MUHAMMAD HAYAT JUNEJO, J.-Appellants Mirdost son of Rahim, aged 35 years, Rozi son of Dingo, aged 32 years, Shah Bux son of Jalal, aged 38 years, and Fateh Muhammad son of Sher Ali, aged 28 years, have been convicted by the learned Sessions Judge, Jacobabad, for au offence under section 302, P. P. C., relating to the murder of deceased Adam Bugti and sentenced to death. In addition; two of the appellants, namely, Shah Bux and Rozi, have been convicted under section 13-D of the Arms Act and sentenced to R. I. For one year each. One Mir Ahmad, Advocate, who was tried with the appellants, was acquitted by the learned Sessions Judge.
2. The offence is alleged to have taken place on 16th December 1967, at about 11-45 a.m., in the main bazar of Kandhkot town near Mujahid Hotel. The prosecution case is fully set out in the first information report, Exh. 15, which was recorded at the scene of offence at the instance of complainant Ghulam Rasool P. W.
1. It was recorded by Lal Muhammad, S. H. O., Kandhkot, and was to the following effect: - "Complaint is that at quarter to 1.2 noon I was going to bazar with my own work. When I reached near Mujahid Hotel, I saw,
1. Mir Dost Jakhrani,
2. Rozi Jakhrani,
3. Shahoo alias Shah Bux Jakhrani, 4.
Fateh Muhammad alias Lotoo Jakhrani, all by caste Sonaini Jakhranis residents of near Risaldar who all had guns in their hands, and who aiming their guns at Adam Bugti resident of Kandhkot, said that he is Bugti and should not be spared and be killed. Saying so all the four fired guns at Adam, who as a result of firing fell down and died. The passers-by Hazurbux and Gut Khan have also been injured due to gun firing. Dur Muhammad Bugti and Issa Khan Bugti have also seen this incident, and other passers-by have also seen the incident. I raised cries, and I, Dur Muhammad and Issa tried to catch the accused who aimed their guns at us and said that if we approach them we will be killed, then we due to fear did not go near them. Then the accused said in Balochi language that let them go in the Otaq of Mir Ahmed, Advocate, who then ran away towards the Otaq of Mir Ahmed. The above accused have shot dead Adam Bugti with guns on account of tribal rivalry. I, Dur Muhammad and also Bugti know the accused already."
After recording this first information report, S. H. O. Lal Muhammad sent the two injured persons, namely, Hazurbux and Gut Khan to the hospital and thereafter went in pursuit of the appellants. On the way, some women are alleged to have told , him that the - assailants had taken shelter in the Otaq of Mir Ahmad Jakhrani. The S. H. O. Accordingly reached there and secured all the four appllants along with their guns which were smelling of gun powder vide Mashirnama Exh.
18. After the usual investigations were concluded, the appellants were challaned.
3. Dr. Muhammad Alam, Assistant Medical Officer, Kandhkot, who conducted the autopsy on the dead body of the deceased Adam found three injuries on his person caused by a firearm. The injuries were sufficient in the ordinary course of nature to cause death. The same doctor also examined P. Ws. Gut Khan and Hazurbux and found numerous pellet injuries on their persons.
4. The defence of the appellants was one of denial. None of them examined any witness in defence.
Their co-accused Mir Ahmad, who was tried along with them but acquitted, alleged enmity with the police and attributed his false implication to an incident which had happened only two or three days prior to the occurrence in the course of which he had exchanges; or words with S. H. O. Lal Muhammad.
5. The prosecution examined four eye-witnesses of the occurrence. These were Ghulam Rasool complainant P. W. 1, Hazurbux the injured person P. W. 2, Gut Khan another injured person P. W. 3 and Dur Muhammad P. W.
4. None of them, however, supported the prosecution case. Ghulam Rasool stated in cross-examination that as the assailants had their backs towards them he could not see whether their faces were muffled or not. He clarified the position further by saying that as the assailants were running with guns he suspected the appellants to be reason--sible for the murder. The remaining three witnesses completely disowned any knowledge about this occurrence and stated that they could not see the assailants. In view of this position, the learned Sessions Judge very rightly did not place any reliance on the ocular evidence: This aspect of the case is dealt with in para. 11 of his judgment in the following words: - "Except the police officials whose evidence I shall presently discuss, the other witnesses who are all public men have not supported the prosecution case. It appears that the parties have patched up their differences and it is for this reason that they are not supporting the case . . . . . .(para. 15). Thus no witness from the public is supporting the prosecution case. The case therefore hinges on the evidence of police officials."
6. The learned Sessions Judge then went on to consider the evidence of S. H. O. Safiullah, Head Constable Muhammad Zaman and Ashiq Ali Police Constable and as according to him these witnesses had no enmity with any of the four appellants, he concluded that the prosecution case had been fully established against all the four of them. Mr. A. K. Brohi, the learned counsel for the appellants, has taken us through the evidence of all these three witnesses and we find nothing therein to show that any of them saw the appellants firing at the deceased. All of them stated that they heard the people saying that some four persons, who were Jakhranis by caste, had murdered the deceased. The witnesses thereafter stated that they chased the assailants outside the town but the latter came back to Kandhkot and that by that time Lal Muhammad also came and joined them In the chase as a result of which they subsequently arrested all the four appellants from the house of Mir Ahmad, Advocate. We find this evidence hard to believe. It can be seen from the evidence of S. H. O. Lal Muhammad himself that after he reached the scene he recorded the first information report of Ghulam Rasool, thereafter examined the two injured witnesses and sent them to the hospital, and it was only thereafter that complainant Ghulam Rasool informed him that the appellants had run away and that he followed them. All this must have taken the S. H. O. At least half an hour to three-quarters of an hour as rightly pointed out by the learned Sessions Judge. It is, therefore, difficult to believe that the appellants would be waiting for the S. H. O. To complete all this investigation and then to chase them up to the house of Mir Ahmad. What appears to us to be more strange is the fact as mentioned in the first information report that the appellants stated in Balochi language that they were going to the Otaq of Mir Ahmad. They would not leave their address in this manner and then wait in the Otaq of Mir Ahmad so that the police could conveniently apprehened them there from. We also find it hard to believe that the complainant could hear them say all this when admittedly he had retreated on account of fear and was at a considerable distance from them. In the first information report itself there is an indication that there was an attempt on the part of the S. H. O. To rope in Mir Ahmad, Advocate, in this case. The statement of accused Mir Ahmad in this respect is supported by the admissions made by S. H. O.
Lat Muhammad himself when he admitted as follows: - "There was one case under section 366, P. P. C. At Kandhkot Police Station against Jakhranis. I had told Mir', Ahmad Jakhrani to produce the accused in the 366 case as he is the Nekmard of the Jakhranis. It is true that 2-3 days before the incident there was exchange of harsh words between me and Mir Ahmed Jakhrani and the accused said that he has no connection With the Jakhranis and he could not produce them if there was a case under section 366, against them. The four accused are caste-fellows of Mir Ahmed Khan Jakhrani. It is not true that the report was recorded in the office of the D. S. P. After completing the investigation. It is true that there was exchange of harsh words between me and Mir Ahmed but it is not true that I had got him falsely involved in this case due to above reason."
The S. H. O. Further stated that he arrested Mir Ahmad as he had suspicion that the latter had a hand in the murder. When asked by the Court to explain it he said he could not give any reason .4 for the suspicion. In view of this enmity there appears to be force in the assertion of the witnesses that their statements recorded by the police were not correct and the learned trial Judge was not justified in presuming that they had been iron over by the appellants as they had patched up their differences. Even if the conclusion of the learned trial Judge on this point was correct and the witnesses had been won over and had on that account said nothing against the appellants, that can hardly be a substitute for evidence which is not forthcoming in this case. The case really appears to be one of no evidence and is based on hearsay. This position is conceded by Mr. Abdul Hafiz Memon, the learned Assistant Advocate-General appearing on behalf of the State who very rightly does not support the conviction of the appellants.
7. For the reasons given above, we agree with the learned Assistant Advocate-General. We would accordingly allow this appeal, set aside the convictions and sentences of all the four appellants and direct that they shall be set at liberty forthwith if not required in any other case.