The appellants have challenged the conviction recorded against them by the learned Sessions Judge, Jacobabad, by which he convicted the appellants Abdul Nabi and More under section 302, P.P.C. And sentenced them to suffer R.I. For imprisonment for life and also to pay a fine of Rs.10,000 each. Out of the amount half of the same was directed to be paid to the legal heirs of the deceased and in default of payment of fine to suffer R.I. For six months. The appellant Khush Hal was found guilty under section 323, P.P.C. And he was sentenced to R.I. For one year and fine of Rs.1,000 in default to undergo R.I. For three months.
2. The facts in brief are that P.W. Noor Muhammad lodged the first information report in which he stated that his brothers Abdul Qadir, Abdul Ghafoor and Abdul Razzak alongwith their cousin Muhammad Panah jointly cultivated the land of one Ibrahim Khan. On 26-8-1977 his brothers Abdul Qadir, Abdul Ghafoor and his cousin Muhammad Panah had gone to their land to cut the grass whereas his father Muhammad Hayat and uncle Wali Muhammad gone to visit their cultivation. At about sunrise time he heard the cries of his brothers and also report of gunshot. He went to the place of incident and found Khush Hal, More and, Abdul Nabi armed with guns and Sher Muhammad accused armed with Lathi. He also found Abdul Qadir, Abdul Ghafoor and Muhammad Panah lying on the ground having gunshot injuries. He found accused Sher Muhammad causing Lathi blows to his father Muhammad Hayat and uncle Wall Muhammad. He raised cries and many persons attracted to the scene. The accused on seeing them ran away towards the eastern side.
Abdul Qadir and Muhammad Panah were lying dead. Abdul Ghafoor was lying unconscious. When Abdul Ghafoor regained consciousness he narrated the facts of, the incident. Thereafter, he went to the police station and lodged the report. After usual investigation the appellants were put to trial before the learned Sessions Judge. Accused Sher Muhammad is stated to be absconding therefore, he could not be tried alongwith the appellants.
3. At the trial prosecution examined Dr. Jai Chand, who examined injured Wall Muhammad, Muhammad Hayat and Abdul Ghafoor. He also performed post-mortem on the dead bodies of deceased Abdul Qadir and Muhammad Panah. Dr. Habibur Rehman's examined accused Khush Hal, More and Abdul Nabi and found injuries on their person and produced certificates. P.W.
Bahadur is corpse-bearer. Tapedar Ghulam Mustafa produced sketch of Wardat. P.Ws.
Muhammad Hayat, Noor Muhammad, Wali Muhammad and Abdul Ghafoor were examined as eye-witnesses, Baloch Khan P.W. Was examined as Mashir of Wardat. The Court examined the accused under section 342, Cr.P.C. They denied the prosecution charge and stated that they were beaten by the complainant-party. No defence was led. On analysing the evidence the learned trial Judge convicted and sentenced the appellants as stated above.
4. I have heard Mr. Muhammad Hayat Junejo learned counsel for the appellants and Mr. Imam Bux Shaikh for the State. Learned counsel for the appellants has stated that the evidence on record does not establish the case against the appellant. On the other hand learned State counsel appearing on behalf of the State has supported the judgment of the learned Sessions Judge, Jacobabad, which has been impugned in this appeal. I have perused the record. The inherent defect in the prosecution case is that the medical evidence is contradicted by the ocular evidence.
According to P.Ws. Abdul Ghafoor the deceased have received injuries from the close range but the injuries found by Dr. Jai Chand show that the injuries caused on the persons of the deceased were not caused from the close range and the fire must have been shot from some distance. If the shot had been fired from the close range then the deceased would have received the injuries on one particular part of the body but there were four injuries on the person of deceased Muhammad Panah and two injuries on the person of deceased' Abdul Qadir. Deceased Muhammad Panah had six lacerated punctured type of wounds and deceased Abdul Qadir had two lacerated punctured type of wounds.
5. According to the report lodged by Noor Muhammad, he was informed by Abdul Ghafoor injured about the incident and he had himself not seen the incident as he had come from his house on the report of gunshots, but at the trial he improved the statement and deposed that he had himself seen the incident. He has denied all the suggestions put to him in cross-examination and denied whatever he had stated in the first information report. He has also not admitted that while running to the Wardat he saw his brothers Abdul Qadir and Abdul Ghafoor and cousin Muhammad Panah lying there having gunshot injuries. He has also not admitted that when he arrived at the Wardat Abdul Ghafoor was lying unconscious. He has also not admitted that on regaining consciousness Abdul Ghafoor told him about the incident. He has also not stated in his First Information Report that the accused have, fired at the deceased in his presence. Therefore for all practical purposes this witness had not seen the incident and, therefore, his ' version has to be excluded. Abdul Ghafoor has stated that after receiving the injuries he became unconscious and he regained consciousness when the police arrived at the Wardat. This contradicts the first informant that he was informed by Abdul Ghafoor about the occurrence.
6. The accused persons have also received injuries and according to Dr. Habibur Rehman's, More had seven injuries caused by hard and blunt substance such as Lathi. Accused Abdul Nabi had three injuries caused by hard and blunt substance and accused Khushal had seven injuries caused by hard and blunt substance. The P.Ws. Have not explained these injuries. They have stated that they were empty-handed and that they had not seen any injuries on these persons and, therefore, these injuries remained unexplained so far as the prosecution case is concerned. It appears that there was a free fight between the parties the place of occurrence and then the guns had been used in the said fight. The site plan also shows that there was marks of struggling. It is thus clear that P.Ws. Have concealed material facts and they did not disclose how the accused persons have received the injuries. The P.Ws. Are closely related inter se. Relationship per se may not be a ground for discarding their evidence if otherwise they are truthful witnesses but they must depose what had occurred at the scene of incident. They have withheld the part played by them and if we believe their statements that they have not caused any injuries to the accused persons then their presence at the Wardat becomes, doubtful. P.W. Noor Muhammad has deposed in Court that on his cries Wali Muhammad and Muhammad Hayat arrived at the scene of occurrence. This statement contradicts the presence of Muhammad Hayat and Wali Muhammad at the place of occurrence, On the other hand the other P.Ws. Have not mentioned the presence of Noor Muhammad at the. Wardat P.Ws. Wali Muhammad and 'Muhammad Hayat have stated that Abdul Nabi accused had fired from his gun at Muhammad. Panah then he 'loaded his gun whereupon Abdul Qadir gave him a Lathi blow: which hit his gun and the same was broken down. The Masir Baloch Khan has also stated that police had secured one gun loaded With two cartridges from there. On the other hand Mashirnama shows that, the 'police' had secured two guns, out of those guns butt of one gun was broken' but the Mashirnama does not show that any of the two guns was loaded with cartridges. Then the Mashirnama also shows that three empties were secured from one place and three empties from another dace. It means six fires have been shot from the two guns but according to the witnesses only one shot 'each was fired by accused persons at Muhammad Panah and Abdul Qadir, respectively. According to the Mashirnama the place of occurrence was surrounded by the inhabitation and according to P.W. Noor Muhammad many persons came to the Wardat but none was examined by the police. The witnesses are related inter se, therefore some independent witness should have been produced by the prosecution so that the real story about the incident could have been brought on the record but as the witnesses have not only contradicted the medical evidence but also withheld the part they played in this sad incident it is not safe to rely upon such piece of evidence. In the First Information Report no specific role has been ascribed to each of the accused persons. In these circumstances the case against the appellants is not free from doubt. The prosecution story 'that the accused had left the arms at the place of occurrence when, persons from the locality attracted to the scene of incident cannot he accepted because it is against human conduct and nature. The accused had the opportunity to run away from the Wardat. They could not be apprehended by the persons collected there, therefore, it cannot be believed that they had left their guns at the place of incident. If they could run away then there is no earthly reason to believe that they would have left their weapons at 'the Wardat to create an evidence against them. If the persons collected there had seen them then why the accused have not-been apprehended particularly, when they had thrown their weapons on the ground. It may be said' that the broken gun could not be removed but the other gun which was with the co-accused could easily be taken away by the accused when he ran away from the incident. In such circumstances the recovery of gun from the place of incident has also become doubtful particularly when there is no report from the Ballistic Expert that these guns were used in the commission of offence. Therefore, the appeal is accepted and the convictions and sentences recorded against the appellants are set aside. They be set at liberty if not required in any other case.