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Criminal Appeal No. 95 of 1962, decided on 5th November 1962.

Difference of opinion between two Judges on pure question of weight of evidence with reference to propriety of conviction‑Opinion of Judge in favour of acquittal does not ipso facto constitute sufficient reason for giving benefit of doubt to accused‑Third Judge not bound to agree with Judge favouring acquittal‑Analogy of appeal under S. 417, held, inapt.

In re : Narsiah and others A I R 1959 Andhra Pradesh 313 ; Rajab Ali v. Crown P L D 1954 Sind 49 ; Empress v. Devi Singh 1886 A W N 275 ; Khetri v. State A I R 1952 Orissa 37 and In re : Ravipati Sitaramayya A I R 1953 Mad 61 not fol.

Empress v, Bundoo 1887 A W N 125 ref.

Interested witness‑No inflexible rule that state ment of such witness can never be accepted without corroboration --Expression "interested witness" used in P L D 1960 S C 387 Implication‑Mere relationship of witness with injured party does not make him interested witness in legal sense‑Main consideration whether he had motive for falsely implicating accused.

Nazir v. The State P L D 1962 S C 269 considered.

Statement contradicted by medical report-- Story not fitting in with injuries on person of deceased‑Inference against witness.

A. K. Brohi for Appellant.

Addl. Advocate General for the State.

Dates of hearing : 22nd, 23rd and 24th October 1962,

Khurdo son of Valio aged 35 years, Danglo son of Waryam, aged 25 years and Miran son of Saifdin, aged 35 years have been convicted by the Sessions Judge, Sukkur of ofences punishable under section 302 read with section 34, P. P. C., and have been sentenced to death. Miran in addition has also been convicted of an offence, under section 19‑E of the Arms Act and sentenced to undergo rigorous imprisonment for one year. All these three appealed to this Court which also received the reference in regard to the confirmation of the death sentences passed by the Sessions Judge. Both these matters were heard by a Bench consisting of my brothers Khamisani and Raymond. JJ., and on difference of opinion between them the case has been laid before me under sections 378 and 429, Cr. P. C.

2. The parties in this case are, all Bangulanis by caste. Appellants Danglo and Miran are cousins of appellant Khurdo. Khurdo had a brother named Todho who had been murdered some time back and three persons, namely Sohrab and Wallu, both sons of Piaro, and their cousin Belo had been accused of that murder and had been prosecuted about a month and a half before the incident which is the subject‑matter of the present case. The deceased in the present case is Rahimdad, son of Piaro and brother of Sohrab and Wallu. While the case against Sohrab, Wallu and Belo was pending in connection with the murder of Todho their relations had apprehended that someone from amongst them might be murdered by Khurdo or his relations by way of vengeance and one Arshullah Khan, the nekmard and the leader and Sardar of the community had been approached through one Achan Shah and Sardar Khan to move the police to take proceedings under section 107, Cr. P. C., to prevent breach of peace. Arshullah Khan thought it enough to send for Gamo, the elder brother of Khurdo and warned him not to take law in their own hands, to which Gamo had agreed. It is the case of the prosecution that deceased Rahimdad, while he was grazing his flock of sheep in or near survey No. 89 on 4‑2‑61, at Kacheri Manjhand time, that is about 11‑30 a.m., was attacked by the present three appel lants. Appellants Khurdo and Miran were riding one horse while Danglo was riding another. Both Khurdo and Miran were armed with a double‑barrel and single‑barrel gun respectively while Danglo had a hatchet. When they approached Rahimdad they gave a hakkal, which means a challenge by shouting, to Rahimdad and dismounted, Rahimdad thereupon ran for his life and was chased by the appellants and Khurdo fired first and injured Rahimdad who; however, continued to run and then Miran fired another shot and brought him down. Khurdo then overtook Rahimdad and fired another shot from a very close range while Rahimdad was lying on the ground. Danglo by this time also came up and gave two hatchet blows, one on the head and the other on the shoulder of Rahimdad, who died on the spot. The incident is said to have been witnessed by Ghulam Qadir, P. W. 3, a cousin of the deceased ; Mst. Sanghar, P. W. 4, the sister of the deceased and Subhani, P. W. 11. According to them all these three had been grazing their flock of sheep nearby. When they went near the scene of occurrence Khurdo is said to have warned them about their own lives and told them that he had taken the revenge of the murder of his brother Todho. The appellants then mounted their horses and took to the road and ran away. Piaro, the father of Rahimdad who was in the village which was situated at a distance of about 3‑4 furlongs, heard the gunshots and reached the scene of occurrence and found his son lying dead and bleeding from his injuries. To him the three witnesses named above related the incident and gave the names of the present appellants as the assailants. At Piaro's request, Ghulam Qadir went to lodge the report and this he did at 2 p.m. at Mirpur Thul Out‑post. The report was recorded by the Jamadar incharge, Faqir Muhammad, who accompanied Ghulam Qadir to the scene of offence which he reached at about 4 p.m. He found Rahimdad dead in a pool of blood.

He prepared the necessary mashirnama and collected the bloodstained earth from near the body of the deceased. He also found an Ajrak (a piece of cloth) at a distance of about 59 paces from the dead body and two Jootas (shoes) lying at a distance of 80 paces and one empty 12‑bore cartridge and one live cartridge. These were also seized. He also found hoof‑marks of horses but he did not notice any trail of blood between the place where Rahimdad is said to have been first injured and the place where he was brought down. there were gunshot injuries on the body of Rahimdad as well as hatchet injuries. He recorded the statements of Mst. Sanghar, Subhani and Piaro, and in the meantime the Station House Officer, Thul P. W. 15 Ghous Bakhsh, who had received the report at the station house, reached‑ the scene at about 5 p.m. and verified the investigation which had been conducted so far by Faqir Muhammad Jamadar, P. W. 14. He arrested Khurdo and Danglo on 5‑2‑61, from their houses in their village which was about 10 or 12 miles from the place of the occurrence. Miran was arrested on the 3rd of March and the challan was put up on the 14th of March. Khurdo had a 12‑bore licensed gun which was also seized. The gun and the empty cartridge were sent to the ballistic expert but his report, Exh. 21, was to the effect that empty cartridge had not been fired from the said gun.

The shoes found on the spot were tried on Khurdo, but accord ing to the evidence of mashir they fitted him only with difficulty. The Ajrak which was found by Faqir Muhammad had pellet holes and it was said to have been on the person of Rahimdad and the suggestion was that it had dropped after the first shot by Khurdo which had hit Rahimdad while he was running. At the trial the prosecution relied on the evidence of the three eye-witnesses, namely, Ghulam Qadir, Mst. Sanghar and Subhani who were corroborated by Piaro, and upon the evidence of motive referred to above. The Sessions Judge accepted all this evidence and convicted and sentenced the accused as stated above. The matter came up in appeal and upon a reference by the Sessions Judge before my two learned brothers.

3. Raymond, J., took the view that all the three eye witnesses, upon whose testimony the conviction was solely based, were interested witnesses and it was, therefore, necessary that there should have been some other piece of corroborative evidence whereby the veracity of their testimony could have been tested or checked. He, however, observed that in this case there was no such evidence. Relying upon a passage in the judgment of the Supreme Court in the case of Nazir v. The State (P L D 1962 S C 269) he held that these three eye‑witnesses were not "exceptional witnesses" in the sense in which the term had been used in the aforesaid judgment of the Supreme Court ; that they were ordinary witnesses and so ordinary that they would not hesitate to alter their evidence in Court in order to bring it into line with the prosecution story. The learned Judge based this observation upon the consideration of the fact that neither in the F. I. R. nor in their statements before the police these witnesses had mentioned the Ajrak, the shoes or the cartridges found on the spot, about which they all deposed at the trial in their examination‑in‑chief. The learned Judge further observed that the medical evidence contradicted the testimony of these witnesses ; that the presence of the three eye witnesses on the scene at the time of the occurrence was doubtful and that though there was cultivation all around and there was another village apart from the village of Piaro at about the same distance, no other person had come forward to support the prosecution case. Upon these findings he gave the appellants the benefit of doubt and acquitted them.

4. Khamisani, J., took the opposite view. He believed the three eye‑witnesses, whose evidence at the trial he found to be consistent with each other. He also took into consideration the fact that the number of culprits mentioned in this case was such as would be required for an attack of the kind which was the subject‑matter of these proceedings and that the persons named as culprits were such as would be expected to join in the attack. He observed that in the judgment of the Supreme Court referred to by Raymond, J., these two circumstances were held to be relevant for the purposes of corroborating the evidence of interested witnesses. He further found that though Ghulam Qadir and Mst. Sanghar could be described as interested witnesses but the same could not be said about Subhani. He did not accept the evidence of the doctor in so far as it contradicted the oral testimony of the incident. He further observed that the fact that these witnesses had not earlier mentioned the Ajrak, the cartridges and the Jootas, was not sufficient to discredit them because they might not have attached much importance to it and they spoke about it at the trial when they were asked. As regards the absence of the production of disinterested eye witnesses he observed that the name of any particular individual had not been suggested who is said to have been present near the scene, and he further explained that other persons would not come forward to give evidence because of the fear of retribution at the hands of the accused party. As regards the evidence of motive he observed that it had not been really questioned, and considering that the parties were Bangulanis by caste he observed that the murder in retaliation was a matter of common occurrence amongst them. On these findings he held that there was no substance in the appeal. He, therefore, dismissed it and confirmed the sentence of death passed on the appellants.

5. Besides the advantage of the two judgments of my learned brothers I have also had the benefit of very full arguments advanced by Mr. A. K. Brohi, the learned counsel for the appel lants, and Mr. Khalid Ishaq, the learned A. A.‑G. for the State, who took me through the whole evidence on record.

6. Before I proceed to deal with the merits of the" case I should like to refer to a legal argument which was advanced by Mr. Brohi. The learned counsel argued that when a matter comes up before a third Judge under sections 378 and 429, Cr. P. C., upon a difference between two Judges, the opinion of the Judge favouring an acquittal, unless found to be perverse, should be accepted and the accused should be given the benefit of doubt. Reliance was placed by him on two decisions : one reported in In re : Narsiah and others (A I R 1959 Andhra Pradesh 313), and the other in Rajab Ali v. Crown (P L D 1954 Sind 49). Mr. Brohi relied on the Andhra Pradesh case because he said it had dealt with all the case law on the point. The learned Judge in that case referred to the observations made by Mahmud, J., in Empress v. Deri Singh (1886 A W N 275) in which it had been pointed out that the deliberate opinion of one Judge in favour of acquittal upon a grave question of the weight of evidence in a case heard by a Bench consisting only of two Judges should, ipso facto, constitute in most cases a sufficient reason for creating such a serious doubt that the benefit of that doubt should be given to the prisoners. The learned Judge further observed that‑

"As a matter of judicial etiquette, when one Judge differs from his brother Judge on a pure question of the weight of evidence as to the propriety of conviction, the opinion of the Judge who is in favour of the acquittal should prevail, at least, as a general rule."

The above view was strongly criticised by Edge, C. J., in Empress v. Bundoo (1887 A W N 125). It was pointed out that there was no rule of judicial etiquette which prescribed that a Judge, in a capital or m other cases should subordinate his judgment to that of his brother Judge, and that each Judge should act upon the opinion which he had formed upon the case so fir as the deciding of the case depended on questions of fact. When a similar point arose before' the Orissa High Court in Khetri v. State (A I R 1952 Orissa 37) Ray, C. J., held as follows

"In my opinion what struck me at the beginning was correct, namely that I could, unless on scrutinising the materials on record the judgment of the Judge pronouncing in favour of the innocence of the accused was considered far from fairly reason able, or, to be more accurate, not perverse, give the benefit of reasonable doubt to the accused."

7. A similar view was taken by Rajgopalan, J., of the Madras High Court in an unreported case. This was, however, disapproved by a Bench of Madras High Court in the case In re : Ravipati Sitaramayya (A I R 1953 Mad. 61). The learned Judge of the Andhra Pradesh High Court in the case which was cited before me then went on to give an analogy which he drew from appeals against acquittal under section 417, Cr. P. C., in which he observed that it was not enough for the High Court to upset the acquittal merely by taking a different view of the evidence. He then went on to hold that unless there is strong and compelling reasons to come to the conclusion that the opinion of the Judge favouring an acquittal was perverse the golden rule was to give the benefit of doubt to the accused and that the observance of such a rule did not amount to an abdication of the functions of the third Judge under sections 378 and 429, Cr. P. C.

8. In the Sind case P L D 1954 Sind 49 Lari, J., agreeing with the observations made by Ray, C. J., which have been referred to above, and on an unreported case of the Allahabad High Court, held

"If an Honourable Judge of this Court takes a view that the accused is entitled to benefit of doubt and that stand is supported by the Public Prosecutor, I would not dissent from it unless I come to the conclusion that the judgment favouring acquittal of the accused is perverse."

With great respect to the learned Judges who took the view which has been convassed before me by the learned counsel for the appellants, I have not been able to persuade myself to hold that where one Judge has reached a conclusion in favour of acquittal upon the weight of evidence the third Judge must as a rule give the benefit of doubt to the accused unless he finds that the view taken is perverse. For one thing, the third Judge, however mighty or learned he might be, would not, at least "as a matter of judicial etiquette", be able to say that a view taken by a learned brother of the same Court was perverse. But the learned Judges to whose opinion I have referred have pointed out that unless it is so held the third Judge should agree with the Judge favouring acquittal. The acceptance of this view, in my opinion, and I say so with great humility, would make the provisions of sections 378 and 429 more or less redundant. It is not often, and I say it is almost rare, that a Judge sitting in a Bench differs from his brother where the latter takes the view upon the evidence in favour of acquittal. He does so only when he in his own judgment finds compelling reasons to hold otherwise. The analogy of an appeal under section 417 as applied by the learned Judge of the Andhra Pradesh High Court is, I say with great respect, inept because it is settled law and it was so held by the Privy Council that the only difference with regard to the duties of the Court of appeal in a criminal case between an appeal from conviction and appeal from an acquittal was that in the latter the initial presumption of the innocence of the accused was further rein forced by the finding of the trial Judge in his favour. I am, therefore, of the view that having regard to the clear provisions of the two sections of the Code, which are identical, when the case is laid before the third Judge on difference of opinion the whole case is before him, and while there is no doubt that he is bound to give due consideration to the fact that another Judge of the same Court had reached the conclusion in favour of the accused, I am not prepared to say that he cannot hold otherwise except upon a finding that that view isl perverse. With great respect I say that there is no question off "judicial etiquette" involved and if the legislature have in their wisdom, provided that upon such a difference the matter must be laid before a third Judge, in accordance with whose opinion the matter must be decided, it must follow that be must do his duty, in the doing of which he will of course take into consi deration the well recognized principle relating to the benefit of doubt to the accused persons. This is going to be my approach in this case.

9. Coming to the case itself I must, in the first instance, refer to the judgment of the Supreme Court in the case of Nazir v. State, from which the same passage is quoted in the judgments of both of my brothers and on which both of them have relied. This is that passage

"There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction."

My brother Raymond, J., after quoting this passage observed as follows :‑

"Having examined this reported case and having studied the principle enunciated therein I am of opinion that the three eye witnesses in this case are not exceptional witnesses' in the sense in which the term is used in this reported case."

He then went on to say that he was wholly unable to accept the evidence of these three prosecution witnesses unless supported or corroborated. Now I ask myself as to who is an exceptional witness' in a criminal case, and I find the answer to that question in that judgment itself from which the above passage has been quoted. The observations in that passage, it must be remembered, were with reference to an earlier judgment of the Supreme Court in the case of Niaz v. State (P L D 1960 S C (Pak.) 387). In that case their Lordships had explained for the guidance of the Courts their approach to the problem that generally confronts the Courts in cases of crime by violence involving the assessment of the evidence of interested witnesses. The expression interested witness' has been explained by the Supreme Court to mean a witness who has a motive for falsely implicating an accused person. Their Lordships observed that in cases where such interested witnesses charge one person only with the commission of the offence or where the number of persons whom they name did not exceed that which appeared from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence might, in the absence of anything making it unsafe to do so, be accepted without corroboration. But if the Court found that the number mentioned by such witnesses might have been exaggerated, their word could not be made the basis of conviction and the Court would have to look for some additional circum stance which corroborated their testimony. Their Lordships in the case of Nazir v. State while dealing with their above observations said that they had no intention of laying down an inflexible rule that the statement of an interested witness can never be accepted without corroboration. It was in this context that they made the observation about the exceptional and the ordinary interested witness ; but even with regard to the "ordinary interested witness" they were careful enough to limit the principle of corroboration because they observed that the testimony of such a witness was not safe to be relied upon in respect of "every person" against whom he deposed. It, therefore, appears to me to be clear that the need of corroboration of the testimony of an interested witness would arise when he is implicating a number of persons, the reason being that he might be implicating the innocent with the guilty‑a tendency which is not uncommon particularly when there are factions and feuds. Indeed in the case of Niaz v. State their Lordships succinctly stated that where the number of persons charged by the interested witnesses was one or such as might appear to be the true number of culprits in the circumstances of the case, the evidence of interested witnesses could be accepted without corroboration, for substitu tion is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it. Likewise, in the case of Nazir v. State their Lordships adhered to the principle viz., that where the number of persons charged appeared to be the true number of culprits the statements of interested witnesses could be acted upon. They also observed that the other consideration relied upon by the High Court in convicting the accused namely that the persons named as culprits were such as would be expected to join in the attack, was not irrelevant. They were dealing with a case in which 10 persons had been accused of the act of violence and they agreed with the finding of the High Court in case of 9 of them even though there was no independent corroboration as such except for the two circumstances referred to above. It was only in the case of one of the accused who was a boy of 13 that they gave the benefit of doubt because of the consideration regarding the probable number of the actual assailants did not apply to this boy, since he could not have been of any help in the attack, and in fact his presence might have been a hindrance to the assailants. I would, therefore, say with due respect to my learned brother Raymond, J., that the testimony of the three "ordinary eye‑witnesses" in this case could not have been rejected upon the ground of the absence of any corroborative circumstance. The number of culprits given by them was not improbable and the persons named were such as would be expected to join in the attack. In respect of this statement of law I am in respectful agreement with my brother Khamisani, J. This, however, does not conclude the matter because it still remains to be considered whether the evidence of these witnesses is such which is worthy of acceptance and can safely be made the basis of conviction. As was observed by the Supreme Court in the case of Niaz v. State, that while dealing with the testimony of interested eye‑witnesses the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. With this question I shall now proceed to deal.

10. Before dealing with the evidence of the aforesaid witnesses on merits I would like to determine whether P. W. 11 Subhani can also be included in the category of interested witnesses because, as far as Ghulam Qadir and Mst. Sanghar are concerned, there can be no doubt that they ore interested witnesses inasmuch as the deceased Rahimdad was the cousin of the former and the brother of the latter, and his two brothers namely Sohrab and Wallu and his cousin Belo were at the time of the incident standing their trial for being responsible for the murder of Todho, the brother of appellant Khurdo, and according to that prosecution the .murder of Rahimdad was by way of vengeance in respect of the murder of Todho. Khamisani, J., took the view that Subhani was not an interested witness because he was merely a caste fellow of the complainant party and was not related to the deceased Rahimdad. The fact that a witness is related to the injured party does not necessarily make him an interested witness in the sense in which it is understood in law. The fact of relationship is only one of the considerations) (but the main consideration is whether he had a motive for falsely implicating the accused. However, I am of the opinion) that it has been sufficiently established that Subhani was related to Rahimdad. Piaro, the father of the deceased, was questioned on this point and he denied that Mundhoo was related to him or that Subhani's father was his cousin. However, it was admitted by P. W. 5 Arshullah Khan, who is the nekmard of the parties, that Mundhoo Bangulani was the son of Piaro's cousin. Subhani is the son of Mundhoo. But more important than this relationship is the fact that Subhani himself had been challaned in the murder case of one Khan along with Belo, the cousin of Rahimdad, who was a co‑accused with Rahimdad's brothers Sohrab and Wallu in the murder case of Todho, the brother of the appellant Khurdo. It is, therefore, not unreason able to hold that Subhani could therefore be termed as an interested witness in the present case. I shall advert to the merit of his evidence in a moment.

11. The prosecution case was that the first two shots were fired when Rahimdad was running away from the appellants. Khurdo had fired the first shot and had hit Rahimdad but he ran on, and it was Miran who brought him down with the second shot and then the appellants reached the fallen person and Khurdo fired the third shot from a very close range and then Danglo clinched the matter by inflicting two hatchet blows while Rahimdad lay on the ground. Now, let us see whether this story fits in with the injuries op the person of the deceased) because if it does not then the reasonable inference would be, that none of these witnesses had actually witnessed the occurrence.) The dead body of Rahimdad was sent to the medical officer, Thul Dr. Ghulam Nabi (P. W. 13) through a constable and it reached there at 9 p.m. on the same day on which the incident took place. The doctor performed the post‑mortem examination the following morning at 9 a.m. He found the following injuries off external examination of the body

"(1) A gunshot wound 1 " x 1" x cavity deep on left side of the chest 3 lateral to the nipple.

(2) Two gunshot wounds gram seed size 1" on each side of injury No. 1 cavity deep.

(3) A gunshot wound 2" x " x 1 " on back below left cavity deep communicating with injury No. 1.

(4) Incised wound 5" x 1" x brain deep on right side of the head temporal region.

(5) Incised wound 4" x 2" x " on right shoulder back.

(6) Five gunshot wounds gram seed size on right shoulder front and upper part of right arm.

(7) Five gunshot wounds on right shoulder back and right upper part of the arm."

It will be seen that the injury No. 1 was communicating with the injury No. 3. In the opinion of the doctor, though he has not expressly stated it in the post‑mortem report, injury No. 1 was the injury of entry and No. 3 was of exit. I am satisfied that this is so. The wound of injury No. 3 is larger' in circumference than the wound of injury No. 1. A wound of exit in cases of gunshot is larger than the wound of entry. This was also conceded by learned A. A.‑G. But if we were to assume for the sake of argument that the position was otherwise then there would be no explanation of injury No. 2. These are two gunshot wounds on each side of injury No. 1. Having regard to the position and nature of injuries Nos. 1 and 2 I would accept the opinion of the doctor that injuries Nos. 1, 2 and 3 were caused by one shot. The nature of the injuries shows that the shot was fired not from very far. Most of the gunshots were still concentrated and had not spread out resulting in injury No. 1 and the two wounds of the injury No. 2 had been caused by two pellets of the same shot spreading out a bit. The nature of the injuries further shows that most likely S. G. shots were used because the two wounds of injury No. 2 as well as the wounds of injury No 5 are shown to be of the size of gram- seed Though the doctor did not in the post‑mortem report expressly state about the entry and exit but apart from the nature of the injuries, the serial number, which he gave to them, would also support his evidence which he gave in Court that the injuries Nos. 1 and 6 were of entry and the corresponding injuries Nos. 3 and 7 were of exit. The nature of the injuries Nos. 1, 2 and 3 clearly establishes that the shot causing them was fired from the front. That is also the opinion of the doctor. This directly contradicts the evidence of the eye witnesses because their evidence read together would show that all the shots were fired from the lack, which also is the case in the F. I. R. An attempt was made to show that when the second shot was fired by Miran he was in a flanking position with Rahimdad. I do not find it possible to accept this, because if Khurdo and Miran were chasing Rahimdad none of them would have been able to shoot and hit Rahimdad from the sides. It would not be necessary for them to get on the side of a running man to shoot him. The natural thing for them would be to shoot when they got near enough and the injury that would result would be at the back of the body. It appears to be extremely difficult to get by the side of the pursued while he is still running and hit him in the side, because by the time the shot is fired the person, who is being pursued, would again get ahead of the pursuers. This element that Khurdo and Miran were running on either side of Rahimdad was introduced in the examination‑in‑chief of Ghulam Qadir, because by that time it had been realised that having regard to the nature of the injuries it would not be possible to support the story that the first two shots were fired from behind when Rahimdad was running away. But this story is belied by the circumstance to which I have just referred and by the further fact that there were no injuries on the sides of the deceased either on the left or on the right. With regard to injuries Nos. 6 and 7 which consisted of five gunshot wounds on the front right shoulder and upper part of the right arm (injury 6) corresponding with the five gunshot wounds on the back' of the right shoulder and right upper part of the arm of injury No. 7, the opinion of the doctor again is that injury No. 6 was the wound of entry and injury No. 7 was the wound of exit, and I am inclined to accept that opinion. This was not an after‑thought, because when the doctor wrote the post‑mortem he naturally put the wound of entry as No. 6 and the wound of exit as No. 7. There were thus only two shots which hit Rahimdad and both were fired from the front and this is what the doctor says. But even if the injury No. 7 was that of entry and No. 6 that of exit, the third shot still would remain unexplained. According to the evidence of these eye‑witnesses the first shot was fired and it hit Rahimdad when he was running and he started bleeding and it also caused holes in the Ajrak which he was wearing and the second shot of Miran brought him down, and the third shot was given by Khurdo from a close range after Rahimdad had fallen down as a result of the fire of Miran. But if only two shots had hit the deceased as would appear from the nature of the gunshot injuries and both of them had been fired from the front then the evidence of these eye witnesses with regard to the manner in which the incident took place, cannot be accepted. The doctor also said that when both these shots were fired the person firing the gun was standing directly opposite the deceased on the same level. This would be supported by the position of the wounds of entry and of exit. This goes against the version of these witnesses that the third shot was fired at a close range after Rahimdad had fallen down and when he was lying on the ground. With regard to the two hatchet injuries the doctor said that the injury No. S was caused when both the assailants and the deceased were in a standing position, but the injury No. 4 could be caused while the deceased was lying on the ground. Therefore: if this evidence is accepted the story that both the hatchet injuries were given when Rahimdad was lying, cannot be accepted. The inference from the above discussion seems to be compelling that these three eye witnesses had not actually witnessed the attack.

12. Now with regard to the presence of these three eye witnesses on the scene at the time of the incident, there is no doubt that Ghulam Qadir could have been there in the normal way because he had taken a partnership in respect of a cultiva tion in a nearby field. With regard to Mst. Sanghar, the reason which she has given for his presence there is open to doubt, and with regard to Subhani there is enough material to show that he was not on the scene and in any case not for the reason which he gives for his presence. Mst. Sanghar is a married daughter of Piaro, the father of Rahimdad. Her story is that she had come out to graze her flock of sheep, which was also the reason given by Subhani for himself. She was asked as to why her husband did not bring out the sheep for grazing and she said that he was often insane. But even if he was sane I would think that it would not be extraordinary for the wife to bring out her own sheep for grazing. The story, however, which Piaro gave to the police was that both Rahimdad and Mst. Sanghar had brought out his (Piaro's) cattle. That was the explanation given at the earliest opportunity by Piaro for Mst. Sanghar's presence on the spot. In Court, however, he followed the same version as was given by Mst. Sanghar. He was confronted with the statement in the police diary to the effect that Sanghar and Rahimdad had together brought out his cattle and he denied to have made that statement. The evidence of the police officers that they had seen the cattle grazing nearby when they came to the scene of occurrence, even if true, would not establish that some of the sheep belonged to Mst. Sanghar. The reason, therefore, given by Mst. Sanghar for being on the spot is, therefore, not convincing. With regard to Subhani, Ghulam Qadir stated in his examination‑in‑chief that his village was at a call's distance from the scene. Which village it was, he did not name. When cross‑examined he had to admit that Subhani's village was at a distance of about 4 miles from the scene of occurrence. Mst. Sanghar also admitted that Subhani's village was about 4 or 6 miles away and he had come from his village. However, Subhani in his evidence stated that he had come on the scene to graze his goats and his village was about one call or 1 J call away from the scene of offence, which would mean about 6 furlongs. It is true, he was not cross‑examined about it, but it may well have been due to the fact that the defence had already got the admission of Gbulam Qadir and Mst. Sanghar to the effect that his village was about 4 to 6 miles and were content with it. There are other circumstances to show that Subhani has lied on this point. When examined under section 164, Cr. P. C., he vaguely stated that his residence was near Oodi Village Belo Bangulani. Belo Bangulanis the village of the deceased, Piaro and Mst. Sanghar, and it is in the evidence of Tapedar that there is another village nearby named Oodi village. It would, therefore, appear that Subhani being conscious of the fact about the distance of his village from the scene of occurrence was trying to keep the question of his residence as vague as possible. He did not say that he was a resident of either Oodi village or Belo Bangulani, but he said that his residence was near to both of them. There is no other village except these two. However, in the description of his residence, which he gave when he came to give evidence in Court, he described his residence as being in Madad Village. I am satisfied that the place of residence of Subhani was about 4 to 6 miles away from the place of the occurrence, and I cannot accept it that he had brought his goats all the way to this distance for the purpose of grazing. It may also be noted that Mst. Sanghar, whose statement before the committing Magistrate was brought on record under section 288, had stated there that there was a grazing ground at about a call's distance from their village but on the day of the incident they had not gone to that grazing ground. It was stressed that Subhani was examined by the police on the same day when they arrived there. That would not necessarily establish that Subhani was present on the scene at the time that the occurrence took place. There is another circumstance which would show that Subhani had not seen the occurrence. In his statement before the Magistrate under section 164, Cr. P. C., his statement was to the effect that Khurdo and Mirart fired at Rahimdad who fell down due to injuries, and it was at that time that the accused alighted from the horses and ran after him. According to this statement, therefore, the first two shots were fired when Khurdo and Miran were still on their horse‑back. That is nobody's case, nor is it consistent with the medical evidence. And considering the prosecution case that both Khurdo and Miran were on one mare it is difficult to see how both of them could have fired while still on the same horse‑back aiming at somebody in front of them. The version that Ghulam Qadir gave in Court is not quite the same as the version given by him in the F. I. R. In the F. I. R. he had said that when these three appellants came on horse‑back, Khurdo challenged Rahimdad that he would not go, on which Rahimdad ran away towards south‑west and Khurdo, Miran and Danglo at once dismounted and Khurdo and Miran both fired gunshots at Rahimdad, and Rahimdad being hit by fire fell down. After that Danglo went and gave hatchet blows to Rahimdad. In Court, however, he said that he was engrossed in his own affairs when he heard the report of the gun and at that time he was 60‑70 paces from the deceased. How then could he have heard the conversation to which he referred in the F. I. R. His character is also not free from stains, because he admitted that he was convicted for a theft and sentenced to 1 years rigorous imprisonment.

13. In view of all the circumstances referred to by me above, particularly the nature and position of the injuries and the insurmountable difficulty of fitting it with the version, of the three eye‑witnesses, have come to the conclusion that it would not be safe to base the conviction of the appellants on such evidence. It is true that there was a motive for the appellants to murder Rahimdad but it may also be that for that very reason a person may be implicated either falsely or on suspicion. I, therefore, hold that the case against the three appellants has not been established beyond a reasonable doubt. In consequence of this opinion I allow the appeal and set aside the conviction and sentence passed on the appellants and direct that they be set at liberty unless wanted in connection with some other case.

K. B. A.

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