AGHA ALI HYDBR, J.--- The appellant and one Abdul Hakim were tried by the learned Sessions Judge, Sukkur, for an offence under section 302, P. P. C. Abdul Hakim was acquitted, but the appellant was convicted and sentenced to be hanged by the neck till he be dead. Aggrieved by the judgment of conviction and sentence, he has come in appeal. There is also a reference by the learned Sessions Judge as required under section 374 of the Code of Criminal Procedure. Both, the appeal and the reference will be disposed of by a common judgment.
2. The prosecution story, succinctly stated, is that on the 4th of January, 1970, Mir Mohammad since deceased, his daughter Mst. Sadori, her husband Jumo and Mohammad Qasim, a brother-in-law of Mir Mohammad were sitting by the side of the fire-place inside the house, when Mst. Sadori left the company. Sometime thereafter whispers were heard coming from the hay--stack side. It is alleged that Mir Mohammad got up to see as to how the matter stood, when he was fired upon by the appel--lant and collapsed on the ground. The incident is stated to have been witnessed by all the inmates of the house present there. It is said that the appellant was armed with a licensed gun while Abdul Hakim since acquitted was wielding a hatchet and was standing at some distance from the appellant. Hearing the cries, some people from the vicinity including Ghousbux land Saifal were attracted. However, the first information report was lodged the next day at about 11-30 a.m. At the Rustum Police Station which is situated at a distance of about 16 miles from the vardat. It was recorded by the A. S. I. Muhammad Shaft, who soon repaired to the vardat. He found the dead body of Mir Mohammad lying about 25 paces away from the entrance of the house, and secured the blood-stained earth and a 'Ghaida' which was lying nearby for which a mashirnama was prepared.
The dead body was sent to the Medical Officer, Shikarpur for post-mortem examination, and inquiries were made from the witnesses. It appears that the appellant surrendered himself before the police authorities six days after the incident. After due investigation, the case came to be challaned in the Court of the learned Resident Magistrate, Shikarpur resulting in his committal.
3. The appellant in his statement at the Court of inquiry as well at the trial denied the various allegations made against him. His contention was that he had been roped in the case at the instigation of Ghousbux who was the Zamindar of the main witnesses and was on inimical terms with him. A number of documents were produced in support of his assertion. The case against the appellant rests on the ocular testimony of four witnesses, motive and circumstantial evidence.
4. The death of Mir Mohammad as a result of the injuries is beyond any dispute. Apart from the statements of the witnesses, there is also the deposition of Dr. Illahi Bux who held the autopsy and found the following injuries on the person of the deceased : - External Injury: (1). Lacerated fire-arm wound 3" x 3" x chest cavity deep on the right side chest --" below the right nipple.
Internal-Injuries:
(1) 4th, 5th and 6th ribs appeared fractured on right side of the chest anteriorly.
(2) Right pleura ruptured.
(3) Right lung punctured at so many places.
Right side heart ruptured.
(5) Right plumonary crediel vessels and hylium vessels ruptured.
(6) Right diaphragm ruptured.
(7) Liver ruptured.
(8) Stomach contained semi-digested food. The Medical Officer was of the opinion that the injuries which were ante mortem in nature had been caused by a firearm such as a gun, and that death had occurred due to shock and haemorrhage. He also stated that there would have been a gap of about thirty hours between the death and the post-mortem examination.
5. The version of the witnesses is that the appellant had turned up at the house of Mir Mohammad for a rendezvous with Mst. Sadori. It is the prosecution case that the appellant had turned up just after the sun-set accompanied by his compa--nion and was later joined by Mst. Sadori. Hearing some whispers coming from the haystack side which was not far away from the entrance of the house, Mir Mohammad had left his place to see as to what it was like and when he had reached near the haystack he .Was shot down and died at the spot. Apparently the story as put forward by the prosecution, looks to be rather make-belie or because it is well nigh impossible to imagine that Mst. Sadori would have stolen privacy with her paramour, when the family members including her husband were not far away from the meeting place. It is the prosecution case that even the whispers which were exchanged were audible enough. That could be possible only if the criminal intimacy was carried with the connivance of the family members which is not the prosecu--tion case. The fact also remains that if they were carrying on such criminal intrigue, it was hardly necessary for the appellant to bring any body along with himself to keep guard. It should also nut to be necessary for the appellant to arm himself with a gun. It is also normal to expect that they would have sought some place at some distance from the house. However, when the Investigating Officer reached the vardat, there was no trace of the haystack. Any way all the witnesses have spoken with one voice that the appellant and his companion had their faces muffled. They have also said that they had identified the appellant with whom we are concerned, merely by his build and stature. That speaks for itself. The learned Sessions Judge has observed that probably the witnesses had been won over and softened down because of one reason or the other. Apparent-- ly they had nothing better to say at the Court of Inquiry or earlier, otherwise they would have been confronted with their statements. Anyway, if the witnesses have softened down, and speak in two voices, the obvious inference would be that they are not witnesses of truth, and as the law stands, the benefit thereof would accrue to the appellant. Coupled with this, there is the circumstance that at the time of the post-mortem examination, some semi-digested food was found from the dead body. All the witnesses have stated that the deceased Mir. Mohammad had not taken any evening meal. Actually they have, spoken that the family was accustomed to have two meals a day, i.e., at the mid-day and some time in the night. There was also no justification for the learned Session Judge to say, in the circum--stances, that Mir Mohammad had somehow managed to have a bite some where. A bite would not be responsible for so much semi-digested food, as found by the Medical Officer. Notice has also to be taken of the fact that though the incident had taken place round about the sun-set, still the F. I. R. Was lodged the next day at 11-30 a.m., The distance between the vardat and the Rustam Police Station, on the showing of the A. S. I. Is only 16 miles. The suggestion of the defence under the circumstances that this time had been used for cooking up the story with the help of Ghousbux who had some account to settle with the appellant, is not without force.
6. It was also contended by Mr. Muhammad Hayat Junejo, learned counsel for the appellant, that once the witnesses had been disbelieved in regard to the identity of the appellant's companion Abdul Hakim, there was no justification to trust their version as against the appellant. The position is well settled in law and it is hardly necessary to make any reference to authorities. It is also a trite proposition of law that even if the witnesses are found to be witnesses of truth, if there is a discre-- pancy between their versions and the version furnished by the expert, as in this case Medical Officer, their testimony must yield in favour of the expert witness unless there is some thing in the latter's statement, which is fishy, equivocal or against the inexor--able laws of nature. It cannot be said in the instant case. The presence of the semi-digested food would therefore indicate that the incident had not taken place at the hour indicated. Even the Medical Officer's opinion that there was a gap of 30 hours between the death and the post-mortem examination would also shift the time from what has been spoken by the prosecution---witnesses.
7. The learned Sessions Judge has also relied upon the fact that the Ghaitla which had been secured from the vardat, fitted the appellant when he was made to wear it. It is to be noted that most of the witnesses have said that they were not sure as to who had left the Ghaitla at the vardat. Any way the Ghaitla can fit scores of people and nothing will turn on that. Nor can there be any thing in 'the observation that a licenced gun was secured from the appellant, as neither the empty shell had been secured from the vardat nor the gun was sent to the Ballistic expert.
8. Mr. Manzoor Hussain argued that the witnesses had been won over and were out to bring about miscarriage of justice, but I am afraid this argument has nothing to commend. They must only thank themselves for the consequences. The appellant would not be the worse for it.
8. I am, therefore, clearly of the opinion that the case against the appellant is far from proved. I would therefore set aside the conviction and sentence, and allow the appeal.
I. MAHMOOD, J.--I agree.