1. ABDUL HAYEE KURESHI, ACTG. C. J.--We had by a short order on 13-7-1980, allowed this Appeal and acquitted the appellant. The reasons for such short order will presently follow.
2. Appellant Shaukat Ali together with acquitted accused Malook, were tried on the charge of murder of one Abdul Majeed by the Second Additional Sessions Judge, Larkana. By a judgment dated 11-1- 1979, Malook was acquitted, but the appellant, Shaukat Ali, was convicted under sec--tion 302, P. P.
3. C. And sentenced to death. The appellant has filed an appeal through Mr. Muhammad Hayat Junejo and the case has also been submitted to this Court by the learned Additional Sessions Judge for confirmation of the sentence of death. We have heard the appeal and the confirmation reference together.
4. The facts of the prosecution case are that the appellant and his cousin Malook, who has been acquitted, suspected Abdul Majeed of illicit intimacy with Mst. Hazari, the sister of Malook. On 1-8- 1976, complainant Yar Muhammad together with his brother Abdul Majeed had gone to Warah town in the morning and were returning at Pucci Naran time to their village. This tine would correspond to about 8-30 a.m. When they reached near Karohar Wah abandoned canal, the appellant and acquitted accused emerged out of the canal respectively armed with single barrel gun and hatchet. Appellant asked the deceased and his brother Yar Muhammad to plop, and thereafter fired at deceased Abdul Majeed hitting him near the region of his ear, whereupon the deceased fell down. Complainant Yar Muhammad raised cries, which attracted Kalaydino and Shahan, whereupon the appellant and acquitted accused ran away towards the north. Yar Muhammad made Kalaydino and Shahan sit near the dead body and proceeded to Warah Police Station, where his report was recorded by S. H. O. Karamdad at about 1-00 p.m.
5. S. H. O. Karamdad proceeded to the scene of occurrence and prepared a mashirnama in presence of Mashirs, one of whom namely Bahawal had been examined in Court. An empty cartridge was also secured from the scene. An inquest report was prepared, and the dead body of the deceased was sent to Dr. Obaidullah for post-mortem examination. On the following day, the Police Officer went to the village of the appellant and acquitted accused and found both of them on the way.
6. Both of them were arrested, and, at the time of arrest, the appellant produced a gun, his licence and three live cartridges. Acquitted accused Malook also produced a hatchet, which was not blood stained. The gun recovered, from appellant Shaukat Ali and the empty cartridges seized by the Police Officer at the scene of occurrence, were sent by the Police Officer to the ballistic expert, who issued a certificate giving positive opinion. The hatchet recovered from acquitted accused Malook was also sent to the chemical analyser, but curiously enough even this was found stained with human blood.
7. At the trial, the prosecution examined Yar Muhammad, the complai--nant and Kalaydino and Shahan as eye-witnesses. The prosecution further relied on and examined evidence in regard to recovery of the licensed gun of appellant Shaukat Ali, from which the empty found at the vardat was shown to have been fired. The prosecution also relied on motive. Bahawal was examined as a Mashir of the scene of occurrence as well as the re--coveries. Dr. Obaidullah was examined to testify to the nature of the injury suffered by the deceased. Tapedar Ghulam Ali was also examined, as he bad inspected the scene of occurrence. The rest of the evidence is of formal nature. The appellant and Malook had examined no witnesses in defence, but they have denied the prosecution, case.
8. The primary evidence in this case is furnished by Yar Muhammad, Kalaydino and Shahan. While Yar Muhammad is the brother of the deceased, Kalaydino besides being Phuphat is also married to the deceased's sister, and Shahan is again the Masait of the deceased. It is the case of Yar Muhammad that, on the date of incident, he bad left with his deceased brother Abdul Majeed for Warah to make purchases, and the incident occurred when they were returning. The other two witnesses Kalaydino and Shahan set up a case that they were working in their field, which were located very near the place of incident, and, at the time of incident, Shahan had also come up to the field of Kalaydino, and they found the complainant and the deceased on the way, and, at that time, appellant challenged them and shot the deceased causing his death. They further state that complainant Yar Muhammad raised cries, whereupon they had also gone out to the place, where the dead body of Abdul Majeed lay.
9. We have entertained serious doubt in regard to the presence of any one out of these three witnesses at the scene of occurrence. Dr. Obaidullah has stated that, on internal examination, he found the stomach of the deceased containing little food and water. Yar Muhammad had, however, stated that they had not taken breakfast before their departure in the morning and had wanted to take the breakfast after their return from Warah. This evidence casts serious doubt on the veracity of the- prosecution evidence, because the circumstances of a little food and water being found in the stomach of the deceased is absolutely incompatible with the statement of the complainant. Dr. Obaidullah bad also stated that the probable time that elapsed between the causing of the injuries and the death of the deceased was half an hour to three hours. This statement clearly indicates that death was not instantaneous. There is still a third circumstance which emerges from the medical evidence. Dr. Obaidullah has stated that be found blacken--ing around each one of the three wounds that were suffered by the deceased. Blackening marks would be observed as a consequence of gunshot injuries only if the firing had been done from a distance of about four or five feet. Yar Muhammad has, however, stated in cross-examination that the deceased was fired from a distance of five steps, which mould be abut fifteen feet. Witness Shahan had stated that the deceased was fired at a distance of eight or ten paces, which would be a distance of about twenty-five feet. This evidence of Shahan is also inconsistent with medical evidence. To put it shortly, there 6 glaring disparity between the medical evidence and the ocular evidence in this case.
10. It is the case of the prosecution that complainant Yar Muhammad and deceased Abdul Majeed had gone to make purchases from Warah. Indeed, according to Yar Muhammad, purchases had been made. According to him, the deceased had with him Rs. 50.00 or Rs. 100,00 for making the purchases. He was cross-examined on the point, and he stated that he could not give any details about the articles purchased by them, nor could he give the names of the shopkeepers from whom the purchases were made. He went on to state that he had left the gunny bag, containing the purchased commodities at the scene of occurrence, but when asked as to what happened to the gunny bag, he replied that the same was subsequently taken away by his relative, whose name had been forgotten by him in regard to such relative, he went on to state that he had no cultivation near the place of the incident, nor had he come on the cries nor on the gun tire, although he seemed to have remembered that person had come from the village on receiving the news of murder. In that regard, Kalaydino had stated that he did not see any article, or, commodity belonging to the complainant or the, deceased on the spot, nut did they send any article to the village of the deceased through any person. Witness Shahan has still given a third version, by stating that he had noticed a bundle lying on the ground at the scene of occurrence, and the mid bundle was shown by Yar Muhammad to the Police. Neither Yar Muhammad nor S. H. O. Karamdad has stated that any such bundle was shown to the Police Officer. In that context, we may also observe that the three witnesses had spoken of a number of persons coming to the scene from the neighbourhood. Yar Muhammad was then cross-examined In regard to the names of such persons, but he found it convenient to state that he did not remember the names. What is more that he went on to state that he did not Inform the details of the incident to such persons, In the same: context, Kalaydino has also stated that many persons had come at the place of incident and they belonged to various castes, but he was unable to name any one of them. In any east, he also went on to state that none of the witnesses had informed any person who had come on the scene In regard to the transaction that culminated in the death of the deceased. Shahan gave a different version, and he stated than ten or twenty persons collected at the scene, but he also conveniently omitted to name those persons. He, however, went on to state that those persons had also seen then incident. From such varying versions, only two conclusions can be drawn, either that no person came on, the scene, or, that these witnesses were not present at the time of murder. If the prosecution witnesses do not disclose this identity of the assailant to the persons who had come on the scene immediately after the incident, a serious question always arises in regard to the persons having seen the incident at all.
11. Additionally, Mr. Muhammad Hayat Junejo has urged before us that witnesses Kalaydino and Shahan do not work near the scene of occurrence. Kalaydino states that he owns about thirty acres of land at a distance of four miles from the scene of occurrence. He, however, states that he was working as a Hari of Ghulam Sarwar Chandio. It is absolutely improbable that a person owning thirtly acres of land should work as a Hari on the land of another person, in that context, the evidence of Tapedar Ghulam Ali is also significant. Ghulam Ali has given the name of Hari of Ghulam Sarwar, and he has clearly stated that Kalaydino is not a Hari on the land belonging to Ghulam Sarwar. In regard to Shahan, evidence discloses that he is working as a labourer in Nasirabad, which is at a considerable distance from the scene. Shahan stated that he was working on the lands, which are adjacent to the land on which Kalaydino was working. Tapedar Ghulam Ali has stated that Shahan is shown to be a Hari of Ghulam Haider, but on survey No. 485. In the sketch, it is shown that the incident occurred near survey No. 573, or, No. 574. The Tapedar was unable to give the name of the father of Shahan, as the same was perhaps not recorded in the field book, but even if it is believed that Shahan is a Hari of Ghulam Sarwar, such survey number must be located at a considerable distance from the scene.
12. We are very doubtful about the presence of these three eye-witnesses at the scene of occurrence, and we cannot place any reliance on the evidence of these three witness".
13. We set aside the conviction and sentence imposed on appellant Shaukat Ali and acquit him. The sentence of death is not confirmed. Appellant Shaukat shall be released forthwith unless required in any other case.