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Criminal Appeal No. 94 of 1968, decided on 11th May 1971.

S. 302 recd with Ss. 149 & 148‑[Murder trial]‑Gunshot injuries ascribed to all four accused, accused M and R being armed with '12 bore guns and accused J and A with rifles No bullet injury found on dead bodies of either of two deceased‑Gunshot injuries could, in circumstance, be ascribed only to accused R and M‑Gun of only accused M proved to have matched with crime empties‑Accused M alone, held, proved to have participated in offence‑Eye‑witnesses proved to have been present at time of occurrence and to have heard gun reports and seen accused fleeing‑Accused M, in circumstances, held, rightly convicted of murder‑Accused R, J anti A given benefit of doubt and acquitted.

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---‑Recovery‑Mashir resiling from his state ment under S. 164, Cr. P. C. 'and stating same to have been obtained under duress‑ Scrutiny of evidence of such witness revealing him to have compromised his integrity‑No reliance, held, can be placed on statement of such witness Factum of recovery of crime empties duly established by testimony of unbiased Investigating Officer‑Crime empties having been .recovered earlier than crime gun, frothing showing manipulation of such empties; and one of such empties not matching with either of two guns‑Manipulation, had there been any, held would not have allowed to remain one empty unmatched‑Evidence of recovery, in circumstances, not to be discarded, notwithstanding delay in sending crime empties and guns for matching‑Penal Code (XLV of 1860), S. 302 read with Ss. 149 & 148.

K. Niazi for Appellants.

Date of hearing : 11th May 19,71.

Appellant Ranjho, Misri, Jumo and,Allahbux stand convicted under section 302 read with section 149 and section 148, P. P. C. for the murders of deceased Gahno and Sevo and sentenced to 'transportation for life on the first count and rigorous imprisonment for one year on the second. Appel lant Allahbux was further convicted under section 379, P. P. C. for the theft of the gun of Mooso and sentenced to one year's rigorous imprisonment. All these sentences were ordered to run concurrently. They tried and convicted as above by the learned Additional Sessions Judge, Nawabshah vide judgment dated 31st January 1968. They have appealed against their conviction:

2. The prosecution case is that Ramzan, deceased Gahno, Makoro and Photo were being prosecuted for committing the murder of Murad, brother of appellant Jumo. Out of them Ramzan, Gahno and Makero were released, on bail while Photo was still in jail. On 10th January 1967 Mooso, Ramzan and the two deceased‑ left for Nawabshah to attend the hearing of the case before the Civil Judge and First Class Magistrate, Nawabshah and after attending the hearing on 11th January 1967 they got down at Railway Station Dour and while proceeding on the track leading from Dour to Kazi Ahmed, they were attacked by these appellants and three. unknown persons; out of whom Ranjho and Misri were‑ armed, with, 12 bore guns while Jumo and Allahbux had rifles, and three unknown persons had hatchets. They fired their guns at deceased Sevo. and thereafter on deceased Gahno and the unknown persons gave hatchet blows to Sevo. On the gun reports Pario was attracted to the: place of incident and he saw the appellant and the unknown persons effecting their escape. Haji Khoso, who resided about 300 yards away also arrived there and the witnesses then Save to. him the names of the assailants. It was alleged that these murders .were committed to avenge the murder of Murad who was closely related . to the appellants. Mooso then proceeded to. Police Station Taluka Nawabshah which is 18 miles away from the place of incident and lodge the report, which was recorded by Qadir Bux. S. H. O. on 12th January 1967, at noon.

3. After recording the report Qadir Bux repaired to the place of incident and from there secured four: crime empties of 12 bore, one rife cartridge and the blood‑stained earth: He sent the two dead bodies for post‑mortem examination to the District Headquarters Hospital, Nawabshah and recorded the statements of the witnesses. . Appellant Ranjho was arrested on 19th January 1967, and his licensed gun was secured from him: On the same day the appellant Misri was arrested and. his licensed gun was secured under the same mashirnama. Jumo was also arrested on the same day and Allahbux on 31^st January 1967. The crime empties and the two gaps were sent to the forensic laboratory for matching and according the testimony of Muhammad Zafar the Ballistics Expert, three of the crime empties matched with the licensed gun of Misri.

4. The autopsy on the dead bodies was performed by Dr. Anwardin. On deceased Gahno he noticed five gunshot injuries, multiple fracture of the skull and rupture of intestines. In his opinion they were gunshot injuries and death was caused due to them. On Sevo he noticed four gunshot and five incise injuries and in his opinion death was caused due to haemorrhage as a result of the multiple 2injuries caused by gunshot and hatchet.

5. The appellants in their defence alleged the same enmity against the prosecution witnesses arising from the murder of Murad. They also alleged that Mooso had prosecuted Murad for robbery as he was mixed up with dacoits. Mooso had also enmity with Karim, their cousin and lastly they stated that Mst: Manna, wife of Kehar, their cousin, was made to appear before a Magistrate, before whom she gave her, statement, by Mooso and others. They denied the prosecution case and alleged false implication because of enmity.

6. The prosecution examined Mooso, Ramzan and Piaro to support its ease. Mooso and Ramzan were eye‑witnesses while Piaro had seen the appellants and the three unknown persons running away. Mooso is the uncle of the two deceased while Ramzan is the brother of deceased Sevo. Piaro is the distant cousin of Mobso as well as his brother‑in‑law. All these witnesses resided in the same village.

7. We have closely scrutinised the ocular testimony of Mooso and Ramzan. It is not possible to doubt the presence of Ramzan with the two deceased at the time of the occurrence as it has been established that they were returning from Nawabshah after attending the Court proceedings. Deceased Gahno and Ramzan were accused in that case and Sevo and Mooso had accompanied them, and the defence has not been able to bring out anything in the cross‑examination of Ramzan and Mooso to discount their presence together. Piaro was on his way to village when he heard the gun report and on his arrival at the place of incident saw the appellants and the three unknown persons affecting their escape. The village where Piaro, Mooso and Ramzan resided was less than half a mile away but a little more than a call's distance. The presence of Piaro at that juncture also has not been rendered doubtful and we see no reason why we should disbelieve him when he has given a reason for being present near the place of incident from where he had come on hearing the gun reports. Undoubtedly there is enmity between the parties and both the prosecution as well as the defence have attributed it as one resulting from the murder of Murad. In the circumstances, the witnesses being closely related and interested their evidence would require close scrutiny in the context of the circumstances disclosed by them before they can be believed with regard to the participation‑of each of the four assailants.

8. As for the incised injuries they are ascribed to three unknown persons and they are not before us. The gunshot injuries are ascribed to all the four appellants out of whom Misri and Ranjho were armed with ' 12 bore guns while Jumo and Allahbux with rifles. No bullet injury was found on the dead bodies of either of the two deceased. They had gunshot injuries which can be attributed to appellants Ranjho and Misri. Out of them, the gun of Misri only matched with three of the crime empties secured from the place of incident. The licensed gun of Ranjho though sent to the Ballistics Expert was thus not proved to be the crime weapon. It is equally possible for one man to cause with one weapon the same number of gunshot injuries on the two deceased. As for the: participation of Jumo and Allahbux only one rifle cartridge was secured from the place of incident, but there is no evidence to show that anyone of them had used his rifle, as there is no bullet injury on either of the two deceased. There is, therefore, assurance of the participation of appellant Misri alone and to this extent the prosecution has been able to establish the identify of one of the assailants of the two deceased.

9. Mashir Haji Khoso has not supported the securing of four crime empties from the place of incident. In his evidence he has also not supported the prosecution witnesses on the point that they had given to him the names of the assailants. He was a confronted with his 164 statement and the relevant mashirnamas. His explanation is that he was coerced to give his thumb‑impres sion on the mashirnama relating to the securing of the crime empties, and he gave his 164 statement because he .was detained in police custody for 4 days. A scrutiny of his evidence shows that be is an unreliable witness and has compromised his integrity. We would not accordingly place any reliance on him. The factum of the recovery of the crime empties is duly established by, the testimony of the Investigating Officer against whom no bias is established on record. Moreover, they were secured on 12th January 1967, and the licensed gun of Misri was seized on 19th e January 1967. There is nothing to show that during this interval or after the securing of the gun anything was done to get these crime empties manipulated. Even otherwise one out ‑of these crime empties had not matched with the licensed guns of either Misri or Ranjho and if there had been any manipulation after wards then one in case of the crime empties would have equally matched with the "guns of Ranjho. There is thus no reason for us to discard this evidence even though there was delay in sending the crime empties and the guns for matching.

10. In the result, the prosecution has established its case against appellant Misri. We would accordingly uphold his con viction and the sentence imposed therefor. . The other three, namely Ranjho, Jumo and Allah Bux are entitled to the benefit of doubt and they are accordingly acquitted. The appeal of the appellant Misri is dismissed while that of the three appellants is allowed. They shall be set at liberty forthwith unless required in some other case.

Order accordingly.

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