMULLAH, J.‑

The appellants have been convicted by the learned Additional Sessions Judge, Sukkur on the 18th of February, 1966 under sections 302/149 of the Pakistan Penal Code. Appellant Mewal and Iddan have been sentenced to death while the rest of the three appellants have been sentenced to transportation for life. Besides the appeal, the matter is also before us for confirmation of the death sentence passed on the two appellants. The facts giving rise to the present appeal briefly put are these. The appellant Iddan had filed a complaint against the deceased persons namely Muhammad and his son Bhuro and P. Ws. Dilijan, Zeerak, Mehar and Jaffar under sections 307 and 436, P. P. C. The police after investigation challaned the said persons in the Court of the Sub‑Judge and F. C. M. Shikarpur. On the day of the incident namely 25th July, 1959, the accused persons k1uhammad and his son Bhuro, Zeerak, Mehar and Jaffar had all come to attend the Court of the Sub‑Judge and F. C. M., Shikarpur. The matter however was postponed the Sub‑Judge was not available. P. Ws. Mehar and Jaffar went away to Shikarpur Town on a tonga while Dilijan, Zeerak, Muhammad and Bhuro were going to Shikarpur Town on foot by the shorter route via the old railway crossing on the west of the Civil Court. When Muhammad, Bhuro, Dilijan and Zeerak were about 75 feet from the railway crossing, they saw six persons armed with guns and hatchets coming out of the sugarcane cultivation which was on both sides of the road on which they were going. P. Ws. Dilijan and Zeerak identified all the appellants and the absconder Hayat. Appellants Iddan, Mewal and the absconder Hayat were armed with guns while the others with hatchets. Iddan fired his gun at Bhuro while Hayat and Mewl fired at Muhammad. Both the victims fell down. Appellant Akhtiar and Jounsal gave hatchet blows to Muhammad while Kotu gave hatchet blows to Bhuro.

2. P. Ws. Dilijan and Zeerak are said to have seen the incident from a distance of about 8 to 10 paces as they were closely following the two deceased persons. They did not intervene as they were threatened with death by the appellants.

3. Dilijan left Zeerak at the scene of offence and went to the Civil Court and informed Wazir Muhammad, Munshi Const able of the Police Prosecutor in charge of the case under sections 307 and 436, P. P. C. It is said that Dilijan gave the names of the appellants and the details of the incident to P. W. Wazir Muhammad.

4. Dilijan went to the Foujdari Police Station and lodged the report at about 9‑30 a.m. The incident is said to have taken place at 9 a.m. the police station was at a distance of about 6 furlongs from the place of incident.

5. Badshah Gul, A. S. I. arrested appellants Akhtiar, Mewal, Kotu and Jounsal on the next day of the occurrence. He also secured the licensed guns of Akhtiar and Mewal in the presence of mashir Nabi Bux and Ghulam Abbas. Appellant Iddan could not be arrested as he was absconding. He was however arrested on the 28th October, 1959. Head Constable Niaz Muhammad secured a gun from his possession.

6. From the scene of offence of three empty shells were recovered. These shells along with the three guns were sent to the Ballistic Expert. The Ballistic expert found that the three empty shells were fired from gun No. 14088.

7. The appellants are very closely related to each other. Appellant Mewal is cousin of Kotu, Jounsal, Iddan and absconder Muhammad Hayat. Appellant Akhtiar is paternal uncle of the rest of the appellants. On the other hand, the deceased were father and son, while Zeerak is paternal uncle of Dilijan. Dilijan and Zeerak are also said to be closely related to the two deceased persons.

8. There is a long standing enmity between the appellants and the complainant party. About four years before this incident there was a fight between the parties over some land. On the side of the appellant Ali Nawaz, brother of Iddan and Mubarak cousins of the appellant were killed. On the side of the prosecu tion, Huzuro was killed. The parties filed counter cases but both the cases ended in acquittal. Again Muhammad deceased on the 14th May, 1955, filed a criminal case under section 307, P. P. C, against the appellants Mewal, Akhtiar, Iddan and Jounsal and some others. These persons were acquitted on the 6th August, 1956, one Jalaluddin, son of the deceased Muhammad, was murdered. Zeerak filed a complaint in that case. As a result of the complaints, appellants Mewal, Iddan, Jounsal and absconder Hayat were prosecuted, but acquitted. Lastly as stated else where the appellant Iddan on the 9th of March, 1959 initiated proceedings under sections 307 and .426, P. P. C. against P. Ws. Dilijan, Zeerak and deceased Muhammad and Bhuro. This case was pending before the Sub‑Judge, Shikarpur at the time when the incident took place. It would appear from the narration of the above facts that admittedly the enmity between the parties is a longstanding one.

9. The appellants denied to have committed the offence. They stated that they have been implicated due to enmity.

10. The two deceased persons had gun shot injuries and also hatchet injuries on their person. Muhammad had two gun‑shot entry wounds and two exit wounds and two 4hatchet injuries, while Bhuro had 3 gun‑shot entry injuries and one exit wound and two hatchet injuries. According to the doctor, the hatchet injuries on the person of Muhammad were sufficient to cause his death and in the case of Bhuro the gun injuries were sufficient to cause his death.

11. In the present case, the evidence consists of P. Ws. Dilijan and Zeerak who are said to be eye‑witnesses. There is the evidence of P. W. Wazir the constable attached to the Police prosecutor. He has corroborated the eye‑witnesses by stating that the eye‑witnesses gave him the names of all the six appellants immediately after the incident. There is also the evidence of the Ballistic Expert.

12. The learned Additional Sessions Judge has accepted the statement of the two eye‑witnesses as true.

13. Mr. Hayat Junejo, the learned advocate for the appellants raised two‑fold contentions before us. He contended, in the first place, that the eye‑witnesses being admittedly on inimical terms with the appellants, their evidence should not be accepted without any corroboration from an independent source. The enmity being admitted, the possibility of exaggerating the number so as to include the names of all the appellants it is contended, cannot be ruled out.

14. In the second place, it was contended, that it would appear from the circumstances of the case that the so‑called eye witnesses have not witnessed the incident. They have made themselves eye‑witnesses only after visiting the place of incident and seeing the dead bodies of Muhammad and Bhuro. We propose to consider these two contentions separately.

15. We would, in the first place; consider the contention whether the two eye‑witnesses have witnessed the incident as they state before the Sessions Court. This question has to be considered in the background of the situation where the incident had taken place. The place of incident is only about 997 feet from the Court of the Sub‑Judge. A track leads from the Court of Sub‑Judge to the railway crossing and then to the Town of Shikarpur. The two deceased persons and the P. Ws. Dilijan and Zeerak are said to be going on this track. It would appear from the sketch of the place of the incident that between this place and the Sub‑Judge's Court nothing intervenes except a graveyard. On the two sides of the track there are sugarcane fields. The dead bodies of Muhammad and Bhuro, it would appear from the mashirnama, were lying on the two sides of this track near the sugar cane fields. The possibility of persons biding in the sugarcane fields and taking the deceased persons by surprise cannot be ruled out, more so as the two dead bodies were lying near the sugarcane fields, that is, one near the sugarcane field No. 312 and the other near No.

319. We have given these details with a view to test the veracity of the eye‑witnesses.

16. The two eye‑witnesses had deposed that after they saw six persons including the five appellants coming out from the sugar cane field they were challenged by the appellants and absconder Hayat. P. Ws. Diljan and Zeerak, being threatened with death, did not intervene or raise cries. They took to their heels. If they took to their heels then there are only two possibilities, they either saw by turning their head while running that some of the appellants were giving hatchet injuries to the deceased persons or they did not see as they were running away. So far as the first information report is concerned, P. W. Dilijan stated only about the gun shots. He did not mention about the hatchet injuries given by some of the appellants. Dilijan and Zeerak however in their deposition before the Sessions Court stated that they saw appellants Akhtiar and Jounsal giving hatchet injuries to Muhammad while Kotu gave hatchet injuries to Bhuro. The contention of Mr. Junejo is that if the two eye‑witnesses had witnessed the incident as they make out, they would not have omitted to mention this fact in the F. I. R. There is admittedly no mention of the hatchet injuries in the F. I. R. If the witnesses saw the incident it is not possible to conceive that they did not see the hatchet injuries being inflicted. On the other hand, if the two eye‑witnesses were so scared and did not turn their head then they are deposing falsely before the Sessions Judge that they saw the appellants giving hatchet injuries to the two deceased. We, however, think that if the two so‑called eye‑witnesses had witnessed the incident as they depose before the Sessions Court, there is no reason whatsoever why Dilijan would have omitted to mention such an important fact in the F. I. R. Mr. Abdul Kadir Shaikh, the learned Assistant Advocate General, however, contended that the eye‑witnesses did not see the hatchet injuries being inflicted. They only saw the firing. He contended that the eye‑witnesses only tried to exaggerate by stating that they saw the appellants inflicting hatchet injuries. Even if the eye‑witnesses tried to exaggerate the incident by falsely attributing certain grave and serious acts to the appellants, their testimony cannot be accepted without any corroboration from an indepen dent source. We however think that the possibility is that if the witnesses were present at the scene of offence they would have witnessed the infliction of injuries by hatchet. Specially when in the F. I. R. the presence of hatchets is indicated. Even if the P. Ws. were running away the likelihood is that after they had run to some distance they would turn their head, if not to see what was happening, at least to find out if they were being pursued by the appellants.

17. The other important fact that would affect the presence of the eye‑witnesses at the scene of offence is that they deposed that some of the appellants fired at the two deceased persons from a distance of 8 to 10 paces, that is, at least from a distance of 24 feet, one pace normally being equal to three feet. The doctor's report however would show that all the entry wounds are charred. It would, therefore, appear that the two deceased persons were fired at from a distance of about three feet or so, that is, from a very close range. It is also compatible with the theory that while the two deceased persons were near the sugarcane fields someone bidden in the sugarcane fields fired at them. If someone fired from the sugarcane field without making an appearance, he or they could not be noticed. The statement of the P. Ws. that some of the appellants fired from a distance of about 24 feet (8‑9 paces) is, therefore, against the statement of the Doctor. The eye‑witnesses, therefore, it is contended, were not present at the scene of offence. It was contended by the learned Assistant Advocate General that if the witnesses were not present at the scene of offence, they would not have been able to give an account of the incident to Wazir Muhammad, the constable attached to the Police Prose cutor. It would however appear from the statement of Wazir Muhammad that he is an interested witness. He deposed that he bad taken down the names of the five appellants and Hayat absconder after the prosecution witnesses disclosed their names to him. This is Exh.

11. A perusal of Exh. 11, however, would show that this document could not have been prepared immediately after the incident. It mentions Hayat as absconder and also Iddan as absconder. It is surprising indeed as to how Wazir could know on the date of the incident that Hayat and Iddan would be absconders. Wazir Muhammad however stated, in order to get over this difficulty, that he prepared this document after the appellants were challaned. That this is a lie is clear from the fact that Exh. 11 itself mentions the date, namely, 25th July, 1959, and also gives the hour at which it was prepared. If it was prepared at a date later than the 25th July, 1959, there was no point in giving the hour at which it was prepared. It is, in these circum stances, not possible to place any reliance whatsoever on the statement of Wazir Muhammad.

18. In view of the fact that we have held that the two so-called eye‑witnesses have not witnessed the incident, it is not necessary to go into the question as to what is the effect of the admitted enmity between the parties on the testimony of the two P. Ws.

19. It is conceded by the learned Assistant Advocate General that there is no other corroborative evidence except the recovery of the three empty shells which, according to the Ballistic expert, were fired from gun No. 14088. This gun is a licensed gun. It was recovered from the possession of Akhtiar. Admittedly, according to the prosecution, Akhtiar did not fire at either Muhammad or Bhuro. All that this evidence establishes is that some one used the gun in question at the scene of offence. It, however, does not establish the identity of the person who may have used the gun. In the absence of any ocular evidence in view of our finding that Dilijan and Zeerak are not the eye‑witnesses of the incident, we cannot fix the firing of the gun to any of the appellants. There is admittedly no other evidence to connect the appellants with the murder of Muhammad and Bhuro. 1

20. For the reasons that we have given above, we set aside the conviction and the sentence passed on the appellants. K. B. A. Appeal accepted.