B. G. N. KAZI, J.---Guloo son of Oghan Kharosh, who was tied for murder of Jalal son of Kauro Mugheri, by the Additional Sessions Judge, Shikarpur and convicted under section 302, P. P. C. Read with section 34 and sentenced to imprisonment for life and to pay a fine of Rs. 1,000 or in default to undergo R. I. For the one year, has filed appeal under section 410. Cr. P. C. Against the aforesaid conviction and sentence.
2. The prosecution case briefly stated is as under:
3. On 10th July 1976, at 22-00 hours Muhammad Bukhsh, son of Ahmad Ali Mugheri, resident of Jahan Wah, Taluka Shikarpur, lodged F. I. R. At Police Station Jagan, District Sukkur stating that he was hari of Bakhshan Khan Pathan. There was a blood fued between Mugheris and Kharoshes. The haris of Bakhshan Khan are Mugheris and the haris of Major Ata Muhammad Khan Pathan are Kharoshes. About 3/4 years before the incident Gul Hassan and other Kharoshes had committed the murder of Raeem Khan Mugheri. Thereafter about one year back Rahman Kharosh was murdered and Ramzan and other Mugheris were accused of the murder and a case was filed against them. Complainant Muhammad Buksh further stated in the F. I. R. That about 15 days before the incident in both the aforementioned criminal cases the accused were acquitted by the Court. On 10th July, 1976 at about 11 a.m. Muhammad Bukhsh deceased Jalal, son of Kauro, his brothers Ahmed Din and Muhammad Hashim bad gone to their fields to do transplantation of paddy. There was more than enough water in the land where transplantation was to be done and therefore, they asked deceased Jalal to go, to the watercourse and block the flow of water into the field. Jalal left towards the watercourse and after a shot while complainant Muhammad Bukhsh and his other companions heard 7 of 8 reports of gunshot from the side of the water--course. He, Muhammad Hashim and Ahmed Din ran towards the place from which the gunfire reports were being heard. They saw accused Guloo and Meero sons of Oghan, Hakim, son of Khan Muhammad and Meer, son of Fateh Ali, All Kharoshes by caste who were armed with guns, firing at deceased Jalal, who fell down. The complainant and his companions took shelter and shouted challenges at the accused who ran away towards the north-west of the place of occurrence. Jalal was found lying dead. He had received gunshot injuries on head and other parts of his body and was besmeared with blood. Leaving his companions near the dead body, complainant Muhammad Bukhsh went to Sultan Kot the place were his Zamindar Bakhshan Khan resides. Bakhshan Khan was not there but he met Shah Muhammad Pathan, brother-in-law of Bakhshan Khan to whom he narrated the facts about the murder. Shah Muhammad Pathan advised him to lodge report at Jagan police station. He, therefore, left Sultan Kot and went over to Jagan police station where he lodged F. I. R. With S. H. O. Ghulam Shabir Khan. After registering the F. I. R. S. H. O. Ghulam Shabir Khan, accompanied complainant Muhammad Bakhsh to the scene of offence where the dead body of Jalal was lying in a pool of blood. He secured the blood-stained earth and sealed and sent it to the chemical analyser. He prepared the inquest report in presence of mashirs and sent the dead body of Jalal to Civil Hospital, Shikarpur, through police constable Ali Gohar. On 11July, 1976, he recorded statements of prosecution witnesses Muhammad Hashim, Ahmed Din and Shah Muhammad. On 3rd July 1976, he arrested accused Guloo. He then sent challan in respect of accused Guloo to the Court.
4. Accused Guloo, denied the prosecution allegation about murdering Jalal by causing him gunshot injuries. He took the plea that the Kharoshes had long-standing enmity with the witnesses.
He further stated that many murders had, taken place and number of cases were pending. He, therefore, reiterated that he had enmity with the complainant and the witnesses. He produced true copies of F. I. Rs. And challans in three latest cases to prove the enmity of the complainant and prosecution witnesses.
5. Mr. Azizullah Sheikh, the learned Advocate for the appellant has challenged the impugned judgment of conviction mainly on the grounds that ocular testimony is of interested persons being very near relatives of the deceased who at the same time are also inimical to the accused. He has pointed out that the very motive of the murder is stated to be old blood fued between the parties and he further argued that if any proof of the same was required the same has been given by production of the F. I. Rs. And challans in three cases to show that due to the fued there had been murders committed by Kharoshes and Mugheris in respect of which there is pending litigation. It is further contended that in view of the enmity and interestedness of the witnesses there should have been independent evidence connecting the accused with the crime or at least corroboratory circumstantial evidence which in the instant case is lacking. The only circumstantial evidence that has been put forward by the prosecution in the case is the alleged absconsion of accused Guloo but as will be dis--cussed hereafter the aforesaid evidence is not sufficient or reliable. There is no allegation of recovery of any weapon with which the offence could have been committed.
6. With regard to the contention about the prosecution witnesses who are alleged to have seen the incident being interested, it is admitted position that Muhammad Bukhsh is cousin of deceased Jalal. P. W. Ahmed Din is brother of Muhammad Bukhsh and also cousin of the deceased and the only other alleged eyewitness Muhammad Hashim is the brother of the deceased. It is also admitted position that blood fued exists between Kharoshes and Mugheris and as already observed the motive of the crime is stated to be old blood fued. There are inherent weaknesses in the prosecution case inasmuch as the version of the incident as given by Muhammad Bukhsh in the F. I. R. Is different from the version in his deposition. For instance Muhammad Bakhsh had described the incident resulting in murder in the F. I. R. Is as under:-th "After a short while, seven/eight gun reports were heard from the side of the beginning of watercourse. I, Muhammad Hashim and Ahmed Din went running there and found that accused namely,
1. Miro,
2. Guloo, both sons of Oghan,
3. Hakeem, son of Khan Muhammad,
4. Meer, son of Fateh Ali all by caste Kharosh were armed with guns, and were firing shots at deceased Jalal. Jalal fell down within our sight."
His version in his deposition in the examination-in-chief was as under:- "After some time, we heard the gunshots. 1, Muhammad Hashim and Ahmed Din went to that direction. Jalal went at the distance of 50 paces where there was overflow of water. There we saw that Jalal was lying dead, accused Guloo was standing there along with Meero, Habu and Hakim.
They all had the guns. When we reached there, they went away."
It would be observed that whereas according to the version in the F. I. R. Muhammad Bakhsh had stated that they had actually seen the accused firing guns at the deceased, the version in deposition is that they saw the accused lying dead.
7. P. W. Ahmed Din cousin of deceased Jalal and cousin of P. Ws. Muhammad Hashim and Muhammad Bukhsh, states that they heard the shot fired and saw Meero, Abdul Hakim and Habibullah all armed with guns. Jalal was lying dead. He, however improved on his earlier version by adding that he had seen Guloo firing and thereafter all the other three accused fired at Jalal and that he had seen the firing from a distance of 30 paces.
8. P. W. Mohammad Hashim stated that 2/3 minutes after Jalal left they heard shots fired. They all went running and saw Guloo, Meero, Hakim and Habu who were all armed with guns. He also stated that they were all armed with guns. He also stated that they had seen the accused firing and first Guloo fired and then all the other 3 fired at the Jalal. When he and his companions reached the scene of offence they found Jalal dead.
9. Although it was the case of the prosecution that the accused had fired at the deceased and committed his murder and that there were empties of cartridges on the scene of offence even the investigating officer namely, S. H. O. Ghulam Shabir Khan in his examination-in-chief has stated that he did not see any cartridges on the spot.
10. It is admitted factual position apparent from the very F. I. R. That although the incident took place at about 11 a.m. On 10th July 1976, the murder was reported at Jagan police station which according to the S. H. O. Ghulam Shabir Khan is only 12 miles away from the scene of offence, at 10 o'clock in the night. The complainant had no doubt explained that he had gone to Sultan Kot, to report this zamindar Bakhshan Khan who was however, not there and therefore, he had met Shah Muhammad Pathan, father-in-law of Bakhshan Khan and had narrated the facts to him. It was only on his being advised to do so that he had gone to Jagan police station. It has been argued by Mr. A. A. Dareshant, the learned Advocate appearing on behalf of the State that it is usual in the mofuss il first to report the matter to the zamindar or nekmard before approaching the police. Whatever the practice, there can be no doubt of the fact that the F. I. R. Was lodged rather late and therefore, there was time for consultation before making the report. As a matter of fact the very statement of complainant Muhammad Bakhsh was that he had firstly tried to contact his zamindar and had narrated the facts to Shah Muhammad Pathan, before approaching the police.
11. It is apparent that this case involves circumstances under which it is by now the settled law as laid down by the Supreme Court that great caution is to be used before accepting the version of the alleged eye--witnesses.
12. Mr. Azizullah Shaikh, learned counsel for the appellant has referred to decision of Supreme Court in criminal appeal Thoba v. The State (PLD 1963 SC 40) in which it was inter alia observed that since there was existence of fued-based enmity which operated as strongly to explain the implication of the accused as it did to support the motive for attack, ocular evidence to carry conviction on a capital charge must come from an unimpeachable source or if such a source is not available it must be supported by some strong circumstances, such as might serve to overcome the inherent doubt by which such evidence is necessarily affected. Reference has also been made to the decision of this Court in criminal appeal Khurshid Ahmed v. Kabool Ahmed and others (PLD 1964 Kar. 356), where enmity had been established and prosecution witnesses were interested and it was held that independent corroboration of evidence was imperative. It was further observed in that decision that corroborative evidence in form of circumstantial evidence must be arising from sources distinct from and independent of already tainted sources. It was further observed that corroboration required in such a case was both as to factum of incident as well as regarding the identity of assailant.
13. Similarly in the decision of this Court in criminal appeal Thanghai v. The State (1969 P Cr. L J 439in a murder case where the evidence of prose--cution witnesses who were not only related to one another but hostile to accused due to enmity was considered not to be reliable unless corroborated by independent evidence. In that decision absconsion of accused was held not to be sufficient to corroborate evidence against the accused since no proceedings had been taken against them under sections 87 and 88, Cr. P. C.
14. In the instant case not only such proceedings were never taken but there is no evidence at all that serious attempts to arrest the accused were made. All that S. H. O. Ghulam Shabir Khan has stated is that he arrested the accused near Hamyoun Bus Stop on 3September, 1976. In decision of criminal appeal Ayo v. The State (PLD 190 Kar. 791 where there was blood fued between the parties and evidence was not only of persons inter--related but admittedly inimical to accused, it was considered that corro--boration of such evidence was necessary. With regard to the ground of absconsion of the accused there had been proceedings under section 512, Cr. P. C. But since no evidence was on record with regard to the accused absconding it was held that the accused could not be presumed to have absconded. In that case no question was put to the S. H. O. As to why he had not been able to arrest the accused before the date on which he was actually arrested. In the instant case too no such question was ever put to S. H. O. Ghulam Shabir Khan who bas merely stated that he arrested the accused on 3September, 1976.
15. In the decision of criminal appeal Rasool Bux and others v. The State (1976 P Cr. L J 301) where evidence consisted only of ocular testimony of inimical witnesses, without corroboration, sustaining conviction on such evidence was held to be unsafe.
16. Mr. Azizullah Shaikh, the learned counsel for the appellant has also pointed out that the ocular evidence is not supported by the evidence of Dr. Gul Hassan Chachar, the Medical Officer, Civil Hospital, Khairpur, who had performed the post-mortem examination of the dead body of Jalal on 11July, 1976. The doctor found the following four injuries on the person of the deceased:- "(1) A fire-arm wound 3/4" x cavity deep with lacerated and charring margins on the left temporal region just opposite to left tragus.
(2) A fire-arm wound with lacerated margins 3" x 3" x cavity deep on the right orbit communicated with injury No. 1.
(3) A fire-arm wound with lacerated margins 2" x 2" x cavity deep (brain cavity) on the frontal region of the skull with fracture of the frontal bone, communicated with injury No. 1.
(4) Six fire-arm wounds of big pea size with lacerated and charring margins scattered, five on the back of the left shoulder and one in the mid axillary line of the left side of the chest."
The doctor was of the opinion that the injuries on the person of the deceased were the result of 2 gunshots which had been fired from close range of 6 to 10 feet. The learned counsel has pointed out that according to the ocular evidence of complainant Muhammad Bukhsh at least 7/8 shots were fired before the alleged eye-witnesses started going to the spot and according to him further shots were fired in their presence. It is equally the case of the alleged eye-witnesses Ahmed Din and Mohammad Hashim that shots were fired at the deceased within their view. Since it is not therd rd th prosecution case that there was any resistance of any sort offered by the deceased it has been rightly argued by the learned counsel that since shots were fired from a close distance there could be no question of firing 7/8 or more shots and causing injuries which were caused only by 2 shots. It is also not the case of the prosecution that initially the 7/8 shots were fired to scare away any people as it is not the case of the prosecution that the deceased was accompanied by any one else. The circumstance that no spent cartridges were secured from the scene of offence makes it difficult to accept the ocular evidence which, as already stated, is to be considered with greatest possible caution.
17. Mr. A. A. Dareshani, the learned counsel for the State has relied on the decision of this Court in criminal appeal Wall Mohammad and 2 others v. The State (PLD 1978 Kar. 112) wherein it was inter alia observed that the evidence of interested witnesses cannot be discarded but has to be carefully and cautiously sifted and corroboration thereof looked for. There is no question of disputing the aforesaid observation but as already stated in the instant case the aforesaid evidence has been cautiously sifted and there is for the reasons already given no corrobora--tion of the same either by direct evidence or even by circumstantial evidence. The learned counsel for the State has also referred to the decision of the Peshawar High Court in criminal appeal Abdullah Khan v. The State (PLD 1980 Pesh. 250) on the point that relationship of witnesses inter se and with the victim of the crime by itself does not render witnesses interested, unless they are shown to have some motive to falsely implicate the accused. In the instant case the prosecution witnesses are not only related inter se and also with the deceased but have motive to falsely implicate the accused due to the old blood fued. Their evidence has therefore to be appreciated in accordance with accepted principles as already discussed.
18. Under the circumstances stated the unsupported testimony of interested and inimical witnesses cannot be considered to be sufficient for conviction and cannot be said to be free from doubt. The appeal is accordingly allowed and the accused is given benefit of the doubt and acquitted. He may be set at liberty immediately if not required in any other case.