' I. MAHMUD, J.-Appellant Jamalan, aged 30 years, along with acquitted accused, Haji Gullan, Bilawal and Buxo were tried by the Sessions Judge, Jacobabad, for the murder of Haji Malook on 9- 10-1973 under section 302/34, P. P. C. By his judgment dated 29-7-1974, the learned Sessions Judge convicted the appellant and sentenced him to life imprisonment and also to pay a fine of Rs, 1,000 or in default to suffer R.
1. For 6 months. However, the other three accused were acquitted. The appellant has now filed this appeal against his conviction and sentence.
2. Briefly the facts are that the deceased was a step-son of complainant Haji Ghulam Muhammad and son of Mst. Pan, his wife, by a previous husband. The appellant is a caste-fellow and is said to be the complainant's sister's son. They lived in adjoining villages. The case of the prosecution was that on 9-10-73 at about `tipahri' time (3.30 p.m.) the deceased had gone to his land at Behar Bhangwar in deb 13ai Rip, Taluka Kashmore to collect grass. While he was returning home with the bundle of grass, no was waylaid by the appellant and the other three acquitted accused, all of whom were armed with guns, at a point about 100 paces away from the house of the complainant.
They fired with their guns at the deceased who received several gunshot injuries, as a result of which he died on the spot. The incident was witnessed by the complainant and his wife, Mst. Pari, both of whom were sitting on a cot in a shed in front of their house. They rushed to the scene of the crime raising cries but were challenged by the accused not to come near as they had killed a Karo'.
The accused then made good their escape to their houses towards the north. Leaving the dead body in the care of his wife, the complainant went to lodge the F. I. R. At Buxapor police station, some 13 miles away, which was recorded by Ghulam Kadir S. H. O. At 19-30 hours that evening.
3. After recording the report the S. H. O. Accompanied by the complainant came to the village at about 10-30 p.m., but as it was night, he visited the wardat in the morning at 6-30 a.m. From there he recovery seven empty cartridges and blood-stained earth and prepared a masidrnam in the presence of two mashirs, one of whom Jamaludain was examined. The blood-stained earth was sent for chemical analysis and was reported to be humand blood. As no recovery of guns was made from the accused, the crime empties were not sent for matching. The appellant and the acquitted accused Buxo were arrested two days later from their house while the remaining two acquitted accused were arrested 6 and 14 days later respectively.
4. The autopsy on the body of the deceased was carried out by Dr. Dur Muhammad, Medical Officer, Kashmore. On external examination he found several gunshot wounds of entry and exit on the knee, left forearm, front of the neck and on the right shoulder. He certified that they were caused by discharge from a firearm which was fired from a distance of about four feet. In his cross-examination he stated that all the wounds of entry were charred.
5. The appellant, in his statement, denied the prosecution case and alleged that he had been falsely implicated because of enmity over refusal by his father, acquitted accused Gullan, to allow the complainant to excavate a watercourse through his land.
6. The prosecution case rested entirely on the ocular evidence of the complainant and his wife, who are said to have witnessed the incident while sitting on the cot in front of their house at a distance of 100 paces. The trial Court accepted the testimony of both these witnesses as truthful as far as the appellant was concerned because, according to him, they were both natural and uninterested witnesses and, therefore, their evidence came from an unimpeachable source and was sufficient to convict the appellant even if their testimony was not corroborated. On the other hand, as far as the three acquitted accused were concerned, he found the prosecution case very doubtful, because there was contradiction as to their identity, the complainant stating that their faces were muffled and that he had implicated them on suspicion while Gist. Peri stated that she identified all of them because their faces wore not muffled. He, therefore, gave them the benefit of doubt and acquitted the three co-accused.
7. The main question for our consideration is whether the trial Court has properly appraised the evidence which he found very doubtful as far as the three co-accused were concerned but found the same evidence as coming from an unimpeachable source and sufficient to convict the appellant. We have scrutinised the evidence ourselves and we are firmly of the opinion that the trial Court's appraisal of the ocular evidence of the two prosecution witnesses against the appellant was not proper.
8. The trial Court had accepted the prosecution version that the seen of the crime was at a point about 100 paces away from the house of the complainant and has bled that the complainant and his wife had identified the appellant from such close proximity and were the most natural witnesses of the crime. But on a close scrutiny of the evidence, it appears that the vardat was situate further cast from the house of the complainant. In the F.
1. R. The place of occurrence is stated to be the land of Behar Bbangwar, which the complainant stated in his testimony to be about 300 paces away from his village. 1 here was paddy cultivation on Bahar's lard at that time and it was surrounded by other cultivated lands. The mashirnarta (Exh.
8) as well as the Investigating Officer Ghulam Kadir S. H. O. (P. W. 6) cot firmed Oat there were paddy cultivations roundabout the scene of the dead body and that some paddy crop was standing while some was harvested and lying there in heaps. It was there that blood was discovered and seven empty cartridges were recovered. However, there is a conflicting version as to the distance of the wardat from the house of the complainant. The complainant and Mst. Pari stated that the deceased was waylaid when he was about 100 paces away from their house, while in the mashirnama (Exh. 8) prepared by the Police Officer, the distance is stated to be 144 paces.
But even this distance is not adhered to by the Police Officer. In his testimony, he stated that the dead body was lying about 100 paces away from the complainant's house. The mashir, Jamaluddin (P. W. 2) does not support even the mashirnama with regard to the distance of 144 paces mentioned therein although he was specifically question on it. On the other hand, he stated that the wardat was about one furlong away. A significant feature is that neither the bundle of grass nor the sickle were found at that wardat although the complainant stated categorically that the grass and the sickle were also lying at the wardat and Mst. Pari stated that "the bundle of the grass and the sickle, which the deceased was carrying with him, had fallen down on the ground". It seems to us highly improbable that the appellant and the acquitted accused would waylay the deceased in broad daylight of the afternoon in such close proximity and within the sight of the houses of the complainant and his brother, Muhammad Siddiq and other villagers and fire within the view of possible witnesses. The probability seems to be that the deceased was shot while he was in his field surrounded by paddy cultivations and that this wardat was not visible from the house of the complainant.
9. Had the complainant and Mst. Pan really identified the appellant as well as the acquitted co- accused, all of whom were no strangers to them, it would have been most natural for them to have disclosed their names to the villagers who had collected there immediately after the occurrence, among whom were Muhammad Siddiq, brother of the complainant, and his son. The complainant was asked as to whether he could give the names of those persons and, although the question was repeated thrice to the witnesses every time his reply was that "how can I give the names of so many persons". Mst. Pari also did not admit in her cross-examination that she could not give the names of the persons who had come to the wardat after the accused persons had run away and that neither she nor her husband mentioned about the incident to them, nor did they give out the names of the accused. The trial Court did not advert to this significant omission by the complainant and Mst. Pari to give out the names of the accused to the persons who had gathered there immediately after the occurrence. On the other hand, the trial Court discounted as understandable, their hesitation to disclose the names of those persons who had come there after the incident or to examine them as witnesses, because, according to him, people are reluctant to come to court to give evidence in 'karo kart' murders, like the present one. He referred to Abdus Sattar v. Muhammad Anwar (1) wherein the Supreme Court observed that where neighbours were not likely to come forward as witnesses, because they were party of the accused, the omission to examine them was understandable. We think that the trial Court misconceived the reasoning of that judgment. In that case, their Lordships of the Supreme Court accepted the statement of the prosecution witnesses that the neighbours, who had been mentioned by name, were party of the accused and did not come to the spot. Whereas in the instant case, both the prosecution witnesses have stated that the neighbours had come to the spot immediately after the occurrence, among whom, Mst. Pan stated, were Muhammad Siddiq, the {{FOOT NOTE}}
(1) PLD 1974 SC 266 {{FOOT NOTE}} ' brother of the complainant and his sons. The omission to examine any of them or to mention their names casts serious doubt on the prosecution case.
10. The circumstances, in which the F. I. R. Was recorded, also lead to the reasonable inference that there was sufficient time to implicate the appellant on suspicion or on the ground of enmity.
Although the column in the F. I. R. Stated that it was reported at 19-30 hours, the complainant stated in cross-examination that "the police had recorded my F. I. R. In the morning after they had visited the wardat, though I had reported the matter at night time," the F. I. R. Itself states that the incident occurred "yesterday shortly before tipahri time", which supports the point that it was recorded on the following morning. Ghulam Kadir S. H. O. In cross-examination tried to explain this discrepancy as a mistake. In the light of these circumstances, we cannot see how the trial Court could treat this discrepancy as of minor consequence. We also find that the quality of evidence of the complainant and his wife Mst. Pari is not such as to inspire confidence. The mention has already been made of the contradiction between the two P. Ws. With regard to the faces of the three acquitted co-accused ; the complainant stated that they were muffled while his wife stated that they were not. Again, the complainant stated in cross-examination that the accused had fired from a close range after the deceased had fallen down and they stood over him and fired at him.
He was confronted with his lower Court statement, where he had not said so. This version also is not mentioned by Mst. Pari. He further denied that he had stated in the lower Court that all the shots were fired from the front side of the deceased from a distance of 10 paces and was confronted with his lower Court statement, which he stated was not correctly recorded. There is also a discrepancy with regard to the bundle of grass and the sickle, which both P. Ws. Emphatically stated that the deceased was carrying, but the mashirnama is silent about it. Again, the complainant denied that he had approached Tapedar Alladitto (P. W. 1) to persuade Haji Gullan to allow him to excavate a watercourse through his land. This has been contradicted by Alladitto himself, who stated that 15 months back, the complainant had requested to accompany him to Haji Gullan for this purpose but that he had refused to do so.
11. The trial Court has also not discussed what was the distinguishing feature in the case of the appellant when it had found the same evidence doubtful with regard to the indentity of the other three acquitted co-accused, apart from the fact that the appellant was the complainant sister's son and, therefore, was not likely to falsely implicate him. We do not think that this is such a material or convincing feature of distinction. The possibility of his false implication cannot be overlooked in view of his suspecting the deceased of illicit relations with appellant's wife, Mst.
Salimat, which fact was known to both P. Ws. The P. Ws. Had also falsely implicated the appellant's father Haji Gullan on account of enmity over the watercourse. In the absence of independent corroboration, we fail to see how the trial Court could accept the testimony of these two prosecution witnesses as absolutely trustworthy and uninterested and as coming from an unimpeachable source.
12. For the foregoing reasons, we would allow the appeal and acquit the appellant. His conviction and sentence is set aside and he is set a liberty forthwith unless required in some other case. The judgment was announced on the conclusion of arguments and the above are the reasons for it.