1. Z. A. CH/V. NA, J.-The appellants, of whom six are closely inter-related while the 7th appellant, Hazaro, is the Hari of the father of the appellant Ahmad BL.x, were tried for offences punishable under sections 147, 148, 302 and 323, read with section 149, P. P. C. All of them were convicted by the learned Additional Sessions Judge, Khairpur, by his judgment delivered on 15-8-1973 and each of them was sentenced for the offence under section 302/ 149, P. P. C. To imprisonment for life, for the offence under section 147 to six months' R. I. And for the offence under section 323/149, P. P. C. To six months' R. I., all the sentences to run concurrently. The learned Additional Sessions Judge refrained from awarding death sentence to the appellants in view of the fact that six of the appellants belonged to the same family. The appellant,, have come up in appeal to challenge their convictions and sentences.
2. Appellants Akram and Tahmoor are brothers inter se and cousins of appellant Ahmad Bux.
3. Appellant Shahzado and Rahim Bux are also cousins of appellant Ahmad Bux. Appellant Muhammad Hassan is closely related to Ghous Bux, father of appellant Ahmad Bux, but the exact relationship does not appear from the record. About 1 years prior to the occurrence of the incident., which is the subject-matter of the present appeal, Illahi Bux, the brother of appellant Ahmad Bux, was murdered, and for his murder, Gulab, Sher Muhammad and Phog Shar were challaned. That case was pending at the time when the present incident occurred but the said persons were released on bail 1-1/2 months prior to the incident. On the day of the incident, the hearing of their case in respect of the murder of Illabi Bux was fixed before a Court at Gambat and hence all three of them attended the said hearing accompanied by Lakhmir, who was one of the persons who was killed in the present incident, the other being Gulab. Because ,of the murder of Illahi Bux who belonged to the Quaimani sub-caste of the Shar tribe, while the complainant's party in the present case belongs to the Sohrbani sub-caste of that tribe, there were strained relations between the two sub-castes, and the complainant's party in the present case apprehended that the relations of Illahi Bux would seek to avenge the murder of Illahi Bux. Because of this fear, it is alleged, Fazal Hassan, Imamuddin and Ghulam Anwar from the present complainant's party had gone in the afternoon to Thari, so as to escort Gulab, Sher Muhammad and Phog back to their village, on their return from the Court at Gambat. The first informant, Hub Ali, who is the son of deceased Lakhmir, is also alleged to have left his village in the afternoon in order to meet the aforesaid persons on the way and escort them back to his village. When he reached the bridge of Dodano Canal, which is at a distance of 11 miles from his village, he heard gunshot reports and shortly thereafter is said to have seen the present appellants come running towards the bridge. Out of them Muhammad Hassan, Akram and Hazaro are alleged to have been armed with hatchets while the rest carried guns. On seeing the complainant, the appellants followed him, but the complainant ran towards his village, raising cries of "murder"! "murder". The appellants ultimately gave up the chase and ran away. The complainant then went to janwari garden, from the direction of which he had heard the gunshot reports, and saw his father, Lakhmir, and uncle, Gulab, lying dead on the road, and bleeding profusely from various injuries on their bodies. He also saw P. Ws. Ghulam Asghar, Fazal Hussain, lmamuddin, Iqbal, Sher Muhammad and Phog standing by the side of the dead bodies and raising cries. He was informed by the aforesaid witnesses that the present appellants had killed Lakhmir and Gulab by firing gunshots at them and giving them hatchet blows. They further informed him that while the rest of them had run away due to fear, Iqbal had tried to intervene, but he was given blows with the butt of a gun. Adam Khan Shar, Mahar Ali Janwari and others also turned up on hearing the cries and were informed of the incident. On the same day, at 6-30 p. m., Hub Ali lodged his F. I. R. At Thari Mirwah Police Station, which is at a distance of about two miles from the scene of offence.
4. The investigations in the case were mainly conducted by A. S. I. Hassan Raza, who had recorded the F. I. R. He accompanied the first informant Hub Ali to the scene of offence, and after preparing mashirnama of the vardat and inquest reports of Gulab and Lakhmir, sent the two dead bodies to the Medical Officer Mirwah for post-mortem examination. From the scene of offence the A. S. I.
5. Recovered, in the presence of mashirs Faiz Muhammad and Amir Ali, one empty cartridge and one live misfired. He also secured one bullet, an iron rod and a piece of wood from the place of occurrence. On the same day the A. S. I. Sent injured Iqbal to the Medical Officer for examination, after recording his statement. On the following day, the A. S. I. Recorded the statements of P. Ws.
6. Phog, Sher Muhammad and Gulam Asghar. On 19-6-1971, all the appellants, except Tehmoor, were arrested by S. H.0. Ghulam Muhammad. The appellants were handed over to A. S. I. Hassan Raza for production of weapons and blood-stained clothes. On the same day appellant Muhammad Hassan produced a blood-stained hatchet and blood-stained clothes, consisting of a shirt and a loin-cloth, from his house in the presence of mashirs, Muhammad Ashraf and Amir Ali, which the A.
7. S. I. Secured under mashirnama Exh.
29. Thereafter, the A. S. I. Secured, in the presence of the aforesaid mashirs, under Mashirnama Exh.
8. 30, a hatchet, shirt and loincloth, all of which were blood-stained, from the shop of appellant Akram, at the latter's pointing out. Latex that day, appellant Ahmad Bux's father produced his licensed gun and 10 live cartridges and similarly appellant Rahim Bux's father, Sajan Khan, produced his licensed gun alongwith three cartridges and licence, which the A. S. I. Secured under separate mashirnamas, which are Exhs. 32 and 33. The A. S. I. Next secured under Mashirnama Exh.
9. 34, one blood-stained shirt and one loin-cloth from the house of appellant Shahzado, at the latter's pointing out. The father of appellant Tahmoor whose name is Salim, also produced on the same day before the A. S. I. His licensed gun and 8 cartridges, which the A. S. Secured under Mashirnama, Exh.
35. As appellant Ahmad Bux had injuries on his person, he was sent to the hospital for treatment and certificate. On 22-6-1971, appellant Tahmoor surrendered himself at the police station, and on the following day, the A. S. I. Secured, in the presence of mashirs, Muhammad Ashraf and Amir Ali, a blood-stained shirt and a blood-stained loin-cloth from Tahmoor's house, at Sahid Dinno , the uncle of appellant Shahzodo produced before the A.S.I. One licensed gun and 10 live cartridges, which the A.S.I. Secured under Mashirnama, Exh.
10. 22.
11. The inquest in deceased Gulab and Lakhmir was conducted by Dr. Aijaz Ali of Mirwah Rural Health Center . He found in all 15 injuries on the person of Gulab, four of these injuries had been caused by a discharge from a fire-arm, one injury was an abrasion on the back of the lower chest, while the remaining 10 injuries appeared to have been caused by some sharp-cutting weapon. According to the doctor, seven of the injuries on Gulab were individually or collectively sufficient in the ordinary course of nature to cause his death.
12. On deceased Lakhmir, the doctor found three injuries, one of which had been caused by a discharge from a fire-arm, while the other two had been caused by a sharp-cutting weapon, such as a hatchet. One of the injuries with the hatchet had been caused on the head and had resulted in the cutting of the skull bones and the oozing out of the brain substance. According to the doctor, the death of Lakhmir must have been instantaneous on receipt of the above injuries.
13. The appellants, both in the committing Magistrate's Court and at their trial, completely denied the prosecution allegations. All of them, except appellant Ahmad Bux, denied that they had produced any blood-stained weapons or clothes before the police or the same were secured by the police from their possession. Appellant Ahmad Bux admitted that he had injuries on his person when he was arrested by the police but explained that he had received the injuries a day prior to the incident in a fight with one Changle Shar. He also admitted that his clothes were stained with blood but explained that the blood on his clothes had come from the injuries which he had sustained in the fight with Changle Shar.
14. ' The prosecution have examined six persons, who claimed to have winessed the incident and identified the culprits. They are Hub Ali, the first informant, Iqbal, Ghulam Akbar, Imamuddin, Sher Muhammad and Phog. Even according to his own version, first informant Hub Ali cannot be considered to be an eye-witness, for he does not claim to have witnessed the attack on the two deceased, Lakhmir and Gulab, but has stated that he merely heard the gunshots and thereafter he saw the appellants, who were armed with guns and hatchets. The testimony of this witness, in regard to seeing the appellants and their chasing him, was disbelieved by the trial Court, and in our opinion rightly so, because, firstly, it is unlikely, if the complainant's party apprehended danger at the hands of the powerful appellant's party, that he would have gone out all alone and unarmed, to meet his father and the others who had gone to attend the Court ; secondly, since he had no means of knowing when their case would be taken up by the Court or at what time they would be free from the Court and undertake the return journey, he could not have left at Bipahri time to meet his father, as alleged by him in his first information report ; thirdly, if he left his village at Bipahri time, he would have arrived at the scene of offence much before 5 p. m., since his village is at a distance of only 1j miles from the wardat, and lastly, if the appellants had actually seen the first informant, it is unlikely that they would have spared him or he would have been able to escape from them, since they were armed with guns and could easily fire from a distance. It appears to us that he came subsequently on somehow learning of the incident.
15. The evidence of P. Ws. Ghulam Asghar and Imamuddin, who claim to have witnessed the incident and identified the culprits, also does not inspire any confidence. P. W. Ghulam Asghar is the son of deceased Gulab while Imamuddin is the son of deceased Lakhmir and the brother of informant nformant Hub Ali. Their version is that they alongwith Fazal Hussain had gone to Thari, and there they had met Lakhmir, Gulab, Phog, Sher Muhammad and Iqbal, and all of them then came together towards their village, when on the way, near Janwari village, the incident, which is the subject-matter of this case, occurred. We are not inclined to accept their ipse dixit that they had accompanied the deceased from Thari for coming back to their village and had seen the entire incident and identified the assailants. According to these witnesses, they had gone to Thari, as per their usual practice, to escort back Gulab, Phog and Sher Muhammad to their village, because the accused party had been holding out threats and there was a genuine apprehension that the accused party might waylay the said persons and either kill them or cause injuries to them. If these witnesses did entertain such a fear, then it was reasonable to expect that they and the others from the complainant's party would carry arms in order to protect themselves. The prosecution witnesses, however, one and all, have denied that any one of them carried arms. Even deceased Lakhmir, who owned a licensed gun, did not carry his gun with himself. It is thus not understood how these witnesses could have escorted and protected the three accused in the Illahi Bux's murder case, when they were unarmed. Furthermore, if Ghulam Asghar and Imamuddin had been with the deceased at the time of the incident, and the assailants had been seven in number, as alleged, we do not think that it would have been possible for these two witnesses to have escaped unscathed. We are thus inclined to the view that these two witnesses were not present during the incident and that probably they came later on. Even the learned Assistant Advocate-General, who appeared for the State, frankly conceded, in view of the above circumstances, that the presence of these two witnesses at the time of the incident is doubtful.
16. We also find ourselves unable to place any reliance on the testimony of P. W. Lqbal, who is cousin of P. W. Phog, that he had not only witnessed the incident and identified the culprits, but that he had tried to intervene, whereupon he was given a blow with the butt of a gun by appellant Ahmad Bux.
17. Since deceased Lakhmir and Gulab were not only caused gunshot injuries but also were given a number of hatchet blows by their assailants, it is unlikely that the culprits would have rested content with only giving a light blow to Iqbal with the butt of a gun. The medical evidence shows that he had only one lacerated wound, 1-1/2 x 1/8", on the left temporal bone, which was simple in nature and had been caused with a blunt weapon like a lathi. It is significant that no question was put to the Medical Officer by the prosecution whether this injury could have been caused with the butt of a gun, as alleged by the prosecution witnesses. The nature of the injury on P. W. Iqbal was such that it could even have caused by a lathi or his head coming into contact, with some force, against a wall, tree or other hard substance. The learned Additional Sessions Judge, while recording the evidence of this witness, has recorded a note to the effect that this witness suffers from weak eye-sight. It is thus not altogether improbable that on account of this defect he may have had a fall or may have stumbled against a tree or a wall and thus sustained the injury on his head. Another circumstance which casts doubt on the testimony of Iqbal is that according to him the injury with the butt of the gun was caused to him by appellant Ahmad Bux The medical evidence shows that in addition to other injuries, the left index finger of Ahmad Bux was found to be amputated and there were injuries on his left hand and left thumb. Apart from the fact that it has not been explained how Ahmad Bux sustained these injuries, it would have been difficult for him to have hit P. W. Iqbal with the butt of a gun, if he had received such injuries. There is neither any evidence nor can it be assumed that he sustained the injuries after he had caused the injury to P.
18. W. Iqbal.
19. There remains, so far as the ocular evidence is concerned, the testimony of P. Ws. Sher Muhammad and Phog. The learned Assistant Advocate-General, who appeared for the State, contended that their testimony should be accepted and relied upon, since they were co-accused with deceased Gulab in the case relating to the murder of Illahi Bux and were returning from the Court at Gambat with Gulab after attending the hearing in that case. We are of the opinion that the mere fact that they were co-accused with deceased Gulab and had attended the hearing of the case with Gulab in the Court at Gambat on the day of the incident is by itself not sufficient to establish that they returned alongwith the two deceased or that they were with them at the time of the incident and saw and identified the culprits. We are inclined to the view that if they had been with the two deceased at the time of the incident and the assailants have been seven in number, it would have been difficult for them to have escaped unhurt. Since these two witnesses were also considered responsible, alongwith deceased Gulab, for the murder of Illahi Bux, the appellants had equal motive to kill them as they had against deceased Gulab. The fact that no injury whatsoever was sustained by them, though four of the assailants are said to have been armed with fire-arms, which could have been used from a considerable distance, suggests that either they were not going together with the two deceased at the time of the incident, or at any rate they were at some distance behind them, which enabled them to escape being injured at the hands of the assailants.
20. The mashirnaina of the scene of offence, Exh. 16, shows that the scene of offence was on a katcha road which had thick bushes on both sides. Furthermore, there was a grove of trees near the road, in the garden of Lehano Janwari. The mashirnama further shows that one empty cartridge and one misfired cartridge were recovered from the katcha road, at a distance of 110 feet east of the scene of offence, and that a misfired bullet-cartridge, a thin iron rod used for cleaning a gun and a piece of the butt of a gun were lying at a distance of four paces east of the scene of offence. The location of these articles seems to suggest that the culprits were in two groups, one of which had taken position about four paces away from the scene of offence and the other about 110 paces further up the road. Furthermore, the incriminating articles in both cases were found from the eastern side of the road, suggesting thereby that both the groups had taken up positions on that side of the road.
21. However, according to P. Ws. Phog and Sher Muhammad, the gun-fire had come from both the sides of the road. There is thus significant contradiction as between what is indicated by the mashirnama of the scene of offence and the testimony of the aforesaid two witnesses. Even if we were to accept the position that these two witnesses were following the two deceased at a short distance, as alleged by them, we find it difficult to place any great reliance on their evidence as to the number of the assailants and their identity. P. W. Sher Muhammad is cousin of deceased Gulab and is also closely related to the other P. Ws. P. W. Phog is the first cousin of P. W. Iqbal and second cousin of first informant, Hub Ali. Furthermore, as already indicated, they were co-accused with Gulab in the murder case of Illahi Bux, the brother of appellant Ahmad Bux and close relation of the other appellants, except appellant Hazaro. Both Sher Muhammad and Phog thus are interested and hostile witnesses and their testimony has to be viewed 'with caution and suspicion and cannot be made the, basis of conction in the absence of corroborative evidence. The unfortunate practice of witnesses implicating a larger number of their enemies than have actually participated in an offence has received judicial notice in a number of cases.
22. Their Lordships of the Supreme Court considered the question of the appraisement of ocular evidence in case of blood-feud and tribal enmity, in the cases of Thoba v. The State and Bagh Ali v. The State and were at pains to point out :- The appraisement of the evidence of eye-witnesses has to be based upon 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 an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."1 2 Their Lordships of the Supreme Court in Bagh Ali v. The State referred to their observations in Thoba's case and expressed regret that the High Court had not followed the salutory principal laid down by them in Thoba's case for the safe dispensation of criminal justice.
23. Since, this is admittedly a case of factional enmity between two sub-castes of the Shar tribe, the reasonable possibility, nay probability, of larger number of accused being named than the actual number 3 who took part, cannot be eliminated. Their Lordships of the Supreme Court in the case of Muhammad v. The State referred to the familiar problem faced by Courts of coping with the very likely possibility, where the background of the incident is factional hostility, and a large number are named as culprits, that a number of these persons have been falsely named. A somewhat similar problem arose for consideration of Supreme Court in the case of Wasiullah v. Mirza Ali . In view of the hostility between the parties in the instant case, and the close relationship of the two witnesses, Sher Muhammad and Phog, with the deceased and the complainant's party, it would be hazardous to place reliance on their testimony in the absence of corroborative evidence implicating the appellants.
24. As against appellant Ahmad Bux, the corroboration consists of the fact that he had injuries on his person, that he had produced a licensed gun and that his shirt and loin-cloth were besmeared with human blood. As no P. W. Has stated that this appellant sustained any injury during the incident, and further, as the appellant himself has explained that he sustained the injuries which were found by the Medical Officer on his person, in a fight with one Changle Shar on the day preceding the incident, the presence of injuries on his person does not in any way connect him with the crimes with which he has been charged or corroborate the testimony of the eye-witnesses.
25. Since the injuries on his person were bleeding injuries, most probably the blood on his clothes was his own and bad flown from these injuries, as claimed by him. As regards the production of the gun, the mashirnama, Exh. 31, shows that the gun was produced by Ghous Bux, the father of the appellant Ahmad Bux, and that further Ghous Bux had a licence to possess the said gun. No doubt one side of the small butt of the gun was found broken and misplaced, but no evidence was led to indicate that the piece of butt found at the scene of offence corresponded to the broken butt of this gun, or that the said part had come out from the butt of this gun. There is this no evidence to corroborate the bare word of the eye-witnesses against this appellant.
26. Appellants Shahzado, Akram, Rahim Bux, Muhammad Hassan and Tahmoor are said to have produced blood-stained clothes before the police and further appellants Akram and Muhammad Hassan are stated to have produced a hatchet each before the police, which were found to be bloodstained. The clothes and the hatchets were sent to the Chemical Examiner, whose report, Exh.
27. 45, is to the effect that all of them were stained with human blood. Since appellants Tahmoor, Shahzado and Rahim Bux are said to have been armed with guns and therefore it is unlikely that they could have come in physical contact with the two deceased or come so close as to touch their clothes, it is not understood how their clothes came to be blood-stained. Furthermore, appellant Tahmoor was arrested on 23-6-1971 that is on the 7th day of the incident and it is unlikely that till then he would keep blood-stained clothes in his house without making any attempt to wash them. It is true that according to eye-witnesses and the F. I. R. Appellants Akram and Muhammad Hassan, alongwith appellant Hazaro, were armed with hatchets, and as per mashirnamas, Exhs. 30 and 29, one blood-stained hatchet was recovered from their possession, but since the hatchets were recovered on the third day of the incident and mashir Ashraf, in whose presence these recoveries were made, was not an independent witness but a nephew of the wife of deceased Gulab, these recoveries appear to us to be suspicious. This was also the view held by the trial Court, which did not rely on the recoveries. It is unlikely that Akram and Muhammad Hassan would have taken the stained hatchets to their houses, when the Dodano Canal was in the immediate vicinity of the scene of offence, and according to the F. I. R. And the first informant, Hub3 4 Ali, they had come to the bridge of the canal, and hence had ample opportunity either of disposing of the incriminating weapons or at least of washing them.
28. Next, there is evidence of P. W. Adam Khan, an independent witness, who states that he had come to the scene of offence on hearing the gun shots and found Lakhmir and Gulab lying dead on the katcha road. His evidence, however, is not of any material assistance to the prosecution as all that he states is that the witnesses "narrated the incident" to him. He has not stated that he was given the names of the appellants or what weapons they carried. Possibly no such question was put to him by the prosecution because his answer may not have fitted in with the prosecution case.
29. Finally, there is the evidence of the Ballistic Expert Mukhtar Ahmad. He has examined the crime- empty recovered from the scene of offence and testified, on the basis of test-cartridges fired by him and the enlarged photos of such test empties, that the crime-empty was fired from the licensed gun which was produced by Sahib Dinno, the uncle of appellant Shahzado. It may, however, be pointed out that the test and examination by the Ballistic Expert was conducted about 1-1/2 years after the incident and the recovery of the gun. We are doubtful whether after the lapse of such a long time it could have been possible for the expert to have given a positive opinion in respect of the gun from which the crime-empty was fired. Be that as it may, since the gun in question was not of any of the appellants, nor was it produced by any appellant, it does not connect them with the incident or corroborate the testimony of the eye-witnesses.
30. There is no other evidence to corroborate the testimony of the eye witnesses, which testimony we have considered to be interested and containing the inherent possibility of false implication of one or more of the appellants. We are accordingly of the opinion that though in all probability the murder of Lakhmir and Gulab were committed by the appellant's party, the case against the appellants is net free from reasonable doubt, and to the benefit of this reasonable doubt each of the appellants is legitimately entitled, since there is no reliable testimony to corroborate the ocular evidence in respect of any appellant. We would accordingly accept the appeal of all the appellants and set aside their convictions and sentence. They should be forthwith released if not required in any other case. PLD 1963 SC 40 PLD 1973 SC 321 PLD 1962 SC 450 PLD 1963 SC 25