' ABDUL HAYEE KURESHI, J.-The appellant Mast Ali alongwith Budho were tried by the Sessions Judge, Khairpur Mir's, on a charge under section 302/34, P. P. C. By a judgment dated 20-7-1974, Budho was acquitted and appellant Mast Ali was convicted under section 302, P. P. C. And sentenced to death, subject to confirmation of the said sentence by this Court. The appellant filed an appeal through Mr. Muhammad Hayat Junejo and the case was also submitted by the learned Sessions Judge, Khairpur for confirmation of sentence of death imposed on appellant Mast Ali. Both the appeal and the confirmation case have been heard together.
' We have heard Mr. Muhammad Hayat Junejo for the appellant and Mr. Murtiza Hussain for the State. On the conclusion of the hearing of the case on 26-11-1975 we had by a short order allowed the appeal and acquitted appellant Mast Ali and rejected the death reference. I now proceed to record the reasons for the judgment.
2. The brief facts of the case are that deceased Ayub, a Khoso by caste, was residing on the land of Imdad Ali and Fakir Barkat Hussain, Hisbanies by caste. The land is situated at a distance of 5 or 6 miles from Faizganj Police Station. It appears that Fakir Barkat Hussain had allowed complainant Sulleman to cultivate land near the houses of Khosas, whereupon a dispute had arisen between the parties. The incident in this case occurred on 3 i-3-1971 and the prosecution story as disclosed by complainant Sulleman in the F. I. R. Is that he alongwith deceased Ayub, witnesses SaM Bux and Ghulam Qadir and one Hote Khan, had on the date of incident gone to the land to harvest wheat crop, when at 11 or 12 o'clock in the day appellant Mast Ali alongwith acquitted accused Budho and absconders Mubarak and Karam Ali, all Hisbanies by caste, challenged the deceased and his party. At the relevant time Budho was armed with hatchet while appellant Mast Ali and absconders Mubarak and Karam Ali were armed with single-barrel gun. It is then stated that the appellant and the other accused party of the deceased and prevented them from harvesting the wheat crop.
And, in the meantime, appellant Mast Ali fired a gunshot at complainant Sulleman which did not hit him but hit the thigh of the left leg of deceased Ayub. It is then stated that the witnesses who were all present brought Ayub who was still then alive to Fakir Barkat Hussain and after narrating the incident they took the injured Ayub in a jeep and while proceeding to Faizganj Police Station, Ayub died where after the report was lodged at 3-30 p.m. The report was recorded by Muhammad Afsar, Incharge Head Constable who thereafter sent the dead body of Ayub for post-mortem examination to Dr. Amer Lal and thereafter proceeded to the scene of occurrence where he carried out investigation.
' An empty cartridge was found on the spot and the same was secured by the Investigating Officer.
Witnesses Ghulam Qadir, SaM Bux, as well as two other witnesses namely Hote Khan and Fakir Imdad Ali, (who have not been examined), made their statements before the Investigating Officer on the following day, viz. 1-4-1971.
' During the investigation appellant Mast Ali is stated to have produced an unlicenced gun which was secured in presence of Mashirs Allah Bux and Muhammad Sharif. Mashir Allah Bux was examined in the Sessions Court, but he did not support the prosecution. The other Mashir Muhammad Sharif was not put in the witness-box. The gun and the empty were sent to Ballistic Expert, but at the trial neither the Expert was examined nor his report was produced.
' On completion of the investigations the appellant alongwith Budho was sent up for trial whereas the remaining accused Mubarak and Karam Bux were shown as absconders.
3. At the trial the prosecution examined complainant Sulleman, Sain Bux and Ghulam Qadir as eye- witnesses. Hote Khan, who was named in the F. I. R., was not examined. Barkat Hussain, the Zamindar to whom information in regard to the crime was given immediately after he occurrence, was not examined by the prosecution. In regard to the recovery of the gun from appellant Mast Ali evidence was famished by Head Constable Muhammad Afsar, but the Mashir Allah Bux did not support the prosecution case so that he was treated as a hostile witness. One Ismail was examined as a Mashir of scene of occurrence from where empty cartridge was recovered. The evidence of Dr. Amer Lal was brought on the record in the Sessions Court under section 509 Cr. P. C. The prosecution also examined Maula Bux, the corpse bearer and Muhammad Nawaz, the Tapedar, who prepared the sketch of the scene of occurrence.
' The appellant and acquitted accused Budho examined no witness in their defence but denied the allegations. Appellant Mast All had stated that that the prosecution witnesses were interested and inimical to him and he produced a certified copy of the deposition of complainant Sulleman in the committal Court. Acquitted accused Budho substantially adopted the statement of appellant Mast Ali.
4. On such state of evidence it would appear that the entire prosecution case rested on the evidence of 3 eye-witnesses who deposed in relation to the incident itself and also the motive. I may even at the risk of repetition once again say that the Ballistic Expert was not examined in this case.
5. I will first deal with the evidence of the eye-witnesses. Complainant Sulleman is a cousin of the deceased Ayub and Ghulam Qadir is his brother and Sain Bux is his maternal cousin. Admittedly, they all lived together. It is also admitted case that the accused party did not like the complainant party cultivating land near their habitation. It is stated by the witnesses that previously also threats had been given by the accused party to the complainant party but there is no further evidence on the point except the word of Ghulam Qadir and Said Bux. It is also in the prosecution case that the Zamindar had been informed about such threats but he has not been examined as a witness. Be that as it may, it appears that the relations between the parties were far from cordial on account of this dispute over land, especially when one looks at the circumstance in the background of the prevailing state of society among cultivators in Sind, where a person living with his family at a particular place does not easily reconcile himself to the lands surrounding his house being cultivated by strangers or even persons of other castes. For such reasons even if the evidence of the witnesses may not be taken to be interested testimony in its technical sense, the Courts have to be on guard and deeper scrutiny of ocular testimony in such cases becomes necessary, more so, in such cases where ocular testimony is uncorroborated.
6. Complainant Sulleman who is a first-cousin of deceased Muhammad Ayub has not supported the prosecution and has not been treated as a hostile witness also. It appears that the prosecutor incharge of the case was satisfied with his evidence and the reasons for such attitude are not for this Court to explore. Sulleman stated that 2 hours before dawn, which would roughly correspond to the hour of 4 in the early morning, he woke up his brother Hote Khan for proceeding to the field to harvest the crop and while on the way he heard a gun report and at some distance he saw deceased Ayub injured and unconscious. In regard to witness Sain Bux and Ghulam Qadir he stated that they also reached there, presumably a little later. He has deposed in regard to information being given to Zamindar Barkat Hussain in regard to the murder, but since he has himself not spoken about the identity of the culprits, if at all any information was given, the same must 'lave been only in regard to an unwitnessed crime. He has further stated that after the injury, deceased did not talk until his death and to such extent the remaining two witnesses have also deposed in like terms.
'Who is also a cousin of the deceased and according to the first information report and evidence of Sulleman, he was with Sulleman throughout the relevant time, has not been examined by the prosecution.
' We are then left only with the testimony of Sain Bux and Ghulam Qadir. These two witnesses have undoubtedly supported the prosecution case in regard to the actual incident. On reading their evidence I have not been impressed for several reasons which I propose to discuss now. Initially, the prosecution story was that appellant Mast Ali attempted to shoot complainant Sulleman and such a version would be consistent with the motive because it was Sulleman who was cultivating the land which is the bone of contention between the parties. The story then was that the fire missed Sulleman and hit Ayub on the left leg. An attempt was made by Sain Bux to show that the disputed land used to be cultivated by complainant Sulleman as well as the witnesses as co-haris.
But, in cross-examination, Sain Bux made a deviation by stating that he, Sulleman, and Ghulam Qrdir cultivated lands separately, but the lands were adjacent. In similar terms Ghulam Qadir had also stated that appellant Mast Ali fired at Sulleman but the same hit Ayub and to such extent the Police statements of both these witnesses were referred to by the Investigating Officer who stated that both Sain Bux and Ghulam Qadir had stated in their Police statements that Mast Ali, the appellant, had fired at complainant Sulleman, but the same hit deceased Ayub. It would thus seem, that if this crime was motivated the target of the assault should have been Sulleman and not Ayub. Even if we believe that the shot missed Sulleman and hit Ayub, still two other absconding accused who were armed with guns and were present could have repeated the shots in order to achieve their object but such is not the prosecution case. This circumstance by itself, renders evidence in regard to motive doubtful and correspondingly also re-acts on the testimony of witnesses Sain Bux and Ghulam Qadir to the detriment of the prosecution case. In such context I may also state that if the dispute which served as motive was the cultivation of the land, the consistent testimony of prosecution witnesses is that complainants in such regard were made by Sulleman to the Zatnindar Barkat Hussain alleging harassment and advancement of threats by the accused party, but Barkat Hussain has not been examined.
7. The next important aspect of the case is a material inconformity between ocular evidence and the medical evidence. Dr. Amer Lal had found one injury on the person of the deceased which was a circular contused wound with charring, having a diameter of 2 inches on the left upper thigh which had fractured the bone into pieces. The Medical Officer was however, not asked as to the distance from which the shot had been fired as it appears that the accused were not represented in the committal Court. However, it is common knowledge that in cases of gun-shot injuries presence of charring ,/ would indicate that the shot must have been fired from a distance not exceeding 4 or 5 feet, more so, when the pellets had not even spread and had caused a single wound with a large 2 inches diameter.
' The first information report gives no indication as to the distance between the deceased and the accused who fired. Evidence of Sulleman also is silent on this point. Witness Sain Bux has however stated that the appellant had fired from a distance of from 15 to 20 paces which would roughly measure 35 to 40 feet. Witness Ghulam Qadir however made an improvement by stating that the distance was 10 to 12 paces, but even that would mean about 25 or 30 feet. If this evidence is to be relied on; the medical evidence, does not support the eye-witnesses. What is more that if the distance between the assailants and the victim was as long as the two witnesses Sain Bux and Ghulam Qadir state, the probabilities lean strongly in favour of an assumption that some injury by a stray-pellet should also have been received by some of the witnesses. I, therefore, deem it proper to rely on the evidence of the Medical Officer in regard to the distance between the source of firing and the victim of the shot and this circumstance by itself greatly weakens the ocular testimony of Sain Bux and Ghulam Qadir.
8. In fact, I have entertained grave doubts in regard to the presence of these witnesses at the time of occurrence. In that context the evidence of Tapedar Muhammad Nawaz is relevant. He had gone to the scene of occurrence to prepare the sketch and the scene was pointed out by Constable Allah Bux and complainant Sulleman. While the place where the deceased received the injuries is shown in the sketch in accordance with the pointing out by complainant Sulleman and Constable Allah Bux, the place where the standing at that time was not shown to the Tapedar. No explanation is forthcoming for such an omission. Even the witnesses in their evidence have not stated as to how far away they were from the deceased at the time of shooting nor have they stated that finding the accused persons coming they attempted to run away. In this context I will also refer to another important circumstance which emanates from the evidence of Tapedar Muhammad Nawaz. He has shown point "E" in the sketch as the place where there was a dera of wheat. It is common knowledge that all the haris of the same Zamindar have a single place for storage of their crop and the time of incident as shown by the prosecution is around mid-day when some persons must be available at this dera which is only 341 feet away from the place of incident, but none has been examined from among such persons.
9. Additionally, Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, has pointed out that the time of incident as given by the witnesses is also different from the actual time and in such context he relied on the evidence of the Medical Officer as well as the corpse bearer Constable Moula Bux has stated in his evidence that the dead body of deceased Ayub was handed over to him at the scene of offence for being taken to the hospital at 11.00 a.m. Dr. Amer Lal has stated in his evidence and postmortem notes, that he carried out post-mortem examination at 5-00 p.m. And according to him death had occurred 4 to 12 hours before the examination. According to the prosecution witnesses incident had occurred at about noon time and thereafter information was given to the Zamindar who lent his jeep for carrying deceased Ayub who was still alive to the hospital and the Police Station. This would show that deceased Ayub had died at about 2 or 3 p.m.
Because the Police Station was only 5 or 6 miles away from place of occurrence and a jeep would normally cover that distance within an hour. If we are to take this story as correct, time that had elapsed between death and post-mortem would not exceed 2 hours and the maximum limit of 12 hours as stated by the doctor lends considerable strength to the submission of the learned Advocate that the time of incident as given by the prosecution witness is incorrect.
The other circumstance, worth consideration in such context is that an injury on the thigh is not likely to create immediate unconsciousness. According to the prosecution witnesses, Ayub lost consciousness immediately and did not speak after receiving the injury. Such state of evidence indicates that the witnesses came later by which time the deceased on account of loss of huge quantity of blood had become unconscious.
' I have looked at this aspect even from a different angle on the assumption that the time of the incident as given by the witnesses is correct. Even then I have no hesitation in stating that in the circumstances of this case, the report would be considered to belated. If Ayub was alive and a jeep was available, there hardly appears any reason for the report having been lodged after nearly 4 hours of the incident when the distance between the Police Station and the scene is about 5 or 6 miles. Even if it is believed that information to Zamindar Barkat Hussain had to be given or was given, the record discloses that Barkat Hussain is residing at a distance of 300 yards from the scene of occurrence. This circumstance, looked at even from that angle has left a feeling on my mind that the report in this case was considerably delayed and time was perhaps consumed for deliberations in order to make out a story. What renders the case more improbable is that in spite of Ghulam Qadir, the brother of the deceased, being present and having witnessed the incident, the report was lodged by his cousin Sulleman.
10. The prosecution evidence is that an empty was recovered from the scene of occurrence and an un-licenced gun was recovered from the appellant Mast Ali. The mashir of recovery of gun has however not been examined but even if it is assumed that a gun was recovered, the question that directly arises is whether this gun was used for the commission of the offience. It has come on record that the gun and the empty was sent to the Ballistic Expert for examination but he has not been examined in Court and even the report has not been placed on the record. It is, therefore, fair to presume that the report of the Ballistic Expert is unfavourable to the prosecution, This circumstance, therefore, does not advance the case of the prosecution.
11. On consideration of all the circumstances of this case, we are of the view that the prosecution has failed to establish the guilt of the appellant Mast Ali beyond reasonable doubt. His appeal is &lowed and he is acquitted. The reference for confirmation for death is rejected. The appellant shall be released forthwith if he is not required in any other case.