IMDADALLY H AGHA, J.-The appellant Imam Bux son of Yar Muhammad Khoso was tried by the learned Sessions Judge, Jacobabad and convicted under sections 396, P. P. C. And 13(d) of the West Pakistan Arms Act, 1965. He was sentenced to transportation for life under the former section and to one year R. I: under the latter section. The sentences were ordered to Run concurrently. The appellant has now appealed against his conviction and sentences.
2. The facts of the incident in which two persons were killed i.e. Awal Khair Atta Muhammad as stated by the complainant Pehalwan are these. Complainant Pehalwan owned 10-11 buffaloes.
According to him he used to graze them himself. On 22-8-1964, the day of the incident, he was grazing his buffaloes in the jungle about two miles away from his village. At about time the present appellant accompanied by Abdul Razzaq, Ghulam Murtaza, Nehal, Motio, Arbab and Attur emerged from the jungle. Arbab was armed with a hatchet the others carried guns. All the 7 of them then started driving away the buffaloes of the complainant with a view take them away. The complainant challenged them on which se culprits started firing in the air. The complainant told the culprits that he would not allow them to take away his buffaloes and raised cries. The cries attracted deceased Atta Muhammad, Awa Khair, Moula Bux (P. W. 2), Lakhedino (P. W. 3) and who came up. Deceased Awal Khair had a hatchet others who came with him were empty-handed. All persons then came in front of the buffaloes of the com--plainant to prevent them from being taken away but Abdul Razzaq and Attur fared their guns at Awal Khair and Atta Muhammad. Arbab also attacked Awal Khair deceased with chet but Awal Khair evaded the hatchet blow. Awal Khair gave a hatchet blow to the appellant Imam Bux and the low, according to the complainant, hit the appellant on his armen Attur arid Abdur Razzaq fired guns. Attur's gunshot hit w.Al Khair =arid Abdul Razzaq's gunshot hit Atta Muhammad.
Atta Muhammad fell down and died. Due to fear the other. Witnesses did not go near the culprits and the latter took away the buffaloes of the complainant. After the culprits had gone .Away with the buffaloes Kajlo, Mahrneed (l'. W. 4) came there. The contplal4ntto them tilae facts c.=t the incident and gave them the names culprits who had fought with them and taken a~iy sl?Eo 3- uddoes. Kajlo anal V. Ws. Mahmeed and Mangeh follow-,l the r"rilzrits. The complainant in the meanwhile with a view to l a report with the police went to Chachar Railway Station tta caich tt:e train bast tho train had already left. Chachar is about 2 milesthes:rmv ` offence. The complat foot to Mouladad where the police station was. He reached Mouladad which was about 6 to 8 miles away from Chachar Railway Station at about sunset time. He then filed his report Bxh. 4 at Mouladad Police Station.
3. The motive for the present crime is said to be this. About 10 to 12 days before the dacoity of the complainant's buffaloes a bullock of Nihal was stolen. Imamdin is the cousin of the complainant.
Imamdin had returned the bullock after the dacoity of the buffaloes of the complainant. The culprits took away the buffaloes of the complainant in order to take revenge of the bullock suspected by Nihal to have been stolen by Imamdin, the cousin of the complainant, Before the theft of Nihal's bullock goats of Imamdin were stolen and Imamdin suspected Nihal.
4.The first report of the complainant was registered Mouladad Police Station at 11-30 p.m. And it was recorded by S. H. O. Khuda Bux (P. W. 8). The S. H. O. Then came withthe complainant to the scene of offence where he reached at 1-30 a.m. He saw the dead bodies of two deceased Awal Khair and Atta Muhammad lying there on which he arranged guard in the night. He then inspected the scene of offence at 6 a.m. And prepared a mashirnarna thereof Exh. 11 in presence of mashir-- Attabar (D. W. 6) and Jumo. Tae S, H. O. Had secured 6 empty cartridges from the scene of offence.
Inquest reports of the -- dead bodies of the deceased were then prepared by the S. H. O. After which he despatched the dead bodies to Civil HospitalJacobabad for post-mortem examination through Abdul Ghafoor. The S. H. O. Then carried out further investigation. On 5-9- 1964 he arrested Attur who was produced before him by Atta Muhammad with the young one a buffalo and an buffalo. He prepared a mashirnama and secured this property. On the same day he came to the otak of Abdul Razzaq where he arrested Motio, Nihal, and Abdul Razzaq who were present there.
Three buffaloes and a young one of a buffalo were also tied there in the otak of Abdul Razzaq which he secured under a mashirnama that was prepared. Ors 7-9-1964, the S. H. O. Held identification test of the buffaloes secured by him from P. W. Lakhedino, Buxali and P. W. Moulabux in presence of the same mashirs and a III-Class Magistrate. All these three witnesses identified thebuffaloes to be that of complainant Pehalwan. The latter was not put to identification test as he himself was present with the police when the buffaloes were secured. On 26-1-1965 the S. H. O. Arrested Arbab and Ghulam Murtaza and on 27-1-1965 he sent them with supplementary challan and showed Imam Bux as air absconder. The present appellant was arrested by A.S.I Mushtaq Ali (P. W. 7) of Mouladad Police Station on 22-9-1966 who then challaned him. T e appellant was in due course of time committed to the Court of Sessions, Jacobabad where he took his trial with the result already mentioned above,
5. When questioned under section 342, Cr. P. C:, the appel--lant denied the prosecution allegations and professional innocence, His statement was as follows: - "Meehon Khan is my cousin. Imamdad is cousin of Pehalwan, Imamdad filed a case against me, Nihal, Abdul Rehman of robbery of a bullock, but there was a quarrel over water with Imamdad. This case was filed several years ago. Mechon has also filed a case against Chatto. I do not know the name probably he may be Mato. I do not know the name of another accused now. Meehon Khan had filed a case of theft of grain from the dera against Chatto another whose name I do not remember now. Due to this enmity I have been involved falsely in this case."
6. The appellant did not lead any evidence in defence.
7. There can be no manner of doubt that the two deceased Awal Khair and Atta Muhammad were killed by means of gun--shot injuries. On this point the evidence of Dr. Muhammad Abdul Jabbar is relevant who conducted the post-mortem examinations on the dead bodies of the two deceased persons. This doctor in his deposition in the committal Court which was brought on record of the trial Court as Exh. 16 says that on the external examination of the dead body of deceased Atta Muhammad he found the following injuries on it: - "(1) One lacerated gunshot wound in front of the left chest (wound of entrance).
(2) Four gunshot exit wounds, each about 1/4' in diameter just on the back side of the right shoulder."
On the internal examination of this dead body he found the following damage done to it: - "Third and 4th ribs on the left side were fractured. Pleurae on left side penetrated. Right and left lungs penetrated. Heart also penetrated and also the pericordium. Stomach contained semi- digested food materials. Two-pellets recovered from the body and handed over to the constable incharge."
8. From the external as well as internal examination of the dead body of this deceased the doctor was of the opinion that the death was due to- shock and haemorrhage as a result of injuries from a fire-arm such as a gun. All the injuries according to the doctor were anti-mortem.
9. This doctor then externally examined the dead body of deceased Awal Khair and he found the following injuries on it: --- '(1) Six gunshot wounds each about 1/3' in diameter in front of lower part of neck.
(2) Four gunshot exit wounds each --' in diameter on the lower part of the right scapula."
10. On the internal examination of this dead body he found the following damage done to it: - "2nd rib fractured. Right pleurae penetrated. Trachea, right lung and heart penetrated, stomach was empty.
Oesophagus penetrated. Small intestine containing small quantity of digested food material. One pellet was secured and was handed over to the police."
11. From the external as well as internal examination of the dead body of this deceased the doctor was of the opinion that the death was due to shock and haemorrhage as a result of injuries from fire-arm such as a gun. All the injuries according to the doctor were anti-mortem.
12. Even the learned counsel for the appellants does not dispute the deaths of the two deceased persons mentioned above by means of gunshot injuries. We also see no reason not to believe the evidence of the doctor mentioned above. We, therefore, find that deceased Awal Khair and Atta Muhammad were killed by means of gunshot injuries.
13. The prosecution case is mainly based on the evidence of complainant Pehalwan and P. Ws.
Moulabux, Lakhedino, Mangeh and Mohanfeed.
14. Of them the complainant has stated the same facts as are detailed in the narrative of the prosecution story given above in paragraph 2 of this judgment. Thus, it will be seen that the complainant implicates the present appellant as being one among the culprits who had shot deceased Awal Khair and Atta Muhammad and then had taken away his buffaloes. But all the other witnesses do not support the complainant in that the present appellant is the same Imam Bux who was among the culprits. P. W. Moulabux has deposed substantially that on the day of occurrence at the time of incident he was standing on Buriro minor. Awal Khair, Atta Muhammad, Buxah and P. W. Lakhedino were also there. They were all catching fish. They then heard gun reports and cries of the complainant Pehalwan. They went towards the direction of the cries which were coming from the jungle. They saw Ghulam . Murtuza, Arbab, Abdul Razzaq, Nihal, Atur, Motu afias Imamdin and Imam Bux taking away the buffaloes of Pehalwan. The latter was also raising cries and saying that he was being robbed of buffaloes. Abdul Razzaq had a hatchet and so also Arbab was armed with a hatchet. Imam Bux had a gun and Attur, Motu, Nihal and Ghulam Murtuza had also guns. Both the deceased and Buxali, P: W. Lakedino and this witness Moula Bux confronted the culprits. Awal Khair deceased challenged the party of the culprits to leave the buffaloes. Attur then fired at Awal Khair and Attur also fired at Atta Muhammad and Awal Khair died due to gunshot injuries. Due to fear this witness stopped and did not go further. The culprits then went away taking the buffaloes with themselves. P. Ws. Muhammad and Mangeh as well as Kajlo came to the scene after the culprits had taken away the buffaloes. These persons were informed of the incident by the other witnesses and they followed the party of the culprits. In the meanwhile com--plainant Pehalwan left for report and the others sat over the dead bodies of the two deceased. This witness P. W. Moulabux at the end of his examination-in-chief says that this culprit, Imam Bux, the present appellant, is not that Imambux who was among the dacoits. In his cross-examination he says that that Imambux who was with the culprits was son of Suleman while the present appellant Imambux is son of Yar Muhammad.
15. P. W. Lukhedino also deposed to the same facts as have been stated by P. W. Moulabux and Lakhedino at the end of his examination-in-chief says that he sees the present appellant Imambux but he was not among the 7 persons, i.e. Dacoits. P. W. Mangeh substantially has deposed that on the day of the incident he, Kajlo and P. W. Muhammad had come to Jacobabad and from Jacobabad they were returning to their village in a truck. They got down from the truck at Gulab Khan Mari and from there they started on foot and came to Buriro minor. At Buriro minor they heard gun reports and cries and went there. They saw Pehalwan raising cries. Complainant Pehalwan was crying that his buffaloes were being taken away. P. W. Lakhedino. Buxali and P. W. Moulabux were also already at the scene of offence. These witnesses saw Atta Muhammad and Awal Khair lying dead on the vardat. They did not see the dacoits taking away the buffaloes. They were informed of the incident and the culprits by the other witnesses. It will be seen that this witness Mangeh does not implicate the present appellant at all so far his own direct evidence is concerned.
16. The last witness is Muhammad. This witness deposes that on the day of the incident he, Kajlo and P. W. Mangeh had gone to Jacobabad. They boarded 'a truck from Jacobabad and were coming to their village. They got down near Gulab Khan Mari and from there they proceeded to their village on foot. When they came on Buriro minor they heard gun reports and cries coming from the jungle and they ran to that direction where they saw complainant Pehalwan raising cries and saying that he had been robbed of buffaloes. Buxali, P. W. Lakhedino and P. W. Moula Bux were also standing at that place. Atta Muhammad and Awal Khair were lying dead. These witnesses did not see the dacoits taking away the buffaloes. The com--plainant Pehalwan told them that Arbab, Ghulam Murtuza, Motu, Imambux, Nihal and Abdul Razzaq had taken away his buffaloes and have also murdered Awal Khair and Atta Muhammad. These witnesses, Muhammad, Kajlo and P. W.
Mangeh then tracked the prints. They saw seven dacoits near old Gulab Khan Mari taking away the buffaloes. This witness Muhammad identified those men to be the same whose names were given to him by com--plainant Pehalwan. He also saw that Arbab had a hatchet while other six companions of his had guns. The culprits threatened them not to follow them or else they would be killed. These witnesses then returned to the scene of offence and the culprits went away taking the buffaloes with themselves. The com--plainant then brought the police. This witness Muhammad in the end of his examination-in-chief says that he sees appellant Imambux in Court but he is not that Imam Bux who was among the seven dacoits. That Imam Bux was a different man. So that it will be seen that this witness Muhammad also does not implicate the present appellant. Therefore, what remains againstthe appellant is only the evidence of the complainant Pehalwan. Even the complainant Pehalwan has been contradicted in his cross-examination with his lower Court statement where he has said that Tagio Jat used to graze his buffaloes but on the day of the incident he had himself gone to graze the same so that even his grazing the buffaloes on the day of the incident appears to be rather doubtful. In any case, we are of the opinion that since the other witnesses are not supporting the complainant on the question of identity of the appellant it will not be expedient in the interest of justice to rely merely on the word of the com--plainant alone without other corroboration which is lacking in this case. For these reasons then we think that the appellant Imambux is entitled to the benefit of doubt which is, accordingly given to him and he is acquitted of the charges levelled against him. He will be released forthwith from custody unless required to the detained in connection with any other matter.
17. We had pronounced the above conclusion at the close of the arguments of counsel for parties and have now set out the reasons above.