' AGHA ALI HYDER, J.-The appellants were convicted along with two other persons, namely, Khamiso and Rahim Dad. The latter two have been acquitted, while the appellants have been convicted for offences under section 302, P. P. C. And sentenced to death. There is a reference by the learned Additional Sessions Judge, Sukkur, as required under the law, and there is also an appeal filed on behalf of the convict. The reference and the appeal will be disposed of by this common judgment.
2. The prosecution story, in brief, is that Qazi Ghulam Dastgir owned some land near village Draha, which is by the side of Sukkur/Shikarpur Road.
' It is alleged that some parcels of these lands were under the cultivation of the appellant. Darya Khan, and his brother, Dil Murad, and the lands had been taken away from them, and given to Gul Hassan and his nephew, by the name of Rahim Bakhsh. The appellant and his family members were mortified with the same, and, on the 25th of November, 1972, at about mid- day, when Qazi Ghulam Dastgir had turned up on the land, which was being ploughed by Gul Hassan and Rahim Bakhsh, the present appellants and three of their companions had opened gun fire. When Qazi Ghulam Dastgir had collapsed on the ground, the present appellants had gone near him, and fired two more shots from a very close range. The incident is also stated to have been witnessed by two other witnesses by the names of P. Ws. Pirano and Dadu Qazi, who were going to their village Draha on a bullock cart. Leaving Rahim Bukhsh, Pirano and Dadu Qazi by the side of the dead body, Gul Hassan had proceeded to the Begerji Police Station, which was four miles away, and lodged the First Information Report, which is stated to have been recorded by H. C. Nawab Khan. Surprisingly, this Police Head Constable had not been examined at all to prove the First Information Report. S. H.
0. Raja Muzaffar, thereafter, had proceeded to the "wardat, and found the dead body lying in a pool of blood at some distance from the bus stand. There were two empties lying nearby, and the same had been secured. After completing the autopsy, the dead body was sent to the Medical Officer, while enquiries were made from the witnesses present over there.
3. The appellant, Darya Khan, came to be arrested from near a Wah on 27th November, 1972. S. H.
0. Raja Muzaffar had taken him along with police party and the Mashirs to the latter's house, and a gun was produced from the Chappar'. It is stated that the gun had been secured and sealed. The same day Suleman came to be arrested from a bus stand near village Jehan Khan. He also had taken the police party and the same Mashirs to his house, from where a gun was produced by him from inside a bedding. The gun also came to be secured and sealed at the spot, and was, later on, sent to the Ballistic Expert, along with the empties secured from the "wardat". After due investigation, the case came eventually to be challaned in Court.
4. The appellants in their statement at the Court of Enquiry as well as at the trial denied the various allegations made against them, and maintained that they had been involved in the case because of a long drawn enmity between the parties. They also denied that there was a dispute between them and Qazi Ghulam Dastgir over Harapship. Certain documents in support of the enmity were also duly produced on the record.
5. Apart from the oral testimony in regard to the death of Qazi Ghulam Dastgir, there is the evidence of Dr. Muhammad Memon, who had held the autopsy, finding the following injuries on the person of the deceased:
(1) 17 punched out gunshot wound (entrance wound) in diameter scattered on the right lateral side of the chest and right upper arm.
(2) About 100 circular punched out gunshot pellet wounds in diameter scattered over left side of the back of the trunk and back and lateral side of the left upper arm.
(3) Lacerated gun shot wound 2' x it on the right angle of mouth lacerating right side of the tongue, upper part of left side of pellet distorting and knocking out the left eye, fracturing the base of skull left nosal, temporal, parietal and fronted bone with a peace of bone lying separately. Exit wound 3i' x 3 the blood and the brain matter escaping through the wound.
' According to him, all the injuries, which had been caused from fire-arm, were ante-mortem in nature, and Injury No, 3 was, in the ordinary course of nature, sufficient to cause death. In this very context, it might be mentioned that there are no charring, or, blackening marks on the dead body of the deceased, as found by the Medical Officer.
6. Out of the four persons named in the First Information Report, the prosecution had examined three, namely, Gul Hassan, Rahim Bukhsh and Pirano. Rahim Bukhsh is the nephew of Gul Hassan, and, as referred to earlier, both of them were haris, of Qazi Ghulam Dastgir. It is an admitted position that, on 23-6-1971, a robbery case had been filed by the appellant, Suleman, against both these witnesses, and some of their other relations, and the case was still pending when the incident took place. It is also to be noted that Gul Hassan had mentioned in the First Information Report itself that, after the falling of Qazi Ghulam Dastgir, both these appellants had come to his side, and fired from their respective guns by putting the same on the body of Qazi Ghulam Dastgir. This part of the evidence is clearly belied by the evidence of the Medical Officer. Even Pirano, who states to have been passing by at the material time, in his statement, duly brought on the record, had admitted that he was related to Qazi Ghulam Dastgir. It is also clearly made out from the record that there was a longstanding enmity between him and the appellant's family. It is not necessary to mention the details, as they are abundantly borne out from the record, and has also been detailed out by the learned Additional Sessions Judge. It was because of this that the learned Additional Sessions Judge did not place complete reliance on their testimony. The position, however, is that none of these witnesses are worthy of any reliance at all, in view of the fact, that they have all spoken about the two shots by placing the gun on the body of Qazi Ghulam Dastgir, which cannot pass muster in the circumstances disclosed.
7. Even the motive, as mentioned, is rather far from satisfactory, as, on the showing of the prosecution, two years had elapsed, and there is not the faintest indication of any untoward incident in-between. It appears from the record that Qazi Ghulam Dastgir would turn up on his fields only once, or, twice a week, and the witnesses state that, on the day in question, all these five persons had turned up in a body and stood in a line to shoot Qazi Ghulam Dastgir dead, once he had reached the land and had started talking to Gul Hassan and Rahim Bakhsh. That is more strange is that, though the wife of Qazi Ghulam Dastgir and other relations of his were living either in village Draha, or, Sukkur, which would not be far away from the "wardat", none of the prosecution witnesses went to break the news of the gruesome tragedy to anyone. Even the Tapedar was not examined, which could show that, two years earlier, the land was in the cultivatory possession of Dil Murad and Darya Khan. So, the motive cannot be said to be satisfactorily established,
8. The only corroborating circumstance, which needs examination, is the production of the guns by the appellants, and the evidence of Ballistic Expert, namely, Mr. Mukhtar Ahmad. Mr. Mukhtar Ahmad has clearly stated that, out of the two empties, one had been fired from the gun produced by Darya Khan. So, the position is that there is no corroboration at all as against Sulemen. Even as against Darya Khan, this evidence will be of no use at all. To begin from the beginying, to prosecution case is that two empties had been found by the Police authorities, once they had reached the spot some four hours after the incident, Both these empties were lying at distance of only about ten to twelve paces from the dead body. The "wardat" is by the side of a busy road, namely, Sukkur/Shikarpur Road. It is nobody's case that there were any bushes near ab3ut. Actually, the evidence is that, not very far away, there were some two Katcha" hotels. It is, therefore, surprising that there is no mention of the empties in the First Information Report by Gul Hassan, and there is no mention of the same in the statements of the other two witnesses, namely, Rahim Bukhsh and Pirano, to the Poli as duly brought on the record. What is worse is that the Police chose to pick up a Mashir who, admittedly, is sworn enemy of the appellants. He has admitted that he had been injured by the appellant and his family members, and a case had been registered against them for an offence under section 307, P. P. C. In which they had been acquitted. There was also some other bad blood between them, which need not be mentioned. If this piece itself is suspect, any edifice on such a foundation will hardly be of any importance. We, therefore, need not dilate on the value to be attached to the evidence ofi the Mashir of production, namely, Bhural Shah.
9. Under the circumstances, the case is not free from doubt, and the benefit thereof will accrue to the appellants. May be, there is some miscarriage of justice, but the prosecution has no thank itself for the same. We will, therefore, set aside the conviction and sentence, and not accept the reference, and allow the appeal. The appellants are in custody, and will be released forthwith, unless wanted in connection with some other case.