' ZAKAULLAH LODHI, J.-The appellant was tried along with Allandino and Rehan under section 302 read with section 34, P. P. C. On the charge of murder of Rustom Umrani by the learned Sessions Judge, Jacobabad who convicted him vide order dated 9th August, 1974 and sentenced him to death penalty. The appellant has filed an appeal against the aforesaid order while the learned Sessions Judge, Jacobabad has referred the case for confirmation of death sentence. By this judgment we will dispose of both the appeal as well as the reference.
2. The prosecution story is that the appellant along with Allahino and Rehan committed a murder of one Rustom Umrani on 8th May, 1973 at "somahni" time by means of firearms. The first information report was lodged by Samano who is a cousin of the deceased in Police Station, Ghari Khairo on 9th May, 1973 at 7-30 a.m. This report was recorded by H. C. Ghulam Mohammad. In the F.
I. R. It was disclosed that the first informant was a cousin of the deceased and he and the deceased used to cultivate the lands of one Imdad Khan Jamali. On the day of incident after taking meals they slept in the courtyard of their house, when at about "somahni" time the deceased heard a call from outside. When they went outside the house they found Allandino, Rehan and the appellant, of which the former two were armed with a rifle. Allandino said that all of them wanted to stay for the night in their house for which necessary arrangements may be made. The deceased took them to the "otaq". When the witness and deceased reached near the "otaq" Allandino fired at the deceased with his gun which immediately followed gun shots by the appellant and Rehan.
Allandino told the complainant that he had taken revenge of his brother Jehangir's murder and he should not go near them, otherwise he will also be killed. In the F. I. R. It is further alleged that at the time of incident P. W. Karim Bux and some other people had also reached the scene of offence after hearing the firing of gunshots. P. W. Mohammed Hassan's presence at the scene of offence is also alleged. The gunshots hit the deceased on his chest and some other parts of the body and he died instantaneously. It has been explained that the matter was not reported to the Police immediately because it was night time and everybody was afraid of going out of the house at that time, therefore the report was lodged next morning. According to the complainant some time ago Jehangir, brother of Allandino had been murdered and the appellant and his co-accused had a suspicion in their mind that the deceased was his murderer and thus by killing the deceased they had avenged themselves.
3. The report was recorded by H. C. Ghulam Mohammad who immediately proceeded to the vardat. He found the dead body of the deceased lying on a cot in the "otaq". He prepared inquest report which is Exh.
15. He also secured one empty shell of .7 m.m. Rifle from the vardat and sealed it. Bloodstained earth was also secured by him from the spot and a mashirnama of both these articles was prepared as Exh.
14. Thereafter the investigation was handed over to Haq Nawaz S. H. O. S. H. O. Haq Nawaz verified the investigation already conducted by H. C. Ghulam Mohammad. He arrested the appellant on 17th May, 1973 when he was produced before him by P. W. Akbar Khan Umrani. He prepared a mashirnama of his arrest which is Exh.
12. On 4th June, 1972 he got recorded the statements of P. Ws. Mohammad Hassan and Karim Bux before Mukhtiarkar and F. C. M., Ghari Khairo under section 164, Cr. P. C. On 10th July, 1973, he prepared a final challan. As Allandino and Rehan are still absconding, therefore, only appellant was tried and sentenced to the aforesaid punishment.
4. Autopsy on the dead body was conducted by Dr. Habibur Rehman who found the following injuries on the person of the deceased:- "(1) A wound of entrance in dia. On the chest below and lateral left nipple.
(2) A wound of entrance 1/2" in dia. On the region of the left breast there was blackining and charring of the skin around the wounds 1 and 2.
(3) A wound of entrance 2" x in the enterio lateral surface of the right upper arm, at middle part.
(4) A wound of exit 3" in dia. On the anterio middle side of the right upper arm at middle part.
(5) A wound of entrance r in dia. On the ahest at the right of the right nipple.
(6) A wound of entrance 1" in dia on the chest at the right of the right nipple.
(7) A wound of exit 3" in dia. On the back below the inferior angle of the left scapula.
(8) A wound of exit tY in dia. On the back medial to the middle border of the left scapula."
' In the opinion of the doctor the death had occurred due to shock and haemor rhage as a result of injuries caused by discharge of firearms such as gun. According to him, injuries Nos. 1 and 2 were individually sufficient to cause death in the ordinary course of nature.
5. The appellant pleaded innocence and stated in his defence that he had been falsely implicated in the case due to enmity. He has further stated that he never disappeared from the scene of offence as alleged. On the other hand, he used to work in Pat Feeder area wherefrom he was brought to the Police-Station.
6. The prosecution has furnished occular testimony of P. Ws. Samanoand Mohammad Hassan. The evidence of Karim Bux has also been brought on record to corroborate the statement of P. Ws.
Samano and Mohammad: Hassan. P. W. Samano is the first informant in the case and he has narrated the same story which he had given out in the F. I. R. However, what is noteworthy in his statement is that in his cross-examination he has stated that at a time when the appellant and his co-accused knocked the door of the deceased,. He, Muhammad Hassan and the deceased were taking meals and some of them. Had already finished the meals while the other were still eating.
On the other. Hand in the F. I. R. He has stated that they had gone to sleep after taking their meals when a knock was heard at the door. This is a contradiction which. Creates a serious doubt about the veracity of his statement, particularly when it is judged in the light of the doctor's testimony who says that the stomach of the, deceased contained digested paste of food. The digested paste of food could-only be found in the stomach of the deceased if meals had been taken three to four hours prior to his death. There is no reason why the statement of the: doctor should not be believed and if that statement is believed we would be-compelled to reject the prosecution version that the murder took place at "somahni" time. The actual time would fall somewhere near about the mid night. The statement of this witness is highly doubtful because in the F. I. R. He says that they had gone to sleep after taking meals when the appellant and the co-accused knocked the door whereas in his statement before the trial Court he narrates a different story altogether. There is still another version about the taking of meals. It has been given out by P. W. Mohammad Hassan. He states that he and Samano were sitting in the house of the deceased on the cot when somebody called from outside. He, Samano and the deceased went outside and found that the absconding accused and the appellant were standing there. They wanted to pass their night in the house of the deceased and therefore the deceased took them to the "otaq". When they reached the "'otaq' the appellant asked him for a glass of water and when he brought the water and gave it to the appellant, Allandino fired a shot at the deceased. This followed further gunshots by the appellant and Rehan. The deceased died instantaneously. The fact that a glass of water had been asked for by the appelland has not been disclosed by P. W. Samano or any other witnesses. About the taking of meals he states in the cross-examination that they had not taken meals at all when they were called. If his version, that none had taken meals by the time, there was a call at the door, which was the starting point of the fateful incident, is taken into account, then it cannot be explained as to how the digested paste of food could be found in the stomach of the deceased. There are, therefore, different versions of these eye-witnesses as regards the taking of the meals. All these statements in turn are belied by the medical report which clearly states that the digested paste of food was found in the belly of the deceased which means that the food had already been taken by them before murder had taken place. This being the state of evidence implicit reliance cannot be placed on the statement of either of the two eye-witnesses. The cardinal principle of law of appreciation of evidence is that if the occular testimony is not otherwise worthy of credence and at the same time it comes in conflict with the expert evidence then the occular testimony would yield to expert evidence. In this case the occular testimony is full of contradictions and it comes in conflict with the medical evidence, therefore it should yield to the medical evidence. Before we proceed further we may also discuss the evidence of Karim Bux who has been produced to corroborate the testimony of P. Ws. Samano and Mohammad Hassan. He was not in the house of the deceased at that time when the gunshots were fired. He was in his own house at that time. He reached the "otaq" after hearing the gunshots, on reaching there he asked P. W. Mohammad Hassan as to who had killed the deceased and he was told the entire story. No much importance can be attached to this witness because he had reached the scene of offence after the incident had taken place. Besides this, it can also be not overlooked that both the eye-witnesses and Karim Bux are related inter se and therefore their evidence is bound to be accepted with due care and caution.
7. It has been vehemently urged by the learned counsel for the State that the deceased had been murdered by the appellant and his co-accused because the deceased was suspected of having killed Allandino's brother about three years back. In this connection he has made reference to statements of the witnesses who stated that a compromise had been affected between the parties in this connection. This argument is fallacious on the face of it because if at all Allandino, Rehan and the appellant wanted to take revenge for the murder of Allandino's brother they would not have waited for three long years. This argument is further weakened by the fact that a compromise had been effected between the parties therefore even if there were some points of difference between the parties, the same had been patched up. This being the position, obviously there seems to be no reason why the appellant and his co-accused would commit the murder of the deceased. The factum of murder of Allahdino's brother in turn is also shrouded in mystry because some of the witnesses have stated that he had died while others say that he was killed.
However, this much cannot be denied that he had not been seen for three years prior to the incident under reference. The fact that he was missing might have created a genuine doubt at some stage in the mind of Allandino, Rehan and the appellant that he was killed by the deceased but it must have vanished when the matter was compromised between the parties on Holy Qur'an.
It is thus a case in which motive is absolutely missing and the argument of the learned counsel for the State is liable to be set aside from consideration.
8. For the reasons discussed above, we are unable to sustain the conviction of the appellant. The appeal is accordingly accepted, and the reference for confirmation of death sentence of the appellant is rejected.