P L D 1964 (W (PLP)

ABDUR RAHIM KHARL, J.

‑The appellants were convicted on 8‑4‑63 by the learned Sessions Judge, Larkana, for an offence under section 302/34 P. P. C. and sentenced to death. Doulat was in addition convicted under section 19‑E, Arms Act and sentenced to suffer R. I. for 12 months. The appellants have come in appeal against their conviction and sentence. The case is also before us for the confirmation of the death sentence. This judgment will dispose of the appeal as well as the confirmation matter. The prosecution case briefly is that on the night between 22nd and 23rd October 1962, deceased Ghulam Hussain was sleeping all alone in his house in village Arzi Mugheri. There are about 8 houses in the village. At about mid‑night P. W. 4 Gulab who is father‑in‑law of deceased Ghulam Hussain heard hakkals of Ghulam Hussain. He went up running there. He also heard the sound of a pistol shot. P. W.

5. Ghousbux (maternal cousin of the deceased and paternal cousin of Gulab) and P. W. 6 Chakar (sister's son of complainant P. W. 4 Gulab) also came running from their houses nearby. They saw the three appellants come out of the house of the deceased. Appellants were about 5 paces away from the three witnesses. Appellant Doulat was armed with a pistol while the remaining two appellants were armed with hatchets. They went inside and found Ghulam Hussain deceased injured on the ground. He informed them that the three appel lants had come inside and appellant Doulat had given the injury to the deceased by firing the pistol at him. After making this statement Ghulam Hussain died. At `asur' time (about 4 a. m.) P. W‑. 7 Illahibux nekmard residing about a mile away was informed about the incident by Ghulab. Illahibux came on the wardat and advised Gulab to lodge a report which Gulab did at 8 a. m, at Kambar police station that very day. The motive for the offence is said to be the suspicion of appellants Doulat and Imamuddin (who are brothers) of the deceased being in toe with their mother. Appellant Fatehali is said to be a friend of the other two appellants living at about a call's distance away from the wardat. The other appellants lived in the same village as the deceased. The prosecution examined P. W. 4 Gulab, P. W. 5 Ghousbux and P. W. 6 Chakar as eye‑witnesses in the case. P. W. 7 Illahi bux nekmard was examined to corroborate P. W. 4 Gulab having come and informed him about the murder by the appellants and also P. Ws. Ghousbux and Chakar having given him the same facts on his arrival at the wardat. Besides the above piece of evidence the prosecution had also relied on the dying declaration made by the deceased to the three eye‑witnesses when they reached the deceased who was lying injured on the ground. The dying declaration was to the effect that the deceased had also told the witnesses that he had seen the three appellants at the entrance coming inside his house when he had given "hakkals" to them on which appellant Doulat had fired a pistol shot at him. The deceased had also informed them that the other two appellants were armed with hatchets. The other piece of evidence examined before the learned trial Judge was the production by appellant Doulat of a country made pistol from his threshing filed. The evidence about the dying declaration and the production of the pistol by appellant Doulat was not relied upon by the learned trial Judge for conviction of the appellants. We find that the learned trial Judge rightly rejected the evidence of the dying declaration. The deceased had the following injury on his person Charred lacerated firearm wound 1 " x 1" rupturing right eye ball fracturing underneath bones deep with brain matter coming out and multiple charred jowar size firearm wounds around it. 3 pieces of weedings recovered from the wound were sent to Police in a sealed bottle. In view of this Injury it would be difficult to believe that the deceased would be conscious or if conscious able to give any facts to the three eye‑witnesses, about the incident: There was no blood found on the ground anywhere except under the cot where the deceased was sleeping and was found dead by the police on their arrival. As regards the pistol the trial Court found that this was not the pistol which was used by the culprit for the com mission of the offence. Doulat's conviction (under section 19‑E Arms Act) was, however, based on the learned trial Judge holding that Doulat had caused the murder of the deceased with a pistol as was evident by the injury on the person of the deceased and, therefore, Doulat was guilty of coming armed with the weapon he was carrying at the time of committing the murder. The evidence of the three eye‑witnesses P. W. 4 Gulab, P. W 5 Ghousbux and P. W. 6 Chakar cannot be believed in view of the following circumstances brought out in the case: (1) The offence was alleged to have taken place at mid‑night at about 12'0 clock. P. W. 7 lllahibux was however informed about it at 'assur' (sic) time (4 a.m.). There is no reason why Illahibux was informed after about 4 hours after the murder which is alleged to have been seen by the three eye‑witnesses. (2) After the arrival of Illahibux at the wardat after 4 a. m. the report was not lodged till 8 a. m. at Kambar police station which is about 5 miles. There is no explanation for this delay. (3) The evidence of the dying declaration has not been believed. (4) The medical evidence shows charring marks on the person of the deceased at the side of the injury by the firearm. This indicates that the firearm was fired at a close range. There is no evidence to support the testimony of the three eye‑witnesses that the deceased had raised hakkals and was found lying injured on the ground. The only legitimate inference that can arise is that the deceased was injured while he was asleep on his cot in his house. It would be difficult to accept the story that the deceased having seen the culprits coming inside would come so close to them as to receive the injury which he did at close quarters. The deceased would rather ordinarily run away if he bad seen the culprits armed with pistol and hatchets coming inside. (5) The prosecution evidence shows that there are about 8‑10 houses in the village. No one from the village came to the site till after P. W. 7 Illahibux had been brought from his village to the wardat. This circumstance rather lends strong support to the contention of the learned counsel for the appel lants that the murder had not been seen nor discovered at the time it was committed, but that it was only in the morning that it was found that the deceased had been murdered during the course of night. Apart from the above circumstances against the veracity of the testimony given by the three eye‑witnesses the evidence of the eye‑witnesses is not corroborated at all. The witnesses are all relations between them, of course all the appellants are also related to them. Enmity is admitted between the parties on the question of suspicion of the deceased being on illicit intimacy with the mother of the appellants. Under these circumstances we find it not possible for us to accept the uncorroborated testimony of the prosecution witnesses against the appellants. The guilt of the appellants has thus not been proved. We accept the appeal and set aside the conviction and sentence of the appellants under section 302/34, P. P. C. The conviction of appellant Doulat under section 19‑E, Arms Act is based simply on the fact that he had committed the murder with a firearm. He was not convicted for coming armed with a pistol produced in Court. As we have disbelieved the prosecution evidence against Doulat for committ ing the offence under section 302, P. P. C. we set aside his, conviction and sentence under section 19‑E, Arms Act also. K. B. A. Appeal accepted.