1. ' Abdul Hafeez Memon, J.--The appellants Amanullah, Ghulam Rascol, Hassad, Ghulam Mustafa and Abdul Rehman have been convicted by the learned Additional Sessions Judge, Kandhkot for offences under sections 302/149, 307/149, 148, P.P.C. And 13-D of the Arms Ordinance. On the first charge, appellant Amanullah has been sentenced to death while the remaining four have been sentenced to imprisonment for life. All the five appellants have been sentenced to R.I. For 7 years'
2. R.I. For 6 months and R.I. For one year each under sections 307/149, P.P.C. 148, P.P.C. And 13-D of the Arms Ordinance, respectively. They were, however, acquitted of the charge under section 404, P.P.C.
3. All the convicts have appealed against their convictions and sentences. There is also a reference' under section 374, Cr.P.C. For confirmation of sentence of death passed on the appellant Amanullah. By this judgment, we propose to dispose of both the appeal as well as the reference.
4. ' The offences are alleged to have been committed on 9th April, 1975 at about 5.30 p.m. In Deh Shah Alipur, Taluka Kandhkot. The prosecution case as set out in the F.I.R. Lodged on the same day at 7.30 p.m. At Bakhshapur Police Station by P.W.1 Arsullah reads as under:- "Muhammad Yakoob and Shahbaz sons of Khudabux by caste Jakhrani are my cousins. Today morning, I Muhammad Yakoob and Shahbaz came to Buxapur town for our private work. Yakoob was armed with .16 bore licenced gun of Ghousbux, for which he is retainer. I and Shahbaz were empty-handed. After being free from our work we were returning to our village. After crossing village Halim Mahar, we were going by Wahi of Ali Bilawal Khan towards south, when suddenly 5 persons namely Amanullah son of Abdul Rehman (2), Ghulam Rasool son of Mehrullah, (3) Haleem son of Hazar Khan, (4) Ghulam Mustafa son of Mirkhan (5) Abdul Rehman son of Haji Heesab duly armed with guns emerged from Wahi and challenged us that Ayoob Jakhrani our cousin was Karo and we should pay revenge. Saying so all the accused fired at us. Shahbaz fell due to injuries and Muhammad Yakoob ran towards east in the wheat crop and fell on its border. All the accused ran behind him.,When they reached near him accused Amanullah fired over him when he was standing over him. Other accused persons took away his .16 bore double-barrelled gun and bandolier of cartridges and Rs, 950 in cash and ran away towards north. Barkatali son of Nazir Jakhrani came receiving on gun reports who also saw accused running towards north. Then I and Barkatali saw Shahbaz who had gunshot injuries on left knee and buttock and was bleeding. Then we went and saw that Muhammad Yakoob who had gunshot injuries on right nipple and left flank of abdomen and had expired and was bleeding from injuries. Then there came Khudabux father of Muhammad Yakoob. I narrated him the facts as above and after seating them near the dead bodies, I went* to our Nekmard Haji Jafer Khan Jakhrani and narrated him the facts, who directed to lodge the report. Then I have come to lodge my report. About 9 months back Ayoob Jakhrani was declared Karo with the wife of Rehmatullah Jakhrani, by the accused. They were demanding the compensation from Ayoob but he refused to give. Due to that accused have murdered Yakoob cousin of Ayoob and caused injuries to Shahbaz with gunshots and accused has taken away gun licence cartridges and cash Rs, 950 belonging to Yakoob. All the accused are cousins of Rehmatullah. I am complainant. Justice be done."
5. ' The autopsy on the body of the deceased showed the following injuries received by him:
(1) One oval 1" x 3/4" wound of entrance with scorched margins 1" above the right nipple.
(2) One circular 1/8" in diameter wound of entrance lateral side upper fourth right upper arm.
(3) One circular i" in diameter wound of entrance right flank of the abdomen.
(14) Four 1/8" in diameter wound of exit between the medial border of left scapula and spinal cord.
(5) One }" x 1/6" wound of exit middle of the left scapula. According to the evidence of Dr. Muhammad Umar Baloch, Medical Officer, Kandhkot, two of the above injuries were exit wounds while the remaining were caused as a result of one or two shots, most probably one shot. He further stated that all the injuries had been caused from the front from a distance of 3 to 7 feet when the deceased was in the standing position.
6. ' The same doctor examined P.W. Shahbaz Khan and found the following injuries on his person:
(1) One circular 1/8" in diameter wound of entrance middle of anterior side right knee joint with scorched margins.
(2) One oval i" x I" with lacerated and scorched margins right anterior side lower fourth of the right leg.
(3) One 2i" x i" x 1/12" lacerated wound right posterior lateral side right buttock. The wound was oblique in direction and margins were scorched.
(4) Oval }" x 1" wound with lacerated and scorched margins left side back of the chest V' lateral to the thoracic spine.
7. ' All these injuries were simple in nature and were caused in the standing position from the side and also from back. These were the result of two shots. According to the doctor none of these injuries either on the deceased or on the injured Shahbaz could possibly be the result of a rifle shot.
8. ' The defence of the appellants at the trial was one of the denial and false implication on account of enmity over cattle trespass as their lands were adjacent to those of the complainant party. The case of the appellants further was that the deceased had murdered the sister of complainant Arsallah as well as mother of P.W. Barkat Ali and consequently this murder may have been committed by one of their family members. No witness was examined in defence. The case of the prosecution rests on the ocular evidence of P.Ws.
9. Arsallah and Shahbaz Khan, corroborated by the testimony of P.W. Barkat Ali who is alleged to have seen the assailants running away while P.W. Khuda Bux is alleged to have been informed subsequently by the complainant and injured Shahbaz.
10. There were no recoveries nor could the prosecution lay its hand on any other corroborative evidence. The prosecution did not examine even the Nekmard Jaffar Khan who is alleged to have been informed by the complainant and who is in fact said to have directed the complainant to file the report, and the reason given by the prosecution for this is that his evidence was of a formal nature.
11. ' In their evidence, all these four witnesses improved over the version given in the F.I.R. And their statements recorded under section 161. Cr.P.C. And said that appellant Ghulam Rasool was armed with a rifle and had actually caused rifle injuries both to the deceased as well as to P.W. Shahbaz, According to the evidence of complainant Arsallah in his examination-in-chief. Thereafter all the accused with their respective guns fired upon us. P.W. Shahbaz was hit by a gun-shot and fell down. Muhammad Yakoob had tried to run away and was chased by the accused persons, and the accused persons had fired upon him (Muhammad Yakoob). Deceased Muhammad Yakoob at that time in his possession had Rs, 950. The accused Ghulam Rasool took away the gun and the bandolier of the deceased, while accused Ghulam Mustafa took away Rs, 950 of the deceased.
12. Accused Ghulam Mustafa also took away the licence of the deceased for the gun". In his cross- examination, however, the witness stated that Ghulam Rasool had fired at the deceased with his rifle and the bullet thereof had hit the deceased on the kidney region. He further stated that the accused persons had fired at them from the side from a distance of 5 to 6 paces i,e, 15 to 18 feet.
13. ' The version of the only other eye-witness Shahbaz however, was that; "all the 5 accused persons then fired upon us. By those shots 1 and deceased were hit. I received gunshot injuries on my buttock and knee. I also received the rifle injury on my back. The deceased Yakoob first received rifle injury on the right side of his body and fell down. When deceased fell down all the accused went near him and this time accused Amanullah had fired upon him, The accused Ghulam Rasool then took away the licensed gun of the deceased. He had also taken away the bandolier containing 15 live cartridges. The bandolier and the cartridges belonged to the deceased. The accused Ghulam Mustafa took away Rs,950 of the deceased. He also took away the licence of the deceased."
14. ' A bare perusal of these two statements would show that both are contradictory on the point as to from which side, what distance and in which position the injuries were caused. The learned trial Judge himself disbelieved both these witnesses as regards carrying of rifle by Ghulam Rasui and taking away of gun, bandolier and cash as can be seen from para. 25 of his judgment reproduced as under: "The learned defence counsel has rightly attacked the evidence of P.W. Shahbaz Khan and complainant Arsallah on the point of rifle shots. Rifle was not mentioned in the F.I.R. It appears that the witnesses have shaped out their statements to match the discovery at the spot. According to the medical opinion there was no wound of rifle shot. The witnesses have thus introduced improvements."
15. ' Similarly, in para. 47 of his judgment the learned Judge observed as follows: "In the F.I.R. It is mentioned that the other accused took away the .16 bore gun, bandolier containing 15 cartridges and Rs, 950 cash. Specific role now assigned to accused Ghulam Rasool and Ghulam Mustafa is an improvement which has to be ignored. It does not appeal to reason that the deceased would have the audacity openly to carry an unlicensed gun to Buxapur where there is a police station. It may be recalled that it was licensed in the name of Ghous Bux father of the complainant. The P.Ws. Claim that he was a retainer but no documentary proof is adduced although it could be produced with due deligence. Such an entry must be in the record of concerned licensing authority. It sounds strange that the deceased was carrying a substantial amount of Rs, 950 with him. When he had to shop within a range of Rs,100. At any rate the prosecution has failed to prove these allegations against these two accused beyond reasonable doubt. In the circumstances my finding on these points is that it is doubtful."
16. ' The learned Judge however, felt that in spite of these infirmities in their evidence, the testimony of P.W. Shahbaz Khan at least, could not be discarded outright. The learned Judge felt that "even if the evidence of these P.Ws. (i,e, P.W. Arsallah, Barkat Ali and Khudabux) is kept aside the presence of injured witness cannot be denied. His evidence alone supported by the medical evidence and the motive is sufficient for conviction."
17. ' It may be mentioned that while on one hand the learned Judge has relied on the evidence of the doctor as corroboration of the ocular evidence, he had not agreed with him on all aspects of the case as it was contradicting the ocular evidence. The learned Judge quoted certain passages from Modi's Medical Jurisprudence for this purpose. This, however, was wrong as the doctor was not confronted with such passages in his evidence nor was he declared hostile. It is well settled that the evidence of an expert cannot be discarded in this manner unless the passages which are sought A to discredit his opinion are put to him. In this connection reference may be usefully made to the two cases from the Indian Jurisdiction, reported as AIR 1954 SC 28 and PLD 1957 SC (India)
18. 426.
19. ' The evidence of Dr. Muhammad Umar far from corroborating the ocular evidence, in fact contradicted it in every respect. There was no rifle injury either on the deceased or injured Shahbaz, and all the injuries were caused to the deceased from the front in a standing position from a range of 3 to 7 feet. The injuries on the witnesses were from behind and from a very close range. Similarly all the iniuries on the deceased were from the front while he was in standing position, but this is far from what the witnesses themselves stated. The ocular evidence was, therefore, not corroborated but clearly contradicted by the medical evidence.
20. ' It would be relevant to state here that all the 4 witnesses examined by the prosecution were closely related inter se as well as to the deceased. P.W. Arsallah is cousin of the deceased while P.W. Shahbaz is brother of the deceased P.W. Barkat Ali is cousin of the deceased and Khudabux is father of the deceased. The appellants were also related inter see all being cousins. The relations between the parties were also far from cordial. Complainant Arsallah himself admitted that "7 to 8 months prior to this incident the accused persons had fired upon deceased Yakoob and Shahbaz at their houses but they were not hit". There was accordingly no love lost between the parties. In such case, as pointed out by their Lordships of the Supreme Court in Bagh Ali v. The State PLD 1973 SC 321, "ocular evidence in order to carry conviction on a capital charge must come from unimpeachable source. If such a source is not available then it must be supported by some strong circumstance which will enable the Court to overcome the inherent doubt which such evidence must necessarily create". Admittedly, there is no such corroborative evidence in the instant case.
21. The ocular evidence is not only falsified by the medical evidence but the same has been disbelieved by the trial Court itself on the charge under section 404, P.P.C., as can be seen from the passages of the judgment reproduced above. The reasoning by the learned Judge, however, was that because of this the ocular evidence could not be discarded outright. Even that may be so, it cannot also be implicitly relied upon to sustain the conviction of as many as 5 persons on a capital charge. If the eye-witnesses could make improvements on the points they thought to be material, it is a serious infirmity in their evidence as pointed out in AIR 1956 Born. 471 and PLD 1978 Mar.
710. According to the evidence of the doctor the entire damage has been caused by 3-4 shots.
22. That being so, where is the guarantee therefore, that all the five appellants had participated in this incident. The injuries on P.W. Shahbaz were all superficial and simple in nature and he was sent to the Medical Officer on the next day as according to the S.H.O. He was reluctant to go to the hospital on the first day. According to the doctor these injuries were caused from the back. It appears that the witness took to his heels and could not have therefore, seen the entire incident. On this very reasoning an injured witness was not relied upon in the aforesaid case reported as PLD 1978 Mar.
710. Similarly the Supreme Court in Criminal Appeal No, K-12 of 1979 (Ellahi Bux v. State) disbelieved two injured witnesses on the ground that their evidence on the charge of taking away a gun belonging to the complainant party was disbelieved by the trial Court.
23. ' The presence of four superficial injuries on P.W. Shahbaz Khan is in any case no guarantee regarding the presence of all the 5 appellants, specially in view of the fact that the injured witness had admittedly open lies even according to the trial Court.
24. ' The evidence relating to motive is also far from convincing. According to the Baloch custom, only the Karo is killed. This was admitted by P.W. Shahbaz himself in his evidence at the foot of page 54 of the paper book. Admittedly 'Karo' Ayub was alive. He was 'Karo' with wife of Rehmatullah who is himself alive. In that case it is difficult to understand as to why the cousins of Rehmatullah should have taken upon themselves to kill not the 'Karo' but his cousin. P.W. Shahbaz was real brother of the 'Karo' yet all injuries caused to him were on the leg and were simple and superficial. If the assailants fired from such a close range so as to cause scorching it is obvious that the shots were not aimed at any vital part and in such circumstances intention to cause his death is clearly absent as was held in PLD 1977 Mar.
1. In this view of the matter the charge under section 307, P.P.C. Also fails and this circumstance further falsifies the prosecution case.
25. ' Taking into consideration the entire evidence this case which consists of uncorroborated oral testimony of 4 witnesses closely related to the deceased, it is obvious that it would be extremely unsafe to uphold the convictions of 35 many as 5 accused persons on a capital charge on the sole basis of such evidence, specially when it has been partially disbelieved by the trial Court, and is falsified by the medical evidence.
26. ' For the aforesaid reasons, we have come to the conclusion that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. We, therefore, allow this appeal, set aside the conviction and sentences of the appellants and direct that they be set at liberty unless required in any other case. The reference under section 374, Cr.P.C. For a confirmation of sentence of death awarded to appellant Amanullah is rejected.
27. ' The short order was passed by us on 17th November, 1980 and the above are the reasons for the same.