JAMALUDDIN H. AHMED, J.-The three appellants have been convicted by the Additional Sessions Judge, Sukkur, for offences under sections 457, 392 and 302 all read with section 34, P. P. C. And sentenced each to 2 years' and ' years' R.I. For the first two offences respectively while for the last offence hulam Qadir is sentenced to death and a fine of Rs, 5,000 and Khairo and umtaz to life imprisonment and a fine of Rs, 5,000 each. They have filed his appeal to assail their conviction and sentence ; and the matter is also sent or confirmation of the death sentence. .2. The prosecution story in brief is that on 29th August, 1973, at 2-00 .m. Complainant Mohammad Jurial, witnesses Ghazi, Nangar and deceased llandino who slept in the same house all got up on the sound of cries and un-fire report, coming from the direction of the house of P. W. Hote Kalhoro.
Deceased had a cart Killa (iron bar) in his hand and was ahead of the others. Hazi and Nangar had torches, which they flashed and the three appellants were seen taking away a bullock of Hote Kalhoro. Appellants Ghulam Qadir and Khairo had guns while Mumtaz was armed with a hatchet.
Deceased challenged them to stop, on which appellant Ghulam Qadir threatened him to stop where he was, or he would fire and kill him. As the deceased did not come back, appellant Ghulam Qadir fired straight at him, hitting him in the chest. He raised cry and fell down. Appellant Khairo also fired in the air. The others then did not pursue the appellants due to fear and they went away.
Allah Dino was found to be dead. Thereafter P. W. Hote Kalhoro and Ghulam Rasool Machi came up who were informed about what had happened and told the names of the three appellants. He stated that he woke up on the noise and found a breach in the courtyard wall near the place where his bullock was tethered, which was missing. He raised cries whereupon the thieves had fired in the air. Nangar, Ghazi Hote and others went after the appellants and complainant went to report, leaving Mohammad Bux Machi to take care after the dead body.
3. The first report was registered by Mohammad Aslam, S. H.
0. New Faujdari Police Station, Shikarpur, at about 7-00 a.m. He proceeded to vardat and prepared the mashirnama in presence of Rahim Bux and Mohammad Bachal. Near the dead body of deceased Allandino he found an empty cartridge which he secured and sealed. He inspected the house of witness Hote and found the wall of the courtyard broken, but there were no foot-prints or hoof marks at the place where the bullock was tethered. He sent the dead body for post-mortem examination to Shikarpura. He examined Ghazi, Nangar, Hote, Ghulam Rasool and Mohammad Bux ; and also secured two torches produced by Nangar and Ghazi. The torches were in working condition. On 21st September, 1973 he arrested the appellants Ghulam Qadir, Mumtaz and Khair Mohammad from Rais Wah. On 23rd September, 1973 appellant Ghulam Qadir led him to his village and produced a single-barrel gun from a bush in presence of mashirs Swali and Jani. Appellant Ghulam Qadir had no licence fort he gun. He therefore registered a separate case under the Arms Ordinance against him. On 6th October, 1973 he submitted the final challan after completing the investigation.
4. The case of the appellants at their trial was that of denial with regard to commission of the offence of theft as well as of murder of deceased Allandino or even having absconded after the crime. Appellant Ghulam Qadir denied to have produced the single-barrel gun from the bushes near the house. He alleged that he had been implicated due to enmity over matrimonial affairs inasmuch as P. W. Hote had demanded the hand of his sister for his brother Amin to which the appellant had at first agreed but later on refused and instead married her to appellant Mumtaz On that account the other witnesses who were friends of Hote had also joined hands to implicate him falsely. He also alleged that he had left the village which was the village of the complainant as be had been declared Karo with Mst. Kaz Bano who was a relation of318 CRIMINAL LAW JOURNAL(VOL. The complainant Jurial. The other two appellants also made similar statement as of appellant Ghulam Qadir.
5. Now there can be no doubt that deceased Allah Dino died due to th single injury caused with a fire-arm and that this injury was caused from distance of more than 10 feet.
' Dr. Ghulam Sarwar had held the post-mortem examination of the dea body of Allah Dino and he found the following injury on his person :- ' Lacerated fire-arm wound r in diameter x abdominal cavity deep on the mid of obigastium.
' In his opinion death was the result of shock and heamorrhage as a consequence of the injury which was caused by a fire-arm such as a gun, which was sufficient to cause death in the ordinary course of nature. However, on internal examination the stomach was found to contain semi- digested food which was significant, as the murder took place at 2 a.m. And P. W. Jurial stated that they had taken meals at Isha prayer time.
6. The most important piece of evidence in the case is that of three eye-witnesses Mohammad Jurial, Nangar and Ghazi who are admittedly related inter se and to the deceased. They identified the appellants in the light of the torches that were flashed by witnesses, Nangar and Ghazi. They were sleeping and woke up on hearing cries and also report of the gun-fire coming from the direction of the house bf witness Hote. They came out together. Hote on the other hand gave a different version. He got up on noise and not on gun report. He had come out alongwith Ghulam Rasool and then they both heard the sound of gun report coming from the direction of the place of incident. This contradiction in their statements is material as it throws doubt upon the version of the eye-witnesses, relating to the manner how they got initially alerted. This also shows that the sound of gun report was caused only once and not twice.
7. The eye-witnesses next saw the appellants Khairo, Ghulam Qadir and Mumtaz as they were passing by their house alongwith the bullock. Mumtaz had a hatchet while Ghulam Qadir and Khairo had guns. Allah Dino, deceased challenged the appellants whereupon appellant Ghulam Qadir fired a shot from the gun which hit the deceased and he fell down. Appellant Khair Mohammad fired from the gun but in the air. It is this firing to which witness Hote referred and which he heard after coming out from his house. After that the appellants ran away taking the bullock. Nangar, Hote, Ghulam Rasool and Ghazi went in pursuit and had not returned when Jurial had gone to file his report.
' In the first place there was no occasion for the two appellants Khair Mohammad and Mumtaz to look back towards the witnesses. Secondly it is not understood why the witnesses had to follow the appellants when they were identified on the spot and it was known that they were armed with fire- arms.
8. The witnesses admitted that the night was dark. Jurial had not stated in the lower Court that they had identified the appellants on the torch light. He admitted that appellants had their houses at Rais Wah as well as in his village and that they had lived there for 4-5 years. He further admitted that one Mst. Kaz Bano was related to him but denied that they had any suspicion that appellant Ghulam Qadir had illicit relations with he.- or that he was made to leave the village on that account. The other two witnesses also gave more or less the same version. In the context of these facts the story that the appellants should hvae chosen to commit a theft of a bullock from the village where they had their residence, appeared all the more incredible particularly in a manner that they did not take any precautions against being identified.
9. There are thus features in the evidence of these eye-witnesses, which havean overall effect of creating doubt about its veracity and the same could not be accepted without material corroboration.
10. The corroborative evidence is furnished by the Investigating Officer who visited the site and secured one empty cartridge from near the dead body of deceased Allah Dino. He arrested the three appellants on 21-9-73 but Ghulam Qadir appellant produced a single-barrel gun from a bush in his village on 23-9-73 at about 8 a. m. P. W. Dad Mohammad acted as mashir of production of the gun by Ghulam Qadir appellant. He belongs to Rais Wah and was waiting near the truck stand to purchase goats from any dealer who passed by, when the police arrived and took him to act as a mashir. According to him Ghulam Qadir had taken out the gun from the bush which was about 5-6 paces away from his house.
' In the opinion of the Ballistic Expert, Mukhtar Ahmed the '12 bore crime empty secured from the wardat had been fired from this 12 bore shot gun. ' This evidence is also of a weak nature as the delay in production of the gun by appellant Ghulam Qadir remains unexplained ; and the mashir also does not appear to be of a reliable character. Besides this, there is no corroborative evidence as against appellants Khairo and Mumtaz.
11. With this evidence on record it is difficult to believe the version given by the eye-witnesses about the occurrence. The night was admittedly dark. The three eye-witnesses claimed to have got up from sleep on hearing the gun report coming from the direction of the house of Hote which fact is belied by the evidence of Hote. It is also difficult to believe that the appellants who allegedly had the bullock with themselves could not be overtaken by the witnesses who followed them. In fact if the appellants had been identified on the spot and were seen to be armed with deadly weapons like guns, it does not appeal to reason that they would be followed. It is equally not believeable that the appellants who were admittedly residents of the same village, should have thought of stealing a bullock from the very village ; or without taking precautions to protect themselves from being identified. It is true that th Ballistic Expert's opinion is positive but production of the gun by Ghulam Qadir appellant is delayed by two days after his arrest. The mashir of thi act is also a chance witness. The medical evidence also suggested that th deceased could have been murdered earlier and not at 2 a. m. The evidenc of the eye-witnesses who admittedly are relations, is thus not of a type whit could safely be relied upon without some corroboration, and that corroboration is singnificantly lacking. Whatever evidence is examined by the prosecution in1 this respect is itself not free from doubt. As undoubtedly there could be only one gun report, which aroused all, this may well have been a case of an unwitnessed crime, committed earlier than the hour of 2 a. m. The witnesses had utilized the opportunity by giving the names of the appellants after due deliberations. This crimo was the act of one man only. The bullock alleged to be stolen is not recovered, and the two appellants Mumtaz and Khairo could not be facing the witnesses, so as to be identified.
12. The overall impression created by the evidence on record in thi case is that there exists an element of doubt in every part of it, and the benefi of which is necessarily to be given to the appellants. The appeal is therefor allowed, sentence set aside, and the reference is rejected.
Appellants shall released forthwith if not required in any other case.