P L D 1963 (W (PLP)

(3) Multiple gunshot injuries on left umbilical region in an area of 3" x 2 " charring was present. (4) Right thumb was separated at its proximal phalynx and was missing. Edges were lacerated. Charring was present. (5) Right index finger was hanging at its proximal phalynx with skin only. All other structures were lacerated and divided. Charring was present. (1) Abdomen wall and pertonium were punctured at 2 places under injury No. 1. (2) Small intestine punctured through and through at two places under injuries No. 1 and

2. In his opinion these injuries had been caused by a firearm that had been fired from a distance of six feet or less.

10. In his view Saif‑ud‑Din's death was due to shock and haemorrhage resulting from injuries Nos. 1 and 2 individually and collectively. He was also of the view that they were sufficient in the ordinary course of nature to cause death.

11. On being questioned further, he had admitted to the effect that Saif‑ud‑Din must have bled profusely after he had been injured in the manner described by him.

12. The appellant denied all the allegations made against him by the prosecution witnesses who, according to him, were his enemies and had tried to implicate him falsely in the murder of Saif‑ud‑Din. In this connection he has alleged that Bibrak had given evidence against him, because his (Bibrak's) cousin Talib had been involved in the murder of his (appellant's) cousin Kandero. So far as P. W. Ghaus Ali Shah is concerned, he has alleged to the effect that he (appellant) had been having a quarrel with Usman Shah, a mashir in this case who was his (Ghaus Ali Shah's) cousin. Moreover, according to him, Ghaus Ali Shah was interested in the complainant (Sadoro's) party as be was their Murshid. So far as P. Ws. Nabi Bakhsh and Bagu are concerned he has stated to the effect that they had tried to involve him falsely in this case, as they were Sadoro's friends. According to him, Ghaus Bakhsh and Sadoro, who were his enemies, had decided to implicate him falsely in the murder of Saif‑ud‑Din, although nobody had actually witnessed how he had been done to death, and therefore, had fabricated a story against him with the help of other witnesses because of the enmity he had spoken about.

13. The prosecution case against the appellant rests mainly on the evidence of Sadoro, Ghaus Bakhsh, Bibrak, Ghaus AL Shah, Nabi Bakhsh, Bagu and Ibban, and the dying declaration of Saif‑ud‑Din. According to the prosecution the only eye witness of the occurrence was lbban. He was, it is alleged. just near Saif‑ud‑Din at the time when the appellant had shot at him at a very close range. The circumstances in which he had come across Saif‑ud‑Din's party some time before the occurrence under consideration are as follows :‑ "I was returning from Tando village to my village. I was coming on a cycle. Deceased Saif‑ud‑Din, Sadoro and Ghaus Bakhsh met me near Sind Wah. They were returning to their village. Saif‑ud‑Din told me that since I was going to the village on a cycle, I should give him lift on the cycle. He sat on cycle. Ghaus Bakhsh and Sadoro followed us." According to his version, he had gone to Tando in order to borrow a screw driver from one Abdul Hakim who was a tailor and had taught him how to use a sewing machine for about five to six months about five to six years back. Although, as stated above, according to his version, he had gone to see Abdul Hakim in connection with his idea to borrow a screw driver from him, he has admitted that he had not actually brought any screw driver from him. Therefore, it is improbable that he had gone so far to borrow a screw driver from Abdul Hakim or anyone else and had come across Saif‑ud‑Din's party while returning to his village. Besides, he has admitted that Saif‑ud‑Din was not his friend and had never before been given a lift by him on his cvcle. Therefore, it is most unlikely that he had on being asked by him, readily agreed to give him a lift on his bicycle. Even otherwise it is improbable to believe that Saif‑ud‑Din for no apparent reason had requested him to give him a lift and on his agreeing to do so had gone away with him on his bicycle, leaving behind his brother Ghaus Bakhsh and his cousin Sadoro, although he had been moving about with them ever since he had, left his village on the day of the occurrence.

14. Sadoro and Ghaus Bakhsh had deposed to the effect that on hearing the report of a gun they had rushed up to the scene of offence, which according to them, was in the bed of the old Sind Wah (disused canal) and on their arrival, had seen Saif‑ud‑Din lying injured and the appellant running away armed with a gun. They have also stated to the effect that they had not been able to see the actual occurrence, in spite of being at a short distance away from him, because of an intervening curve: (probably the bank of the old Sind Wah) which obstructed their view.

15. As already indicated, the relations of the appellant and Saif‑ud‑Din had rather been strained for some time before the occurrence under consideration. As a matter of fact, it appears I, that the two families were at logger heads and had been trying to involve each other in some serious trouble. Therefore, it is obvious that the version given out by Saif‑ud‑Din's brothe Sadoro and his cousin Ghaus Bakhsh could not safely be relied upon against the appellant unless and until it is otherwise sufficiently corroborated by reliable evidence. According to his version, Sadoro, accompanied by his brother Saif‑ud‑pin and his cousin Ghaus Bakhsh, had gone to Muhammadabad at about mid‑day in search of the cow that he had lost two to three months earlier and that Saif‑ud‑Din had been shot deed at the scene of offence while they were returning to their village in the afternoon. The prosecution has examined Nabi Bakhsh and Bagu in order to support the version of Sadoro and Ghaus Bakhsh regarding their visit to Muhammadabad in connection with their search for the cow on the date of the occurrence. Nabi Bakhsh, it may be pointed out here, was a nekmard of Muhammadabad village, while Bagu was Mulla of the mosque of that ‑ village. Neither of them was a butcher. Normally, no cattle were slaughtered in Muhammadabad. Neither Nabi Bakhsh nor Bagu have given any reason why to their knowledge Sadoro, Saif‑ud‑Din and Ghaus Bakhsh had come to them for making inquiries about their cow. As a matter of fact, even Ghaus Bakhsh and Sadoro have not offered any satisfactory explanation for their visit to Muhammadabad on the day of the occurrence nearly two to three months or three to four months after their cow had been lost. In view of these facts it does not appear probable that Sadoro and Ghaus Bakhsh, along with Saif‑ud‑Din, had gone to Muhammadabad on the day of the occurrence in search of their cow. If they had gone together in the manner alleged by them, Sadoro and Ghaus Bskhsh would naturally have started on their return journey accompanied by Saif‑ud‑Din. If they had, as alleged by them, it was quite improbable that Saif‑ud‑Din had left them behind and gone ahead on the bicycle of Ibban. It appears to us that Ghaus Bakhsh and Sadoro had stated to the effect that Saif‑ud‑Din had left them behind and gone ahead with Ibban who had come across them by chance at the time when they were returning to their viilage and shortly afterwards they had heard a shot and on going up to the bed of the old Sind Wah, which was only at a short distance away from them that time, had found Saif‑ud‑Din lying injured and Ibban standing nearby, adding that on account of the intervening curve (or the bank of the old Sind Wah) they had not actually witnessed how he had been shot at and injured, in order to explain why they themselves had not been attacked by him at the same time. If, as alleged by them, the appellant's brother Pathan, had seen them going towards Muhammadabad and on being informed by him about this movement armed himself with a gun and had been lying in ambush and waiting for their return, in view of his strained relations with them he would not have obviously spared any one of them. As it was only Saif‑ud‑Din who had actually been shot at and killed, Sadoro and Ghaus Bakhsh have, by introducing the facts referred to above, tried to explain why they had been spared by him, although they were at a short distance away from the scene of offence at the time of the occurrence under consideration.

16. Besides, according to the prosecution, the evidence of Ghaus Bakhsh and Sadoro was said to have been supported to considerable extent even by Ghaus Ali Shah and Bibrak. Ghaus Ali Shah is resident of Shahpur, said to be about one furlong away from the scene of offence. According to his version, shortly after he had heard a gun report and some cries, Ghaus Bakhsh had come over to him and informed him that the appellant had shot his brother with his gun and had requested him to arrange for a cot for taking him to the police station. Accordingly, he arranged for a cot and went with Sadoro to the scene of offence. On his arrival there, he found Saif‑ud‑Din lying injured and Bibrak, Sadoro and Ibban sitting nearby. According to his version, all of them (Saif‑ud‑Din, Sadoro and Bibrak) on being questioned by him had informed him how they had gone to see Nabi Bakhsh in Muhammadabad village in order to make inquiries from him with regard to his missing cow, how in course of their return journey they had come across Ibban and Saif‑ud‑Din had persuaded him to give him lift on his bicycle and thus proceeded ahead leaving behind his brother Sadoro and cousin Ghaus Bakhsh and how he had actually been shot by the appellant while he was, along with Ibban, crossing the old Sind Wah. It may, however, be pointed out that Gbaus Ali Shah, in course of his examination before the committing Magistrate and his statement recorded under section 164, Criminal Procedure Code, had not stated that Saif‑ud‑Din had informed him that he and Ghaus Bakhsh had gone to Muhammadabad in connection with their cow and that the occurrence had taken place while they were returning from that place. He has gone so far as to say, in course of his cross‑examination, that Bibrak was not only present at the scene of offence when he had arrived there accompanied by Ghaus Bakhsh, but had also informed him that he had seen the appellant firing at Saif‑ud‑Din and running away from the scene of offence, although at an earlier stage he had stated before the committing Magistrate to the effect that at the time when he had arrived at the scene of offence he had found Ibban standing nearby and that Bibrak had come later on. In view of this statement it appears to us that he has subsequently tried to improve his version in order to strengthen the prosecution case. Therefore, we do not think it would be 1 safe to rely on his statement made at a later stage to the effect that Bibrak was present at the time when he had arrived at the scene of offence.

17. Bibrak himself is resident of Fazali Jatoi village which was at some distance away from the scene of offence. He has explained his presence near the scene of the offence at the time when Saif‑ud‑Din was said to have been shot at in the following words :‑ "About 6‑7 months ago, between Bipahri and Tripahri I was going to my lands from my village. I came near Shahpur Bungalow and there I offered Tripahri prayers. I had finished my prayers when I heard gun reports. I also heard cries of `murder murder' and went towards that direction." According to his version, when he was going towards the scene of offence, he had seen the appellant running away with his gun in his hand and a bandolier full of cartridges round his neck. He has also gone so far as to say that on his arrival at the scene of offence he had found Saif‑ud‑Din lying injured and Sadoro and Ibban sitting nearby and that shortly afterwards Ghaus Bakhsh and Ghaus Ali Shah had also arrived there. Like Ghaus Ali Shah he has also stated to the effect that all of them had informed him and others how and why they had gone to Muhammadabad and how in course of their return journey Saif‑ud‑Din had been shot at and injured by the appellant.

18. There is no doubt that even if he had reached the scene of offence soon after Saif‑ud‑Din had been shot at, he had not been able to see the culprit, as even Ghaus Bakhsh has said, in course of his cross‑examination, that the accused had run away and disappeared from the site when Bibrak had arrived at the scene of offence.

19. Saif‑ud‑Din, it appears, had been shot at from a very close range and thereby seriously injured. According to the prosecution, it was due to these injuries that he had died shortly afterwards while he was being taken to the police station. The injuries thus inflicted on him in the very nature of things must have resulted in profuse bleeding, particularly when not even proper first aid was available. Therefore, it is improbable that after receiving such injuries and bleeding profusely he had been telling Sadoro, Ghaus Bakhsh, Ghaus Ali Shah and Bibrak, almost one after the other, how he had been shot at by the appellant while returning from Muhammadabad where he had gone along with others in search of the stolen cow. In any case, even if he was in a position to speak and explain the position as to how he had been attacked and injured, it cannot be believed, in view of what has already been stated about them, that he had, as a matter of fact, spoken about it to Ghaus Bakhsh, Sadoro, Bibrak and Ghaus Ali Shah when they had, according to their own version, arrived at the scene of offence some time after the occurrence, and disclosed to them that it was the appellant who had fired at him and thereby injured him.

20. We have thus been led to the conclusion that the prosecution had failed to prove its case against appellant Hadi Bakhsh, and, therefore, we accept his appeal, setting aside his conviction for murder under section 302, P. P. C. and his sentence of death. K. B. A. Appeal accepted.