MUHAMMAD HALEEM, J.-Appellants Ali Nawaz (16) and Piyaro (25) were tried for the murder of Hafiz Muhammad Bux (30) by the Sessions Judge. Larkana and convicted of an offence under section 302 read with section 34, P. P. C. Appellant Ali Nawaz was also convicted, for being in possession of an unlicensed gun, under section 13 (d) of the Arms Act, 1965. On the first count, appellant Ali Nawaz has been sen--tenced to transportation for life while appellant Piyaro to death. On the second count appellant Ali Nawaz has been sentenced to suffer rigorous imprisonment for two years. The sentences in the case of appellant Ali Nawaz have been ordered to run concurrently. The reference under section 374, Cr. B. C. For the confirmation of the death sentence imposed on appeal. Lant Piyaro is also before us. This judgment will dispose of the appeal as well as the reference.
The incident occurred on 30th November 1907 at Tipahri time on a katcha track adjacent to the land of Fakhruddin Muhajir near Sihar Station. The report (Exh. 7) of the inci--dent was lodged by Pir Bux (P. W. 2) at Badah Out-post, which is at a distance of 9 miles from the place of incident on 30- 11-67 at 10-30 p.m. This report was recorded by Chowdhry Murtaza A. S. I. (P. W. 7).
3. As disclosed in the first information report the incident took place in the following manner: Deceased Hafiz Muhammad Bux had gone to village Erri to visit his father--in-law. Pir Bux (P. W. 2), who is a cousin of the deceased had gone at noon time his land to cut `loosan' grass. At Tipahri time while be was returning, after cutting grass, to his village along the katcha track, Hafiz Muhammad Bux passed by him on his cycle near the land of Fakhruddin. They exchanged greetings. Hardly had he covered a short distance when appellant Ali Nawaz armed with a gun and appellant Piyaro with a hatchet emerged from `lei' bushes and challen--ged Hafiz Muhammad Bux to stop. Hafiz Muhammad Bux threw his cycle and ran towards Sihar Station on the same track raising cries. Pir Bux (P. W. 2) also ran after him raising cries. The appellants them followed Hafiz Muhammad Bux and appellant Ali Nawaz fired his" gun at him twice. Thereupon, Hafiz Muhammad Bux fell clown. Appellant Piyaro then inflicted hatchet blows on him from its sharp side. `Din Muhammad (P. W. 3),, Sulemar Kolachi (P. W. 4), Hafiz Ali Hasan (P. W. 5), who were attracted by the cries, also came running to the stet and saw the incident. Both the appellants then ran away. Hafiz Muhammad Bux expired after two or three minutes.
4. The motive was started to be the suspicion entertained by appellant Nawaz of criminal intimacy of his wife Mst. Azima with the deceased.
5. Pir Bux then went to Fateh Muhammad Khan Kolachi (P. W. 6) at his factory and gave to him the details of the incident and the name of the assailants. Fateh Muhammad Khan then came to the scene of incident and saw the dead body of the deceased. He then directed Pir Bux to lodge
6. After recording the report Chowdhury Murtaza (P. W. 7) proceeded to the scene of offence that very night and saw the dead body of the deceased lying on the katcha road. He then recorded the statements of prosecution witnesses Din Muhammad, Ali Hasan, Suleman and Fateh Muhammad who were present at the spot. In the morning he inspected the wardat and secured two crime empties, and stained earth and sealed them into separate parcels. He also secured a cycle which was lying about 40 paces away from the dead body. All these articles ware taken into possession as per Mashirnama (Exh. 15) in the presence of mashir Fateh Muhammad (P. W. 6). The crime empties were of 12-bore gun. The investigation was thereafter taken over by Farzand Ali (P. W.,8) S. H. O., Police Station Dokri, He seized the gun licence produced by Shah Murad, a cousin of appellant Ali Nawaz, as per Mashirnama (Exh. 17) on 1st December 1967 in the presence of mashir Fateh Muhammad. The two appellants were produced the same day by Yar Muhammad before Farzand Ali, S. H. O. Appellant 'Ali Nawaz was then armed with a single-barrel gun and appellant Piyaro was wearing a blood--stained loin-cloth. Both these articles. Were secured as per Mashirnania (Exh. 19) in the presence of mashir Yateh Muhammad. The loin-cloth was sealed .Into a parcel. The gun secured from appellant All Nawaz belonged to Shah Murad and was entered in the licence produced by him earlier. Appellant Piyaro then led the investigating officer and mashir Fateh Muhammad, to his house and from the ceiling of his cattle shed produced a blood-stained hatchet and a blood--stained shirt. They were lying concealed under the 'palal' which was spread over the roof. These articles were secured as per Mashirnama (Exh. 20) and sealed into two separate parcels in the presence of Fateh Muhammad. The above articles except the gun and the crime empties, were sent for chemical analysis and according to the report (Exh: 24) of the chemical analyser all the articles were found to contain human blood. The gun and the crime empties were sent to the forensic laboratory for matching and according to the report of the Ballistic Expert both the crime empties were fired from the gun secured from the possession of Ali Nawaz.
7. The autopsy performed on the dead body of the deceased disclosed that the deceased died as a result of the injuries received by him which were caused both by hatchet and fire-arm.
8. The defence of the appellants at the trial was a denial of their participation in the crime. Ali Nawaz denied that lie had entertained, any suspicion; of illicit intimacy of his wife with the deceased and ascribed his false implication due to enmity resulting front suspicion entertained by the prosecution witnesses that he had stolen a radio belonging to the deceased. Against P. W.
Fateh Muhammad the enmity alleged was on account of election as, according to this appellant, he had voted for his opponent Gul Muhammad in that election. Appellant Piyaro alleged enmity against prosecution witness Fateh Muhammad as he had also voted for Gul Muhammad, his opponent, in the last election. He was thereupon threa--tened by Fateh Muhammad. This appellant also alleged enmity with P. W. Suleman because he had suspected the appellant to have stolen his pair of bullocks two months before the incident. As against other witnesses no enmity was alleged; only this much was stated that they were closely related to the deceased. The appellants led no evidence in defence.
9. At the trial, the prosecution examined Pir Bux (P. W. 2), Din Muhammad (P. W. 3), Suleman (P. W. 4) and Ali Hasan (P. W. 5) as eye-witnesses to the occurrence. Pir Bux is a cousin of the deceased while Din Muhammad, though not related to either Pir Bux or the deceased, is their caste fellow. P.
W. Suleman Kolachi belongs to a different caste and is not related to either the deceased or Pir Bux.
He also resided in the same village as Pir Bux. P. W. Ali Hasan is the brother of the deceased. The prosecution also examined mashlr Fateh Muhammad (P. W. 6) in regard to the seizure of the gun from Ali Nawaz and the loin cloth from Piyaro, and the production of hatchet and the shirt (Exh. 20) by appellant Piyaro. Dr. Minhajuddin and the Ballistic Expert, Muhammad Sarwar, were also examined to prove the cause of death and the result of the matching of the crime empties with the gun secured from the possession of Ali Nawaz.
10. The trial Court while convicting the appellants has observed that Pir Bux and Ali Hasan were natural witnesses. In coming to this conclusion the trial Court relied on two features, viz., (i) that in the report lodged by Pir Bux without any loss of time the names of the appellants as well as the wit- -nesses were disclosed and (li) that these two witnesses had no enmity with the appellants.
Suleman was held to be an independent witness as he was of a different caste and the motive alleged against him was also not established. Din Muhammad, although a caste fellow of the complainant and the deceased, was also held to be an independent witnesses as he had no enmity with the appellants. In conclusion, the trial Court held that all these witnesses had satisfactorily explained their presence at or around the scene of offence at the time of murder.
Thus, relying on their testimony coupled with the securing of incriminating articles and the result of the matching of the crime empties with the gun, the learned Sessions Judge convicted the appellants on th0 above; charges.
11. Mr. Tufailali Abdur Rehman, the learned counsel for the appellants raised two-fold contentions before us. His first contention is that none of the four eye,-witnesses were present at the time of the incident, because the reason assigned by them for their presence near the scene of incident was wholly improbable in the context of their evidence. His second contention is that the ocular version of the eyewit--nesses is in conflict with the medical evidence and in the context of the improbability of the reasons given by each of the four eye-witnesses, the presence of these witnesses at the spot is highly doubtful.
12. We now propose to deal with the first contention of the learned counsel for the appellants. The direct evidence is furnished by the testimony of four eye-witnesses. Each of these four witnesses had given one or the other reason for their presence near the place of incident. Their lands as well as the villages, where they resided, were at a distance and it was not possible for them to have heard the cries. We have, therefore, examined the pur--pose behind the reason given by these witnesses with a view to come to a conclusion that their presence at the could be probable. For a better appreciation of this criticism it will be appropriated to recall what these witnesses have stated in their evidence. The first witness is Pir Bux. He has stated that on the day of the incident he had gone at noon time to his land to cut grass. At tipahri,-time while he was returning along the kutcha track he met the deceased who was on his cycle and returning from Erri village where he had gone to meet his father-in-law. Shortly thereafter the deceased was attacked. In his cross- examination this witness admitted that at that time he had a bundle of grass and a sickle with him.
He left both these articles on the track and followed the deceased who was running back along the track he had just come. However, neither the bundle of grass nor the sickle was seen either by Fakhruddin or Chowdhry Farzandali A. S. I. Fakhruddin had come shortly after the occurrence while Chowdhry Farzandali had come at night. According for Pirbux he had only one bundle of grass. It is, therefore, also un--likely that after having gone at noon to cut grass he would have stayed in his field till tipahri time as the cutting of a bundle of grass would not have consumed that much of time. We are, therefore, not impressed with the reason given by this witness for his presence near the place of incident.
13. The second witness is Din Muhammad. He has stated that he resided in another village near Erri village which is about 11 miles away from the place of incident and had no land near or about that place. He was a hari of Kassim Kandhro and had gone to deliver hay (palal) to him and on his way back he was grazing his bullocks on Muhammad's land which was adjacent to the kuctha track when he heard cries and saw the incident. However, neither the bullocks nor the cart was seen by any one on Muhammad's land and there is nothing on record to indicate as to where the bullocks and the cart had disappeared. Even Kassim Kandhro has not been examined to support this version of the witness. Thus the reason given by this witness is absurd on the very face of it. 'It is not possible to accept that while returning to his village he would unyoke the bullocks from his part and leave them in the land of a stranger to graze. Additionally, there is also a discrepancy in the version of this witness in his 164 statement and that which he gave before the trial Court. In his 164 statement he had stated that he was returning when he heard the cries. In the trial Court he had stated in his cross-examination that he was grazing the bullocks; when confronted with this discrepancy he denied having made his earlier statement. We are, therefore, inclined not to place any reliance on the claim of this witness that he was there for the purpose he had so stated.
14. The third witness is Suleman. He had stated that he had gone to thrash paddy on the day of the incident to his dera where there were three other persons. He was returning home from the dera with his bullocks along the bank of Rajhowah watercourse when he heard cries and saw the incident. At the time he left his derv three other persons, out of whom two were ladies, were still in the dear. It appears that these three persons were also there for thrashing paddy and their presence still at the dera showed that the thrashing must have been going wt with the aid of the bullocks. It is, therefore, unlikely that this witness would have come along with the bullocks as claimed by him. The absence of the bullocks thus from the place near the incident also supports the above inference. This witness It had therefore given an explanation to account for the absence of the bullocks be saying that they had returned home, which we are, not pre--pared to accept.
Besides, Ali Hasan, another eye-witness, has stated that he was grazing his bullocks; therefore, the version of this witness that he was going along the Ra1howah watercourse with the bullocks is also not confirmed. We are, therefore, also doubtful about his presence near the place of incident.
15. The fourth and the last eye-witness is Ali Hasan (P. W. 5). He has stated that he is that real brother of the deceased and lived with him in village Sihar Station. Accord--ing to his version, he was on the bridge of the rice canal while going to his land to cut grass, which was about half a mile away from the- place of incident wheat lie heard cries of his brother and saw from a distance of 10(? Paces that he was being chased by the appellants. We are also hesitant to accept the reason given by this witness for being present on the bridge of the rice canal. At that time, for the villagers do not usually go to cut grass at late evening time. 'Chip witness has given this reason merely to render his presence pro--bable as he is the real brother of the deceased and we are not impressed with it.
16. We have also noticed that Din Muhammad and Suleman have supported Pirbux an the stand taken by him that he was carrying a bundle of grass; while Din Muhammad has mentioned about the sickle, Sideman has not said anything about it. We feel that there is an attempt on the part of these two witnesses to harmonies then evidence with that of Pirbux. Pirbux has lied when ht: stated that he had a bundle of grass and a sickle. The other two witnesses have also lied on this aspect.
Pirbux and Ali Hassan have also attempted to harmonies their evidence with that of Suleman by stating that they had seen his bullocks. We has already held that the presence of Suleman, a doubtful near the place of incident and his bullocks weft also not there. These witnesses have also lied on this aspect of the case.
17. We are, not at all satisfied with the purpose behind the reason given by each of the four witnesses. The incident occurred on the kutclaa track rind it was not a place where the witnesses could normally be present at the relevant time. It was for this reason that we have examined the probability of the reasons given by them.
18. The second contention of the learned counsel for the appellants deals with the conflict between the ocular version of the above eye-witnesses and the medical evidence. Accord--ing to the medical evidence the shots were fired from the front aspect as there are two wounds of entrance, one on the front and medial side of the right arm and the other on the right and front side of the right chest. The ocular version is that the shots were either fired from behind or the right side. Pir'bux and Din Muhammad have stated that the deceased was shot from behind while Ali Hasan and Sulleman have stated that appellant Alinawaz overtook the deceased and fired at him from the right side. The ocular version of the shots either being fired from behind or from the right side cannot be explained in the face of the medical evidence. If Pirbux had witnessed the crime then he would not have stated that the deceased was shot at from behind. Similarly. Ali Hasan would also not have stated that the deceased was shot at from the right side. The other two disinterested witnesses, namely, Dir. Muhammad and Sulleman have given the same version as Pirbux and Ali Hasan. According to the learned counsel for the appellants this conflict considered in the context of the improbability of the reasons assigned makes the presence of each of the four witnesses highly doubtful. We have given our anxious consideration to dais aspect of the case and we feel that the medical evidence belies the claim of the eye-witnesses with regard to the narration of the events that happened immediately before the hatchet injuries were inflicted on the deceased. The improbability of the masons given by the witnesses for being present near the place of incident thus assume great significance and, therefore, we have scrutinised tie evidence of these witnesses from that angle.
19. The version given by the witnesses that the deceased was pursued and then shot also does not appear to us to be probable in view of the above conflict with the medical evidence and we are inclined to feel that the deceased was shot at first and then he made an attempt to run away leaving his cycle on the track. This probability becomes more plausible because there is nothing in the evidence of the doctor to suggest that death could have been instantaneous, as a result of the gun shot injuries. The deceased could have run up to the distance of 40 paces. We are, therefore, unable to accept the version given by the witnesses that the deceased was chased and then shot at either from behind or from the right side.
20. The eye-witnesses are also not consistent with regard to the number of shots that were fired at the deceased. Pir--bux, Din Muhammad and Ali Hasan have stated that two or three shots were fired while Sulleman has spoken of the recovery of four or five crime empties from the place of inci- -dent suggesting thereby that the shots fired as many as the crime empties recovered. There is even an attempt to exag--gerate the number of shots that were fired. No witness has said that any shot was fired in the air. There was, therefore, no occasion not to state the correct number of the shots that were fired. The impression that is gathered is one of uncertainty with regard to the number of shots. Since the deceased had four gunshot injuries, the witnesses attempted to reconcile the number of shots with the injuries in their evidence although actually the deceased had received only two gunshots and according to the medical evidence the wounds on the back of his body were exit wounds."'
21. We are of the view that in view of the above defects in the evidence of these four witnesses it will not be safe to rely on their evidence.
22. The trial Court while accepting the presence of the eye-- witnesses observed as follows "Alt the eye-witnesses have satisfactorily explained their presence at or around the scene of offence at the time of murder. They have no enmity with the accused. The enmity alleged against complainant Pirbux or P. W. Sulleman is obvi--ously false; except the empty words of the accused."
We do not agree with this finding of the trial Court. The reason given by each witness for being present at the spot has not been weighed in' the light whether it could be believed. The trial Court has merely accepted what they had stated without scrutinising whether the reason could be probable. The trial Court has laid emphasis on the fact that the incident was reported without any delay and that the names of the witnesses were mentioned in the said report. The trial Court accordingly held that Pirbux and Ali Hasan, although related to the deceased, were natural witnesses. We do not agree with this conclusion of the trial Court. Since after examining the evidence we have come to the conclusion that the witnesses were not present at the time of occurrence, they cannot, therefore, be described as natural witnesses. The mention of their names in the first information report will, therefore, have no consequence. The lodging of the report even if it is with-- out any delay cannot add to the credibility of either Pirbux or Ali Hasan in the face of serious defects in their evidence.
23. The trial Court has failed to consider the conflict of the medical, evidence with the version given by the eye-- witnesses with regard to the firing of shots at the deceased. If the Court had noticed the conflict, the falsity of the claim of the eye-witnesses would have become apparent. The trial Court accepted the evidence of Suleman and Din Muhammad because they were disinterested. As observed earlier the version of these eye-witnesses is the same as that of Pirbuxand Ali Hasan and accordingly the evidence of these disin--terested witnesses does not stand on any higher footing.
Moreover, the credibility of these two witnesses cannot be appraised solely from the angle that they were disinterested witnesses. The real test of the credibility of the witnesses is the inherent merit of hisown statement. We are, therefore, not inclined to accept the appraisal of the evidence of these two witnesses solely from the angle that they were disinteres--ted witnesses and for that reason they were truthful. The evidence of Fakhruddin also cannot be given any weight for what he has stated is based on the version given to him by Pirbux. If Pirbux's evidence is not accepted then his evidence also falls through.
24. We have not accepted the ocular evidence. There now remains only the corroborative evidence. The learned counsel has not challenged the evidence relating to the securing of the incriminating articles. His stand is that if the ocular evidence is disregarded then there cannot be a conviction merely on the basis of the corroborative evidence. We have however examined the evidence of the securing of incriminating articles and observed certain infirmities in this evidence.
Fateh Muhammad, in whose presence the crime empties were recovered from the place of incident, has admitted in his cross-examina--tion that he did not state in the committal Court that he had seen "two empties at the wardat". He was a witness to the securing of the crime empties and was in the witness-- box for that purpose. It was for him to have said so if he had observed the two crime empties lying 2 or 4 paces away from the dead body. The omission of this witness to men--tion about the crime empties in the committal Court is also not without any consequence. At least this omission may affect the evidence relating to matching of these crime empties. There is also another infirmity which relates to the presence of blood on the clothes of appellant Piyaro.
Fateh Muhammad, in whose presence the clothes were secured, has stated that when this appellant was produced before the police by Yar Muhammad in his otak, no blood mark was observed on his clothes but blood was detected on his loincloth when they were in the house of Ali Nawaz where they had gone later. How this blood appeared on the loincloth later on is again without any explanation. It cannot be believed that when the appellant was produced, his clothes were not examined. The very first thing which an investigating officer does is to examine the clothes to find out if there is- any blood on them. This is what was done and it is for that reason that Fateh Muhammad has stated that no blood was seen on the clothes of this appellant, when he was in the otak of Yar Muhammad, Even Fateh Muhammad has made inconsistent statement with regard to the securing of the gun from appellant Ali Nawaz. At first he stated that Ali Nawaz led the police to his house and produced a single-barrel gun. Again he stated that; he had the gun when he was produced by Yar Muhammad. Despite the above infirmities, even if w were to accept the evidence of the securing of the incriminating articles, it could at best support the ocular evidence, but if the ocular evidence is not itself worthy of credence, A then it cannot be used either for supporting the unreliable ocular evidence or be considered conclusive to sustain the conviction. The motive even if it be true, will not have any bearing on the guilt of the appellants since we have rejected the ocular evidence.
25. As a result of the above discussion we have come to the conclusion that the prosecution has failed to prove beyond reasonable doubt the guilt of the appellants. We would, therefore, while giving benefit of doubt to the appel--lants, set aside their convictions and sentences and acquit them of the charges. The appeal is accordingly accepted and the reference for the confirmation of the death sentence imposed on appellant Piyaro is rejected. They should be released forthwith unless required in some other case.