1. Nabi Bux son of Haji Ghulam Qadir Shaikh, Jalil Ahmed and Abdullah being aggrieved and dissatisfied by judgment, dated '14-2-2002 passed by Additional Sessions Judge, Umerkot, convicting the appellants under Section 337-F(vi), 34, P.P.C, to undergo R.I. for five years each and Daman of Rs. 1,000 each or in default to undergo R.I. for six months more. The benefit of Section 382-B, Cr.P.C. was also extended to the appellants.
2. 'The appellants were acquitted from the charges levelled under Sections 302, 392, P.P.C.
3. 'The facts leading to the case are that complainant Muhammad Ismail on 26-1-1991 lodged report that his brother Hazoor Bux, Wazir Ali, Abdul Karim and Ali Muhammad went to work on the land, Hazoor Bux had taken his double-barrel gun, complainant Muhammad Ismail and P.W. Abdul Karim were working at a distance of about one acre away from them, where Hazoor Bux was working with his son Wazir Ali, heard Hakal on which they saw that appellant Abdullah, who was armed with hatchet was causing hatchet blows with sharp side on leg, arms and other parts of body of Hazoor Bux, while accused Nabi Bux and Jaleel caused hatchet blows with sharp side to Wazir Ali. Hazoor Bux tried to take his gun but Bashir inflicted hatchet blows with sharp side upon him and threatened the complainant party not to come near, otherwise they would be killed. After committing the offence, the appellants decamped from the Wardat alongwith the gun of Hazoor Bux, who was shifted to Police Station Samaro, subsequent thereof, Hazoor Bux died. The appellants were challaned under Sections 302, 307, 326, 324, 392, 34, P.P.C.
4. Initially charge was framed under Sections 302, 392, 337-F, 34, against the appellants, later on upon the arrest of Bashir Ahmed, it was amended on 8-12-1997 Exh.4. The appellants denied the allegations of the charge and claimed trial.
5. Prosecution in support of the case examined P.W.I complainant Exh.19, P.W.2 Wazir Ali Exh.21, P.W.3 Dr. Hemraj Rathi Exh.22, P.W.4 Zareef Khan Exh.25, P.W.5 Abdul Karim Exh.28, P.W.6 Ali Muhammad Exh.33, P.W.7 Metharam Exh.34, P.W.8 Muhammad Khan Exh.35, P.W.9 Muhammad Iqbal Exh.36. Prosecution closed the side of evidence vide statement Exh.38.
6. The appellants in their statements under Section 342, Cr.P.C. denied the charges levelled against them and stated that they are innocent.
7. The learned trial Judge, acquitted the appellant from the charges under Sections 302, 392, P.P.C. and convicted under Section 337-F(vi), 34, P.P.C. as stated above.
8. The motive as alleged was that complainant Muhammad Ismail and his brother Hazoor Bux has taken on lease 100 acres of land from Haji Iqbal Bhurgari, for cultivation. One week prior to the incident appellants Abdullah and Nabi Box have challenged the complainant party either to leave the land or face dire consequences. In order to take revenge, the appellants have committed the offence for which F.I.R. was lodged at Police Station Samaro.
9. Learned counsel for the appellants has argued that Wazir Ali P.W.2 is not a truthful witness, he has falsely implicated the appellants in the commission of offence. No role is attributed to appellant Abbas Ali for causing hatchet injury to P.W. Abdul Karim, whereas Nabi Bux was attributed a role of catching hold' and Jalil Ahmed, is allegedly participated in the occurrence. No blood was secured by the Investigating Officer from the place of Wardat and the medical evidence is in conflict of the ocular account, therefore, conviction awarded .to the appellants is not in accordance with the principle enunciated by the superior Courts for the safe administration of criminal justice.
10. 'Learned counsel for the State supported the impugned judgment and contended that from the ocular account role of facilitation in the commission of offence is attributed to Nabi Bux, while Jaleel Ahmed caused injuries to injured Wazir Ali.
11. 'I have given anxious consideration to the arguments advanced at bar. I am persuaded with the arguments advanced by the counsel appearing of the appellants that the appellants Abdullah and Nabi Bux did not cause injuries to injured eye-witness Wazir Ali, he was present on the spot alongwith deceased Hazoor Bux when the alleged incident occurred. As a result whereof Hazoor Bux was done to death. Evidentiary value of interested and inimical witnesses cannot be relied with mit corroboration from the independent source. P.W. Ismail is uncle of Wazii Ali, P.W. Abdul Karim is brother of Wazir Ali. Their , testimony is not corroborated by any independent source, P.W. Wazir Ali did not depose about the seat of the injuries, alleged to have been caused by the appellants. In this connection reliance is placed on the case of Muhammad Jehangir alias Bad,shah and another u.
12. State 1995 SCM R 1715.
13. 'The motive of the occurrence does not stand proved. Corroboration yet another strong reason for using the same against the appellant, because it was not put to them in the statement under Section 342, Cr.P.C. law requires that any circumstance appearing in the evidence must be put to the accused before it is used against them. There is absolutely no reason as to why the same was not suggested to the appellants for their explanation of causing injuries. It is well-settled proposition of law that when the eye-witnesses are not believed for commission of major offences, they cannot be relied for a subservient act, reliance is placed on 1999 SCM R 697.
14. 'The incident has taken place on 26-1-1991, complainant Ismail in his deposition has categorically stated that he had brought the injured at Police Station Samaro, whereas F.I.R. was lodged at 1945 hours, whereas the medico-legal evidence Exh.23 show time of the arrival and examined of injured Wazir Ali in the hospital at 6-00 p.m. and deceased Hazoor Bux died as per medico-legal certificate Exh.24 at 6-30 p.m., whereas third version as apparent from the testimony of P.W. Ali Muhammad that he was present at the place of occurrence at 5-00 p.m., he alongwith P.Ws. Wazir Ali, Abdul Karim and Ismail were present on the Wardat, police came after 2-1/2 or 3 hours of the incident.
15. Section 34, P.P.C. declares a rule criminal liability. In order to determine the common intention must not look only to a particular acts but all acts that were done. Section 37, P.P.C. relates to cooperation by doing one or several acts, constituting an offence under Section 38, P.P.C. relates and concerned to the criminal act may be guilty of different offence. Looking to the circumstances of the case I. am of the view that there is no evidence against appellants Abdullah and Nabi Bux, whereas case against appellant Jaleel Ahmed is not free from doubt, while he has been acquitted by the trial Court from the charges relating to commission of the murder of Hazoor Bux on the basis of the same evidence, he cannot be convicted under Section 337-F(v), P.P.C.
16. 'The upshot of the above discussion is that benefit of doubt is extended to the appellants, they are acquitted .from the charges levelled against them. Impugned judgment is hereby set aside, appeal is allowed. The appellants are present on bail, their bail bonds stand cancelled and surety discharged.