1. DORAB PATEL, J.-Ghulam Nabi was shot dead in his house at about 10-00 p. m. On 12-8-1973, and the appellants in the complaint lodged by the nephew of the deceased. Dost Ali is an absconder, but the appellants were arrested in due course and as Ghulam Nabi died a few days after the attack on him, the appellants were tried for his murder.
2. Abdul Nabi, the son of the deceased, and Ahmad Ali, a nephew of the deceased, claimed to have witnessed the occurrence, and they said in their evidence that they were sitting in the house of the deceased (which was known as Sanjhay), that some one called for the deceased, therefore, the deceased walked across the courtyard of the house to its gate and as the deceased was walking to the gate of the house, the appellants and their brother each fired a shot at him. The eye- witnesses were able to identify the assailants, because Ahmad Ali had a torch with him. The motive for the occurrence, according to Ahmad Ali, was that the appellants and their brother "were living in our village, and had a dispute over water rights with the deceased and had left the village in consequence of that dispute. Further, according to these two eye--witnesses, the deceased fell down unconscious after he had been hit and the assailants ran away. Then, according to Abdul Nabi, the next morning he took his father to the Police Station in a bullock cart and after the complaint had been lodged he took his father to the Civil Hospital. Jacobabad, for treatment where his father died a few days later. However, before Ghulam Nabi died, he recorded his dying declaration, which was proved by the Head Munshi and Second Class Magistrate, and the dying declaration also implicates the appellants and their absconding brother.
3. The prosecution also relied on medical evidence and on evidence of the recovery of five empties from the place of occurrence. But the recovery of empties does not farther the prosecution case, because no recoveries were made from the appellants.
4. Both the appellants denied their guilt and as they stressed the fact that the deceased had other enemies. We may observe here that the eye-witnesses were compelled to admit that the deceased had other enemies, and that there had been murders in their family. Next, .As to the question of a dispute about water rights with the deceased, the appellants denied this allegation, but Nawaz Ali said in his statement of the Sessions Court ; "prior to the incident we had sold land to the complainant party. They did not pay us the price. Hence we had sold the same to other persons. On this they mere annoyed." However, neither of the appellants produce any evidence in their defence.
5. The learned Sessions Judge, who tried the appellants, was impressed firstly by the evidence of motive, secondly, by the evidence of the two eye--witnesses, and, thirdly, by the dying declaration of the deceased. Therefore, he held that the prosecution had proved its case to the hilt, convicted the appellants for murder and sentenced them to death.
6. The appellants challenged their conviction in an appeal in the Sind High Court, which was heard with the reference from the Sessions Court, but as the learned Judges of the High Court, who heard the appeal, did not see any reason to interfere with the appreciation of evidence by the trial Court, they dismissed the appeal of the appellants and confirmed the sentence of death passed against them.
7. The appellants, therefore, filed a petition for leave in this Court, which was admitted, and we have now heard the appeal with the assistance of Mr. Hayat Junejo and the learned Advocate-General.
8. As the learned Judges of the High Court were impressed by the evidence of the two eye-witnesses, we have to point out that this evidence is inconsistent with the circumstantial evidence. Thus, for example, as according to both the eye-witnesses, the three assailants had each fired a shot and run away, the presence of empties was highly improbable as none of the assailants had attempted to fire a second shot. However, not only were empties recovered from the vardat but five empties were recovered, whilst, according to both the eye-witnesses, only three shots had been fired. Unfortunately, this discrepancy between the ocular evidence and the circumstantial evidence escaped the attention of both the Courts. Again, according to the eye--witnesses, the assailants had fired from a distance of at least five paces, yet, according to the medical evidence, four of the five entrance wounds on the body of the deceased had charring marks. This was another circumstance which escaped the attention of both the Courts. Thirdly, whilst the eye- witnesses were emphatic that the assailants had fired at the deceased as he was walking towards them, one of the entrance wounds was on the back of abdomen of the deceased. This too be reconciled with the description of the eye-witnesses of the occurrence. Finally, even a casual perusal of the post-mortem report was sufficient to show that the deceased must have bled heavily, therefore, there would be blood at the place where lie fell, and, according to Dr. Manzoor Ahmad, who carried out the post-mortem, "death was due to ...... Haemorrhage". But as no blood was recovered from the scene of the murder, this can only lead to the inference that the occurrence did not take place in the courtyard of the deceased, especially in view of the other discrepancies between the ocular evidence and the circumstantial evidence. But the learned Judges rejected this inference, because they held that there was "nothing on the record to indicate that the deceased had received bleeding injuries." With respect, this observation is inconsistent with the doctor's evidence. However, the learned Judges also explained away the absence of blood at the vardat on the further ground that "the blood might have been soaked in the clothes. "This was unlikely, as the occurrence took place in Jacobabad District in the month of August. In any event, in the absence of evidence, and there is no such evidence, the learned Judges erred in holding that the vardat was not blood-stained because "the blood might have been soaked in the clothes of the deceased". And on the contrary in all the circumstances discussed, the only possible inference, which follows from the absence of blood at the alleged vardat, is that the occurrence did not take place in the courtyard of the deceased as claimed by the prosecution. But this casts great doubt on the claim of Abdul Nabi and Ahmad Ali to have witnessed the, occurrence.
9. Mr. Junejo then referred us to other circumstances, which had escaped the attention of the learned Judges and which are relevant to the question whether Abdul Nabi and Ahmad Ali had really seen the occurrence. Thus, for example. Muhammad Siddiq, the local tapedar, who prepared sketch of the vardat said that "the jai vardat was shown to me by Abdul Karim mashir, because complainant and witnesses were not available." To say the least, the failure of Ahmad Ali, the complainant, and of Abdul Nabi, the other eye-witnesses, to identify the place of occurrence was strange and casts doubt on the prosecution case, and the attention of the Courts below was drawn to this somewhat disturbing circumstance, because, in the background discussed it casts doubt on the claim of the witnesses to have seen the attack on the deceased. However, the explanation given by the prosecution was that both Abdul Nabi and Ahmad Ali had disappeared after taking the deceased to hospital because of fear, and the fear was that the appellants and their brother would attack them, therefore, according to the prosecution, the Police were not able to examine these witnesses, but somehow, by a lucky coincidence, the Police produced them for examination as the prosecution case was being closed, therefore, the two eye-witnesses were examined at the end of the prosecution case and just before the statement of the accused was recorded under section 342 of the Criminal Procedure Code.
10. The burn of proving that the eye-witnesses had thus disappeared because of their fear of the appellants and of their brother was on the prosecution. But, the prosecution only examined the local process-server. Allah Yar, who said that he had made enquiries from time to time about the whereabouts of the two witnesses "but they were not available and I came to know that they had migrated to some unknown place due to their dispute." Even if we treat this evidence as sufficient to prove that the two eye-witnesses bad gone into hiding because of their fear of the appellants and their brother, the question is whether this fear would be a sufficient explanation of their failure to assist the Police in the investigation of the case. After all, this alleged fear did not prevent them from lodging the complaint, and if Abdul Nabi or the other eye-witnesses had really been afraid of the assailants they would have sought Police protection, but there is no such evidence.
11. Additionally, Abdul Nabi's statement was recorded under section 164 of the Criminal Procedure Code, therefore, his failure to assist the Tapedar in the preparation of the sketch of the jai vardat invites suspicion, the more--so, in view of the delay in lodging the F. I. R. The F. I. R. Was recorded at 8-30 in the morning after the occurrence. This was nearly ten hours after the occurrence, therefore, the witness was cross-examined by the appellants about the reasons for his delay in lodging the F.
12. I. R. And all he said was that "we had removed the injured in the bullock cart." Now, even by bullock cart, it would not take ten hours to cover ten miles, and it appears from the evidence that the witnesses made no attempt to take the deceased for treatment to the hospital or for lodging the F.
13. I. R. Until the next morning. Therefore. Mr. Junejo had submitted before the learned Judges of the High Court that there was delay in lodging the F. I. R. In rejecting this submission, the learned Judge observed :- "When a close relation is murdered, it is not easy to leave the dead body unattended and run to lodge the report. It is different in cities, where it can conveniently be done, but it is rather difficult in far off villages. Police Station, Mauladad was about 10 miles away from the place of occurrence. In the instant case, the deceased had received fatal injuries but was alive and arrangements had to be made to remove him to the police station. It must have taken time to arrange for the bullock cart. After reaching the police station, it takes time to persuade the Police Officer to take down the report and refer the injured to the Hospital for examination and treatment."
14. We are somewhat surprised by these observations. With all respect to the learned Judges, the question whether it was "not easy to leave the dead body unattended and run to lodge the report" did not arise in the instant case, because the deceased had not been killed on the spot, it was all the more necessary to take him immediately for treatment to the hospital, if not for lodging the F. I.
15. R. Secondly, if the occurrence was really witnessed by two persons, one of them could have left immediately for the Police Station in the absence of some difficulty, but neither of the witnesses have cared to explain, despite cross-examination, why no attempt was made to lodge the F. I. R.
16. Promptly. Therefore, with all respect to the learned Judges, their observations are not supported by the evidence, and in any case the generalisa--tion that "it takes time to persuade the Police Officer to take down the report" is much too wide and proceeds on the assumption that the prosecu--tion is entitled to the benefit of doubt. Therefore, we agree with the learned counsel that there was delay in lodging the F. I. v., and, in the background discussed, this casts further doubt on the claim of Abdul Nabi and of Ahmad Ali to have witnessed the occurrence.
17. However, the learned Advocate-General drew our attention to the fact that the learned Judges were also of the view that the ocular evidence was "fully corroborated . . . . By the motive..." With respect, we are unable to agree with these observations of the learned Judges, which are contrary to the evidence on the record. It is true that the eye-witnesses gave evidence of motive, but as the question was of the corroboration of their evidence, their own statements about the motive for the crime could not furnish corroboration of their evidence about the identity of the assailants. In these circumstances, as the eye-witnesses said that the appellants had abandoned their village, because of a dispute over water with the deceased, the least which the prosecution was required to do was to produce independent evidence to show that the appellants had lived in the village of the deceased and left it a couple of years before the occurrence, as alleged by the eye-witnesses and by the deceased in his dying declaration, but there is no such evidence. It is true that the learned District Judge was of the view that the prosecution case for motive was supported by the statement of Nawaz Ali under sec--tion 342 of the Criminal Procedure Code. We have quoted that statement, and if that statement is accepted, it would be the deceased and his family, who would have a grudge against the appellants. Therefore, far from corroborating case about. Motive, the statement of the appellant was fatal to it, and the view of the learned Sessions Judge is based on a misreading of the appellant's statement.
18. In the circumstances discussed, the prosecution has failed to prove the motive for the crime, and both the Courts erred in holding that evidence of motive furnished corroboration of the ocular evidence or of the dying declaration.
19. Turning now to the dying declaration, both the Courts were impressed by it, because of the evidence of the evidence of the head munshi and because of doctor Manzoor Ahmad's evidence that the deceased was in a fit condition to record his statement. But, whilst, the evidence of the Head Munshi and of the doctor support the prosecution case, as rightly submitted by Mr. Junejo, the evidence of the two eye-witnesses cast doubt on the evidence of the Head Munshi and of the doctor Manzoor Ahmad about the dying declaration. Thus, for example, Ahmad Ali claimed to have been with his uncle in the hospital until the time of his uncle's death, but he was emphatic that no dying declaration had been recorded in his presence. The witness' said, in this connection, "I remained with the injured. No Officer had recorded the statement of deceased in my presence. In my presence no one had come to record the statement of the deceased. I was with the deceased till his death." Now, even the Head Munshi admitted that the deceased had been "taking to his relatives" when he went to record the dying declaration of the deceased, therefore, Ahmad Ali's evidence cannot be reconciled with that of the head munshi or of the doctor. Mr. Junejo, however, drew our attention to Abdul Nabi's evidence, because the witness said that he had gone from the hospital on the evening of the 13th to the Bazar "to take the medicines". The witness further said that "when I returned, I was told that the statement of my father was recorded by Magistrate". Now the witness also said that except for his going out to purchase the medicines, he had remained with his father in the hospital. Therefore, it is necessary to examine what precisely Abdul Nabi said. He said "the injured was unconsious when he was brought to hospital. He regained consciousness in the hospital at 10 or 11 a. m. `I was with my father up to evening and then I went to my village. I had gone to take the medicines and when I returned, I was told that the statement of my father was recorded by Magistrate'."
20. Now, if this evidence be true, the dying declaration was recorded in the evening, but, according to the Head Munshi, it was recorded sometime after 1.00 p. m., therefore, once again the evidence of this witness belies that of the Head Munshi. Secondly, even on the assumption that the Head Munshi recorded the dying declaration faithfully, the conditions in which it had been recorded are not irrelevant to the assessm ent of its evidentiary value. Even on the footing that Ghulam Nabi was in a fit condition to record the dying declaration, it is clear from his son's evidence that he had remained unconscious till 10 or 11 a. m. And, as according to the Head Munshi, he recorded dying declaration shortly after 1-00 p. m., this means that the dying declaration was recorded after Ghulam Nabi had been with his son and nephew for a couple of hours. Now, it would be absurd to assume that Ahmad Ali had not informed his uncle of the F. I. R. Recorded by him. Therefore, Mr. Junejo submitted that the deceased had merely repeated to the Magistrate what his son and nephew had told him.
21. In the circumstances, this was a question which obviously required examination, but as it has not been examined by the Courts below, we have to point out that the question of the precise location of the place where the deceased was attacked become relevant at this juncture. As the deceased was attacked outside his house, it is obvious that he might not have been able to identify his assailants and here the injury on the back of his abdomen would suggest that he was attacked by assailants from behind. In these circumstances, bearing in mind the on-feebled condition in which the deceased must have made a statement, it is not possible to place reliance on the dying declaration, because it had been made after the deceased had been with his son and nephew for a couple of hours. The dying declaration on which the prosecution placed so much stress, thus turns out, if we may say so, to he a very frail reed, and it cannot possibly furnish corroboration of the ocular evidence. Therefore, we are satisfied that the prosecution has failed to prove beyond reasonable doubt the guilt of the appellants.
22. It is true that both the Courts have accepted the prosecution case and this Court does not generally interfere with concurrent findings which are supported by evidence. However, as we have shown earlier, the concurrent findings of the Courts below in the instant case, are vitiated by the fact that both the Courts have ignored all the evidence which went against the prosecu--tion case.
23. Therefore, in the words of Hamoodur Rehman, C. J., in Noora v. The State (PLD 1973 SC 469): "This was clearly a departure from the cardinal principle that not only evidence going in .Favour 'of the prosecution should be taken into consideration (by the Courts), but also that which went in favour of the accused."
24. As all the evidence in favour of the appellants has been ignored, and, as it is fatal to the prosecution case, we allow the appeal and set aside the conviction of both the appellants.