SAJJAD ALI SHAH, J.----The appellants named above have filed this appeal against the judgment dated 8th June, 1976, passed by the 2nd Additional Sessions Judge, Larkana, whereby they have been convicted for offence under section 302/34, P.P.C. And sentenced to suffer R.I. For life each for allegedly having committed murder of Khuda Bux, son of Muhammad Safar Bhatti on 12th November, 1974, at Somahni time in the land of Bello Bhatti Deh Sanjar, Taluka Shahdadkot, in furtherance of their common intention by causing him gunshot injuries. The trial Court by the same judgment has acquitted the other two accused namely Sodo, son of Ballo and Jumo, son of Alam Khan, who were tried along--with the appellants for the same offence.
After hearing the arguments of the learned counsel appearing on both sides, we have allowed this appeal on 25th October, 1978 and the reasons follow now.
Briefly stated prosecution story is that on the date and time of the incident mentioned above, deceased Khuda Bux, his son comp--lainant Mithal and Maula Bux, brother of deceased went together to take their turn of water from Bhatti Wah. Deceased Khuda Bux had a lantern while other two eye-witnesses P. W. 3 Mithal and P. W. 4 Maula Bux had torches. On reaching the canal deceased kept the lantern on the bank of canal and was blocking the canal while the two eye- witnesses, were present nearby. Suddenly on hearing challenges the said two eye--witnesses flashed their torches and saw and identified four persons namely Yaroo, son of Sharif, Jan Muhammad, son of Mohbat, the present two appellants and Sodo, son of Bello and Jumo, son of Alam Khan, the acquitted co-accused armed with guns and their faces were open. These four persons fired their guns at Khuda Bux, who became injured and fell down. On the cries of the eye- witnesses the appellants ran away towards north. After the departure of the assailants, the two eye-witnesses went near and found Khuda Bux lying dead with gunshot injuries. Immediately thereafter Muhammad Ali, Ali Sher, Umed Ali and other Brobis came running to the spot on hearing the cries. P. W. 3 Muhammad Mithal and Maula Bux apprised them of the incident and gave them names of the assailants. Leaving others near the dead body Muhammad Mithal complainant went to Hajt Ghulam Brohi and related to him the facts of the incident, who advised him to lodge the report. Complainant filed F.I.R., Exh. 7 on the following morning of the incident at Police Station Shahdadkot on 13th November, 1974. The motive as stated in F.I.R. Is to the effect that about 3 years prior to the incident both parties had fallen out on account of matrimonial dispute. Jumo Marhand was married to Mst. Habiban, sister of the complainant in exchange of Mst. Sughran, niece of Jumo Marhand who was married to Mahram, younger brother of the complainant. Some time after these marriages both parties developed differences, on which account the married girls mentioned above were detained by their respective parents. Jumo with the help of his brothers attempted to abduct his wife Mst. Habiban and in the course of that attempt gunshots were fired which resulted in the death of Fato Jat. Such report was lodged against Jumo Marhand and his brothers who were challaned, tried and acquitted by the Court. Yaroo, brother of deceased Fato Jat, and his cousins Sodo. And Jan Muhammad had sus--pected that deceased Khuda Bux, father of complainant in this case, had murdered Fato Jat. That matter was duly compromised but Jumo was always on the look out for taking revenge.
P. W. 8 Manzoor Ali S.H.O. After recording F.I.R. Came to the vardat and found dead body of Khuda Bux lying there with gunshot injuries. He secured blood-stained earth and put into a sealed parcel.
He secured one empty cartridge and one live cartridge and 7 wads of cartridges from the vardat which he sealed into parcels separately. He also secured one lantern, one lathi and one spade, and one chadar of deceased Khuda Bux having small holes caused by pellets. He prepared such Mashirnama, Exh.
16. He prepared inquest report of the dead body, Exh. 17 and despatched the dead body for post-mortem examination. He then recorded police statements of P. Ws.
Muhammad Ali. Mst. Habiban, Ghulam Ali, Umed Ali and Maula Bux. On 15th November, 1974, complainant Muhammad Mithal produced his torch which was secured vide mashirnama, Exh. 18.
He also secured torch of Maula Bux vide Mashirnama, Exb.
19. On the same day he arrested appellant Yaroo alias Yar Muhammad who produced his licensed gun along with its licence, which he seized vide mashirnama, Exh.
20. He then arrested acquitted accused Sodo. On 16th November, 1974, he arrested appellant Jano alias Jan Muhammad who produced his licensed gun along with its licence and two live cartridges which were seized vide mashirnama, Exh.
22. On 30th November, 1974, he got recorded 164, Cr. P. C. Statement of P. Ws. Muhammad Ali and Maula Bux. On 18th December, 1974, he arrested acquitted accused Jumo. On 23rd December, 1974, after completing other steps he presented challan in the Court.
Prosecution in this case has examined in all witnesses in support of its case. P. W. 3 Muhammad Mithal and P. W. 4 Maula Bux have teen examined as eye-witnesses. P. W. 6 Muhammad Ali has examined is corroborating witness. P. W. 1, Ghulam Sarwar is tapedar who has prepared sketch of vardat, Exh.
4. P. W. 2 Allah Warayo constable is corpse-bearer. P. W. 5 Mukhtar Ahmad is Ballistic Expert, who has given positive report that crime empty was fired from the gun of appellant. Yaroo.
P. W. 7 Soomar is mashir, who has attested mashirnama, Exh. 16 to Exh.
22. P. W. 8 Manzoor Ali is the Investigating Officer.
Dr. Ali Nawaz was examined before the committing Court and his statement recorded there has been transferred to the file of Sessions. This Medical Officer performed the post-mortem examination on the dead body of Khuda Bux on 30th November, 1974, at Taluka Hospital, Shahdadfiot. He commenced post-mortem examination on that date at 4-15 p.m. And finished it at 5-15 p.m: According to him deceased was 45 years old and the dead body was cold. Rigor mortis was present in both extremities. On external examination he found the following injuries:-
(1) One lacerated punctured type of wound 7" x 2" x bone and brain deep on frontal region (left eye absent, left eye ball absent, brain visible, frontal bone absent), charring present.
(2) One lacerated wound, 2" x --" x skin deep lacerating labuls of left ear on left ear and neck.
(3) One lacerated punctured type of wound, --" in diameter on left fore-arm (wound of entry) charring print.
(4) One lacerated punctured type of wound, --" in diameter 1" above injury No. 3 (wound of exit).
(5) Two lacerated punctured type of wounds, 1" apart -- in diameter on inner surface of left thigh (wounds of entry).
(6) One lacerated punctured type of wound, --" in diameter 1" above injury No. 5 (wound of exit).
(7) One lacerated wound, 1" x --" x skin deep on tip of penis.
(8) One lacerated wound, 1" x --" x skin deep on left side scrotum.
(9) One lacerated wound, --" x --" x skin deep just by the side of injury No. 8.
On internal examination, he found the following damages:------ Fracture of frontal bone, membrane lacerated, brain visible. Stomach was intact containing about two ounces semi-digested food material. Urinary bladder was intact containing small amount of urine.
From the external as well as the internal examinations of the deceased, he was of the opinion that the death was due to shock and haemorrhage due to injury No. 1 as a result of discharge of fire- arm. All the injuries appeared to have been caused by discharge from fire-arm. Injury No. 1 was individually sufficient to cause death in the ordinary course of nature. Death was instantaneous and the time between death and post-mortem was about 18 hours.
Before the trial Court the defence of the appellants is total denial of all the allegations levelled against them by the prosecution. It is further stated by them that the witnesses who had deposed against them are interested and hostile. They have claimed to be innocent and have not produced any witness in defence.
We have very carefully examined the whole record of the case in the light of arguments put forward by the learned counsel appearing for both sides. There is no dispute about the fact that material witnesses in this case are related inter se, as such they are interested. Complainant Mithal is son of deceased. P. Ws. Moula Bux and Muhammad Ali are both brothers of deceased. P. W.
Mohammad Ali has been examined as witness of corroborative evidence. The start of the investigation has been made with sufficient delay in the registration of F: I. R. Incident is alleged to have taken place on 12th November 1974 at somani time and report is filed at police station Shahdadkot on the following day i.e. 13th November 1974, at 9 a. m. When the distance between Police Station and place of occurrence is only 12 miles. Complainant, who is an eye--witness of occurrence has stated in F. I. R. That after the incident, Mohammad Ali, Ali Sher, Umed Ali and Brohis came to the spot and after informing them and leaving them near the dead body he went and apprised his Nekmard Haji Ghulam, who advised him to lodge the report, hence he came to the Police Station. Complainant has not explained as to why he reached Police Station after nearly 12 hours of the occurrence. He has not stated the mode of transport he took for journey to the Police Station. He is absolutely quiet about this delay and in the absence of any plausible explanation, the presumption is that complain--ant was not sure about the story of incident and delay was used for manipulation of the story. Nekmard Haji Ghulam, who was informed about the incident by the complainant after the occurrence, has not been examined, hence it cannot tee ascertained as to when the complainant reached Haji Ghulam and what he told him about the incident and how many culprits were named by him, hence the presumption is that had Haji Ghulam been examined, he would not have supported the prosecu--tion case.
Apart from that the evidence of the two eye-witnesses and P. W. Mohammad Ali is replete with material contradictions and discrepancies. Complainant has made so many improvements in his deposition before the trial Court. In the F. I. R. He stated that after the incident he went and apprised his Nekmard Haji Ghulam about the incident who advised him to file report, from where he came to the Police Station. Before the ill trial Court he has testified that after the incident on the reports of gun fire, so many persons including Mohammad Ali, Ali Sher, Umad Ali and Haji Ghulam came to the spot, whom he informed about the incident and gave names of culprits. Before the trial Court, complainant does not talk about going to Haji Ghulam at all. In F. I. R. He had stated that on the night of incident, he, his father Khuda Bux and uncle Moula Bux. After taking meals went to Bhatti canal for taking turn on water. In his statement before the trial Court, he has stated that he was at `dera of paddy' at a distance of 200 paces from the spot, when his father and uncle had come and from there he accompanied them to the spot, where incident took place. In F.I.R. Complainant has stated that while his father was blocking water in the canal, there were challenges and in the light of torch be identified the four culprits, who fired their guns at his father, who fell down injured and the assailants went away. B fore the trial Court, he becomes more specific and says that the assailants were standing on the bank of distributor but he could not say how many times each assailant fired at his father. In F. I. R. Complai--nant has stated that his father had a lantern and a spade, while he and has Maula Bux had torches. In his deposition before the trial Court, he testified that he and Malula Bux had torches as well as spades. In F.I.R. He says that his father was blocking the water when he was fired at by assailants but before the trial Court, he has stated that his father was blocking the water while at the distance of 20 paces, he and Maula Bux were making a Kassi, when assailants fired. The second eye-witness Maula Bux takes a different turn and says in his deposition before the trial Court that he and complainant Mithal had torches and Mithal also bad spade and a laths. He has further testified that at the time of incident Khuda Bux was blocking the water, he was making kassi while complainant Mithal was just standing. This witness Maula Bux had stated before the committing Court that on the night of incident, deceased had gone to the field and he and complainant Mithal subsequently followed him. He had also stated before the committing Court that he and Mithal had no spades. This witness toad stated before the committing Court that deceased used to go to his land alone during day and night without any fear. He has further stated before the trial Court that accused fired five or six times, they were firing simultaneously. He was afraid and because of fear, be and complainant hid themselves and came out after accused had left.
P. W. Muhammad Ali, who is also brother of deceased and has given corroborative evidence, has testified before the trial Court that when on cries he came to the spot, he saw dead body of Khuda Bux with gunshot injuries and was informed by complainant Mithal and P. W. Maula Bux that they saw the incident in the light of the torches and they had identi--fied the assailants as two appellants and the other two acquitted accused, out of them both appellants had guns and they fired at the deceased. He was not informed as to what weapons the acquitted accused had. On the point of weapons and firing this witness Mohammad Ali has contra--dicted the eye-witnesses, who claim that all the four assailants had guns and all of them fired. What really emerges from the evidence of these three material witnesses, in view of contradictions and discrepancies mentioned above, is that the version of incident as given by them is certainly not free from serious doubt. Most probably they have not seen the incident. Their presence with the deceased at the time of incident is very unlikely. There is absolutely no justification or need for three persons to go for taking turn of water, which can be done by one person. It is also absolutely unlikely that out of three one would take lantern and the other two would take torches. After the incident only one lantern and one spade were recovered from the spot which shows that deceased was alone and the incident was un witnessed crime. The dead body might have been found subsequently by the alleged eye- witnesses or they might have been attracted to the spot after hearing reports of gunfire, as they were in their village at a distance of two furlongs and by the time they reached at the spot the assailants had gone away unseen. That is why F.I.R. Was registered with considerable delay as time was needed to set up a plausible story of incident. Complainant did not go to Police Post, Sanjhar, which is at a distance of one mile from the spot. F,. i. R. Mentions in the column that incident took place within the jurisdiction of Police Post, Sanjhar. Both the eye-witnesses and P. W. Mohammad Ali have stated that deceased was hart of Balo Bhatti and was cultivating his land but tapedar Ghulam Sarwar has deposed before the trial Court that he had seen Khasra girdawari and deceased was not hari of Survey No. 154, where incident took place. Complainant did not produce torch at the police station, when he filed F.I.R., if he had torch with him, he must have taken it to the police station. Complainant and P. W. Maula Bux produced their torches on 15th November 1974 when the incident took place on 12th November 1974. This shows that alleged identification in the light of torches is a fake story and torches were not available at the time when report was lodged and were procured and produced later on. It is also unlikely that eye-witnesses, if they were present would pluck the courage to flash torches at each accused to identify him and no attempt would be made by them to fire at eye-witnesses.
Medical evidence also does not support the version of aye-witnesses inasmuch as eye-witnesses claim that they and deceased left home after taking meals reached vardat at a distance of two furlongs when incident took place. Doctor, who conducted post-mortem, says that there was semi- digested food in the stomach of deceased. Post-mortem notes also show that there ware charrings present on the gunshot injuries which proves that the shots were. Fired from close range, eye-witnesses do not say so. The injuries as they are stated such as wound 7' x 2" bone and brain deep on frontal region, left eye ball absent with charring present and other injuries on the lower Paris of the body are indicative of the fact that shots were fired at the deceased when he was lying down or most probably asleep. This is further confirmed by mashirnama of vardat which mentions, that dead body was covered by white sheet over the face and it contained blood and holes due to gun fire. Now this sheet could not have holes unless deceased was also or lying down with that sheet over his head. The most damaging injurer was admittedly caused on the head. All other clothes of deceased, Which he was wearing at the time of incident, including loin cloth, are accounted for. We are, therefore, of the view that most probably death was caused due to gunshot injuries, when deceased was asleep or lying down with white-sheet over his head and it is un witnessed crime and also that eye--witnesses were not present at the time of incident.
So far the circumstantial evidence is concerned we do not feel inclined to rely, upon the evidence of mashir Soomar, who has been examined by prosecution to support recovery of guns of appellants and one crime empty from the spot. This mashir has admitted that he is stock witness of police and had been giving evidence in cases at the instance of Police. He has admitted that he had acted as mashir in the murder case in which Jumo was challaned and was acquitted sub-- sequently. He has also admitted before the committing Court that Police took away the guns of appellants, in the same condition as they were in after recovery; which means that they were not sealed immediately. Secondly presence of one crime empty at the spot is not mentioned in F. I. R.
We, therefore, do not intend to rely on this piece of evidence. In any case this evidence loses its significance when we disbelieve the direct evidence.
We are also not satisfied with story of motive as put forward by the prosecution. It is stated that acquitted accused Jumo was married to Mst. Habiban sister of complainant in exchange of Mst.
Sughran neice of Jumo married to Mahram brother of complainant. Due to differences both women were detained by their respective parents and Jumo about 4-5 years ago attempted to take away his wife forcibly and fired gunshots which killed Fato Jat, who was brother of appellant Yaroo. In the murder case complainant was Khuda Bux and Yaroo was prosecution witness. Jumo and his brothers were accused in that case and ulti--mately they were acquitted. It is very unlikely that Yaroo would join hands with Jumo to commit murder of Khuda Bux because both are expected in the normal course to be inimically disposed towards ear other. After having considered all the facts and circumstances of the case we have come to the conclusion that prosecution has failed in its duty to prove the case against the appellant beyond reasonable doubt, therefore, give benefit of doubt to the appellants and set aside their con--victions and sentences. Appeal is therefore allowed.