DORAB PATEL, J.--The appellants; who ate brothers, have been tried and convicted by an Additional Sessions Judge, Jacobabad, under section 302/34, P. P. C., sentenced to death and fined Rs. 5,000, each or in default one year's R. I. They have also been convicted under section 307/34, P.
P. C. And sentenced to seven years' R. I. And fined Rs. 2,000 each or in default one and half years' R. I.
They have also been convicted under section 379, P. P. C. And sentenced to one year's R. I. And tinder section 404, P. P. C. And sentenced to two years' R. I. And fined Rs. 2,000 or in default six months' R. I. Finally, the appellant Sabir Shah has also been convicted under section 13-D of the Arms Act and sentenced to one year's R. I. The learned Additional Sessions Judge has also observed "except the death sentence, the other sentences of imprisonment will come into operation concurrently only if the death sentence is not confirmed . . . . . .". The appellants have filed an appeal against these convictions and the case has also been referred to the High Court by the learned Additional Sessions Judge under section 374, Cr. P. C, Accordingly, I will dispose of the reference and the appeal of the appellants by this Judgment.
2. Nizamuddin and P. W. Hairdin were the sons of Sardar Ghulam Ali Khan, the Head of the Jakhrani tribe, and they lived with their father in Jani Dero taluka Jacobabad. On 20th February 1970, they had gone with P. Ws. Yakoob and Lal Muhammad to see a horse-race. They all went on horse back and were returning in the evening from the race to their village. Then according to the prosecution evidence, as they came near the Railway bridge of Chand Minor in deh lani Dero Jagir, the appellants suddenly came out from their hiding place. They were armed with guns and after.
Giving a challenge they fired at Nizamuddin sad P. W. Muhammad Yakoob, both of whom had licensed guns with them. Nizamuddin and P. W. Muhammad Yakoob fell of their horses and the appellants came forward.
Then, the appellants fired at almost point blank range at Nizam--uddin and killed him. They then took away the guns both of Nizamuddin and of P. W. Muhammad Yakoob and also stole a watch, links etc. P. Ws. Hairdin and Lal Muhammad had been riding a few paces behind the deceased and P. W. Muhammad Yakoob, therefore, they saw the occurrence, but were too frightened to do anything, and meanwhile another Jakhrani P. W. Jani had also come to the vardat and seen the occurrence. Then, according to the prosecution, before any help could come, the appellants ran away and P. W. Hairdin who was only 11 or 12 years old sent P. W. Lal Muhammad to report the occurrence to his father at their village, which was very near the vardat. P. W. Lal Muhammad went to Jani Dero Jagir on his horse, but as Sardar Ghulam Ali Khan was not in the village he informed the members of the family the of tragic occurrence and returned on foot to the vardat. As soon as P. W. Lal Muhammad had returned to the vardat, P. W. Hairdin set out on his own again on foot, to Mouladad Police Station where he lodged the F. I. R. (Exh. 7). The F. I. R. (Exh. 7) was recorded by Aijaz Ali, the S. H. O. Of the Station, and after recording it, P. W. Aijaz Ali immediately accompanied P. W.
Hairdin to the vardat. After preparing an inquest report of the deceased, Nizamuddin, he forwarded his dead body to the Civil- Hospital, Jacobabad, for the usual post--mortem. He also sent P. W.
Muhammad Yakoob for treatment to that Hospital. As, however, it was late in the night he was not able to see the vardat or to commence investigations. Accord--ingly, he left a guard at the vardai and returned the next morning to commence investigations. He recovered four empties from the vardat which he secured vide the mashirnama (Exh. 2) which was witnessed by P. W. Lal Beg. He then made enquiries from the witnesses and recorded their statements. The appellants were arrested on 9th March 1970, and after his arrest the appellant Mehar Shah offered to produce his licensed gun. Accordingly, the licensed gun was secured from him by A. S. I, Ghulam Mustafa and was forwarded to the Ballistic Expert with the empties recovered from the vardat. However, as the report of the Expert was negative and as the gun was a licensed gun this recovery is of no significance. Finally, after completing investiga--tions, the appellants were challaned as stated.
3. In support of its case the prosecution examined P. Ws. Hairdin, Muhammad Yakoob, Lal Muhammad and Jani as eye witnesses of the occurrence. It examined P. W. Aijaz Ali, the S. H. O. And the mashirs of the recoveries. Finally, it is sufficient to state here that it also examined P. W. Dr. M. A.
Hakim, who had carried out the post-mortem of the deceased and also treated P. W. Muhammad Yakoob for his injuries.
4. The plea of the appellants in both Courts was one of total denial and they alleged that they had been falsely implicated on account of enmity because Saifuddin, the uncle of the com--plainant P.
W. Hairdin, had been murdered and the appellants Mehar Shah had been charged for that murder but acquitted. Hence their case was that all the witnesses had given false evidence against them on account of enmity. They did not examine airy witnesses in support of their defence, but the appellant Mehar Shah produced a certified copy of the order of the Sessions Court (Exh. 32), by which the case against him for the murder of Saifuddin had been withdrawn under section 494, Cr.
P. C.
5. The Additional Sessions Judge was impressed by the ocular evidence and he also came to the conclusion that it was corroborated by the evidence of P, W. Dr. Hakim. He therefore convicted the appellants as stated. But before I consider the arguments of Mr. Junejo, the learned counsel for the appellants, I have to point out here that the trial began in the Sessions Court on the 43th of January 1971. The deposition of .The prosecution witnesses had been recorded by 18th February 1971, yet the judgment was not pronounced until 25th September 1971. I am constrained to express my very great regret at such delay in the pronouncement of judgment in a murder case.
6. According to P. W: Hairdin the motive of the appellants for murdering Nizamuddin, deceased vas that 2 or 3 years before tile occurrence Roshan Shah, the brother of the appellants, had been murdered and although Nizamuddin had been tried for that murder he was acquitted, therefore, according to the prosecution, the appellants took their revenge for the murder of their brother. The appellants admitted the murder of their brother and also the fact that Nizamuddin had been acquitted, but they denied the allegation of enmity against them. It is difficult to believe this denial, nor did Mr. Junejo rely on it. He however pointed out that the prosecution witnesses had deliberately suppressed a very material circumstance. This was that the uncle of Nizamuddin deceased and of P. W. Hairdin had been murdered and the appel--lant Mehar Shah had been tried for that murder but discharged under section 494, Cr. P. C. Now, the learned counsel's argument is fully supported by the certified copy of the order of the Sessions Judge, Jacobabad, dated 16th April 1968 (Exh. 32), which was produced by the appellants in their defence. It is true that the murder of the uncle of the prosecution witnesses had taken place long ago, but enmities of this type linger and it is not irrelevant to mention here that Saifuddin, the victim of that earlier murder, was the brother of the Sardar of Jakhrani tribe. In these circumstances, I am satisfied that P. W.
Hairdin would have enmity with the appellants and so also P. W. Muhammad Yakoob, as he was the brother-in-law of P. W. Hairdin.
7. In this background, the question whether the F. I. R. (Exh. 7) was lodged promptly becomes important, and Mr.Junejo's submission was that it was lodged after considerable delay. Now as I have pointed out earlier, according to the prosecution, the occurrence took place as the party of Nizamuddin, deceased and his brother were returning from a horse-race. It is also nobody's case that the deceased and his group had lingered on after the races. But as- races can only be held in broad daylight, the more so in the month of February, the occurrence could not but have taken place early in the evening. P. W. Hairdin however had made a suggestion in his evidence that the race had been at tripahri time. I agree with Mr. Junejo that this is difficult to believe, but as P. W.
Hairdin could only have been about 11 years at the date of the occurrence, I would not reject his evidence on this score. However, his brother-in-law P. W. Muhammad Yakoob who was injured at the occurrence was 35 years old, and he stated that the occurrence took place at 5 or 5-30 p.m. I would accept this evidence and as the F. I. R. Was lodged at 9 p.m. The prosecution had to explain the delay. The prosecution witnesses have been cross-examined on this question and P. W. Hairdin, who went to lodge the F. I. R. Said that the police station was a mile and a half from the vardat. It could not possibly have taken this young boy more than half an hour to walk this distance, and this means that the F. I. R. Was lodged after a delay of 3J to 4 hours. Therefore the further explanation of the prosecution witnesses was that P. W. Lal Muhammad had been sent to report the occurrence to the village and it had taken him some time to return to the vardat because Sardar Ghulam Ali Khan, the father of the deceased, was not available. Mr. Junejo criticised this explanation but I see no reason whatever to reject it. However, the explanation does not carry the matter much further because P. W. Muhammad Yakoob said in evidence "Lal Muhammad went on horse back to Hairdin's village to inform his family members. He, came back within half an hour . . . . . . . .". As according to P. W. Muhammad Yakoob the occurrence took place at 5 or 5-30 p.m. This means that P. W. Lai Muhammad had returned to the vardat at 5-30 p.m. Or 6 p.m., and P. W. Hairdin claims to have left immediately for the police station, but if so he should have reached it by 6 or 6- 30 p.m. Why then was the F. I. R. Lodged at 9 p.m. ? Despite cross-examination, the witnesses have been evasive on this question and have sought to explain away the delay on grounds which according to Mr. Junejo were false. Thus, all the eye-witnesses have said that they were on horse back at the time of the occurrence, therefore Mr. Junejo submitted that P. W. Hairdin's story that he had walked to the police station was not fit tote believed. And here I have to add that not only does P., W. Hairdin claim to have walked to the police station at night, but P. W. Lai Muhammad, who had gone to inform P. W. Hairdin's father on horse back, claims to have returned to the vardat on foot.
8. Both these pleas have been advanced in order to explain away the delay in lodging the F. I. R., but can they be believed? Taking first the plea of P. W. Lai Muhammad, as he had gone on horse back to the village to inform the family of the deceased about the occurrence, I cannot believe that he would have returned on foot. To do so would have been both callous and foolhardy. And even if he had wanted to walk back the members of the bereaved family would have insisted on his returning promptly, by riding back or otherwise, because of the obvious danger to P. Ws. Hairdin and Muhammad Yakoob. And it is significant that the witness had admitted in his section 161, Cr. P.
C. Statement that he had returned to the vardat on horse back. He however denied in the Sessions Court the admission made by him in his section 161, Cr. P. C. Statement. But P. W. Aijaa Ali, S. H. O.
Has clearly said in his evidence that the witness had informed him that he had ridden back to the vardat,.
Thus, the witness deliberately advanced a false plea on a material particular. But I have to point out here that the learned Additional Sessions Judge has preferred the evidence of the Patel, witness to that of P. W. Aijaz Ali, S. H. O. On the ground that the police had tried to favour the appellants, anti further, according to the learned Additional Sessions Judge, the police had favoured the appellants because they had taken 18 days to arrest them. Yet, at a later stage, whist discussing the discre--pancies between the evidence of the mashir of the vardat P. W. Lai Beg and that of the very same witness P. W. Aijaz Ali, S. H. O., the learned Additional Sessions Judge has held that the evidence of the Investigation Officer was true and was to be preferred to that of the mashir. I must confess my inability to understand the view of the learned Additional Sessions Judge, and in my humble opinion, P. W. Lei Muhammad's claim to have walked back to the vardct is not fit to be believed. Then, as to P. W. Hairdin's story, the claim is not merely that a young boy 11 or 12 years old was allowed to walk to the police station alone on a dark night when his family's enemies were around armed with guns, but it is to be remembered that this young boy was the son of the Head of the Jakhrani tribe. I am therefore not able to --believe his claim that he had walked alone to the police station.He could neither have walked to the police station nor would he have been allowed to go unescorted to the police station. I reget to say that in my humble opinion these false pleas have been advanced to justify the delay in lodging the F. I. R., but in any case I would recall here that on account of the enmity between the family of Sardar Ghulam Ali Khan and the appellants it would not be safe to accept the evidence of P. Ws. Hairdin and Muhammad Yakoob without corroboration.
9. As the learned Additional Sessions Judge has taken the view that the medical evidence corroborated the evidence of these two witnesses, I would first briefly refer to it. According to P. W.
Dr. Hakim, P. W. Muhammad Yakoob had two gun-shot injuries, one on his left fore-arm and the :other, on his left thigh above the knee joint. But according to P. W. Dr. Hakim the deceased bad 12 gun-shot injuries out of Which at least two were exit wounds. Further, three of the wounds had signs of blackening, while four of the injuries had been "given from a distance of 6 to 10 ft. But none of the injuries had been given from a distance of more than about 20 ft.
10. I now turn to P. W. Hairdin's evidence. He said in his evidence that he, his brother, his brother-in- law P. W. Muhammad Yakoob and P. W. Lai Muhammad were returning from the races and that his brother and his brother-in-law were riding ahead whilst he was riding with P. W. Lai Muhammad.
Their way to their village Jani. Dero Jagir was past the Chand minor near the railway line. There was a bridge over the minor and a barrow pit adjoining the path leading to it. As they reached the vardat, the appellants came out from their hiding places, the appellant Mehar Shah being, near the bridge, whilst the other appellant came out near the bushes at the barrow pit. Then according to the witness, they challenged Nizamuddin for the murder of their brother Roshan, and both of them fired shots at Nizamuddin and P. W. Muhammad Yakoob in consequence of which both Nizamuddin and P. W. Muhammad Yakoob were hit and fell down from their horses. Further, according to the witness, "Yakoob fell down on the top while Nizamuddin fell J down below the top of the minor.
Nizamuddin's gun also fell down while Yakoob had continued to have the same in the hand. On this both the accused came over to Nizamuddin and again fired 6-7 fires at him by standing over him.
They then removed his gold buttons, wrist watch, cap, turban, gun licence bandolier and took all these things. They also robbed Yakoob of gun and bandolier of cartridges. P. W. Jani also came there on horse back and witnessed all this. I and Lai Muhammad were standing 15 paces or so away from Nizamuddin when these things happened . . . .". Then the witness described how he had sent P. W. Lai Muhammad to inform "family members" and he also said "the horses had run away due to gunshots", therefore he bad walked to the police station. - Mr. Junejo pointed out that according to the other witnesses, after Nizamuddin had fallen down from his horse, the appellants had fired 4 or 5 times at Nizamuddin and not 6 or 7 times as claimed by the witness. Mr. Junejo also pointed out that the witness had not stated in his F. I. R. That the appellants had stolen the gold buttons of the deceased, and whilst to witness had said in his evidence that Yakoob had got his gun in his hand, in his F. I. R. He had stated "the gun of Muhammad Yakoob dropped from his hand".
These discrepancies are minor and we would not be justified in rejecting the evidence of the witness on this ground, the moreso as, in the substantial details, this evidence is supported by that of P. Ws. Muhammad Yakoob, Lal Muhammad and Jani.
11. Mr. Junejo then submitted that the ocular version of the occurrence was inconsistent with the recoveries because only four empties had been recovered from the vardat. But P. W. Muhammad Yakoob's explanation is that the appellants had double-barrel guns, and if this be correct Mr. Junejo's criticisms cannot be accepted. Mr. Junejo then submitted that in view of the descriptions of the occurrence by the witnesses empties should have been found at the bridge where the appellant Mehar Shah had been concealing himself. And P. W. Aijaz Ali, S. H. O. Claims to have recovered two empties from this place, but the mashir Lai Beg said in his evidence that the police had already secured empties from that part of the vardat. Thus, there is a discrepancy between the statement of the Investigation Officer and the mashir, and it is to be noted that the mashir further said that the recoveries were not sealed. The attention of the learned Additional Sessions Judge was also drawn to this discrepancy, but he preferred the evidence of the Investigation Officer on the ground that the mashir had been bought over. Now the mashir belonged to the tribe of the complainant and was not declared hostile. And, on the ocher band, in an earlier passage in the Judgment, the learned Additional Sessions Judge has observed that the Investigation Officer had tried to help the appellants. Therefore, I find it difficult to understand the view of the Additional Sessions Judge. But there is another statement in the evidence of the mashir P. W. Lal Beg which has disturbed us and which apparently escaped the attention of the Sessions Court. That statement was "it was growing to be dark when I was called by the police from my village." Now, according to the Investigation Officer, the mashirnama was prepared on the morning after the occurrence, but if tire statement quoted be true then it would suggest, as submitted by Mr. Junejo, that the mashirnama had been prepared after the statement of the witnesses had been recorded by the Investigation Officer. This is a circumstance which does not inspire confidence in the prosecution case. And I may add here that except on the question of the recovery of the empties from the place where the appellant Mehar Shah is alleged to have fired P. W. Lal Beg has supported the prosecution case. And on the other hand the prosecution could, if it thought that this witness had been won over, examined the other mashir of the mashirnama of the vardat (Exh. 20) Noor Muhammad ; it did not do so, nor could Mr. Naqvi explain the prosecution failure so to do, therefore, I find it difficult to agree with the view of the learned Additional Sessions Judge. However, even if I assume that his view is correct, the evidence of the Investigation Officer is not sufficient to connect the appellants with the crime, because like the jungle, the vardat is neutral. It is true that it corroborates the evidence of the eye-witnesses about the places from which the assailants had fired. But in the circumstances discussed this is not sufficient to corroborate their evidence about the identity of the assailants. Similarly, as to the medical evidence, except for one material particular, it supports the description of the witnesses about the distances from which the assailants had fired at their victims. But as the Ballistic Expert's report was negative and was not produced, the medical evidence is not sufficient to connect the appellants with the crime.
12. I have observed that the medical evidence corroborates the general description of the occurrence except for one material particular. That material particular is that according to P. W.
Hairdin, the appellant, Mehar Shah, had appeared from near the bridge of the minor and fired at the victims. Now, according to the evidence of P. W. Khalique Dino, who prepared the sketch of the vardat, the place from which Mehar Shah is "alleged to have fired the first fire" is 200 or 225 ft. From where the two victims were. And I must emphasise here that, according to all the witnesses, the appellant Mehar Shah had come out at the bridge and fired at the victims. But, according to P. W.
Dr. Hakim, none of the injuries to the deceased could have been fired from a distance of more than about 20 ft. But the doctor was not cross-examined in this respect about the injuries to P. W.
Muhammad Yakoob, therefore Mr. Naqvi thought that the first shot fired by the appellant, Mehar Shah, must have hit this witness. And here it is significant that except the victim, P. W, Muhammad Yakoob, the three other eye-witnesses have not cared to specify who was hit by the first shot fired by the appellant Mehar Shah. The most charitable view of the evidence of these other witnesses would be that they bad not clearly seen the occurrence because they were taken by surprise. But P.
W. Muhammad Yakoob has said in cross-examination as follows ; "According to me Mehar Shah came out of the bridge and fired at me from distance of 20 paces. He had come out of -the bridge to the extent of 5-6 paces when he fired. Sabir Shah fired while stand--ing in the borrow pit" This evidence clarifies the confusion about the first shot fired by the two appellants. Obviously the deceased was hit by the shot fired by Sabir Shah, and that is consistent both with the medical evidence and the sketch of the vardat, whilst P. W. Muhammad Yakoob was hit by the -first shot fired by the appellant Mehar Shah. But P. W. Muhammad Yakoob said that Mehar Shah had fired "from distance of 20 paces"; now hour can 20 paces be 200 ft. (vide the sketch of the vardat (Exh.
5). The view of the learned Additional Sessions Judge was that the point shown in the sketch of the vardat was the place where the appellant Mehar Shah was hiding and that as he had come out, given a challenge and then fired, the place from which he fired was much nearer the victims than 200 ft. Now in the first place P. W. Khalique Dino, who prepared the sketch of the vardat, has clearly said in his examination-in-chief that the place from where the appellant Mehar Shah was alleged co have fired was 225 ft. From the point A, which was where the brother of Nizamuddin was. As Nizamuddin and his brother---in-law were riding together, at the most, the appellant Mehar Shah could have been 200 ft. From P. W. Muhammad Yakoob, but 200 ft. Can never be 20 paces, nor can the discrepancy be explained away on the ground that the appellant was walking towards P. W.
Muhammad Yakoob. And on the other hand, if we accept the explanation of the discrepancy given by the Sessions Court, then it would mean that at least P. W. Muhammad Yakoob had sufficient time to hear the challenge given by appellants and use his own gun in self-defence. In any view of the matter, the explanation of the Sessions Court is not satisfactory, and it is not clear how the first shot attributed to the appellant Mehar Shah was fired.
13. I have said that the evidence of P. Ws. Hairdin and Muhammad Yakoob cannot be accepted without corroboration and that neither the medical evidence nor the evidence of the recovery of the empties could furnish sufficient corroboration of that evidence. But the only other evidence is that of P. Ws. Jani and Lal Muhammad, and the learned Additional Sessions Judge has relied on their evidence because they were disinterested witnesses in the sense that they were not related to the family of the complainant. Mr. Junejo criticised the view of the learned Additional Sessions Judge on the ground that as these witnesses belonged to the Jakhrani tribe they could not be said to be dis--interested in a matter affecting the family of their Sardar. I do not think we would be justified in accepting Mr. Junejo's submission, but, as I have pointed out earlier, the independent witness P. W. Muhammad Yakoob had deliberately given false evidence when he said that he had returned from the village to the vardat on foot. Similarly, as to P. W. Jani, Mr. Junejo drew our attention to the fact that according to this witness, P. W. Lal Muhammad had returned to the vardat after reporting the occurrence at the village and that P. W. Lal Muhammad had taken one or one and a half hour to come back to the vardat. But P. W. Lal Muhammad does not claim to have taken so much time to go to the village and return, and on the other hand P. W. Muhammad Yakoob has said tat P. W. Lal Muhammad had re--turned to the village in half an hour. As the question of delay was obviously material to, the prosecution case, it is clear that this discrepancy in the evidence of P. W. Jani cannot he brushed aside lightly, but there are other more disturbing aspects of the case to which Mr. Junejo referred us. Thus for, instance, is it con--ceivable that there were no other eye- witnesses or independent eye-witnesses? According to P. W. Khalique Dino, who pre--pared the sketch of the vardat, there was a village of Bangulnis at a call's distance from the vardat. Mr. Naqvi thought that people are too frightened of dacoits to come out at night to the rescue of any one else. Even if we accept this explanation, the party of the deceased was returning from a horse race and know--ing the enmity of the appellants, would they have taken the risk of returning in the evening without proper precautions? But here Mr. Junejo drew our attention to the fact that P. Ws.
Hairdin and Muhammad Yakoob had admitted in cross-examina--tion that people from their own village had come to see the races. P. W. Hairdin, who appears to have been a well tutored witness, merely said that some persons from his village hall attended the races. But P. W. Muhammad Yakoob admitted in cross-examination "I cannot say how many persons were there but there were many persons of Jani Dero Jagir at the race". Now as the vardat was on the way to Jani Dero Jagir, it is difficult to believe that the only eye-witness of the occurrence, other than the party of the deceased, was P. W. Jani, yet all the eye-witnesses, including P. Ws. Jani and Lai Muhammad said so in their examination-in-chief, and although they were cross-examined on the presence of other persons, they were evasive. However, P. W. Aijaz Ali, S. H. D. Admitted in his cross-examination as follows : "Lal Muhammad has stated before me that he was followed by Jani Jakhrani and others on horse backs who also saw this incident . . . . . Jani has stated in the section 161 state--ment that he was followed by some equestrians pedestrians". Mr. Junejo criticised the failure of the prosecution to examine these other "equestrians and pedestrians", to quote the quaint terminology of the learned Additional Sessions Judge, and learned counsel invited us to draw an adverse inference against the pro--secution for its failure to examine these other persons. This contention is not without force, and further can the fact that there were all these other "equestrians and predestrians" be reconciled with the description of the occurrence by the eye--witnesses ?
14. Here I have to refer to another major discrepancy m the ocular evidence. P. W. Lal Muhammad has admitted in his cross-examination that he was armed with a gun at the time of the occurrence. P. W. Muhammad Yakoob has been silent on this aspect of this case, whilst P. W.
Hairdin has emphatically denied that P. W. Lal Muhammad was carrying a gun. And as to Jani he said in cross-examination: "But on that day I was without any gun. Lai Muhammad may be having the gun. I had seen gun with him some time but he was not having gun on that day." I regret to say that I am not impressed by the contradic--tory statements of this witness, and I find it impossible to believe that P. W. Lai Muhammad would not be carrying a gun since he had a licence. Not only was P. W. Lai Muhammad escorting the sons of his Sardar with whom, according to him, the appel- -lants had enmity, but he was returning in the evening in an area known for dacoity. Therefore, I accept his statement that he wits carrying a gun but why did he not use it against the appellants?
This is a question which stared us in the face, but the answer of the learned Additional Sessions Judge was most extraordinary. The learned Additional Sessions Judge rejected the statement of the witness, as recorded by him in English on the ground that it was discrepant with the Sindhi version of the statement of the witness. In this connection, the learned Additional Sessions Judge, has observed at line 522 : "I had during the course of these arguments consulted the Sindhi record of this case and found that Lal Muhammad had stated definitely that he was not having a gun on that day. I have underlined that part of his statement at page 3 of the Sindhi deposition. In the English deposition however it appears to have been typed out that Lai Muhammad had stated that on that day he was armed with a gun. This was obviously a typographic mistake . . . . . .". . I am con- -strained to express my very great anxiety that a murder case should have been decided in this cursory manner. In the first place, if the English version of P. W. Lai Muhammad's evidence was not correct, at was the fault and responsibility of the learned Additional Sessions Judge who had recorded that evidence. And if he could not even record evidence properly, how can the appellants have confidence in the judgement pronounced ? After all, justice must not only be done but seem to be done. Secondly, if the learned Additional Sessions Judge thought that the Sindhi version of the witness was to be preferred to the English versions recorded by him, the least he was required to do was to give notice to the Advocate of the appellants and to decide the point after hearing both the learned counsel. It may be that this would have caused some delay, but as I have pointed out there was a delay of 7 months between the recording of the evidence and the pronouncement of the judgment, therefore I do not think the failure of the learned Additional Sessions Judge to hear the Advocate of the accused was due to any anxiety to dispose of the case. I am deeply disturbed by the approach of the Sessions Court and I accept the English version of the evidence of P. W. Lai Muhammad. And this means that the other witnesses had falsely tried to suppress the fact that one of their party was armed, but this is fatal to the prosecution case for more reasons than one.
15. In the first place, P. W. Lai Muhammad had a gun with him and the appellants had given a challenge before firing ; why then did the witness not use his gun, at least when the appel--lants were busy robbing their victims? Mr. Naqvi submitted that the witness had not fired out of fear. The witness has not said so, but even if I assume that he did not use his gun out of fear, the question is not merely of what he did, but whether the appellants could have anticipated the behaviour of witness. It is relevant to repeat here that the witness was escorting the sons of the Sardar of his tribe, and the Baluch are a brave race. How then could the appellants have anticipated that the witness would be such a coward as not to use his gun even whilst they were busy desecrating a corpse and committing petty robbery? And the prosecution case in this connection is that after Nizamuddin and P. W. Muhammad Yakoob had fallen off their horses, the appellants had robbed them of their guns and bandoliers and after killing Nizamuddin they had stolen his watch, gold buttons, cap and turban (vide the evidence of P. W. Hairdin). Mr. Junejo submitted that this version of the occurrence was only consistent with a robbery by dacoits because people seeking revenge would not stop to commit petty theft. As vengeance can go with greed, I cannot accept this submission. But Mr. Junejo's further sub--mission was that by committing petty robbery the appellants were exposing themselves to a risk of capture and that such unreason--able and absurd conduct could not be attributed to them. Not only would it take the appellants time to steal so many articles but while doing so they could necessarily be handicapped in defend--ing themselves, therefore as P. W. Lai Muhammad had a gun they could not possibly have assumed that P. W. Lal Muhammad would not fire at them. And here the earlier admission of the prosecution witnesses that there were "equestrians and pedest--rians" at the vardat becomes relevant, as also the fact that many persons from Janidero Jagir would be returning the same way from the races.
Bearing in mind the fact that the victims were the sons of the head of the Jakhrani tribe, I find .It absolutely impossible to believe that the appellants would have wasted time and exposed themselves to the risk of capture by committing petty robbery as alleged by the eye-witnesses. In my humble opinion the prosecution version of the occurrence is therefore not fit to believe and the evidence of the witnesses is not only tainted by enmity but is vitiated by material discrepancies. It would therefore not by safe to base any convictions on such evidence.
16. In the result, the prosecution has failed to prove beyond reasonable doubt the guilt of the appellants, therefore the appeal has to be allowed. I set aside the convictions and sentences passed against the appellants and direct that they shall be released forthwith unless required on any other charge.
ABDUL HAYBE KURBSHI, J.-I agree.