MUHAMMAD HALEEM, J.-Appellants Punhoon and Miran were tried along ,with Mevo and Nawab for the murder of Ghulam Kadir Jamali and only they were convicted under section 302, read with section 34, P. P. C. And each of them was sentenced to transportation for life and fine of Rs. 1,000, or in default to undergo rigorous imprisonment for one year. The appellants have appealed to this Court against their conviction.
2. The incident occurred at 10 a.m. On 29th January 1966, on the bank of Kaisar minor near survey Nos. 63/3 and 63/4 belonging to Mir Ghulam Abbas situated in Deh Aber, Taluka Hyderabad. The first information report was recorded at 1 p.m. On the same day at the scene of offence by Ghulam Muhammad S. H. O., Police Station Tando Jam upon the information conveyed by Din Muhammad, the brother of the deceased. It was said that he and his deceased brother had come in a bullock cart to cut sticks as they were required at the agricultural farm where they were working as labourers. After having cut some sticks the deceased felt thirsty and he went to the minor to drink water and on its bank .He was accosted by the to appellants and the to acquitted accused, out of whom appellant Punhoon was armed with a revolver while appellant Miran with a gun and the other to had hatchets. The to appellants and the acquitted accused asked them as to why they had come there. Appellant Punhoon abused them and at his instigation appellant Miran fired his gun at the deceased who sustained a gun-shot injury on his knee, whereupon he yelled and fell down. Din Muhammad then raised cries, which attracted Hayat; Husain and Imam Bux, who saw the appellants running away from the place of incident.
3. The motive for the attack on the deceased was- alleged to be a dispute between Mir Ghulam Abbas and Jamalis over land. No specific enmity was alleged against the appellants, nor any reason was assigned as to why the deceased should be the target of attack.
4. Before' this report was recorded, Din Muhammad had gone to inform his brother, Abdul Karim, as to what had happened. Abdul Karim was employed as a Jamadar in the agricultural farm. Both of them then went and informed Ahmad Khan, who worked as a Field Assistant in the same farm.
Then all the three went to the Principal, Abdul Ghani Pirzada, and narrated to him the incident, upon which he reported the incident on telephone to Abdur Rahman Head Constable at Police Station Tando Jam at 11-30 hours vide Exh. 32-A. Abdur Rahman then repaired to the place of incident and at the same the sent a message about the murder to Ghulam Muhammad S. H. O., who was then at Hyderabad in connection with the recording of his evidence. Abdur Rahman did some preliminary investigation and thereafter Ghulam Muhammad reached the spot and recorded the report at 1 p.m. The deceased, before the arrival of the Investigating Officer, was sent to the hospital for treatment whereat he died.
5. At the instance of appellant Punhoon a revolver and one gun were recovered and both of them were licensed fire-arms, the former in the name of Punhoon and the latter in that of his father.
6. The autopsy on the dead body was performed by Dr. Rafi Ahmad Khan who noticed one injury on the knee which he opined to be either due to a gun-shot or rifle and received from a instance of within 6 feet. He also noticed blackening and scorching around the area of the wound. Death of the deceased, according to him, was due to shock, and haemorrhage.
7. A counter-report was lodged on behalf of the State vide Exh. 35 at 10-30 a.m. On 1st February 1966, by Ghulam Muhammad S. H. O. As a counter-version of the earlier incident. In that report it was stated that to Police Constables, Punhal and Mahboob Ali, were sent vide entry No. 7 on 29th January 1966 at 8-15 a.m. For protection of Mir Ghulam Abbas on account of a dispute over the possession of land between him and Jamalis. These to constables had gone to his Kot, which was about 2 or 2-- furlongs away from the scene of incident. According to the counter version, the Jamalis, numbering 50-60 men, some of whom armed with guns, trespassed upon the land and started firing, whereupon the police constables fired aerial shots in self-- defence to scare them away. Two or 3 persons armed with guns the side of Ghulam Abbas also fired. The Jamalis there-- upon retreated. However no one was injured and according to mashir, Imam Bux, who was examined as a defence witness, some 60-65 card-board wads and to empty cartridges (.12 bore) were found lying there. They were seized and are case property in the counter-case (State v.
Muhammad Rahim and others).
8. The appellants denied their participation in the crime. Appellant Punhoon alleged that he was a fuel contractor and was at the relevant the in Hyderabad waiting for the carts bringing the fuel and returned to his village at 3 or 4 p.m. He also alleged that his father was a hari of Mir Ghulam Abbas and cultivated 4 acres of land. He was persuaded by Haji Imam Bux not to cultivate the land and on his refusal he was threatened by him. He also alleged that Imam Bux opposed Mir Ghulam Abbas in the last B. D. Election and that he had cast his vote in favour of Mir Ghulam Abbas who was elected. It was, therefore, that Haji Imam Bux was inimical towards him.
9. Appellant Miran adopted the defence of his brother appellant Punhoon and alleged that he had gone to Nasarpur on Friday to settle the account of labourers and returned on Saturday to his village at, 5 p.m. And while he was in his house at 6 p.m. That he and his brother were called out and told that they have been implicated by the Jamalis. They examined Abdul Sattar and Imam Bux, a prosecution witness, in defence.
10. The conviction of the appellants rests on the ocular testimony of Din Muhammad and the circumstantial evidence of three other persons, namely, Hayat, Husain and Imam Bux to the effect that they were attracted to the scene of offence on cries being raised by Din Muhammad and while approaching it they saw the appellants and the to acquitted accused running away from a distance of 20-25 paces. Hayat is the maternal uncle of the deceased and Din Muhammad, while Imam Bux is their cousin and Husain, their relation, though his exact relation--ship has not come on record. Imam Bux had a dispute with Mir Ghulam Abbas over Mourusi haris In his testimony he has admitted that his father had filed a civil suit against Mir Ghulam Abbas and Husain was one of the haris involved in litigation.
11. The implication of the to appellants and the acquitted accused was initially at the behest of Din Muhammad, the brother of the deceased who had gone along with him in the cart to cut sticks from the jungle about 3 miles away from the agricultural farm where they were employed as labourers. It is sur--prising that in the earliest report (Exh.32-A) lodged at 11-30 hours, there is a mention of one unknown person as the assailant of the deceased and the injury is described as caused by a pistol shot. This report was lodged at the instance of Din Muhammad, Abdul Karim and Ahmad Khan. All these persons had gone to the Principal to report to him about the incident. If we were to accept that Din Muhammad, the sole eye-witness, had witnessed the occurrence, then there was no reason why he should have suppressed the names of the assailants at the earliest stage and merely informed the Principal about one unknown person. No's explanation, worth the name, has come on record to explain this) inconsistency from his sworn testimony with a view to reconcile it with the participation of four persons. Ahmad Khan, who is an independent witness, has in his cross-examination admitted that he had gone along with Abdul Karim and Din Muhammad to inform the Principal, but had not given the names of the assailants to him. His statement was recorded on 11th February 1966, and even in that statement he omitted to mention their names and this fact has come as a contradiction on record. We are inclined to view that the non-disclosure of the names of appellants was because Din Muhammad was not aware as to who were the assailants of the deceased. If Din Muhammad had known the culprits there was no reason why he would conceal their names from this witness. The testimony of Abdur Karim, whom Din Muhammad had first met on his arrival from the place of incident also stands on the same footing. He had no independent knowledge and if Din Muhammad had conveyed to him the names there was no reason why he would not disclose it to Ahmad Khan and the Principal. Accordingly the subsequent implication of the appellants by either Din Muhammad or Abdul Karim cannot be reconciled with his earlier non-disclosure, and as such their credibility is not free from suspicion. In this context the testi--mony of Hayat, Husain and Imam Bux also loses its value. These three persons were in their houses in the same. Village which was about one or one and a half furlongs away from the place of incident, when they heard the cries. Soon after they went towards that direction and while nearing the place of incident they saw the to appellants and the to acquitted accused running away from a distance of 20-25 paces. On reaching there they met Din Muhammad who informed him about the incident. In this context when the identity of the to appellants and the acquitted accused could not be in dispute, why was it that Din Muhammad had not disclosed their names to Ahmad Khan and the Principal? The same suspicion in the circumstances would also attach to their testimony as well. We are inclined to view that they had also not seen the appellants and the acquitted accused running away. Even otherwise one shot was fired and there was sufficient the for the appellants to run away before these witnesses could have reached a place, from where they could have identified the appellants and the acquitted accused. According to the testimony of Imam Bux he had heard earlier gun-shots from the side of the Kot of Mir Ghulam Abbas. It is surprising how he could distinguish the shot fired about 3/4 of an hour later and the cries which attracted him and the other to witnesses towards the place of incident as one unconnected with the earlier firing. He has admitted in his cross-examination that he could not recognise the voice as that of Din Muhammad. In this context we may also mention here that Abdul Karim had also not mentioned in his police statement about Din Muhammad telling him that, Hayat, Husain and Imam Bux had seen the appellants running away along with the acquitted accused. This fact has come on record by way of contradiction. If at all these persons were attracted on cries there was no reason why Din Muhammad would not have mentioned their names to Abdul Karim. In this view of the matter we are unable to place reliance on their testimony and we feel that subsequently when the report was recorded after an interval of three hours the names of the appellants and the to acquitted accused were mentioned after consultations.
12. There is another feature in the case which has also rendered the prosecution case doubtful. We are inclined to view that the prosecution has failed to establish the presence of the deceased on 29th January 1966 at the farm before he accompanied his brother in the bullock cart for cutting sticks from the jungle. The defence has examined Abdul Sattar, who is an Assistant Supervisor in the agricultural farm and he has produced Exh. 49, which is the attendance register and, according to him, it was Jamil Ahmad who had taken the roll call on that morning and had marked the deceased absent. It may be of consideration to mention here that Ghulam Kadir worked on daily wages and he was paid for the days he worked in the farm. The entry against his name shows that he was only paid for 12 days. The day on which he was absent was not taken into consideration.
This is an official register kept in the ordinary course of business and there is no material on record to show that the entry was not correct. Abdul Sattar has denied that Abdul Karim had anything to do with the roll call of the labourers.
13. The prosecution has, however, relied on Exh. 18 which was prepared by Abdul Karim who was a Jamadar in that farm. It shows the number of men detailed for work without giving their names. It records an entry which reads :- "2 men for experiment 2 bullocks."
The trial Court relied on this exhibit in preference to the atten--dance register to reach, a conclusion that the deceased had come to work on 29th January 1966: Apart from the evidence of Din Muhammad and Abdul Karim who are brothers of the deceased, there is no other independent evidence to show that the deceased was seen at the farm that morning. Ahmad Khan has no personal knowledge of this fact. He has merely stated about the presence of the deceased upon the information conveyed to him by Abdul Karim. In the circumstances there was no justifi--able reason to prefer Exh. 18 to the attendence register which was an authoritative document showing the presence or absence of the labourers who worked 'in the farm. The trial Court has erroneously accepted the evidence of Abdul Karim as to the presence of the deceased at the farm that morning and in that light has advanced the reason that if Abdul Karim wanted he could have mentioned the name of the deceased in Exh.
18. In the absence of such a fabrication, Exh. 18 in its opinion carried weight. We are unable to agree with the above reason in view of the fact that his, presence was not established by the roll call. According to the defence version it was Saeed Khan; another labourer who had gone along with Din Muhammad and not the deceased. Saeed Khan.
Was present that day and examined by the police but was not examined at the trial. How his name trans--pired is not clear from the record. It is also curious why he should alone be examined from amongst the other labourers. The prosecution while closing its case has merely slated that it, does not wish to lead any further evidence as all the material evidence has come on record. In these circumstances, the above plea was Out in the form of suggestion which was denied, yet as the prosecution has failed to establish the presence of the deceased 8 that day there is room for such a possibility as admittedly one other person had accompanied Din Muhammad. Accordingly the very basis of the prosecution case becomes doubtful and it is not possible in the circumstances to accept that the deceased was killed while he had gone along with Din Muhammad in a bullock cart to cut sticks. It may be that when Din Muhammad had arrived there that he may have discovered the dead body of the deceased. The presence of the cart, to bullocks, a hatchet and pieces of sticks merely shows that Din Muhammad had gone there and cut sticks. When and who killed him is obscure.
14. It is the case of the defence that there was firing earlier on the land of Mir Ghulam Abbas. This fact is admitted by Shah Muhammad, a prosecution witness. Imam Bux, a defence witness, has corroborated this feature, in that he has testified to the recovery of 60-65 card-board wads and to empties and indistinct impressions of feet of several persons on the land of Mr. Ghulam Abbas. A report of the counter-version was also recorded, in which there is a mention of firing by the Jamalis. Hayat, Husain and Imam Bux have clearly deposed to the fact that before they had heard the cries, they had heard gun-reports from the side of the Kot of Mir Ghulam Abbas. The interval of the before they left was about 3/4 of an hour. The witnesses are also agreed that the deceased was killed because of a dispute between Jamalis and Mir Ghulam Abbas. This fact is also stated in the F. I. R. The presence of policemen and the use of tractor on the land is also disclosed in it though there is no mention, of the actual firing. There is no definite evidence on record to show that the deceased had accompanied the Jamalis when they had trespassed upon the land of Mir Ghulam Abbas.
15. The trial Court while rejecting the above plea has described it as absurd upon the ground that if both the sides were armed with guns and had fired at each other, how was it that only the deceased was hit by a bullet ? It also considered the injury on the deceased to be inconsistent with the medical evidence as according to it, the shot was fired from within 6 feet and the deceased could not be within that distance if it was accepted that he was shot at by a policeman. There is only interested evidence of Hayat, Husain and Imam Bux on the factum of earlier firing. Shah Muhammad has admitted the presence of policemen near about the tractor. The dead body was also found on the bank of the minor near the disputed survey numbers. Imam Bux has suppressed the number of men he had seen near the Kot of Mir Ghulam Abbas, in the context of the number of shots that had been fired and the number of Jamalis given in the counter-report. Accordingly there is no material upon which it can be said- with certainty either possibility whether the deceased had or had not accompanied the Jamalis. All that is established is that the deceased was hit by a gun-shot fired from a distance of within 6 feet. In the circumstances, the trial Court could not have reached any definite conclusion by appraising the ocular evidence which was incredible. The trial Court has placed reliance on Hayat, Husain and Imam Bux and held that they bad no reason to falsely implicate the appellants and in this view has rejected the defence plea. We have earlier rejected the evidence of these three witnesses and in the circumstances we do not see how their evidence would advance the case of tea prosecution. Besides, Hayat and Husain are accused in the counter case and related to the deceased. Imam Bux is also rela6d to the deceased. The cause of his murder is said to be the dispute between Imam Bux and Mir Ghulam Abbas. Their interest in the deceased is obvious. It is true that no direct enmity has come out with the appellants yet from its absence their evidence will not become if otherwise it is incredible. In the circumstances the reason advanced by the trial Court is of no substance.
16. There is another feature and that is, that upon the same ocular testimony of Din Muhammad and the other three witnesses, namely Hayat, Husain and Imam Bux, the trial, Court has acquitted the other to accused` upon the ground that there was no reliable evidence against them. . Even as against the to appellants apart from the oral evidence there was no other confirmatory circumstance and merely because the hatchets were not used, the presence of the acquitted accused could not have been discounted and a distinction drawn in this behalf. Once the trial Court had rejected the participation of the to acquitted accused upon the same evidence the case of the appellants was on the same footing and they had also to be acquitted. An injury of the nature found on the deceased could be caused by any similar weapon fired from the same distance and accordingly the mere recovery of the revolver or a gun, which c were not proved to be the crime weapons, cannot be used to corroborate the participation of appellant Punhoon.
17. Lastly the trial Court has regarded the medical evidence as one corroborating the ocular in that that the weapon was fired from within 6 feet. This circumstance cannot be used to corroborate the ocular evidence for it merely shows the distance from where the shot was fired but it does not confirm the presence of Din Muhammad, whose presence we have found to be doubtful.
18. The learned counsel for the State frankly conceded before us that he was unable to support the conviction in the circumstances. In conclusion we are of the view that the prosecution has failed to establish its case against the to appellants beyond reasonable doubt and while giving to them the benefit of it we would acquit them. They are ordered to be released forthwith if not required in any other case. Their appeal stands allowed.