1. SAJJAD ALI SHAH, J.---State has filed this Acquittal Appeal against the judgment dated 31st October, 1974, passed by learned Sessions Judge, Larkana, whereby he has acquitted respondents named above, who were tried by him in a Sessions Case for offences under sections 302/34 and 114, P. P. C. For allegedly having committed murder of Abdul Ghani son of Mahi resident of Village Ghazi Mashori on 16-7-1973 at I1-00 a. m. In the hotel of P. W. Muhammad, Yousif near Railway Station Bakrani, in furtherance of their common intention, by firing at him from their guns.
2. Shortly stated prosecution story is that deceased was suspected of having developed illicit relations with the wife of respondent No. 1 Attallah. Two days prior to the incident deceased had taken his wife in the tonga of Dino Mashori to the Village of Moulana Mashori for taking `taweez' from him and while returning deceased was confronted by respondents Ataullah, Younis and Miro duly armed with guns who wanted to kill him but he was saved due to the intervention of Dino and Abdul Hakim. Deceased had informed his brother Sultan complainant about this episode. On the day of incident about 11-00 complainant came in his bullock-cart and was taking tea in the hotel of Khuda Bux Kasai, P. Ws. Bakhshal Mashori and Shaman Mashori were with him. In the adjacent hotel of Muhammad Yousif deceased was taking tea. Repondents came there in a bullock-cart and stopped outside the hotel. At the instigation of respondent Isso, other respondents Ataullah Miro and Yousif took out their guns from under `Palai' lying in the bullock-cart. First Ataullah fired and then Younis and Miro fired at Abdul Ghani, who fell down injured. Complainant and P. Ws. Bakhshal and Shaman, who saw the incident, raised cries but nobody intervened because of fear.
3. Respondents then went away in their bullock-cart. Abdul Ghani died at the spot from gunshot wounds. Complainant Sultan went to Daim Mashori 'Village and apprised Nek--mard Haji Muhammad Ismail, who accompanied him to the police station where F. I. R. Was lodged on the same day at 2-45 p. m. Distance between spot and P. S. Is about 3 miles.
4. P. W. Jangi Khan S. H. O. After registering report came to the spot. Dead body of Abdul Ghani was lying infront of Muhammad Yousif The I. O. Prepared inquest report, sent the dead body to the hospital for post-mortem report, prepared sketch, recovered five empties from the spot and recorded statements of P. Ws. Bakhshal Mashori, Shaman Moshori, Yousif Mashori, Dino Moshori, Khuda Bux Kasai and Abdul Haq. On the following day he arrested respondents Ataullah produced one gun and four live cartridges from his house. He had also produced licence for the gun. Younis .Led to the recovery of one single-barrel gun and two live cartridges from `Palai' in the cattle-pen of Ataullah. The above-mentioned guns and crimetempties recovered from the spot were sent to the ballistic --expert. Later statements under section 164, Cr. P. C. Of witnesses were recorded and after completion of investigation respondents were challaned.
5. Prosecution has examined 14 witnesses in support of its case. They include seven eye-witnesses namely P. W. 2 Sultan complainant, P. W. 3 Khuda Bux, P. W: 4 Yousif, P. W. 6 Bakhshal Mangi P. W. 7 Parial, P. W. 9 Shaman and P. W. 10 Bakhshal Mashori. Prosecution has also examined Ballistic expert as P. W. 5, Doctor Ali Nawaz as P. W. 14 and a host of other formal witnesses.
6. Post-mortem examination was performed on 17-3-1973 and the following injuries were found:
(1) 44 lacerated punctured type of wounds 1/4" to 1/3--- in diameter present on the upper part of the front of chest, right upper arm, right elbow and lower lip (charring present).
(2) One lacerated punctured type of wound 2" x 1--- x chest cavity deep on the left side of chest with six lacerated punctured type of wounds 1/6" in diameter around it. (Charring was present).
7. On internal examimation the doctor found the following damages :--.
(1) There was fracture of sternum,
(2) There was fracture of two ribs on right side and fracture of two ribs on the left side.
(3) The chest cavity was full of blood.
(4) Both the lungs were punctured and paricardium and heart were punctured.
8. From the external as well as internal examination of the dead body, the doctor was of the opinion that the death of deceased Abdul Ghani was due to shock and haemorrhage due to the rupture, of the heart and both lungs as a result of the injuries mentioned above cused by discharge of fire arm such as gun. The death was instantaneous. The injuries were ante-mortem in nature. Both the external injuries were individually and collectively sufficient to cause the death in the ordinary course of nature.
9. In their defence respondent denied all allegations including story about the motive and recovery of weapons. They claimed to have been implicated falsely in the case by witnesses, who were inimical and interested. Respondent Younis produced a copy of judgment Exh. 55 according to which his father Mohamed Yakoob named as accused in a criminal case filed by P. W. Haji Mohamad Ismail Mashori, for offences under sections 380 and 411, P. P. C., was acquitted by A. D. M., Larkana.
10. We have heard at length learned counsel on both sides and have also very carefully examined the record. There is inordinate delay in the filing of F. I. R. The incident is stated to have taken place at about 11.00 a. m. And report . Is registered at 2-45 p. m., when the distance between the spot and P.
11. S. Is 3 miles. Complainant has explained that after the incident he first went to the village of his nekmard Mohammed Ismail on foot and after posting him with facts of the incident, both of them went on foot to P. S. Bakhrani, where F. I. R. Was registered. There was no need to go on foot because it is admitted by complainant that he had brought his bullock-cart for oiling of axil which was waiting near the hotel. He could have gone in that to hurry up the things. Secondly the incident had taken place near the Railway Station and a train had also arrived a little while before the incident, hence many tongas were available and he could have gone in one. P. W. 8 Bakhshal Mashori a tonga driver, who is an eye--witness of the incident had his tonga available near the vardat. He is also related to the deceased as the deceased was his maternal uncle. This witness has stated before the trial Court that he refused to take passengers after the incident because his relative was murdered. Complainant could have used this tonga. It is admitted by complainant before the trial Court that village of P. W. Mohammed Ismail was at a call's distance from the spot.
12. In that case to consume three hours and forty-five minutes to cover a distance of about 3 miles to the police station shows inordinate delay which is deliberate and purposeful and was used by complainant and P. W. Mohammed Ismail Mashori for manipulation.
13. Eye-witnesses have rightly been not relied upon by the learned trial Court as their testimony appears to be not free from doubt. Even their presence at the spot is not certain. Firstly the complainant had stated that he had come to the spot in his bullock-cart. He went to the police station on foot but when he brought Police to the spot, his bullock-cart was not any where near the vardat. I. O. Has clearly stated so in his statement before the trial Court. Complainant has in vain attempted to explain away that after the incident some one from his co-villagers had taken away his bullock-cart to his village. Secondly complainant has not named four out of six eye-witnesses in F. I. R. Those four eye-witnesses are P. W. 4 Yousif Mashori, P. W. 3 Khuda Bux, P. W. 6 Bakhshal Mangi and P. W: 7 Mohammed Parial Kalhoro. I. O. Has admitted on oath before the trial Court that complainant did not give names of these witnesses in F. I. R. The remaining two eye-witnesses named in F. I. R. Have not mentioned presence of these four eye-witnesses in their police statements as well as their 164, Cr. P. C. Statements, which were recorded by Mukhtiarkar and F. C.
14. M. Dokri on 19-3-1973. The I. O. Further had statements 'under section 164, Cr. P. C. Of -P. Ws.
15. Bakhshal Mangi and Mohammed Parial recorded on 26-3-1973, i. e. Exactly 10 days after the incident. P. W. 6 Bakhshal Mangi has stated before the-trial Court that his Police statement was recorded on the following day of the incident and before the Committing Court had stated that his Police statement was recorded after two days of the incident. P. W. 7 Muhammad Parial Kalhoro, who has a tailoring shop near vardat has stated before the committing Court that he was examined by the Police on the same day when his 164, Cr. P. C. Statement was got recorded by Mukhtiarkar and F. C. M., Dokri. He had further admitted there that from the day of the incident onwards right up to the day his statement was recorded he used to attend the shop regularly. It it obvious that these eye-witnesses have been introduced subsequently.
16. The evidence of these so-called eye-witnesses is also contradictory and is in direct conflict with medical evidence. According to these witnesses in all five shots were fired at the deceased. Their further version is that first Attaullah fired when deceased was sitting in the hotel, he was hit, got up and started running, when two other shots were fired at him after which he fell down, then respondents Miro and Younis went near and fired at him from close-range. Post-mortem report belies this version completely and according to the doctor deceased bad sustained only two gunshot wounds on the chest-side. Doctor has further opined that due to these injuries, heart and both lungs were ruptured and the resultant death was instantaneous. This inconsistency in the evidence of eye-witnesses and Doctor further confirms the doubt that eye-witnesses are not speaking the truth and the incident has not taken place in the manner narrated by them.
17. Additionally it may be stated that incident has not taken place inside the hotel as stated by P. Ws.
18. Because according to the sketch of vardat the dead body was found lying outside hotel of Ali Muhammad Brohi, which is stated to be closed on the day of incident. The other places from where the witnesses are said to have seen the incident are outside on the road in the open and not in hotels as asserted by them. With such inherent defects the ocular testimony is not fit to be accepted as truthful.
19. Motive is also not established by satisfactory evidence. Statement of Mst. Fatima wife of respondent Attaullah was not recorded by Police. Had she been kari, according to the tradition she would also have been killed. No evidence has been produced to prove the earlier incident when attempt was made by respondents minus Muhammad Issa to kill deceased. No such report was lodged with Police but deceased only informed his brother complainant Sultan about it. No independent witness from village of Maulana Mashori has been produced to prove that deceased had taken his family there for taweez. P. W. 10 Dino tonga driver has been examined by the trial Court but not before committing Court. He is interested because he belongs to the village off deceased. Even he has not deposed that the respondents mentioned illicit relations between deceased and wife of Ataullah.
20. So far as the evidence of recoveries is concerned it would be pertinent to point out that crime empties recovered from the spot were not sealed as, is evident from mashirnama of vardat Exh. 36.
21. Two guns were reovered, one from respondent Ataullah and the other from respondent Younis.
22. Ballistic expert has deposed that only one crime-empty was found to have been fired from the gun allegedly recovered from Younis. This piece of evidence is not accepted for three reasons. Firstly crime-empties, when recovered from the spot were not sealed, secondly according to complainant Younis was armed with a double-barrel gun and this was a single-barrel gun and thirdly it was recovered from the Patal grass of Ataullah, which was lying in the open ground in the village as such it can--not be said that gun was recovered from the exclusive possession of respon--dent Younis.
23. In the light of what is stated above, we hold that prosecution has failed to prove the guilt of respondents beyond doubt. Evidence produce by the prosecution is weak and unreliable. Eye- witnesses do not appear to be speaking the truth and their presence at the spot at the time o incident is doubtful. Corroboratory evidence is also not satisfactory. One piece of tainted evidence cannot corroborate other piece of tainted evidence. The learned trial Court has made proper appraisement of evidence and has given cogent and convincing reasons for giving benefit of doubt to the respondents and acquitting them. In the circumstances interference with the judgment of the learned trial Court is not warranted, which is hereby maintained and the appeal is dismissed.