Z. A. CHANNA, J.-This appeal under section 417, Cr. P. C. By the Provincial Government is directed against the judgment delivered on 21-2-1974 by the learned first Additional Sessions Judge, Sukkur, acquitting the three respondents-of all the charges against them.
2. The facts which have given rise to this appeal, briefly stated, are that on 24-6-1972, at about noon time, one Ghulam Mohammad Junejo was murdered and his brother, Abdul Haque, was injured in the left arm, in a survey number adjoining the land which had been taken on Yaksalo lease from Government by Allahwadhayo and of which the deceased and injured were harts. The murder and the injury to Abdul Haque are said to have been caused by means of fire-arms by the present respondents, of whom Shahbazdinno and Jummo are said to have been armed with pistols/ revolvers and Laldinno with a hatchet. The incident is alleged to have been witnessed, apart from injured Abdul Khalique, by Alidaur, brother of Allahwadayo, and Kaderbux, who was employed as a cleaner at the tube-well of Alidaur. The motive for the murder of Ghulam Mohammad and the causing of injury to Abdul Haque is stated to be the fact that the respondents were annoyed with Allahwadayo for taking lease of land which was located near their lands. The first information in the case was lodged by Alidaur on the very day of the incident, at 5 p.m., at Pano Akil Station, which is ten miles distant from the scene of offence and it was recorded by S. H.
O. Illahibux.
3. Abdul Haque, who had accompanied complainant Alidaur to the Police Station, was sent by the S. H. O. To the Medical Officer, Pano Akil, for examination and treatment. Thereafter, the S. H. O.
Accompanied Alidaur to the scene of offence where the dead body of Ghulam Mohammad was still lying. The S. H. O. Sent the dead body, to the Medical Officer, Pano Akil, for post-mortem examination and secured blood-stained earth from the Vardat. The S. H. O. Then recorded the statement of Karimdino, who was found present at the vardat, and thereafter took search of the houses of .Appellants Shahbazdino and Laldino, who are brothers inter se, in village Makhan Bello, but nothing incriminating was found. On the same day, the S. H. O. Recorded the statements of Allahwadayo and Munshi Baghio, at whose information the respondents had let water into the land of Allahwadhayo with a view to taking forcible possession of it, complainant Alidaur and Karimdino are said to have gone to the scene of offence. The S. H. O. Also searched the house of respondent Jummo in Malano village but nothing incriminating was found.
4. On 28-6-1972, the S. H. O. Is said to have arrested the three respon--dents from the cattle pen of respondent Shahbazdino and secured, at the pointation of respondent Laldino, a hatchet which was lying concealed in the manure at the foot of the hedge of the cattle pen, and at the pointation of respondent Shahbazdino, a revolver from under a `lai' bush outside the hedge-of the cattle pen.
The revolver was found to have three live and two spent cartridges in its magazine. The revolver was sent to the ballistic expert for examination.
5. The autopsy on the deceased disclosed the following injuries on the body:--- "A penetrating wound ----- X -----, about 3--- lateral to left nipple and about 3--- below left armpit showing the inlet bullet was 'found in the right A armpit about 3----- below axilla, the track was going downwards 1-- ' and piercing the chest cavity.
On internal examination the sixth thoracic vertebra showed a groove from left side going from below upwards .To right side of chest cavity. Both the pleural cavities were full of blood and right lung was pierced by bullet. The left lobe of left lung was also pierced by bullet. The pericardium was full of blood and the heart was punctured through and through."
6. The post-mortem notes recorded by the Medical Officer show that the bullet which had caused the fatal injuries to the deceased was taken out of his body and sent in a sealed bottle to the S. H.
O.
7. So far as P.W. Abdul Haque is concerned the Medical Officer found the following injury on his person which had been caused by a fire-arm :----- "A penetrating oval wound at the front of wrist --" x --" x -- ", with creptation present and fracture which was confirmed by X-Ray examination."
8. The respondents, in their statements before the trial Court, denied having committed the murder of Ghulam Mohammad, caused injuries to P. W. Abdul Haque or trespassed into the lands of Allahwadhayo, Their stand is that they have been falsely implicated by the P. Ws. Who are closely related to the complainant and the deceased, at the instance of the complainant who is on inimical terms with them. Respondent Shahbazdino further denied having produced any revolver or pistol before the police while respondent Laldino denied that any hatchet was recovered by police at his pointation.
9. The learned Additional Sessions Judge, in his fairly lengthy judgment, has exhaustively dealt with the various pieces of evidence adduced against the respondents and came to the conclusion that the guilt of the respondents was not established beyond reasonable doubt and accordingly gave them the benefit of this doubt and acquitted them. He held that the motive was not proved, firstly, because Allahwadhayo had been given the lease of land for one year only, and if the respondents coveted this land they could have applied for it on the expiry of the period of lease in favour of Allahwadhayo, secondly, the land in question was admittedly not cultivated in Kharif 1972, which started from the month of June, thus belying on the one hand the version of complainant Alidaur that the jungle on the land was cleared and the land made ready for cultivation by deceased Ghulam Mohammad and P. W. Abdul Haque, the haris of Allahwadhayo, and on the other hand eliminating any valid reason for the presence of Ghulam Mohammad and Abdul Haque on the land on the day of the incident, of complainant Alidauor that absence any evidence in support of the claim land indents had let water into the
10. The learned Additional Session& Judge also considered it highly Unsafe to rely on the testimony of the three eye-witnesses, Alidaur, Kaderbux and Abdul Haque, as they are related inter se and interested and as further he was of opinion that their presence, except that of injured Abdul Haque, at the scene of offence was doubtful. It was established that deceased Ghulam Mohammad and P.
W. Abdul Haque were brothers inter se and sons of the maternal uncle of complainant Alidaur and his brother Allahwadhayo. It was also established that one Mail had two wives. From one wife be had a son by name Mst. Sharman. Deceased Ghulam Mohammad and P. W. Abdul Haque were sons of this Isso while P. W. Kaderbux and mashir. Allahdinno, mashir of the scene of offence and of the inquest report, are the sons of this Mst. Sharman. The learned Additional Sessions Judge found himself unable to rely on the testimony of injured Abdul Haque not only because he was related to complainant Alidaur but was completely under the influence of the latter, being the hart of Alidaur's brother. He also drew adverse inference from the non-examination of Baghio, on whose information complainant Alidaur and P. W. Kaderbux are said to have gone to the scene of offence, and also from the fact that though independent and disinterested witnesses as to the incident were available, namely Nizamuddin, Allahdino, Rabu, Saindino, Hakim and Imamdin, they were not examined. .
11. As to the recoveries, the learned Additional Sessions Judge again was of the view that the evidence in regard thereto was unreliable, as firstly the houses of the appellants had admittedly been searched earlier by the police but nothing incriminating was found, secondly, P.W. Karimbux, the mashir of recovery, who was examined, is related to complainant party and not an independent and responsible witness and finally the S. H. O. And the mashir bad made false and contradictory statements in regard to certain material particulars. He further took the view that the recoveries in any case did not connect the respondents with the incident as the recovered hatchet was admittedly not blood-stained and there was no evidence that the revolver was used in the incident, since the Ballistic Expert has not been examined.
12. Mr. Sabir Hussain Rehmani, the learned counsel who appeared for the State in support of the appeal, assailed the findings of the learned Additional Sessions Judge on the grounds that they were not based on a correct appreciation of the whole evidence in the case and that the reasons given by the learned Additional Sessions Judge for acquitting the respondents were artificial and .Not well-founded. He submitted, that the motive bas been established, both by oral as well as documentary evidence, as it was established that respondent Shahbazdinno had filed an appeal against the grant of land to complainant Alidaur and his brother and later on P. W. Allah--wadhayo had to obtain an injunction from the civil Court. The learned counsel further submitted that the 3 eye-witnesses, though they are related inter se, are natural witnesses and they have given a consistent version of the incident, and consequently, their evidence is reliable. He submitted that in any case, the presence of injured Abdul Haque at the place of" incident could not be denied and since it, was a daylight murder, he and the other eye-witnesses could not have failed to identify the assailants. He finally submitted that the ocular evidence finds material support from the recoveries made at the instance of the appellants, which evidence cannot be ignored.
13. As to the motive, it may be pointed out that Allahwadhayo and his brother Alidaur had been granted lease of the land only for the year 1971-72. Since the land was granted on 1-7-7-1971, as appears from the 1juzatnama produced by P. W. Allahawadhayo, it was granted to them only for the. Kharif season 1971 and Rabi season 1971-72. This is further confirmed by the order of the civil Court granting status quo to them only up to 31-3-1972. Since the Rabi season was over when the incident occurred, complainant Alidaur and P. W Allahwadhayo had no right or interest in the land nor were they entitled to have it cultivated. As such the version of complainant Alidaur and P. W, Abdul Haque that the jungle on the land had been got cleared by them and that they bad levelled the land, with a view to cultivating it, cannot be accepted. Further ~ support to this view is lent by the testimony of the Tapedar that the land in question remained uncultivated during the Kharil season 1972. It may be mentioned that neither complainant Alidaur nor P. W. Allahwadhayo have even alleged that they had applied for the grant of this land to their for the year 1972-73. An examination of the record makes it clear that it was P. W. Allahawhdhayo, who was employed as a Clerk in the office of the Deputy Colonization Officer, who had managed to get the land ostensibly granted to complainant Alidaur, since it could not be granted to him, being a Government servant and an employee in the Colonization Department, but if fact he was the real grantee of the land and its beneficiary. It was apparently on this account that the Project Director, Guddu Barrage, had sent for the papers to examine the propriety of the grant, thereby compelling Allahwadhayo to approach the Civil Court for an injunction. Since neither Allahwadhayo nor his Haris had any legal right or interest in the land nor they were entitled to have it cultivated, the question of the respondents trying to take forcible possession of land from them did not arise.
14. The most important piece of evidence against the respondents, however, is the ocular testimony of first informant Alidaur, Qadirbux and Abdul Haque. We are inclined to agree with the view of the learned trial Court that it is unsafe to rely. On the testimony of the first two named witnesses. As already pointed out, all the 3 eye-witnesses are closely inter-related and interested. The exact relationship has already been indicated earlier. We consider that the reasonable possibility, any probability; of first informant Alidaur and Qadirbux not having witnessed the incident but having come to know of it subsequently, cannot be ruled out. According to them they were at the tube- well of Alidaur, about 11 furlongs distant from the scene of offence, and on learning from one Bhagio of the attempt made by the respondents to forcibly occupy the land that Alidaur and his brother Allahwadhayo had given for cultivation to deceased Ghulam Mohammad and his brother Abdul Haque, they went to the land in dispute and just as they reached the said land, respondent Shahbazdinno fired at deceased Ghulam Muhammad, who fell down, while Jummo fired at P. W.
Abdul Haque; hitting him in the arm. According to P. W. Abdul Haque, the dispute between him and the deceased on the one hand and the respondents of the other hand had been continuing from 10-00 a.m. It is difficult to believe that just at the moment when the first informant and P. W.
QadirBux arrived, the murderous attack on the deceased and Abdul Haque would have been launched. Invariably, such attacks are launched when there are no witnesses about. It is difficult to believe that the culprits, whoever they may have been, waited until the witnesses arrived before launching the attack on the deceased and the injured. In fact, we consider it highly unlikely that after the coming of the witnesses, the attack would have been launched. We are inclined to the view that very likely the attack, was made prior to the arrival of the witnesses: This view of ours gains support from a number of circumstances. In the first place, there has been undue delay in the lodging of the F. I. R. According to P. W. Abdul Haque, the dispute with the, respondents started .At 10-00 a.m. The F. I. R., however, was lodged 5-00 p.m. It is true that the scene of offence is 10 miles away from Panno Aqil Police Station, where the F. I. R. Was lodged; but 8 miles out of that was covered by the first informant and Abdul Haque, by Tonga as admitted by the latter. Even if the incident occurred at about 12-00 noon, as stated by first informant Alidaur, it should not have taken the first informant to cover the distance of 10 miles from .The scene of offence to the police station, by foot and Tonga, more than 2 to 2-- hours. There is thus a delay of 2-- hours to 3 hours in the lodging of the F.I.R. And this delay, in our view, appears to indicate that Alidaur and Qadirbux were not eye-witnesses but came to know about the incident subsequently. Another circumstance supporting this inference is that. Bhagio, on whose information Alidaur and Qadirbux are stated to have come to the scene of offence, bas not been examined by the prosecution and no explanation is forthcoming for failure to examine him. An inference could therefore reasonably be drawn that he was not willing to support the prosecution. A still another circum--stance, which supports our above inference, is that though according to the first informant, Alidaur, he is not stated to have been attacked by respondent Laldinno with a hatchet and also fired upon by the other two respondents, he escaped unhurt. We consider it unlikely that he could have escaped unhurt from a concerted attack from 3 well-armed assailants.
15. So far as P. W. Abdul Haque is concerned, though the injury on him firmly establishes the fact that he was present at the time of incident, we are inclined to treat his evidence with caution. In the first place, he is the Hari and a close relative of first informant Alidaur, being the latter's cousin, and consequently completely under his influence. Furthermore, he has very definitely given false evidence as to the motive for the attack and as to what he and deceased Ghulam Muhammad were doing on the disputed land at the time of the incident. We have already discussed the motive, which, according to the witnesses, had prompted the respondents to attack the deceased and ~ P.
W. Abdul Haque, and have shown that this motive is without substance. As to what the deceased and P. W. Abdul Haque were doing at the disputed land at the time of the incident, there is contradictory evidence. According to first informant Alidaur, the deceased and Ghulam Mohammad had previously cut the jungle on the disputed land and on the day of the incident they had come to collect the same and throw it away. However, according to P. W. Abdul Haque, they were clearing the land from bushes. In other words, the jungle had not been cut previously. Both these versions are belied by the fact that there were no cut bushes or jungle at or near the scene of offence.
16. In view of the above circumstances, we consider that the ocular evidence cannot be relied upon without strong corroboration. The corrobora--tive evidence consists of, firstly, the medical evidence, and secondly, the recovery of weapons from the respondents. So far as the medical evidence is concerned, it only establishes the factum that the injuries on the deceased and P. W Abdul Haque were caused by means of fire-arms. This evidence, thus, lends no support to the testimony of the eye-witnesses as to the identity of the assailants So far as the recoveries are concerned, admittedly nothing was recovered frog respondent Jummo. A hatchet is alleged to have been recovered at the pointation of respondent Laldinno, but as the hatchet was not blood stained, and in fact no injury admittedly was caused with a hatchet, the recovery does not, in our opinion, lend corroboration to the ocular testimony with regard to the participation of this respondent in the incident. Then remains the case of respondent Shahbazdinno, who is said to have produce a revolver, containing two empties and bullets, before the police from under a Lai bush outside the hedge surrounding his cattle pen. The place from where the revolver was secured thus appears to have been accessible to others also. Furthermore, there is no evidence that the revolver was concealed or buried in the ground. No inference thus can be drawn that the location of the revolver was within the exclusive knowledge of respondent Shahbazdinno. It might also be mentioned that though a bullet was extracted from the body of the deceased by the Medical Officer, during the post-mortem examination, no attempt was made by the prosecution to obtain the opinion of the Ballistic Expert whether the said bullet had been fired from the revolver allegedly produced by respondent Shahbazdinno. We have attempted to overcome this shortcoming and had sent the revolver and the sealed bottle containing the bullet to the Ballistic Expert, Mr. Ghulam Abbas, whom we subsequently examined. We also further examined Dr. Abdul Qayyum who had conducted the post-mortem on the deceased. This further evidence, however, has not been able to establish any firm link between the fatal bullet and the revolver allegedly produced by respondent Shahbazdinno. No doubt, the Ballistic Expert has testified that the bullet sent to him by the Court matched with the test bullets fired by him from the revolver sent to him by the Court, thus indicating that the bullet sent to him by they Court was fired from the revolver, but unfortunately it has not been established that the bullet sent to the Ballistic Expert by the Court was in fact the fatal bullet and had been extracted from the body of the deceased. In this behalf, we even sent for and examined the Medical Officer, Dr. Abdul Qayyum, who had extracted the bullet, but he was unable to say whether the bullet shown to him in Court, and which was the same that was sent to the Ballistic Expert, was the one which he had extracted from the body of the deceased, as he frankly conceded that be had put no mark of identification on the bullet. The doctor was shown the bottle in which the bullet was received by the Court from the police but he was unable to identify the bottle also, for he stated that he had put his signature on a paper which had been pasted on the bottle containing the fatal bullet, but as the writing on the bottle shown to him in Court and which contained the bullet sent to the Ballistic Expert, was obliterated, he could not say whether this was the bottle in which .He bad sent the fatal bullet to the police. It was not possible even to establish that the bottle received by the police from the Medical Officer was the one which had been sent to the Court as unfortunately the Investigating Officer, S.I. Illahi Bux, who had received the bottle, has since died, as reported by the police, and no other evidence is available to establish that the bottle received in Court from the police is the same which was received by the police from the Medical Officer. The bottle received in Court from the police was sealed at the time of its receipt, but as the seal had been opened by the Ballistic Expert, when the bottle was sent to him it could not even be established whether the seal thereon was intact and was that of Dr. Abdul Qayyum.
17. For the foregoing reasons, we are of opinion that the guilt of the respondents has not been established beyond any reasonable doubt. We would accordingly dismiss the appeal.