Z.A.CHANNA, J.---The appellants have been convicted by a learned Additional Sessions Judge, Jacobabad, of offence under sections 302 and 324, both read with section 149, P. P. C., by his judgment delivered on 29-5-1978, and all of them have been sentenced on the latter count to suffer R. I. For 2 years, while on the- former count appellant Ghulam Muhammad and Mohib have been sentenced to death and appellants Jaffar and Sahib have been sentenced to imprisonment for life. Addi--tionally, on the former count, appellants Ghulam Muhammad and Mohib have been sentenced to pay a fine ref Rs. 1,000 cacti or in default to under--go It for one year. All the appellants have preferred appeals against their convictions and sentences and also the cases of appellants Ghulam Muhammad and Mohib have been referred to us by the learned Addi--tional Sessions Judge for confirmation of the death sentence awarded to them. This judgment will dispose of the appeals as well as the reference for confirmation of the death sentence.
2. Shortly stated, the prosecution case is that on 4-1-1971, some time after taking morning meals, deceased Dhani Parto, his brother Bado, anti the latter's son, Gulab set out from village Joungal, where they were putting up, for the house of first informant, Ali Khan, 6 miles away from village Joungal. It is stated that on the way, near Jan 'Muhammad Pahoro village midway between village Joungal and the house of Ali Khan. They were set upon by all the appellants and one Zanga, who died during the pendency of the proceedings before the Sessions Court. Thu appellants Ghulam Muhammad, Mohib and Jaffar are said to have fired their guns at Dhani Parto and Gulab both of whom were hit, and in consequence of which Dhani Parto died on the spot while Gulab became unconscious. Appellant Sahib and Zangi are said to have been armed with hatchets, but they caused no injuries with the same to any body. This incident is said to have occurred at about Tripahr time. The matter was reported by Bado to first informant Ali Khan at the latter's village. Ali Khan repaired the same evening to The Police Station where his first information report was recorded by, Head Constable Ghulam Muhammad at 7-30 p. m. The motive for the murder is stated to be the fact that Bijar, brother of Dhani Parto, was murder and for that murder appellants Jaffar, Mohib and Ghulam Muhammad were challaned. In that case, Dhani Parto was the complainant and had given evidence against the appellants.
3. On the following morning, injured Gulab and the dead body of Dhani Parto were sent to The Medical Officer, Thul, Dr. Hahshmi, for the treatment of the injured and conducting post-mortem on the deceased. The police searched the houses of the appellants but nothing incriminating was found therein. At the time of the search the appel--lants were not present in their houses.
Appellants Mohib and Ghulam Muhammad were subsequently arrested pan 10-1-1971 by S. H. O. Arz Muhammad from village Karampur, while appellants Jaffar was arrested on 17-3-1971 by Head Constable Allah Bux from the Bus Stand at Jacobabad. Appellant Sahib was arrested by Tangwani police near Karampur on 7-9-1971.
4. The post-mortem examination of deceased Dhani Parto disclosed the following external injuries on his body :- (1)Two gunshot wounds of entry 1/3" x 1/3" in the epigastric region of the abdomen.
(2)One gunshot wound of entry 1/4" x 1/4" in the left illiac fossa.
(3)One gunshot wound of exit in the left mid axillary line.
(4)One gunshot wound 1/3--- x 1/3" x 1/4" on the dorsum of the left hand.
(5)One gunshot wound 1/3" x 1/3" x --" on the dorso-lateral side of the left forearm".
In the opinion of Dr. Hashmi, who had conducted the autopsy, all the above injuries had been caused by a discharge from fire-arm and he gave the distance from which the fire-arm was discharge as more than 12 feet. The Medical Officer also found a small quantity of semi-digested food in the stomach of the deceased. As regards injured Gulab, the Medical Officer found the following gunshot injuries on his person :- (1)even lacerated wounds --" x --" x --" on the right hip, and three lacerated wounds --" x --" x --" on the left hip.
(2)tine lacerated wound --" x --" x --" on the right cheek.
(3)One lacerated wound --" x --" x --" on the dorsum of the right hand."
6. The case of the appellants was of complete denial. Their case is that since Dhani Parto had been examined in the murder case of his brother, Bijar, before the incident which has given rise to this case, and as he had not supported the prosecution case, the question of giving threats to him by the appellants does not arise. They have produced a copy of the order passed by the Sessions Judge in that case which shows that the case was allowed to be withdrawn under section 494, Cr.
P.C. On the application of the learned Assistant Public Prosecutor in view of the fact that the sole two eye-witnesses, Dhani Parto and Nabi Bux, had not supported the prosecution case. Mr. Muhammad Hayat Junejo, the learned counsel for the appellants, has also produced before us a certi--fied copy of the deposition of Dhani Parto to that case. A perusal of the said deposition confirms the finding of the learned Sessions Judge that Dhani Parto, despite being the complainant in the murder case of his brother, did not support the prosecution case.
7. The case against the appellants mainly rests upon the ocular testimony of injured Gulab and P.
W. Bado. Additionally there is medical evidence which corroborates them only to the extent that Dhani Parto died of gunshot injuries and Gulab had also sustained gunshot injuries.
8. Although it is the case of the prosecution that the appellants killed Dhani Parto because he was the complainant in the murder case of his brother, Bijar, we consider that it is most unlikely that the giving by him of evidence in that case could have motivated the appellants to have killed him. As already pointed out, in spite of being the complainant and stating in the F. I. R. That he was an eye- witness to the murder of his brother, Dhani Parto went back on his F. I. R. And gave evidence favourable to the accused by no: naming them and in fact so far as to state in his evidence that he did not see the accused at the sconce of offence. The appellants thus should have been obliged at the favour--able evidence given by him rather than to have harboured such a hatred against him as to encompass his death. It does not therefore, seem to us probable that the appellants would have engineered or brought about the death of Dhani Parto on account of his testimony in the murder case of Bijar.
9. Coming next to the evidence of the two eye-witnesses, Bado and Gulab, though the presence of the latter at the scene of offence cannot be disputed, in view of the gunshot injuries on him, we are not satisfied that the possibility of their having falsely implicated some of the appel--lants can be safely excluded. As already indicated, P. W. Bado is the brother of deceased Dhani Parto, while P. W.
Gulab is the son of Bado. In view of the close relationship of the two eye-witnesses with the deceased and the previous enmity and murder between the parties it would, in our opinion, not be safe to rely on their word in a murder case, without strong corroboration. Leaving aside the medical evidence, however there is no corroboration to their testimony. Admittedly, the incident occurred in the immediate vicinity of Jan Muhammad Pahoro, village. P. W. Bado has admitted that this is a large village. Surprising enough, not a single witness from this village has been examined. Even no inmate of Ghulam Nabi Pahoro's house has been examined, though the incident is said to have occurred just behind the said house. It is possible that the Pahoro's may have felt disinclined to appear to be tak--ing sides by giving evidence in a case of Bahgulani Balochs, which tribe, we understand, is a hot-headed tribe, but some witnesses from that village could easily have been available at least on the points when the incident actually occurred the number of shots fired and also whether the names of culprits were immediately disclosed.
10. There are also further circumstances which cast doubt upon the ocular testimony. The most important of these is the delay in the lodging of the F. I. R. The incident is said to have taken place at Tripahti time which we understand would be at about 3 00 or 3-30 p. m. The winter months, while the F.I.R. Was lodged at 7-30 p m. As the police station was not more than 8 miles, it should have taken the first informant not more than 3 hours to cover the distance from the vardat to the police station. We are even somewhat doubtful whether the F.I.R. Was actually lodged at 7-30 p. m.
According to plead Constable Ghulam Muhammad, he arrived at the scence of offence at about 9-00 or l0-00 p. m. Since he went to the scene of offence in a Jeep, it is not, understood why it took him so long to arrive at the scene of offence. More important still, it was not before 12-30 p. m. That the injured was received at the Thus Hospital. Since the Head Constable had a jeep available with him, if he had arrived at the scence of offence at 9-00 or 10-00 p. m. As stated by him, it should have been possible for him, to end the injured to the hospital on the same night or at least early the next morning. The fact that the injured was received at the hospital at 12.30 p. m. On 5-1-1971 does seem to indicate that the F. I. R. Probably was lodged much later than what is stated by Head Constable Ghulam Muhammad and that possibly he himself arrived at the scence of offence not on the day of the incident but on the following day. This probability finds support from the fact that absolutely no investigation was done by the Head Constable on the night of 4-1-1971, and whatever was done by the Head Constable in connection with the investigation of the case wa8 done on the following day.
11. Another circumstance which in our opinion' casts doubt upon the credibility of the two eye- witnesses is the place for which they were bound and the purpose or the object of their journey during which they are said to have been attacked. According to them they were going to meet the mother of Ali Khan as they had learnt that very day that she had fallen sick. However, no such object is indicated either in the F. I. R. Or even in the police statements of Bado and Gulab. Further, if the witnesses had decided to go to Ali Khan's village only a short while before they commenced the journey, as stated by them, how could the appellants, who reside in a different village from them and at a distance of a couple of miles from the scene of offence, we acquired knowledge of their journey, prepared themselves for an attack upon them and waylaid them. Again it is rather significant that the incident occurred in Jan Muhammad Pahoro village where a dacoity is said to have been committed in the house of one Qutub pahoro and for which offence P. W. Bado was facing trial at the time of the incident.
12. A further circumstance which is rather intriguing in this case is that though two of the assailants, who ate stated to have been appellant Sahib and Zangi, were armed with hatchets, they made no use of them. In. Fact, their presence at the scene of offence is not understood, Obviously, if 3 of the appellants were armed with guns, they would not have required the assistance of the hatchet- welding companions. If the presence of these two persons is considered doubtful and we are inclined to do so, then the possibility of false implication of any A other appellant cannot also be ruled out no question were put to the Medical Officer in regard to the number of gunshots which were responsible for the injuries on deceased Dhani Parto and Gulab. It thus cannot be excluded from possibility looking to the nature of the injuries on them, that the had resulted from two gunshots only.
13. It is true that the appellants seem to have absconded after the incident but we do not consider this to be any strong piece of evidence against them as even honest men are known to have fled and absconded when they were involved in a serious offence. The appellants were previously involved in a murder case and obviously they con--sidered it to be safest, on learning that they were implicated in a second murder case, to file from their homes.
14. On a careful perusal of the entire evidence in the case we do not consider that it is of such a nature as. To inspire confidence for to fix the guilt of the appellants beyond reasonable doubt. We would accord--ingly accept this appeal and set aside the conviction and sentence of the appellants. The reference for the confirmation of the death sentence awarded to appellants Ghulam Muhammad and Mohib stands rejected. If the appellants are not required in any other case they should be forthwith set at liberty.