1. Appellants Bakshan son of Vali Dino, Pathan son of Noor Mohammad and Illahi Bux son of Noor Mohammad were tried and convicted by the Additional Sessions Judge Sukkur for the offence under section 307 read with section 34, P. P. C. And each of them was sentenced to R.I. For seven years they have appealed against their conviction and sentence.
2. The prosecution case was that on 10-5-1972 at about sunset time, injured Mohammad Hussain was present at his well watering his lands when appellants Baksho and Ilahi Bux armed with guns and appellant Pathan armed with hatchet came there. Appellant Baksho told P. W. Muhammad Hussain that he would kill him to take revenge for the murder of his brother Nawaz and saying so appellant Baksho fired his gun at him injured Mohammad Hussain raised cries and attempted to run away on which Ilahi Bux fired a shot from his gun which also hit him. The injured, however, managed to reach his dera and fell down. P. Ws. Sobho, Chanesar and Din Mohammed heard the cries and reached the scene of offence where they saw that the injured was being chased by the appellants and fell down and the appellants made good their escape. Thereafter Mohammad Hussain narrated the entire incident to these witnesses who brought the injured to the police station Chotki where P. W. Sobho lodged the F. I. R. Which was recorded by W. H. C. Allahdino on the same day at 9-45 p.m. After recording the F. I. R., W. H. C. Allah Dino prepared mashirnama of the injuries, examined P. Ws. Chanesar, Din Mohammad and two others and referred the injured for treatment to the Ghotki hospital. Thereafter, he handed over the investigation to S. H. O. Rashid Ahmed who proceeded to the wardat near the well of injured Mohammad Hussain. The S. H. O. Found one empty cartridge lying at the wardat which he secured under the mashirnama He, then, on the same day, arrested appellants Ilahibux, Baksho and Pathan. Appellants Illahi Bux and Baksho thereafter produced their licensed guns and Pathan produced his hatchet which was also secured by the S. H. O. Under the mashirnama. After completing the necessary investigation he challaned the accused in the Court of Civil Judge and F. C. M. Ghotki from where they were sent up to stand their trial in the Court of Second Additional Sessions Judge, Sukkur.
3. At the trial the prosecution relied upon the ocular testimony of the injured Mohammad Hussain and the prosecution witnesses Sobho, Chanesar and Din Mohammad, recovery of empty cartridge from the wardat and securing of the guns from the appellants and the evidence of motive which was to the effect that shortly before this murder, Nawab, brother of appellant Baksho, had been murdered and the appellants in order to avenge that murder had committed this offence.
4. The offence of the appellants at the trial was one of denial and false implication due to serious enmity between the appellants and the prosecution witnesses.
5. The trial Court accepting the ocular evidence of prosecution witnesses and the alleged motive, convicted the appellants and sentenced them as stated above.
6. Mr. Azizullah Shaikh, the learned counsel for the appellants, contended that the prosecution case was based entirely on the oral testimony of witnesses who were admittedly on terms of serious enmity with appellants, as shown by the number of retaliatory murders committed on both sides, and whose evidence suffered from serious discrepancies and material contradictions.
7. Consequently, their evidence could not be relied upon without corroboration and there being no corroboration, whatsoever, it would be unsafe to found and maintain the conviction of the appellants on the oral word of such witnesses alone.
8. The contention raised by the learned counsel requires serious consideration. The evidence brought on record indeed discloses background of serious recent enmity between the P. Ws. And the appellants as retaliatory murders are shown to have been committed on both sides. Complainant Sobho bas stated in his evidence that one Hakim son of P. W. Din Mohammad, nephew of P. W.
9. Chanesar, was murdered and Allah Wadhayo, brother of appellant Ilahibux, was charged and tried for that murder. He has further stated that one Sajjan was murdered. Appellant Baksho was tried for that murder and he (Sobho) was a prosecution witness in that case. He has also stated that four or five days prior to the present incident, Nawab, brother of appellant Baksho, had been murdered by Sabal and Shahoo, nephews of injured Mohammad Hussain. P. W. Chanesar has also stated in his evidence that his son-in-law, Hakim was murdered and Allah Wadhayo, brother of appellant Illahi Bux, was tried for that murder.
10. Having regard to the closeness of the witnesses inter se and the previous retaliatory murders committed by both sides showing background of serious enmity between the complainant party and the appellants, the witnesses could not be considered to be either disinterested or impartial. It can, therefore, be hardly over-emphasized that their evidence requires careful scrutiny and is to be accepted with care and caution.
11. Complainant Sobho in his evidence has stated that he was present in his field in the evening, about two furlongs away from the scene of offence, when he heard two gunshot reports. He went running towards that direction. Din Mohammad, Chanesar and Azizullah also came there running. All of them saw that the appellants were chasing injured Mohammad Hussain who ultimately fell down near his (injurer---s) dera which was about two furlongs away from his well. Injured Mohammad Hussain went unconscious but regained consciousness after 2-3 minutes and told them that he was standing at his well irrigating his lands when appellant Baksho fired a shot from his gun at him and appellant Ilahibux fired at him from his gun. He admitted in his cross-examination that appellant Baksho was tried for murder of one Sajjan and The was prosecution witness in that case against appellant Baksho. He further admitted that his village was about a mile away from the dera of injured Muhammad Hussain and that wardat was not visible from his land. He further said in his evi--dence that other witnesses had come to the wardat after his arrival.
12. P. W. Chanesar states in his evidence that he was at his dera at a dis--tance of one furlong from the well of injured Muhammad Hussain when he heard two gun-reports and cries of Muhammad Hussain. He came out of his dera and after covering 25 paces saw Muhammad Hussain coming running followed by the appellants. The injured Muhammad Hussars reached his (Chanesar's) dera and fell down. The appellants then made good their escape. NONE ELSE CAME THERE. Muhammad Hussain thereafter told him and P. W. Din Muhammad and one Azizullah (not examined) who had also come at the dera that Baksho and Ilahi Bux had fired at him and that appellant Pathan armed with hatchet was with them, suggesting that injured P. W. Muhammad Hussain did not go unconscious at the wardat and that he alone saw or, at least, was the first one to see the appellants chasing Muhammad Hussain and all others came later. P.W. Sobho however claimed in cross-examination "the other witnesses had come to the wardat after my (Sobho's) arrival." He was also confronted with his statement in the committing Court wherein he had stated that P.W.
13. Muhammad Hussain had regained consciousness at the police station within half an hour of their arrival and that F. I. R. Was recorded before he regained his senses. He also admitted that his son- in-law Hakim was murdered and Allah Wadayo, brother of appellant Illahi Bux, was tried for that murder. P.W. Din Mohammad has stated in his evidence that he was sitting in his otak when he heard two gun reports and cries of injured Muhammad Hussain and went running and saw appellants chasing the injured Muhammad Hussain who fell down. The appellants then went away.
14. Injured Muhammad Hussain told them that he was in his well when the appellants came there armed with guns and hatchet and told him that they would not spare him and saying so fired guns at him. He is however contradicted by P. W. Chanesar who states that he alone was present when injured fell down in his dera and 'none else came there. He then admits that his son Hakim was murdered and Allah Wadayo, brother of appellant Illahi Bux was tried for that murder.
15. The evidence of above three witnesses shows that they had only seen the appellants chasing P. W.
16. Muhammad Hussain and had not seen the appellants firing but were told about it at the wardat by Muhammad Hussain himself.
17. Injured P. W. Muhammad Hussain in his statement before the com--mittal Court, however, stated that he fell unconscious at the wardat and did not regain consciousness at the wardat nor did he tell anything to the com--plainant or witnesses at the wardat or on way to the police station. P.W.
18. Muhammad Hussain, of course, denied at the trial to have made such a statement before the committal Court but he was duly confronted with it. Investigating Officer Allah Dino too has stated in his evidence that injured Muhammad Hussain was not in his senses at the police station and, therefore, did not record his statement. He has further stated in his evidence that injured Muhammad Hussain had not mentioned in his statement under section 161, Cr. P. C. That complainant Sobho and other witnesses had come at the wardat on his cries or on the gun reports.
19. Even Sobho has admitted in his cross-examination that police made no enquiry from the injured Muhammad Hussain at the police station and recorded his statement at the hospital. P. W.
20. Chanesar has also stated in his statement before the committal Court that injured Muhammad Hussain regained consciousness at the police station within half an hour of their arrival at the police station and that F.I.R. Was recorded before the injured Muhammad Hussain regained consciousness. Now, when the injured Muhammad Hussain was unconscious at the wardat as well as at the police station and had not spoken to any of the witnesses at the wardat or on his way to Police Station and the F. I. R. Had been lodged before his regaining consciousness, how could he have at all told the witnesses about the actual firing much less given them the details of the main incident of firing at the wardat, as has been claimed by the witnesses. And what is more intriguing, how did it come to be mentioned in detail in the F. I. R. Lodged by Sobho that injured Muhammad Hussain on enquiry told the witnesses at the wardat that "after harnessing the persian wheel he was standing when Baksho, Illahi Bux and Pathan Ghota appeared there and Ilahi Bux challenged and fired his gun on which he turned round when appellant Baksho also fired his gun hitting him on his right arm and right side." With regard to the witnesses seeing the appellants chasing injured Muhammad Hussain also, their evidence is discrepant, contradictory and does not inspire confidence.
21. P.W. Sobho's evidence is to the effect that on hearing gun reports and cries of injured Muhammad Hussain, he, Chanesar and Din Muhammad came running to the wardat simultaneously and saw appellants chasing Muhammad Hussain. In his cross-examination, however, he stated mat the other witnesses had reached the wardat after his arrival. P. W. Charesar, on the other hand, says in his evidence "injured Muhammad:came running being followed by the appellants and fell down in my dera. NONE ELSE CAME THERE." He further stated ---Sobho came at the wardat after the accused had disappeared." P. W. Din Muhammad gives yet another version by stating that he and one Azizullah came running to the dera where Chanesar and Muhammad were standing. Intrinsically so, the evidence of these witnesses seeing the appellants chasing injured Muhammad Hussain does not ring true. It was sunset time. All the three witnesses were at different places. P. W. Sobho according to his own evidence was at his land two furlongs away from the wardat which not visible therefrom. P. W. Chanesar was at his dera about one furlong away from the wardat, P. W. Din Muhammad was at his otak one and half a furlong away from the wardat, when all of them, heard an reports and cries of Mohammad Hussain. Looking to the she respective witnesses were stationed at, it is hard to believe that all of them could have reached the wardat just in time to see the appellants chasing the injured, more so when the story of appellants chasing the injured itself looks unconvincing. The appellants were three in number, two of whom were alleged to be armed with guns and third with a hatchet whereas the injured was alone and was unarmed so that the appellants had him to themselves at the wardat. In this situation, it is again hard to believe that the appellants would have had to chase the injured for nearly two furlongs.
22. This leaves for consideration the evidence of injured P. W. Mohammad Hussain, who is the most important witness. He has stated in his evidence that on the day of incident, at sunset time, he was watering the land when the appellants armed with guns and a hatchet came there. Appellant Baksno told him that he would take revenge for the murder of and saying so fired at him. He attempted to run but appellant fired a gunshot at him which hit him on his left arm and abdomen.
23. However, managed to reach his dera where be fell down and the on seeing the witnesses ran away. P. Ws. Chanesar, Din Muhammad .i:1 one Azizullah came there and Sobho also came there to whom he the facts. When asked in his cross-examination whether he had before the committal Court that he fell unconscious at the wardat and regained the consciousness at the police station only and did not tell anything either to the complainant Sobho or other witnesses at the wardat, he denied to have made such a statement and asserted that he was conscious through out. He was, however, duly confronted by his statement in the Court wherein he had indeed said that he had fallen unconscious and regained consciousness at the Police Station and had not told anything to the witnesses at the wardat or on the way to Police Station. He is further belied here by P. W.
24. Chanesar who also stated in his statement before the of inquiry that injured Mohammad Hussain had regained at the police station half an hour after their arrival and that F. I. R. Recorded before he regained his senses and was examined by the police the hospital. No doubt, Chanesar denied at the trial to have made such a statement before the committal Court, but, he too, was duly with it.
25. The evidence of investigating officer Allahdino also believes him as he stated in his evidence that injured Mohammad Hussain was not in his senses at the Police Station and, therefore, did not record his statement at the Police Station. Then, he asserted in his cross-examination had given the names of the witnesses in his statement to the Police. He was contradicted on this point also by the Investigating Officer Allah who admitted that P. W. Mohammad Hussain had not named any witness in his statement under section 161, Cr. P. C.
26. Further, in big cross-examination, Mohammad Hussain had stated that two days prior to the incident he had been threatened by all the three appellants for taking revenge from him for the murder of the appellant's brother but, he had to admit that he did not mention about it to any witness. He did not state about this even in his statement to the Police, as per the evidence of Investigating Officer Allahdino, though he claimed at the trial that he had stated about the threat to the Police in his statement under section 161, Cr. P. C. The evidence of this witness also shows that, like other witnesses, he had fallen in line with the version set up in the F. I. R. Admittedly lodged before his regaining consciousness and, in his anxiety to do so, did not hesitate to go back on his statements proved to have been made by him before the committal Court and therefore his evidence too does not inspire confidence and cannot be implicitly relied upon. It could be urged that since P. W. Mohammad Hussain suffered from injuries, his presence at the wardat could not be doubted and must therefore have been on a position to see and identify his assailants. Normally, this would be a weighty circumstance in assessing the evidence of such a witness in a case where single accused is involved, which however is not the case here as three accused of the same family, two of whom are brothers inter se and the third their close relation, are involved in this case.
27. Besides, further question that has to be considered in such a case is whether the witness is speaking truth and has no reason to falsely implicate the accused persons charged with the crime.
28. Viewed in this perspective, there exists one important circumstance in this case which casts serious doubt on the veracity of this witness and does not rule out a strong probability that the present appellants may well have been falsely implicated. The circumstance is this. The F. I. R. Had been, admittedly, lodged already by P. W. Sobho before the injured Mohammad Hussain regained consciousness at the hospital and the appellants had been already named and implicated therein with the details of incident alleged to have been given by injured Mohammed Hussain to the complainant. This being so, it cannot be ruled out, as was vehemently argued by the learned counsel, that injured Mohammad Hussain had to toe the line, which he did, and had implicated the appellants falsely, apprehending that if he did not do so and disclosed the real culprits, who could be other than the appellants, the prosecution case would fail against both. Further, in view of the background of bristling enmity between the parties, it also cannot be said that the other witnesses had no reason to falsely implicate the appellants on suspicion.
29. There is yet another important circumstance in this case which further makes prosecution case doubtful against the appellants. According to Mashir Pehlwan-one freshly fired crime empty of .12 bore was recovered by Investigating Officer Allahdino from the wardat at the well. The police had also secured two licensed guns from appellants Allahbux alias Baksho and Ilahi bux on 11-5-1972, on the next day of the incident. Both the guns were of .12 bore. Prosecution, however, neither produced the crime empty before the Court nor the report of the ballistic expert. The learned counsel, therefore, very rightly argued that either the guns and the crime empty were not even sent to the ballistic expert, or, what is more certain, that they were sent but the report of the ballistic expert being in the negative and against the prosecution, the same was withheld from the Court, thus raising inference against the prosecution that the guns secured from the appellants were not found to have been fired and the crime empty did no match the guns secured from the appellants.
30. PLD 1973 SC 321) their Lordships following their own decision reported as Thoba v. State, (PLD 1963 SC 40) reiterated "the appraisement of the evidence of eye-witnesses has to be based on a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a background of enmity. In such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from un--impeachable source. If such a source is not available, then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt which such evidence must necessarily create".
31. Keeping in view the above observations of their Lordships, it will be seen that in the instant case, there is no supporting circumstances to corroborate the ocular testimony of the witnesses, who were not only partisans but also inimical, but their evidence was also by no means of an un- impeachable character. It suffered from apparent contradictions, serious discrepancies and inherent improbabilities as pointed out earlier in the judgment so that it will be wholly unsafe to rely on them. The evidence of motive also cannot be relied upon as, in the circumstances of this case, it cuts both ways.
32. For the aforesaid reasons, I have come to the conclusion that prosecution has failed to prove its case against the appellants beyond reasonable doubt. I, therefore, allow this appeal and set aside the conviction and sentence of the appellants and acquit them and order that they be released forthwith unless required in any other case.