1969L3045 (PLP)

M. JAMIL ASGHAR, J.‑-Sarang appellant was convicted under section 302, P. P. C. and sentenced to death for the murder of Talib Hussain deceased by the learned Additional Sessions Judge, Lyallpur. He was also convicted under section 302/34, P. P. C. and sentenced to transportation for life for the murder of Khadim Hussain deceased, brother of Talib Hussain deceased. The later sentence was to take effect if the death sentence was not confirmed by this Court. The appellant was acquitted of the charges under sections 148 and 307, P. P. C. The accused namely, No her, Shaman, Bala, Uayam, Ghama and Baja, who were also tried along with the appellant, were acquitted. One Sadiq was discharged by the Committing Magistrate. Sarang appellant, against his convictions and sentences has preferred this appeal. The learned Additional Sessions Judge has made a reference under section 374, Cr. P. C. for the confirmation of death sentence awarded to Sarang appellant. Since both the appeal and the reference arise out of the same judgment, they will be disposed of together by this order.

2. The appellant and some of the acquitted accused are related inter se. Nosher is the son of a cousin sister of Sarang appellant, who is the brother of Ghama. They both are cousins of Salabat absconder. Shaman is the father‑in‑law of Salabat as his daughter is married to him. Bala, his brother Dayam and Baja are not related to Salabat absconder but arc his friends.

3. There was previous enmity between the parties. Khadim Hussain and his brother Talib Hussain were sentenced to death for the murder of the father of Salabat absconder, but subsequently on account of Revolution Day their sentences were commuted to transportation for life and about five months prior to the occurrence under consideration they came to their village after serving out their sentences.

4. On the day of occurrence, i.e. 10th October 1965, at about sunset time, Masta (P. W. 4) son of Khadim Hussain deceased, was present in his house in Nura Khitchian Chak No. 60U, District Lyallpur, while Khadim Hussain and Talib Hussain deceased were present in the house of Raja and Bagga, about four or five karams away from the house of Masta P. W., At that time Masta P. W. heard Nosher calling out of Khadim Hussain and ralib Hussain deceased that they were wanted by the police. On hearing him Masta P. W. came out of the house and so did Khadim Hussain and Talib Hussain, Salabat, absconder, who was armed with a gun, fired a shot, which hit Khadim Hussain deceased, and felled him down. Sarang appellant fired a shot with his gun, which hit Talib Hussain deceased and felled him down. Masta P. W. raised an alram. Bala, who was armed with a pistol, fired a shot, which hit Masta P. W., Shaman and Nosher were empty handed. Shaman was exhorting; his companions to kill the deceased persons. Baja was armed with a rifle, Ghama and Dayam were armed with guns. Baja also fired at Masta P. W. and so did Baja and Ghama with their respective weapons. Thirraj (P. W. 11) and Mst. Sardaraii (P. W. 12), Mansha, Raja, Mokha and Muhammad Hussain (not examined) were attracted to the spot and they also witnessed the occurrence. Mokha P. W. also received an injury at the time of the occurrence by a gun pellet. At that time all the assailants except Nosher were riding horses. Both Khadim Hussain and Talib Hussain died at the spot. The assailants then ran away. Masta P. W. proceeded to Police Station Bahlak in order to make a report. In the way he learnt that the police was present in Chak No. 594, which is at a distance of about 1 kos from the place of occurrence. He accordingly went there and met Sub‑Inspector Qurban Hussain Shah (P. W. 13) who recorded his statement Exh. P. A. at his dictation. The said statement was then sent to Police Station Bahlak where Moharrir Head Constable Ghulam Nabi (P. W. 5), on the same day at 8‑15 p.m. drew up formal first information report Exh. P. A./1 and registered the case. The Sub‑Inspector after sending statement Exh. P. A. to the police station, prepared injury statement of Masta P. W. and sent him for medical examination. At about P.M. the S. 1. arrived at the scene of offence and found the dead bodies of Khadim Hussain and Talib Hussain lying in the lane in front of the house of Baja. He, accordingly, prepared injury statements and inquest reports of both the dead bodies and sent them to the mortuary for post‑mortem examinations. He also secured blood‑stained earth from both the places where the dead bodies had lying. He recovered six '12 bore empty cartridges and one 303 empty cartridge from near the dead bodies and made them into a sealed parcel. He also prepared injury statement of Mokha and got him medically examined. He arrested Sarang, Nosher, Shaman, Ghama on 13th October 1965 and Dayam, Bala and Baja on 18th November 1965. Salabat could not be found and he was declared proclaimed absconder.

5. On 11th October 1965, at 1‑15 p.m., Doctor Faruqi (P. W. 1) performed post‑mortem examination of the dead body of Khadim Hussain deceased and found the following injuries:‑ (1) Rounded wound on his left chest near the arm pit 2 x 2 . (2) Clauster of five rounded wounds each, " x " in an area, 2" x 4", just below the right arm pit on the right chest. The margin of injury No. 1 was blackened. Injury No. 1 was inlet wound, while injury No. 2 was exit wound. On internal examination 2nd, 3rd and 4th ribs were found fractured. The track was ascertained to be from injury No. 1 through left lung making exit injury No.

2. Death of the deceased was due to shock and haemorrhage as a result of the aforementioned gun shot wounds which were sufficient in the ordinary course of nature to cause death. On the same day at 2 p.m, the doctor performed post‑mortem examination of the dead body of Talib Hussain deceased and found the following injuries:‑ (1) A gunshot wound on the right side of abdomen, just below the 10th Rib, 1 " x 1 " circular. (2) A cluster of wounds each, " x 2" in an area, 2" x 2" on the back at middle line just above the hip. (3) A lacerated wound " x ", skin deep below the outer side of right elbow. On internal examination 11th and 12th ribs were found fractured and the lower part of the right lung injured. The liver and the right kidney were smashed into shreds and the spine was fractured. Injury No. 1 was inlet wound, while injury No. 2 was exit wound. In the opinion of the doctor the death of the deceased was due to shock and haemorrhage as a result of injury No. 1, which was sufficient in the ordinary course of nature to cause death.

6. Doctor Anwar Chaudhry (P. W. 2) on 11th October 1965, examined Mokha and found an abrasion on the left forehead, " x 1/16". The injury was simple and had been caused by blunt weapon.

7. Doctor Rafique Hussain (P. W. 3) on 11th October 1965, examined Masta P. W. and found a lacerated wound, " x " x ", on the left side of the penis " above it. The direction was towards testies. In the opinion of the doctor the injury was caused by a gunshot. He, however, could not exclude the possibility of this injury having been caused by a weapon other than a gunshot.

8. The appellant denied his guilt and declined to produce any defence.

9. The prosecution in support of its case examined Masta (P. W. 4), Thirraj (P. W. 11) and Mst. Sardaran (P. W. 12). All of them are related to the deceased persons. Masta is the son of Khadim Hussain deceased while Mst. Sardaran is his widow, Thirraj is a brother of Mst. Sardaran. Mansha, Raja, Mokha and Muhammad Hussain were given up as having been won over by the appellant and the co‑accused. Regarding Thirraj P. W. the learned Additional Sessions Judge has made the following observation:‑ "Thirraj P. W. belongs to a village about six miles away from the place of occurrence. His explanation is that he came to meet Khadim Hussain, who was married to his sister Mst. Sardaran. He has no particular work with him. He cannot, therefore, be said to be a natural witness and as such the possibility of his having been named as an eye‑witness in the case on account of his close relationship with Masta cannot be ruled out. As such it is not safe to rely upon his testimony against the accused persons. I, therefore, exclude his statement." We also find that there are many discrepancies in his statement. At the trial he stated that at the time of the occurrence he was present at the house of Khadim Hussain where Mokha, Muhammad Hussain, Mst. Sardaran and Masta were also present, that he heard Nosher calling him out, that when he came out Nosher told him that he was wanted by the police and that they both started talking to each other. On the other hand before the police he stated that while he was in the house he heard the voice of Nosher from the lane and immediately thereafter a shot was fired and that he along with Muhammad Hussain came out in the lane. Before the police he admitted that he had named Bala, Baja and Dayam as the accused on account of previous enmity because he was challaned at their instance. He also stated that the assailants had covered their faces with cloths. This is contrary to the statements of the other two eye‑witnesses. The view taken by the learned Additional Sessions Judge regarding his evidence was not disputed by the learned counsel for the State. Taking all the aforementioned circumstances into consideration we see no reason to disagree from the learned Additional Sessions Judge as regards his appreciation of his evidence.

11. Mst. Sardaran P. W. did not support the prosecution at all. She made the following statements:‑ "About two years and two and a half months ago at sunset time. I, my brother Thirraj, my son, Masta and Muhammad Hussain P. Ws. were present in my house. At that time we heard the voice of Nosher accused from outside our house calling to Khadim Hussain and Talib Hussain to come out of the house. These two were not present in the house at that time. After sometime we heard the report of a gunshot. I came out of my house first of all and saw Khadim Hussain and Talib Hussain lying murdered in the lane in front of the house of Raja P. W. At that time I saw Salabat, Sarang, Shaman, Bala, Baja and Dayam accused standing near them, out of whom Ghama, Dayam and Sarang were holding pistols, Baja, Bala and Salabat were holding guns, and Shaman was standing holding the reins of a mare. I started bewailing the death of my husband. Masta, Thirraj and Muhammad Hussain had also come out of the house. Many other persons also came to that place. They included Mokha, Raja, M ansha, Shera and none else. I saw Ghama accused firing a shot, which hit my son Masta. I did not see any one else of the accused firing. Mokha also received a pellet wound but I do not know how he was hit. I do not know which of the accused were firing when Mokha P. W. was hit." From her statement it is obvious that neither she nor Thirraj and Mokha actually witnessed the occurrence. The learned Additional Sessions Judge also did not place reliance on her statement because she had gone back of her previous statement made before the Committing Magistrate. The learned Additional Sessions Judge convicted the appellant by placing reliance only on the testimony of Masta P. W. It has been established on the record that Masta P. W. is not only inimical towards the appellants but is also closely related to the deceased. It is a well established rule of caution that no reliance should be placed on the testimony of such a witness unless it is corroborated by some other evidence on the record, which is lacking in this case. In any case he had implicated six other persons, who were found to be innocent by the learned Additional Sessions Judge. The State has also not filed any appeal against their acquittal. His testimony cannot be treated as divisible and accepted against the appellant and rejected against the co‑accused. In case Muhammad Akhtar v. The State (P L D 1957 S C (Pak.) 297) it was held that the conviction of the fourth accused, in the absence of any Confirmatory circumstance, could not be upheld on the evidence of the same witnesses whose version were found to be false or unreliable in regard to the three of the accused. In Ahmad Khan v. State (P L D 1962 Lah. 390) it was observed:‑ "When prosecution witnesses are discredited in respect of majority of the accused, it will not be safe to believe their evidence in respect of the remaining accused unless there is some independent corroboration in respect of each of the accused."

12. The learned counsel for the State frankly conceded that he was not in a position to support the conviction of the appellant.

13. In the result we accept the appeal, set aside the convictions and sentences of the appellant and acquit him. He should be released forthwith, if not wanted in any other case. The death sentence is not confirmed. Appeal accepted.