P L D 1969 Karachi 200 (PLP)

DORAB PATEL, J.‑Jam Mehar and Naruk Samejo were murdered on the morning of the 20th May 1966. Appellant Thangai son of Khandu together with three other accused Nawab son of Haji Taj Muhammad, Azim son of Ghulam Hyder and Din Muhammad son of Imam Bux were tried by the Additional Sessions Judge, Jacobabad for these double murders. By his judgment, dated the 18th January 1968, the learned Additional Sessions Judge has acquitted the three other accused and convicted the appellant under section 302, P. P. C. for these murders and sentenced him to death, and has also imposed a fine of Rs. 2,000 or in default one year's R. I. He has also convicted the appellant under section 13‑D of the Arms Act and sentenced him to 2 years' R. I. No appeal has been filed by the State against the acquittal of the three other accused, but the appellant has filed an appeal against conviction and the learned Sessions Judge has made a reference to this Court. Therefore, we shall dispose of both the appeal and the reference by this judgment.

2. According to the prosecution, the material facts are. that Jam Mehar and Naruk Samejo were going on foot from their village to Kandhkot on 20th May 1966, to attend the Court of the First Class Magistrate where More Samejo and others were being tried for the murder of Nari Kosh, brother of the appellant. They were accompanied by P. Ws. Liaq, Mehrab and Allahdin. After walking about half a mile from their village, they had crossed Badhani distributory and shortly after that, the appellant, Nawab and Din Muhammad who were armed with guns, and Azim, who was armed with hatchet came out of the jungle and threatened them with revenge for the murder of Nari Kosh. Then the appellant, Nawab and Din Muhammad fired at Jam Mehar and Naruk Samejo, who were hit and fell down, and there after Azim attacked them with a hatchet. P. Ws. Liaq, Mehrab and Allahdino were 7 or 8 paces behind, but they did not intervene because they were unarmed and were frightened. Thereafter, all the assailants ran away. Both Jam Mehar and Naruk Samejo died almost immediately. P. W. Liaq left Mehrab and Allahdino with the dead bodies, and he first went to the village and informed Khair Muhammad and P. W. Alam Khan of the occurrence. Khair Muhammad told him to file a report at the Buxapur Police Station, therefore, he went to the Buxapur Police Station and lodged a report at about 10‑30 a. m. which was recorded by Ghous Bux and thereafter Abdul Ghafar A. S. I. commenced investigations.

3. Abdul Ghafar A. S. I. went to the place of occurrence and recovered some blood‑stained earth and 5 empties. He also prepared an inquest report of dead bodies, and sent for a doctor to carry out the post‑mortems of the dead bodies on the spot. Accordingly, these post‑mortems were carried out by Dr. Minhajuddin P. W. Assistant Medical Officer, Buxapur at the place of occurrence. Abdul Ghafar A. S. I. also examined witnesses and commenced investigation. He arrested Nawab and Azim from Kashmore Town on 2nd June 1966 and Din Muhammad surrendered himself at the Police Station on the same day. The next day, he arranged an identification parade which was attended by P. Ws. Allahdino and Mehrab. Although both these witnesses. professed to know the accused, they identified Nawab as Aim and Azim as Nawab. The appellant was absconding, but he was arrested on 12th December 1966. In due course, the appellant together with Nawab, Azim and Din Muhammad, were challaned and put up for trial.

4. In their statements in the Sessions Court, all the accused had denied having committed the alleged murders and stated that they had been falsely implicated on account of enmity. In this connection, the appellant had specifically stated that he had been falsely implicated as he was suspected of having abducted the daughter of Dholio Samejo, whilst Nawab and Din Muhammad had stated that they were on hostile terms with the appellant.

5. We have observed that the post‑mortems of the dead bodies of Jam Mehar and Naruk Samejo were carried out by Dr. Minhajuddin P. W. According to Dr. Minhajuddin P. W. the deceased Naruk had as many as 12 injuries caused by gunshot wounds, and one injury caused by a hatchet on the outer side of his left arm Which was two inches by half inch skin muscle deep. He also found that Jam Mehar had 5 gunshot injuries on his person. According to Dr. Minhaj uddin, the injuries showed signs of charring, therefore he concluded that the assailants must have fired at the deceased from a very close range. Dr. Minhajuddin further stated that the injuries to both the deceased were ante‑mortem and that the death of both the deceased were caused by the gunshot injuries which were sufficient in the ordinary course of nature to cause death. The medical evidence establishes beyond doubt that both the deceased were killed by gunshot injuries, and there is no doubt that Jam Mehar and Naruk Samejo were murdered. However, the question for considera tion before us is whether the appellant is guilty of these murders.

6. In order to prove its case, the prosecution has relied on the evidence of the eye‑witnesses P. Ws. Liaq, Mehrab and Allahdino and the corroboratory evidence of P. W. Alam Khan. P. W. Liaq stated that at sunrise on the 20th May 1966, he, Mehrab and Allahdino had left their village with the deceased and were going to Kandhkot on foot to attend the Court of the First Class Magistrate, Kandhkot where More Samejo was standing trial for the murder of the appellant's brother and that shortly after crossing the Badhani Distributory, which is about half a mile from their village, the appellant together with other three accused came out from the jungle and shouted that they had to pay compen sation for the murder ' of the appellant's brother and then the appellant, Nawab and Din Muhammad fired at the ,:ceased Jam Mehar and Naruk Samejo,' and after they had fallen down, accused Azim attacked them with a hatchet. This description of the occurrence is fully supported by the evidence of P. Ws. Mehrab and Allahdino. However, thel learned Additional Sessions Judge has held that the prosecution witnesses falsely implicated Nawab, Azim and Din Muhammad and has acquitted them. Therefore the conviction of they appellant on the evidence of these witnesses cannot be sustained, unless their evidence is corroborated by independent) evidence.

7. Further, according to P. W. Liaq, when the accused attacked the deceased, they had said that they were taking revenge for the murder of Nari Kosh. According to P. W. Liaq, Nari Kosh was murdered because his brother, the appellant, had abducted the daughter of Dholio Samejo and More Samejo, was on trial for the murder of Nari Kosh. P. W. Liaq also admitted that Saindad and Hamid, brothers. of the appellant, were witnesses in that murder case, and that More Samejo was his father‑in‑law. P. W. Liaq was therefore an interested witness. But P. W. Allahdino has admitted in cross‑examination " Liaq is my masat. P. W. M9hrab is my cousin. Deceased Naruk was my cousin". Further as we have observed, Mehrab P. W. was related to Dholio Samejo whose daughter, the appellant had abducted. Thus it is clear that all the prosecution eye‑witnesses are not only related to one another, but they would be hostile to the appellant in view of their enmity against him. r On this ground also, reliance cannot be placed on their evidence unless it can be corroborated by independent evidence. We have therefore to consider whether the evidence of these eye‑witnesses is corroborated by any independent evidence.

8. We have observed that Abdul Ghafar, A. S. I. ha( recovered blood‑stained earth, and according to the report of the Chemical Analyser, it contained human blood. But this by itself does not connect the appellant with the murders. The A. S. I. had also recovered 5 empties but as no gun, have been recovered, the recovery of the empties is of no evidentiary value whatsoever. The only corroboratory evidence is that of P. W. Alam Khan. P. W. Liaq had claimed that immediately after the occurrence, he had gone to his village where he had met P. W. Alam Khan and informed him how the accused had murdered Jam Mehar and Naruk Samejo. P. W. Alam Khan had supported the prosecution case in the lower Court. However, in the Sessions Court, he merely stated that on the day of occurrence, he had met P. W. Liaq at 11 a.m. and that P. W. Liaq had informed him of the murders, but he could not remember the names of the murderers. He said "it is on account of lapse of long time that I have forgotten these names. P. W. Liaq informed me that Jam Mehar and Naruk Samejo were killed by gun‑shots". As this evidence was not consistent with his statement in the lower Court, the Additional Sessions Judge had brought his statement in the lower Court on the record under section 288, Cr. P. C. But there is absolutely no corrobo ratory evidence on the basis of which we can prefer P. W. Alam Khan's statement in the lower Court to his evidence in the Sessions Court. In the result, his evidence fails to provide any corroboration of the ocular evidence against the appellant.

9. The learned Additional Sessions Judge has held that the evidence of the prosecution witnesses against the appellant was corroborated by the absconsion of the appellant. The appellant was arrested on the 12th December 1966, from Kashmore Town by Sardar Muhammad but the prosecution did not examine Sardar Muhammad. Therefore the only evidence in support of the alleged absconsion is the state ment of the Investigating Officer P. W. Abdul Ghafar A. S. I. who had stated in his evidence that the appellant was an absconder. If the appellant was an absconder, proceedings must have been taken against him under section 87‑88 of the Cr. Pr C. but the prosecution did not produce any E evidence to show that action had been taken against the appellant under section 87‑88 of the Cr. P. C. Therefore the prosecution has failed to prove that the appellant was an absconder. But even if we assume for the sake of argument that the appellant was an absconder, in the circum stances discussed, this will not be sufficient to corroborate the evidence against the appellant. P. W. Liaq's evidence shows that there was great enmity between him and the appellant and the appellant was aware of that enmity. Therefore he may well have anticipated That these enemies, namely, P. W. Liaq and his party, would try to implicate him falsely for the murders that bad unfortunately taken place. In the circumstances discussed, even if the appellant) was an absconder, such absconsion would not amount to corroboration of the evidence against the appellant.

10. Accordingly, the prosecution has failed to prove beyond reasonable doubt that the appellant was responsible for the murders of Jam Mehar and Naruk Samejo and we have to give him benefit of the doubt. We therefore do not accept the reference of the learned Additional Sessions Judge and allow the appeal of the appellant. The appellant will be released forthwith unless he is required in any other case. A. E./K. B. A. Appeal allowed.