Noorul Arfin, J.--This case has come up both for confirmation of the conviction under section 302, P.
P. C, sentence of death passed against Lalbux (aged 40 years) by the Sessions Judge, Larkana by judgment dated 20-8-1970 as well as on appeal by this Lalbux, and Mir Mohammad (aged 55 years), Saindad (aged 28 years) and Wali Mohammad (aged 35 years) who have been convicted under section 302 read with section 34, P. P. C. and sentenced to transportation for life. In addition, Saindad, Mir Mohd, and Wali Mohammed have further been convicted under section 326 read with section 34, P. P. C. and sentenced to R. L for five years. Mir Mohammad has also received eonviction and sentence of R. I. for two years under section 13-D of the Arms Act. In the case of Saindad, Mir Mohammed and Wali Mohammed, the sentences have been ordered to run concurrently, Saindad is the son of Mir Mohammed, while Lalbux and Wali Mohammed, both sons of Kadirbux, are cousins of Mir Mohammad. The appellants were prosecuted for the murder of Noor Ahmed by a gunshot allegedly fired by appellant Lalbux and for causing injuries by hatchet and a blunt weapon to P. W.
Khair Mohammad. The offences are alleged to have taken place on 24-4-1969 (6th of Safari at 5- 30 in the house of P. W. Fateh Ali in village Thariri, Taluka Warah, District Larkana. F. I. R. is said to have been lodged at 6-30 a.m. by P. W. Khair Mohammad at Warah Police Station, which is at a distance of two miles from the wardat. The First Information Report was recorded by P. W. 11, namely A. S. I. Ghulain Murtaza, P. W. Dr. Abdul Bari, Assistant Medical Officer, Warah carried out the postmortem examination of the dead body of Noor Ahmed and examined and treated the injuries of P. W. Khair Mohammed. The offences were investigated by P. W. Wazir Mohammed, S. D. I.
Nasirabad, who recorded the statements of the prosecution witnesses except that.of P.W. Jurial, whose statement was recorded by P. W. Ghulain Murtaza (A. S. I). P. W. Sarwar Beg, the S. H. O. also participated in the investigation and arrested the appellants Saindad, Lalbux and Wali Mohammed from their village Abad. The appellant Mir Mohammad was arrested by this witness on 8-5-1969 from Larkana town. The Investigating Officer recorded the statements of the prosecution witnesses, namely, P. Ws. Khair Mohammed, Jurial Bilawar, Sultan, Chuttal, Mumtaz and Fateh Ali, who are stated to have seen the commission of the offences. However, the weapons used in the commission of offences, namely, two guns, from one of which the fatal gunshot was fired at deceased Noor Ahmed, and the hatchets were not recovered or traced out Mashrinama of the scene of offence (Exh. 31) was prepared wit! mashirs P. Ws. Pavial and Dodo. The mashirnama of the injuries on P. W. Khair Mohammed is Exh. 35, mashirs beim Illahibux and Mohammed Ramzan.
The earth secured from th< place where the deceased was killed by a gunshot fire was sen to the Chemical Analyser, whose report is Exb. 40, and accordin; to whom (he earth was stained with human blood, P. W. A1 Gohar, the Tapedar, prepared the sketch, Exh. 6, of the wardat. _ 2. The appellant's defence is one of total denial of an; liability for the offences with which they have been charged. The have pleaded that they have been falsely implicated in this cas due to their long-standing enmity with the complainant party headed by P. W. Fateh Ali, it being the allegation of the prosecution that in fact the appellants had gone to kill Fateh Ali who, however, was offering morning prayers and deceased Noor Ahmed, who was sleeping, was mistaken by the appellants for Fateh Ali. The prosecution case turns mainly on the ocular evidence of P. Ws. Khair Mohammed, Jurial, Bilawal, Sultan, Chuttal, Mumtaz and Fateh Ali. On account of the defence plea of false implication and the inconsistencies and contradictions in the statements of the prosecution witnesses, we consider it convenient to reproduce hereunder the First Information Report lodged by P. W. Khair Mohammed which sets out the prosecution case as it stood on 24-4- 1969 "The complaint is that I and Jurio son of Parial Chan, resident of Thariri Hajra Taluka Warah are Chowkidars of Fatehali Khan Kalhoro in village Thariri Hajran. During night I sleep on the roof of the house of Fatehali Khan and Jurio sleeps on the roof above the door of the house of Fatehali Khan.
As usual last night, Noor Ahmed son of Mohammed Hashim Chan and Fatehali Khan son of Ihsanali Khan Kalhoro, after taking night meals, went to sleep on separate cots on the courtyard. Both the cots were adjacent. As usual, at somahni time I went to sleep on the roof of the house and Jurio also went to sleep on the roof above the door of the house. Today at 5-30 a.m. I woke up on some noise and saw Wali Mohammed and Lalbux both sons of Kadir Bux and Mir Mohammed son of Saindad and Saindad son of Mir Mohammed all Kalhoro by caste resident of Abad Kalhoro Taluka, Warah were standing on the roof. Lalbux and Mir Mohammed were armed with single-barrel unlicensed guns and Saindad and Wali Mohammed had hatchets, Lalbux, who was standing towards feet side of my cot, fired his gun towards courtyard of the house of Fatehali. Saindad gave me hatchet blow from sharp side on my head which started bleeding. I raised cries which attracted Jurio son of Parial Chan and Chhato son of Warial Chan, Sultan son of Taj Mohammed Chan who were on the roofs of their houses which were adjacent who also saw the whole incident. In the meantime Sher Mohammed son of Mohammed Hashim Chan, Bilawal son of Abdu! Rehman Chan and Mumtaz son of Mohammed Hassan Chan and other villagers came there who also saw the accused running away with their guns and hatchets. Due to fear of their weapons, we did not follow them. After departure of the accused we saw that Noor Ahmed was lying dead on his cot. He had a gunfire injury on the right side of his back, which had profusely bled. Fatehali Khan was also standing there. He informed us that he was offering prayers in the verandah and when he finished the prayers, he suddenly heard gunfire report. He came out and saw that fire had hit Noor Ahmed and he was murdered. I then saw a live cartridge of red colour on the roof of the house which was fallen down by the accused. The accused have killed Noor Ahmed because about 9 months back Khushi Mohammed, the cousin of Fateh Ali Khan, had filed a case against accused Saindad Kalhoro which is pending in the Court. Other proceedings are also pending against accused Wali Mohammed, Mahboob and Saindad Kalhoros which have been filed by the party of Fateh- ali Khan. Due to this grudge the above accused have killed Noor Ahmed, masal of Fatehali Khan. They have also given me injury with sharp side of the hatchet because I am Chowkidar of Fatehali Khan.
Apart from this about a month ago accused Wali Mohammed and others had fought with me, the report of which I had filed at Narah Police Station. Due to this reason the accused have given me blows with intent to commit my murder. The above accused are previously known to us. I have left Fatehali and other villagers at the dead body. Jurio has brought me on bullock cart to file report.
Hassan Brohi and other villagers have gone after the footprints. I am complainant. Steps be taken.
Note.--The above complaint was read over to the complainant who heard it, admitted it to be correct and put his impression. He was given a copy of it."
3. The murder of Noor Ahmed is not in dispute.
According to P. W. Dr. Abdul Bari, Assistant Medical Officer, Noor Ahmad's death was caused by shock and haemorrhage consequent upon external and internal damages caused by a gunshot.
Nor is it disputed that P. W. Khair Mohammed received an incised wound at left to midline in parietal region. The contest is with regard to the identity of the persons who committed this murder and inflicted the incised wound on P. W. Khair Mohammed. This point has to be resolved with reference to -- . . j (/) nature of the gunshot iujury found on the dead 'body of Noor Ahmed ;
(if) the improbabilities in the prosecution case;
(in) the state of enmity existing between the appellants and the complainant party headed by P.
W. Fateh Ali Khan ;
(iv) the inconsistencies and contradictions in the evidence of the prosecution witnesses and their improvement upon the case set out in the First Information Report;
(v) the omission to examine the foot trackers, namely, Hassan Brohi and Mitho.
4. The prosecution case, as set out in the First Information Report and deposed to by the principal prosecution witnesses, is that P. W. Khair Mohammed (the first informant) and P. W. Jurial were in the employment of P. W. Fateh Ali as Chowkidars and were guarding his house from the roof in village Thariri, and that at 5-30 a.m. on 24-4-1959, the appellants, two of whom, namely, Lalbux and Mir Mohammed, were armed with shotguns, and the other two armed with hatchets climbed this roof, from where Lalbux fired a gunshot into the courtyard, where deceased Noor Ahmed, cousin ofP. W. Fateh Ali, was sleeping and thus caused his death, and that appellant Saindad gave a hatchet blow from sharp side to the parietal region of P. W. Khair Mohammed, which started bleeding, and that appellant Wali Mohd. hit this witness with the blunt side of the hatchet, while appellant Mir Mohammed pointed his gun at P. W. Jurial. P. Ws. Khair Mohammed and Jurial .raised cries, and the whole scene is alleged to have been witnessed by P. Ws. Bilawal, Sultan, Chuttal and Sher Mohammed, who were sleeping on the roofs of the adjoining houses. But the appellants made good their escape and were seen running away by P. W. Mumtaz. P. W. Ali Gohar, the Tapedar, prepared the sketch of the wardat. Exh.
6 showing the distance between the roof and the courtyard of P. W. Fateh All's house. The first version of P. W. Khair Mohammed was that Lalbux fired the gunshot into the courtyard from the feet of P. W. Khair Mohammad's cot. According to the sketch, these two points are indicated by 'Alif' and 'Bay' and the distance between these two points is I6 feet. But Khair Mohammed improved upon his statement and tried to reduce this distance to 10 feet by saying at the trial, for the first time, that the appellant Lalbux knelt down and then fired into the courtyard. Whatever be the distance, I6 feet, the question is whether this range of gunshot fire is consistent with the nature of the injuries found on the body of the deceased, and if not, then the so-called ocular evidence should be rejected. The evidence of P. W. Dr. Abdul Bari, Assistant Medical Officer, Warah with regard to the injuries found on the body of deceased Noor Ahmed is to the following effect :--
(1) One lacerated punctured wound irregularly lacerated 2* x 1 i* at 3" below the lateral end of the right clavicle jon scapular region (the wound of entrance).
(2) Irregularly lacerated wound 3/8" x 1/4* at 4|" below the left nipple and i" below the mid axillary line slightly downwards to the nipple.
(wound of exit).
(3) One irregularly lacerated wound 1/4" x 1/4" and situated 1" below 2nd and 5J" from nipple below the mid axillary line (wound of exit).
The witness further stated that two wads and four pellets were recovered from the wound. In cross- examination, Dr. Abdul Bari stated that the distance from which the deceased was fired at would be a few inches, though in re-examination he changed this statement and said that the injury on the deceased Noor Ahmed might have been caused from a distance of a few feet also. Thus, the medical evidence is that there was a single wound of entry of 2' x 1|" and two wads and four pellets were also recovered from the body of the deceased. This nature of the wound could be consistent only if the fatal gunshot was fired either at contact with the body or from a distance of a few inches only. It is the admitted position that neither the shotgun used in the commission of the offence nor the hatchet with which injury is alleged to have been caused to P. W. Khair Mohammed were recovered during the investigation. In the absence of the gun, the range of the shot should be estimated according to the formula given by Major Sir Gerald Burrard (The Identification of Firearms and Forensic Ballistics (1956 Edn., p. 73) according to whom, if the diameter of the wound is an inch, or less, then the distance of the shot would be 18 inches or under and that, at 3 feet, the hole is nearly 1" in diameter, and, at 6 feet, the hole would be nearly twice as big in diameter as that from a full choke. The measurement of the wound of entry according to this estimate would show that the fatal shot could not have been fired from the roof. Further as a shotgun was used then according to Burrard, the pellets of a charge of shot do not fly through the air as a single cohesive projectile, but begin to disperse outwards very soon after their exit from the muzzle of the gun. This dispersion increases with the range, and consequently the greater the dispersion of the shot marks on any target the greater must have been the range from which the shot was fired against that target. In Sweet and Maxwell's publication, "Practical Police Surgeon" (1969 Edn., page 121), it is stated that if the missile is a charge of shot then it forms at first a single mass and then breaks up into individual pellets, and therefore at close or contact range, a single wound results, whereas at longer range individual pellet holes will show in increasing number and a widening pattern as the range lengthens. Similarly Lyon (Medical Jurisprudence for India, 1953 Edn., page 276) states that if the muzzle of the gun is held to the surface of the body, or within a few inches of it, the whole charge of shot enters as one mass followed by wads. Taylor (Principles and Practice of Medical Jurisprudence, 11th Edn., page 384) states that up to about a yard the whole of the charge enters in a mass, producing a round hole about the size of the bore of tht weapon, with ragged edges and, for the first few inches, surrounded by a zone of blackening and burning and that the diameter of dispersion in inches will be found to be about one and a half times the distance in yards. Thus, the nature of the wound of entry being what it has been deposed to, the prosecution version that the fatal gunshot was fired from the roof should be rejected. However, Mr. Abdul Hafiz Memon, the learned Assistant Advocate-General, contended that no blackening or burning was discovered on the wound of the deceased Noor Ahmed. We would not go as far as that, but would say that the medical evidence is silent on this point. But this omission does not prove that the fatal gunshot was not fired at contact or close range to the body. According to Modi's Medical Jurisprudence and Toxicolgoy (13th Edn., page 224), the blackening and burning may be absent if the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame, smoke and particles of gunpowder will all follow the track of the bullet in the body. In the present case, it would appear that the shot-gun, when fired, was pressed tightly against the body of Noor Ahmed.
5. The prosecution version with regard to the range of the fatal gunshot tire being inconsistent with the nature of the wound of entry, the testimonies of P. Ws. Khair Mohd., Jurial, Bilawal, Sultan, Chuttal and Fateh Ali have to be rejected as eye-witnesses of the offences. None of these witnesses can even be believed with regard to the identity of the appellants as the persons who committed the offences charged against them. Even P. W. Fateh Ali's presence in the house at the time of the commission of the offence is improbable. We have failed to understand as to why the appellants chose the time of daybreak to commit the offence of the murder of Noor Ahmed and causing hatchet injuries to P. W. Khair Mohammed, P. W. Ali Gohar Tapedar, stated in his testimony that the village Thariri has a population of 800 persons. It is inconceivable that the appellants would not expect that they would be encountered by village people in the streets at day-break when they are alleged to have climbed the roof of P. W. Fateh Ali's house. The probability is that the culprit entered the courtyard during night, with their faces muffled and fired the fatal gunshot at tight contact with the body of the deceased, and that during this time P. W. Khair Mohammed, who himself must have been sleeping in the courtyard was awakened and was hit with the sharp side of the hatchet. The other alleged eye-witnesses, namely, P. Ws. Jurial, Bilawal, Sultan and Chuttal could not have witnessed this incident from their roofs, nor can P. W. Mumtaz be believed that he saw the appellants running away after the commission of the offences. P. W. Fateh Ali has admittedly three houses, one in Thatta, the other in village Abad and the third in village Thariri, where the incident occurred. It is probable that he was called from village Abad after the occurrence of the offence. We also fail to understand why P. W. Fateh Ali considered it necessary to employ two Chowkidars, P. Ws. Khair Muhammad and Jurial, to guard his house in village Thariri, where the offences in question were committed, when admittedly his family lived in Thatta and no cattles or valuables were kept in the house in Thariri. The prosecution version is that the two Chowkidars were employed about a year before the incident to guard the household articles. But what were these household articles and what was their value and what was the fear which motivated P. W. Fateh Ali to employ two Chowkidars to protect these household articles? This aspect of the case has gone unexplained.
6. Two other aspects of the case which have attracted our notice are the absence of blood on the roof of P. W. Fateh Ali's house, and the omission to examine the foot trackers, Hassan Brohi and Mitho. P. W. Khair Mohammad, according to his own testimony, was on the roof when the four appellants climbed to it. He received an injury from the sharp side of a hatchet, and, according to the Assistant Medical Officer, P. W. Dr. Abdul Bari, the wound caused by this hatchet blow was incised wound. According to the witness, the nature of injury No. 1 was kept under observation. P. W.
Khair Muhammad himself stated that there was bleeding from this injury, but no blood-stained earth or clothes, quilt, and Bhilli belonging to Khair Muhammad were secured. P. W. Ghulain Murtaza, the S. H. O., when questioned, stated that he could not say whether the clothes of Khair Muhammad had stains of blood. Though he admitted that mashirnama, Exh. 31 was silent as regards the presence of blood on the roof, still he stated in his testimony that he found some drops of blood lying on the ground near the cot on the roof. But he admitted that he did not secure this blood from the ground, as, according to him, this blood was not connected with the murder of Noor Ahmed. This explanation has failed to satisfy us, and we are of the view that no blood at all was discovered on the roof, which would show that P. W. Khair Muhammad was not on the roof at all, but, perhaps, was sleeping in the courtyard when he was awakened by the gunfire shot.
7. In the First Information Report, P. W. Khair Muhammad stated that foot tracker, Hassan Brohi, and other villagers went after the foot-prints. But P. W. Jurial stated that it wasthe foottracker Mitho who went after the foot-prints. P. W. Khair Muhammad denied, in the course of his testimony, that he had made any statement to the police about foot tracker Mitho. Before us reference was also made to the mashirnama of wardat (Exh. 31) in which again mention has been made of the foot- prints being tracked by Hassan Brohi. But this document itself is not substantive evidence, and the mashir, P. W. Parial, denied that the mashirnama was read over to him before the committal Magistrate, though this denial is false in view of Exh. 32, which is the extract from his statement in the enquiry. However, this would not detract from the fact that two important prosecution witnesses, P. W. Khair Muhammad and Jurial, stated that the foot-prints were tracked by the tracker and the villagers. Now, the question arises why the foot-prints were tracked when the assailants were known to the prosecution witnesses. It is unusual to resort to tracking of the foot- prints if the culprits are known. Tracking of foot-prints is resorted to, usually, when the assailants are unknown persons or the offence is committed during night and the culprits have not been identified. Further, neither Hassan Brohi, nor Mitho, have been examined and none of the prosecution witnesses has indicated the direction in which the foot-prints led and the result of the tracking. All this strengthens the contention of the defence that none of the prosecution witnesses could be believed when they state that they witnessed the firing of the gun-shot from the roof of P.
W. Fateh Ali's house into his courtyard or giving the hatchet blow to P. W. Khair Mohammad. Further, the probability is that the offence was committed during night, and not at day-break. Such a version alone could be consistent with the necessity of tracking the foot-prints. Perheps if, the evidence of foot trackers or the result of tracking, had come in Court, it would have been unfavourable to the prosecution.
8. There is enough material on record to show the existence of long-standing enmity between the appellants and the complainant party headed by P. W. Fateh Ali Khan, Exh. 25, is the Judgment, dated 30th December 1963, showing the prosecution and conviction of appellant Saindad for causing injuries to Haji Khan, the employer of P. W. Fateh Ali. Exh. 26 is the Judgment, dated 25th June 1966, by which appellant Saindad together with his brother Usman and cousin Loung were convicted by the Sessions Judge, Larkana, but acquitted by the High Court in appeal, of the charge of committing murder of one Shero Brohi connected with the complainant party. Exh. 36 is the First Information Report lodged by Khushi Muhammad, cousin of P. W. Fateh Ali, under section 307, P. P. C. against Saindad Mir and two others. It was admitted in this report that the first s'tate informant, namely Khushi Muhammad had long-standing disputes_______ with Saindad over lands. However, by Judgment, Exh. 49, Noorul Arfin, dated 12th May 1969, Saindad, Usman and Loung were acquitted J by the Sessions Judge, Larkana, who in his Judgment, made specific observations with regard to enmity between the two contending parties. Exh. 37 is the First Information Report filed on 8-3-1969, by P. W. Khair Muhammad (first informant in the present case) against Wali Muhammad and two others, but this report turned out to be infructuous, as the accused were not put up for prosecution. Exh. 50 is the order of discharge dated 28th August 1969, of Saindad under an enquiry under section 110, Criminal Procedure Code, which had been instituted at the instance of Abdur Rehman and Khushi Muhammad (the latter being cousin of P. W. Fateh Ali) in connection with election disputes. Exh. 25 is the order of discharge dated 30th December 1963, of Mahboob son of Mir Muhammad and Wali Muhammad (the appellant in the present case) under an enquiry under the * West Pakistan Control of Goondas Ordinance, 1959. In this enquiry, Haji Khan Kalhoro, employer of P.
W. Fateh Ali, produced as many as six witnesses, but all of them were disbelieved on account of enmity between the parties over land.
The following passage from the Judgment of the trial Court in the present case would also be relevant: "It is quite clear that there was deep-rooted enmity between the parties over some land which led to a series of cases against the accused commencing from 1963 as is clear from the Judgment Exh. 25, dated 10th December 1963, of the first case. One or the other case was continuous being filed against *' the accused and their relatives thereafter and therefore, they felt harassed by this spate of cases."
It would thus be seen that the complainant party and the appellants have been in a state of enmity for a long time. The learned Assistant Advocate-General contended that this enmity would afford a motive for the commission of the offences for which the appellants have been convicted in the present case. But in the absence of proof beyond reasonable doubt of the identity of the appellants as the persons who caused the death of the deceased Noor Ahmed by a gunshot and gave a hatchet blow to P. W.
Khair Muhammad, this state of enmity could also afford a motive to the complainant party to implicate the appellants in the present case. .
9. According to the defence, the principal prosecution witnesses are related to each other, though in their evidence each of these witnesses denied this relationship. But the impression left on us is that this denial is not truthful. According to P. W. Bilawal, P. W. Jurial, allegedly Chowkidar of P. W.
Fateh Ali, belongs to the same caste as the deceased (sic) .... admitted position that t< e deceased and P. W. Fateh Ali were cousins, P. W. Jurial himself was questioned with regard to his relationship with W. Fateh Ali. It was suggested to him that he is the cousin of this witness, but Jurial's answer was evasive, as would appear from the following passage from his evidence: "Ghulam Muhammad is the name of my grand-father. Mst. Gohar is not a daughter of my grand- father. Mst. Gohar is mother of P. W. Fateh Ali. Her father's name is Ghulam Muhammad Chan but he is different from my grand-father."
This evasive reply throws doubt on the veracity of the statement of P. W. Jurial. According to P. W.
Sultan, P. W. Murataz is the nephew of deceased Noor Ahmed and P. W. Chuttan is the deceased's maternal uncle. It was suggested to P. W. Sultan that he is the cousin of the deceased. But he denied this suggestion by saying that he could not say if Mst. Khairan, mother of the deceased, is the daughter of his uncle Warial, because he was too young at that time. P. W. Bilawal, according to his own admission, resides with his father-in-law Khair Muhammad. Still, he did not know whether the mother of the deceased and his mother-in-law are sisters. Thus the principal prosecution witnesses are closely related to each other and have been in a state of enmity with the appellant's party for a long time. These o facts would render it dangerous to place implicit reliance upon the evidence of these witnesses. In the case of Sohtil v. Bahadur and others (1) their Lordships of the Supreme Court observed that if an interested witness is inimically disposed towards the accused, the Court should insist on corroboration of his evidence. To the same effect is the rule laid down by the Supreme Court in the case of Hazratullah and another v. The State (2). In another case, Haji Ahmad and 2 others v. The State (3) the Supreme Court held that ocular testimony coming from the mouth of very closely- related witnesses should require corroboration by way of abundant caution. However, we find no independent oorroboration of the evidence given by the prosecution witnesses, on the other hand, there are inherent improbabilities in the version given by the prosecution witnesses. It has not been explained as to why P. W. Fateh Ali considered it necessary to employ two Chowkidars. P. W. Khair Muhammad and Jurial. P. W. Fateh Ali admitted that his family lived at Thatta and it has not been shown if he kept any cattle or such valuables in the house as would require the services of two Chowkidars. P. W. Bilawal admitted that no cattle were kept in the house and he as well as P. W. Khair Muhammad stated that Chowkidars were employed by P. W. Fateh Ali only to guard the household articles. But what were these household articles and were they of such value that two Chowkidars should have been employed to guard the house? This aspect of the case has not been satisfactorily explained.
10. The prosecution evidence suffiers from serious contradiction, and it appears that considerable pains were taken to make improvements in the case set out in the F. I. R. In the First Information Report, it is stated that both the Chowkidars, P. Ws. [7] Khair Muhammad and Jurial, were sleeping and woke up on hearing the noise, presumably of the gunshot. But in his evidence P. W. Khair Muhammad first stated that both he and P. W. Jurial were standing, but later contradicted himself and said that they were both lying on the cot. Similar contradiction is to be noticed in the testimony of P. W. Jurial. P. W. Bilawal first said that he saw the two Chowkidars standing, but he later testified that he was told by the Chowkidars that they had stretched themselves on their cots. Both P. Ws. Khair Muhammad and Jurial stated that they were carrying lathis at the time of the offence. But P. W. Sultan stated in the Court of the committing Magistrate that both these Chowkidars were carrying hatchets and that they were lying on cots and shouting "Khabardar, KhabardarAt another place in his evidence he stated that the Chowkidars were patrolling, though before the trial Court he denied having made this statement.
Why should the Chowkidars shout "Khabardar, Khabardar" when there was clear day light? P. W.
Chuttal first stated before the committing Magistrate that the Chowkidars were sleeping, but in the Sessions Court he denied having made this statement. The principal prosecution witnesses stated that they went together with the foot tracker, who was present in the village, after the foot-prints of the culprits. But as noted above, this foot tracker was not examined, nor has anyone said in what direction these foot tracks led.
11. The prosecution has laid considerable emphasis on the evidence of P. W. Khair Muhammad. But on a close examination of his testimony, we find it difficult to believe the version given by this witness. The testimony of this witness suffers from untruths, contradictions and inconsistencies. The witness denied that any of the prosecution witnesses, namely, Jurial, Mumtaz, Bilawal, Sher Muhammad, Sultan and Chuttal were connected with the deceased or P. W. Fateh Ali. But it has come in evidence that Jurial was not only under the employment of P. W. Fateh Ali but also his caste-fellow. P. W. Khair Muhammad denied P. W. Jurial's relationship with P. W. Fateh Ali, who, the evidence strongly suggests, is infact P. W. Fateh Ali's cousin. In his evidence the witness stated that there was clear day-light at the time of the incident, and he and Jurial were both standing on the roof of P. W. Fateh Ali's house. But this is contrary to what he had stated in the First Information Report, in which the version given is that he and P. W. Jurial went to sleep at "Somhani" time. When confronted with this contradiction, the witness went to the extent of saying that the First Information Report was not read out to him and was not correctly recorded. According to the First Information Report, the appellant Lai Bux fired his gun from the feet of P. W. Khair Muhammad's cot, which would give the distance between the cot and the deceased at I6 feet. But in view of the medical evidence, the witness improved his version in the Sessions Court and tried to reduce this distance by saying that Lai Bux knelt down and then fired into the courtyard. The witness asserted that he had given similar version both in his police statement as well as in his deposition before the committing Magistrate, though it is not correct. This version may be compared with that given by P. W. Fateh Ali, who stated that he was informed by P. W. Khair Muhammad that Lai Bux set on the wall and then fired into the courtyard. In the First Information Report, the witness assigned the role of causing injury to him to appellant Saindad. But at the trial he implicated appellant Wali Muhammad also by stating that he was hit by this accused with the blunt side of the hatchet. Again, in the First Information Report he stated that the villagers went after the foot-prints of the accused. But in his evidence he denied having made this statement.
Then, though he has been living in village Thariri from childhood, he denied that he knew any village people except the prosecution witnesses, which statement, to say the least, is strange. l2. The learned Assistant Advocate-General contended that the injuries on P. W. Khair Muhammad corroborate the prosecution evidence against the appellants. We have already noted that P. W.
Khair Muhammad stated in the First Information Report that he received one injury with the sharp side of the hatchet and later, in view of the medical evidence, he improved upon this statement by saying that appellant Wali Muhammad also caused him an injury by giving him blow with the blunt side of the hatchet. This second injury perhaps was caused by P. W. Khair Muhammad falling on the "Pawa" of the cot, but he attributed it to appellant Wali Muhammad. But that as it may, the injuries on P. W. Khair Muhammad, in the view that we have taken of his testimony, that he is an untruthful witness and his evidence suffers from inconsistencies and infirmities, could, at best, be treated to corroborate only this much that the deceased Noor Ahmad was murdered by a gunshot fire and that at the same time P. W. Khair Muhammad received injuries from the assailants. But for the reasons we have given, the injuries on P. W. Khair Muhammad cannot corroborate the prosecution testimony with regard to the identity of the appellants as the persons who committed the offences for which they have been convicted and sentenced. The whole prosecution evidence suffers from improbabilities, Inconsistencies and serious infirmities which we have discussed at length above. In our view, the prosecution has not established that identity of the appellants as the persons who committed the offences for which they have been punished by the learned Sessions Judge. We would, therefore, accept the appeal and annul conviction and the sentences passed against the appellants by the learned Sessions Judge. Since the appellants are in custody, they should be set at liberty forthwith unless required in some other case.
Bhuda Bakhsh Marri, i Khuda Bakhsh Marri, J.---I agree. .