FAKHRUDDIN G. EBRAHIM J.---The appellant Mehrab together with co-accused Hashim, his father and his cousin Sajawal were sent up for trial for offence under section 302 read with section 34, P.P.C. For the alleged murder of Gulzar. The two co-accused were acquitted but the appellant was found guilty and has been sentenced to death.
2. The First Information Report in this case was lodged by complainant Muhammad Safar within one hour of the occurrence in which it was alleged that tire complainant had been informed at 2- 30 p.m, on 11th August, 1974 by P. W. Ahmad Hussain and one Muhammad Umar, that on their way to their houses from their fields when they reached near Madool they saw the appellant armed with a hatchet and co-accused Sujawal with a lathi giving blows to deceased Gulzar and the third co-accused Hashim was instigating them. The said P. W. Abroad Hussain and Muhammad Umer challenged the accused not to murder the min and when they reached near they saw the accused making their way to their houses. The deceased was lying on the ground having received hatchet and laths injuries on his head and other parts of the body. The complainant on being informed went to the vardat, accompanied by Dadan father of the d-.Ceased, Allah Dino, Faqir Muhammad Lund and many other villagers. They found the deceased lying unconscious on the ground who was taken on a cot to Nek Mard Raji Atta Muhammad to whom the incident was narrated. He told them to lodge a report with the police as the accused were Loafers and Badmash and more powerful than hire. In the F.I.R. No motive was alleged for it was said that they had fought unnecessarily, The deceased Gulzar died on 16th August, 1974, as a result of the injuries received by him.
3. The prosecution examined only one eye-witness P. W. Ahmad Hussain. According to his deposition he was on the fateful day return--ing to his village and when he reached Ali Bahar Wah he heard cries. He rushed in that direction and saw the appellant, co-accused Sujawal and third unknown person giving blows to the deceased who fell down and the accused made good their escape. He could not identify the third assailant. According to him Ghulam Umer was with him and had also seen the incident and it was Ghulam Umer who went to inform the relatives of the deceased who brought complainant, Safar, Allah Dino, Fakir Muhammad Lund, Dadan and others who were informed of the incident including the names of the accused In his cross-examination he admitted that complainant was his relative. According to him he had seen the assailants from a distance of 70, 80 paces and there were bush-3 bushes between the place where they heard the cries and the vardat which bushes were over a man's height. He went on to state that he did identify the assailants but not very well and that there were other persons working in the adjoining land. He gave the names of the assailants to the relatives of the deceased who were brought by Muhammad Umer. Ha denied that he had gone to any one to inform him, of the incident for he continued to remain with the injured person. He admitted that the accused belonged to the party of Abdul Aziz Lund who was a rival of Rias Atta Muhammad Lund.
4. The complainant in his deposition persisted in saying that it was p. W. Ahmed Hussain who had come to him and informed him that the appellant and the co-accused Sujawal and Hashim had caused hatchet injures to the deceased Gulzar and that the accused persons had stopped the flow of water and that when he had reached the vardat accompanied by Dadan, Allah Dino, Fakir Muhammad Lund and others they were told by Ghulam Umer that the appellant and the co- accused Sujawal and Hashim had caused injuries to the deceased and that the accused had first stopped the flow of water to our land. The injured according to this witness was taken to Haji Atta Muhammad who was apprised of the incident including the names of the accused who gave him a letter to the police who registered his F.I.R. The witness alleged that the accused had killed the deceased because of dispute over rotation of water. The witness was confronted with his lower Court statement it which he had stated that both P. Ws. Ahmed Hussain and Ghulam Umer had come to him to inform him about the incident and that he had not stated in the lower Court about the stoppage of flow of water by the accused. He was also confronted with his lower Court statement in which he had stated that the deceased was murdered without any motive. He was also con--fronted with his lower Court statement that the appellant Mehrab was Masat of one Rahim Bux who had been acquitted in the murder case of the nephew of the Nek Mard Atta Muhammad and that Atta Muhammad was displeased with Rahim Bux.
5. The prosecution also relied on the recovery of a blood-stained hatchet from the house of the appellant on 14th August, 1974 which was found ty the Analyser to be positive.
6. At the conclusion of the argument of Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, Mr. Usman Ghani Rashid, the learned Additional Advocate-General stated that he was not support--ing the conviction for reasons which have appeared to us to be justified, As aforesaid the only eye-witness was P. W. Ahmad Hussain. He had merely seen the appellant, co-accused Sujawal and the third unknown person giving blows to the deceased with which weapon he does not state. He also did not see the weapon in the hand of the accused when they were allegedly running away within his sight. He did identify they assailants but to quote his own words------not very well". The comp--lainant has quite clearly improved upon the story of the eye-witness by identifying the third assailant as Hashim. According to him he was informed of the incident including the names of the assailants by P. W. Ahmed Hussain which is contradicted by the litter, according to whom it was Muhammad Umer who had gone to inform the complainant of the incident. Significantly Muhammad Umer has not been examined as a prosecution witness. It is also important to note that though the incident was allegedly narrated to several persons including Dadan father of the deceased, none of them were examined. Even the Nek Mard Atta Muhammad who had been narrated the incident and who gave a letter on the police was not called as a witness. There is also no credible evidence of motive for no motive was alleged either in the F.I.R. Or before the trial Court. By way of corroboration we are only left with the evidence of recovery of a blood-stained hatchet from the house of the appellant but in the absence of evidence of the eye- witness Ahmed Hussain that the appellant was armed with a hatchet the recovery is of no avail to the prosecution.
7. The result, therefore, is that this appeal is allowed and the reference is rejected.