AJMAL MIAN, J.-The 5 appellants, namely, Ghulamoon alias Ghulani Mohammad son of Ayub Kabooro, Paryal son of Ayub Kabooro, Usman son of Haji Allahdino Kabooro, Ramzan son of Mevo Kabooro and Buxial son of Muhabat Kabooro, stand convicted by the learned ls.t . Additional Sessions Judge, Dadu under section 302 read with section 149, P. P. C. For murdering one Hafiz Mohammad Moryal. The. Appellant Ghulam Mohammad has been awarded death sentence and a fine of Rs. 3,000, in default of payment of fine to suffer R. I. For one year, whereas the other four appellants have been awarded life imprisonments under section 302 read with section 149, P. P. C.
And Rs. 3,000 fine each and in default of payment of fine to suffer further R. I. For one year. In addition to that appellants Ghulamoon and Ramzan have also been convicted under section 148, P.
P. C. And have been awarded R. I. For one year each, whereas appellants Paryal, Usman and Buxial have been convicted under section 147, P. P. C. And have been awarded R. I. For 6 months each. It has also been ordered that if the fine is recovered half of it be paid to the heirs of the deceased Hafiz Mohammad Moryal as compensation under section 544-A, Cr. P. C.
The above appellants have filed the above appeal against the above convictions and sentences, whereas the learned Additional Sessions Judge has made a reference under section 374, Cr. P. C.
For the confirmation of the death sentence awarded to appellant Ghulamoon alias Ghulam Mohammad. The facts leading to the filing of the above appeal are that P. W. 3 Ali Sher lodged F. I.
R. On 3rd July, 1978 at 00-30 night at the Police Station Dadu, District Dadu, under section 302/34/114, P. P. C. It was alleged by the complainant that he and his maternal uncle Hafiz Moryal, residents of village Makhdoom Bilawal (who was appointed as the Pesh Imam by the Auqaf Department of the mosque of Makhdoom Bilawal), alongwith P. W. 7 Muhammad Siddik and P. W. 4 Ghulam Hussain after offering Somahni (Isha) prayer were returning to their house. It was further alleged when they reached at the corner of their house, they suddenly heard challenge to stop.
Thereupon, the complainant flashed his torch and they saw and identified Buxial, Ghulam Mohammad, Ramzan, Paryo and Usman Kabooro. It was further alleged that Ramzan and Ghulam Mohammad were armed with guns, whereas Usman and Paryo were armed with lathis. It was also alleged that Buxial challenged and instigated to murder Hafiz and not to spare him. Thereupon, Ramzan fired gunshot at Hafiz Moryal, which missed and that due to fear the complainant and the other persons stood aside. It was further alleged that to the meantime Ghulam Mohammad fired another gunshot, which hit his maternal uncle Moryal, who raised cries and fell down and thereafter Usman and Paryal gave lathi blows to Moryal. It was also stated that on cries and gunshot reports co-villagers Moulvi Mohammad Hassan Malik and Abdullah Malik and others came running. But the accused ran away towards the south. It was also stated that when the complainant and the other persons went to see Hafiz Moryal, they saw that he had gun-shot injury tin his person and was bleeding and struggling In consequence thereof he died on the spot. It was further stated that the complainant left lodging F. I. R. After leaving behind Mohammad Siddique and Ghulam Hussain for guarding the dead body. In the above F. I. R. It was also stated that Buxial who is resident of the same village, whereas Ramzan, Ghulam Mohammad, Paryo and Usman are residents of village Garhi and that they are relatives of Buxial. The motive for committing the above murder was also disclosed in the F. I. R. Namely, that 7/8 years back Hafiz Moryal had purchased verbally four jareeb of land from Buxial Kabooro for Rs. 4,000 and that the produce of the land was taken by Hafiz Moryal for about 4 years. But after that Buxial took possession of the land and was taking produce himself. Thereupon the complainant's uncle Moryal asked Burial to return the money to him as he had taken back the possession of the land. It was also stated that there was dispute between Buxial and complainant's uncle Hafiz Moryal about the above land.
2. (a) The prosecution case rests on the ocular testimony of P. W. 3 Ali Sher, complainant, P. W. 4 Ghulam Hussain and P. W. 7 Mohammad Siddique, who are the alleged eye-witnesses to the incident and who were closely related to the deceased. In addition to the above evidence, the prosecution had also relied upon the recoveries of single-barrel gun from Ghulamoon under Exh.
14, the licence in respect thereof under mashirnama Exh. 16, the recovery of a blood-stained lathi from accused Paryal under Exh. 15 and the Chemical Analyser's report Exh. 32 in respect of the above blood-stained lathi which is positive. Prosecution has also examined inter alia P. W. 2 Mohammad Qasim, P. W. 5 Saindino, both mashirs to the various mashirnamas, P. W. 6 Dr. Ghulam Rasool, the Medical Officer who carried out post-mortem on the person of the deceased and also the I. O. Mahboob Illahi, S. H. O., who recorded the F. I. R. And carried out the investigation.
(b) The accused in their statements under section 342, Cr. P. C. Denied of having committed the alleged offence. Accused Buxial in addition to the above denial has stated that he was a witness in a case against P. W. 3 Mohammad Siddique and produced a true copy of challan Exh.
39. He has further produced an application filed by him against deceased Hafiz Mohammad Moryal and the resolution passed by the Auqaf Religious Committee in response to the above application Exhs. 40 and 41. He has also stated that accused Usman and Ayub were on inimical terms with him. 1n support of the above assertion ho has produced a complaint filed by him inter alia against them Exh.
42. The prosecution has also relied upon the motive disclosed in the F. I. R.
(c) It may be observed that the learned Additional Sessions Judge has discarded the recoveries inter alia for the reason that the two mashirs P. W. 2 Mohammad Qasim and P. W. 5 Saindino have not supported the recoveries when they were examined in the Sessions Court. Furthermore, we have noticed that though the incident had taken place on 3rd July, 1978, the alleged blood-stained lathi was despatched to the Chemical Analyser on 14th August, 1979 and a report in respect thereof was received on or about 18th February, 1980. The recovery of the alleged blood-stained lathi is also to be discarded on account of the above delay in the despatch and the submission of the report, which remained unexplained.
3. (a) It may be pertinent to refer to the testimony of the 3 alleged eye-witnesses.
P. W. 3, Ali Sher in his deposition has reiterated the facts mentioned by him in the F. I. R. He has deposed that after deceased Moryal fell down on receipt of a gunshot from accused Ghulam Mohammad, accused Usman and Paryal gave lathi blows to the deceased on his bead. In his cross-examination he has admitted that P. W. Mohammad Siddique is his masat and P. W. Ghulam Hussain is his marote. He has further admitted that there are other houses in the village of Pirzadas at distance of 200 to 250 paces away from the mosque on its north, in addition to the houses of the people of other castes. He has also stated that the com--plainant party was going towards east whereas the accused came from their east in front of them. He has further stated that the names of the mashirs were suggested to the Police by the wife of the deceased, and that there was nothing in writing regarding sale of the land by accused Buxial to deceased Moryal. He has also stated that there was no dispute of deceased Moryal with Buxial but deceased used to demand the land or the amount of the land paid by him from accused Buxial, but during these days also the deceased Moryal and Buxial were on visiting terms. He has also stated that the deceased did not apprehend danger at the hands of the accused. He has further stated that he does not know whether accused Buxial had dispute with co-accused and that there was litigation between them.
(b) P. W. 4 Ghulam Hussain has corroborated the testimony--of P. W. 3 Ali Sher and has stated that accused Buxial instigated the other accused to murder Hafiz Moryal and on his instigation- accused Ramzan fired first gunshot which missed and hit none -of them and, thereafter, accused Ghulamoon fired second gunshot at the deceased Hafiz Moryal, which hit him on the right side of his abdomen, who on receiving the same raised cry and fell down, and that thereafter accused Paryo and Usman gave lathi blows to Hafiz Moryal. In his cross-examination, he has stated that deceased Hafiz Moryal was his caste-fellow only. However, on further cross-examination he has admitted that deceased Hafiz Moryal was his maternal uncle. He has also stated that deceased Hafiz Moryal was maternal uncle of P. W. Ali Sher. He has further admitted that accused Buxial was a member of the Board of Auqaf during the days of incident. However, he has further stated that he does not know if accused Buxial and others had filed applications against deceased Moryal to the higher authorities to the effect that deceased Moryal was committing theft from the donation box kept at Dargah of Makhdoom Bilawal. He has also stated that he had seen accused Paryal and Usman causing lathi blows to deceased Moryal but had not counted the blows given by them to him. He has further stated that the people of the castes of Malik, Kaboora, Khagar, Babar, Qambrani, Manghanhars and Sayed live in their village, and that mostly all the co-villagers of different castes assembled at the wardat on hearing cries and fire shot reports, to whom they narrated the facts of the incident and disclosed the names of the accused. He has also stated that some Police constables had come to the wardat at 1 or 2 O'clock of the night and arrested accused Buxial and the other Police personnel came to the wardat at. 6 a. m., to whom they narrated the facts of the incident. He goes on to state that he, the complainant Ali Sher, P. W. Siddique and deceased Hafiz Moryal were going together from the mosque after offering prayer to their houses towards east. He has also stated that Hafiz Moryal had neither purchased the land nor paid the amount to accused Buxial in his presence and that there had been no dispute between Hafiz Moryal and accused Buxial over the land and that they used to visit each other. He has further stated that deceased Hafiz Moryal did not apprehend any danger at the hands of the accused.
(c) P. W. Mohammad Siddique has also reiterated the facts stated by the above two witnesses and has deposed that accused Buxial was empty-handed, when he instigated the other accused.
Thereupon, accused Usman challenged them to be away from Hafiz Moryal as they had to murder him, He has also deposed that first accused Ramzan fired a gun--shot, which missed and thereafter accused Ghulamoon fired gunshot which hit Hafiz Moryal on his back who fell down on the ground and that thereafter accused Usman and Paryal gave lathi blows to Hafiz Moryal. In his cross-examination, he has stated that Ali Sher is his massat and deceased Hafiz Moryal was his uncle and that Ghulam Hussain is also his marote. He has also stated that they heard challenge coming from in front of them from eastern side and that Hafiz Moryal was ahead of them and they were just behind him, about 213 paces away from the deceased. He has further stated that accused Ghulamoon fired at deceased Hafiz Moryal from 2/4 paces and that Hafiz Moryal after receiving gunshot fell down by the side of metalled road on Katcha ground and thereafter accused Usman and Paryal gave lathi blows to Hafiz Moryal in his lying position. He has further stated that he was unable to say that how many lathi blows were given by accused Paryal and Usman to the deceased Moryal but they gave 2/ 3 blows on his head. He has further stated that there were about 30/40 houses in village Makhdoom Bilawal. He has also stated that the Police had arrested accused Buxial from village Makhdoom Bilawal, whereas the other accused were produced by Wadero Qasim before the Police in his Otaq and that the village of Wadero Qasim is about a mile or so away from the place of wardat. He has further stated that deceased Hafiz Moryal had not made any application to any authority on forcibly taking over of the possession of the sold land by accused Buxial. He has denied that accused Buxial acted as a witness against him in the case before the City Magistrate, Dadu in respect of donations kept at the shrine of Makhdoom Bilawal.
He has stated that there was no case against him, in which accused Buxial had acted as witness and that he had never appeared before the City Magistrate or the S. D. M., Dadu against accused.
His attention was invited to his statement under section 164, wherein he stated that the Head Munshi. Dadu had come for inquiry to their village about two/three months prior to the date of his making statement under section 164, but he denied of having made such 4 statement though it is contained in his section 164 statement.
(d) P. W. 6 Dr. Ghulam Rasool has deposed that on 3rd July, 1978 he was the M. O. At the Civil Hospital, Dadu, when he received the dead body of Hafiz Mohammad Moryal referred to him by the Dadu Police, through P. C. Qurban Ali Shah for post-mortem report. He has further deposed that he started post-mortem at 8-15 a. m. And finished it at 9-30 a. m. On the same. He further stated that the body was identified by Ghulam Rasool, nephew of the deceased and Ramzan any other nephew of the deceased. He found the dead body of a male aged about 60 year average built. The body was pale and cold rigor mortis present all over was present. On external examination of the dead body, he found the following injuries :- "(1) A fire-arm injury ----- in diameter on the back of the chest on the left side lower part.
Blackening around and inside the wound was present. It was the wound of entrance.
(2) A fire-arm injury ----- in diameter on the posterio lateral aspect of right side of the chest. It was the wound of exit.
(3) A fire-arm injury ----- in diameter on the posterio lateral aspect of right side of the chest 1" apart from the injury No. 2. It was also the wound of exit.
(4) A lacerated wound 2'' x 1" x ----- on the top of the head."
On internal examination, he found the following damages :- "Spleen and liver perforated large and small intestines ruptured. The stomach was empty. The abdominal cavity was full of dark fluid blood. Two pellets secured from the abdominal cavity. All other organs were normal and healthy."
He opined that the death of the deceased had occurred due to shock and abdominal haemorrhage as a result of injury No. 1, which was individually sufficient to cause death in the ordinary course of nature, and that injuries Nos. 2 and 3 were the resolt of injury No. 1. He has further opined that duration between the injuries and death was in--stantaneous and that between the death and post-mortem was about 12 hours. He also opined that injury No. I was caused by discharge of fire--arm, whereas injury No. 4 was caused by hard and blunt substance such as lathis.
(e) P. W. 9 Mahboob Illahi the I. O. Has deposed that on 3rd July, 1978 he was the S. H. O. At P. S. Dadu. The complainant Ali Sher came to the Police Station at 12-30 p. m. Of the night for lodging the F. I. R., which he recorded verbatim and after reading it over to the complainant obtained his left thumb-impression on it (Exh. 20). He has further deposed that thereafter he accompanied the complainant to the place of wardat and saw the same in presence of mashirs P. Ws. Mohammad Qasim and Saindino. He has also stated that he reached the place of wardat at 1 o'clock at night and stayed there for the night and in the following morning he had visited the wardat, which was shown to him by the complainant Ali Sher and which was situated on a road at village Makhdoom Bilawal. Where he found dead body of deceased Hafiz Moryal lying. He also found blood on the place of wardat, he therefore, secured blood-stained earth from the place of wardat, sealed it and prepared a mashirnama of wardat Exh.
10. After that he despatched the dead body through the Police Constable, Qurban Ali. The complainant Ali Sher produced a torch before him which he secured in presence of the same mashirs and prepared a mashirnama in respect there--of Exh. 21.
Thereafter, he recorded 161, Cr. P. C. Statements of P. Ws. Mohammad Siddique and Ghulam Hussain and then went in search of the accused. He has deposed that Mohammad Qasim produced all the 5 accused before him in village Garhi, whom he arrested in presence of the same mashirs and prepared a mashirnama of arrest Exh.
13. It has also been deposed by him that accused Ghulam Mohammad after his arrest produced a licensed gun, which was in his hands, which he secured in presence of the same mashirs under mashirnama Exh.
14. He has further deposed that the gun was giving a smell of fresh gun-powder. He has also stated that accused Usman at the time of arrest produced a lathi which was bloodstained, which he secured. He has also stated that on 4th July, 1978 P. Ws. Mohammad Hassan and Abdullah came at the P. S. When he recorded their 161, Cr. P. C. Statements. After that on 5th July, 1978 he produced P. Ws.
Mohammad Siddique and Ghulam Hussain before Muhtiarkar and F. C. M. Dadu for recording their 164 statements and that on the same day accused Ghulamoon produced the licence of his gun, which he secured under Exh.
16. He has also stated that be sent the blood-stained articles to the Chemical Analyser. On 17th July, 1978 he challaned the accused in the Court of Civil Judge and F. C.
M., Dadu. In his cross-examination, he has denied of having recorded the F. I. R. After the investigation or that the incident was not witnessed by any witness. He has stated that Mohammad Qasim produced before him in his Otaq the accused about 5 or 5-15 p. m. And that he took the mashirs with him. He has also stated that Mohammad Qasim, who produced the accused before him is the Nekmard of his community in the village, and that he had sent some policemen to the village of the accused for their arrest but they were not available in their village. Thereafter, he went to the village Garhi Qassim and reached there at about 4 p. m. And put pressure over Mohammad Qasim who produced the accused before him at 5-15 p. m. He has further stated that he had also put pressure over Mohammad Qasim to ask the accused to produce the crime weapons before him. He has also stated that P. Ws. Mohammad Hussain and Abdullah were cited as witnesses in the challan. He has further stated that he did not make inquiry regarding the disputed land and as to in whose possession it was or as to who was paying the land revenue for the same.
4. (a) Mr. Azizullah Shaikh, learned counsel for the appellants in support of his appeal has made the following submissions :-
(i) That the 3 alleged eye-witnesses relied upon by the prosecution are closely inter se related and since accused Buxial had been making applications against the deceased, there was enmity between him and the deceased and; therefore, their testimony cannot be relied upon without independent corroboration.
(ii) Though the names of the independent and natural witnesses namely, Moulvi Mohammad Hussain and Abdullah were mentioned in the F. I. R., they were examined by the I. O., their names were mentioned in the challan, but they were dropped at the request of the complainant, which fact reflects adversely on the prosecution case.
(iii) That the medical evidence contradicts the version given by the alleged eye-witnesses as to the manner of inflicting of injuries.
(iv) That the motive alleged in the F. I. R. Stands belied by the testimony of the alleged eye- witnesses. In any case deceased Hafiz Moryal could have motive to kill accused Buxial and not the latter.
From the evidence on record, it is evident that P. W. 7 Mohammad Siddique was an accused in a case registered under sections 457 and 480, in which appellant/accused Buxial was one of the cited witnesses Exh. 39 page 85. In the above document inter alia it has been mentioned that on 22nd December, 1976 an information was received that accused Siddique might be culprit of this crime. On the receipt the above information, A. S. I. Raza Ali Isran proceeded to the village Makhdoom Bilawal and arrested the aforeasid accused, who voluntarily produced romal from the thatched `mana' in front of his house. His testimony cannot be relied upon without independent corroborative piece of evidence.
It may be advantageous to reproduce herein below Exhs. 40 and 41, which read as follows :- "Exh. 40.-In the honour of honourable Chief Administrator, Auqaf, Hyderabad, Sind.
Respected Sir, We the undersigned Chairman and members of R. P. C. Shrine of Hazrat Makhdoom Bilawal Makhdoom Danyal Sahib Rahmatullah Alaih, Taluka Dadu, District Dadu with due respects request that as this shrine of Makhdoom Bilawal is taken by Auqaf Department, the Paish Imam Mullan Mohammad Moryal is misappropriating the Government property and is claiming to be his own property and not of Government property. Such proofs have been made in several enquiries and that of in recent enquiry in the month of March, 1978 which was made by the honourable Mukhtiarkar Sahib, Taluka Dadu, in which many proofs have been submitted are silent till today.
This man bad broken the safes of shrines and misappropriated the money, donation, gold, silver, alive animals, animal skins, sheets kept at shrine. He is serving in two departments and drawing pay. But also his other activities will be disclosed after making enquiry. Only your honour will be pleased to call for the prior enquiries.
Respected Sir he is neither Hafiz nor Alim party, in which Alims, Hafiz are being coming but he says that he has been appointed Paish Imam by Auqaf and I will lead to offer prayer. He is a thief, misappropriator, illiterate, liar and unqualified from all the points. He is bad for our this shrine and also for Auqaf Department.
We the Chairman and members of R. P. C. Have submitted many proofs against him but do not know that what are the merits for which he is again appointed on this Shrine Sharif.
This R. P. C. Is not satisfied from this activity. He is disqualified. Till be remains, neither we have come in activities prior to this nor will come. It is good enough to accept our resigns and inform us because he is enemy of Government property.
Dated 3rd June, 1978.
Copy to: -
1. Chief Administrator, Auqaf Sind, Hyderabad.
2. Administrator Sahib.
(Sd.) Mohammad Ramzan, Chairman R. P. C., Shrine Makhdoom Bilawal, Dadu.
3-6 (Sd.) Buxial, Member, R. P. C. Shrine Makhdoom Bilawal, Dadu.
(Sd.) Bahadur Khan, Member, R. P. C., Shrine, Makhdoom Bilawal, Dadu.
(Sd.) Chief Administrator Auqaf, Government of Sind, Hyderabad.
19-9 Certified to be true translation (Sd.) Serishtedar 1st A. S, J., Dadu."
"Exh. 41.-Today dated 12th December, 1977 at 12-00 a. m. Shrine Sharif Meeting of Religious Committee of Hazrat Makhdoom Bilawal has taken place in which following persons have attended
(1) Nazim-Alla Auqaf Province of Sind.
(2) Haji Mohammad Ramzan Sahib, Chairman.
(3) Master Bahadur Khan.
(4) Mr. Buxial Khan.
(5) Manager Auqaf, Sehwan.
In this meeting it has been decided that the administration of Shrine Sharif may be corrected and if any theft committed at the Shrine Sharif, such complaint be made immediately with the Police and the Auqaf Department and the members of the committee will investigate about the theft. In this connection D. O. Letters be sent to --. P. And Nazim-Alla as the Police can co-operate with Auqaf Department.
2. As the income is lesser than the expenses from last three years, from which the Auqaf Department has got very loss and for the completion of that arrangement be made. All the animals, skins of animals, donation and tax collected at the shrine will remain under the supervision of this committee. Master Bahadur Khan, Mr. Buxial Khan and Paish Imam of Mosque will be equal responsible for that and the income from all the three sources will be entered into receipt books and will be sent to the Manager Auqaf, Schwan weekly, on which there will be signatures of all the three. The copy of that report will be sent to Haji Mohammad Ramzan, Chairman.
3. Shrine Sharif was taken by Auqaf Department in the year 1962 'because there had been differences between 'Dewbandi' and 'Brailvee' and the people and district administration has been decided that this shrine may be taken by Auqaf Department. In this time that dispute is over.
4. The expenses over the Shrine Sharif will be made with the permission of Committee. If within 2/3 days the administration will not be corrected, income remains lesser than the expenses, then Shrine Sharif will be restored to Moulvies. Five dry trees of Shrine Sharif will be auctioned.
5. It will be good enough if the Paish Imam Mohammad Siddik who is posted at the shrine of Shah Abdul Karim Bulrri Sharif, may be transferred and posted at this shrine. Haji Mohammad Ramzan Jatoi.
Bahadur Khan, member R. P. C. 3.
(Sd.) Buxial.
4. Haji Mohammad Moryal Paish Imam Before me.
(Sd.) 12th December, 1977.
C. A. A. Camp at D/Makhdoom Bilawal.
(Sd.) 12th December, 1977.
Manager Auqaf.
(Sd.) Chief Administrator Auqaf.'
Government of Sind, Hyd. 19/9.
Certified to be true translation, (Sd.) Serishtedar, 1 Addl. Sessions Judge, Dadu.)
It may again be pointed out. That Exh. 40 is a copy of an application dated 3rd June, 1978 filed by accused Buxial with the Chief Administrator, Auqaf, highlighting the alleged misdeeds of the deceased, whereas Exh. 41 is the minutes of the meeting of the Religious Committee of Hazrat Mukhdoom, Bilawal held on 12th December, 1977 which was inter alia attended by accused Buxial and in which action upon above Exh.40 was taken. The above two documents produced by accused Buxial clearly indicate that deceased Hafiz Moryal could have grievance against accused Buxial or motive to kill him and not the latter.
Reference to Exh. 42 may also be made, which is a copy of the complaint under section 424/109, P.
P. C. Dated 15th April, 1963 filed by accused Buxial against inter alia co-accused Ayub and Usman.
On the basis of the above document, it was urged by Mr. Az'zullah Shaikh that co-accused Ayub and Usman could not have joined hands of accused Buxial for committing the murder of Hafiz Moryal as they were on inimical terms with him because of the above complaint. It will suffice to observe that the above contention is not devoid of force.
From the evidence on record, it is evident that deceased Hafiz Moryal was on inimical terms with accused Buxial. The alleged 3 eye-witnesses P. W. 3 Sher Ali, P. W. 4 Ghulam Hussain and P. W. 7 Mohammad Siddique were admittedly closely related to the deceased and, therefore, they could have motive to falsely implicate accused Buxial and his other caste-fellows/relations. Furthermore, as pointed out hereinabove P. W. 7 Mohammad Siddique was an accused in the aforesaid case under sections 457 and 480, P. P. C. Exh. 39, in which Buxial was a witness against him and, hence, his testimony cannot be relied upon for the aforesaid reason as well.
(c) In addition to the fact that the alleged 3 eye-witnesses are closely related to the deceased, their testimony also stands contradicted by, the medical evidence of P. W. 6 Dr. Ghulam Rasool. All the 3 alleged eye--witnesses have deposed that the deceased after the receipt of the gunshot fell on the ground and thereafter 2 accused, namely, Paryal and Usman inflicted lathi blows, whereas the medical evidence indicates that there was only one injury, which could be attributed to a lathi blow, namely, injury No. 4, a lacerated wound 2" x 1/2" on the top of the head. It is apparent that the version given by the eye-witnesses that the above 2 accused had inflicted lathi blows stands falsified for more than one reason, namely; that there is only one injury, which can be attributed to a lathi blow and not to a number of blows as stated by 2 eye-witnesses, secondly, according to the alleged eye-witnesses the lathi blows were inflicted on the deceased after he fell down on the ground. This statement is also falsified from the post-mortem report, which indicates that deceased had one lathi injury on the temporal region, which probably not have been caused while the deceased was lying on the ground.
(d) For the foregoing reasons implicit reliance cannot be placed on the testimony of the above 3 alleged eye-witnesses in order to sustain convic--tions and sentences. Their testimony requires corroboration by independent evidence from a source untainted, which is lacking in the instant case. It may again be pointed out that the alleged recoveries are to be discarded for the reasons already recorded hereinabove in para. (2) (c). The second corroborative piece of evidence, namely, motive stands falsified by the testimony of the 3 alleged eye-witnesses anal by above- quoted Exhs. 40 and 41 produced by accused Buxial. It may be observed that all the 3 alleged eye- witnesses have deposed that the deceased was not apprehending any danger at the hands ofst accused Buxial and that they were on visiting terms with each other in spite of the fact that accused Buxial had allegedly taken over the possession of the land allegedly sold by him to the deceased about 4 years back. Furthermore, it is surprising to note that the alleged sale made by accused Buxial of the land to the deceased was oral and it is also interesting to note that after accused Buxial had allegedly taken back the possession of the land about 4 years back, the deceased had not reported this matter to any authorities. It may also .Be noticed that one of the alleged eye-witnesses has deposed that sale transaction of the land had taken place in his presence or that the deceased had paid Its 4,000 to accused Buxial in their presence. No revenue receipts or record has been produced by the prosecution to show that at any point of time the deceased had cultivated or caused the cultivation of the land in question. The I. O. P. W. 9 Mahboob Illahi has stated in his cross-examination that .He did not inquire as to who was in 'possession of the disputed land and as to person who was paying the land revenue. The aforesaid facts cast serious doubt as to the genuineness of the alleged motive, It may be observed that the above Exhs.
40 and 41 are clear pointer that the deceased could have motive to cause the murder of accused Buxial, but the latter in all probability could not have motive to cause the murder of the deceased.
We may observe that the learned A. P. P. Through an application dated 9th September, 1981 Exh. 24 gave up P. Ws: Mohammad Hussain and Abdullah on the basis of the complainant's written statement that the above two witnesses due to pressure were not supporting the prosecution case.
It may be noticed that the above two witnesses were not related to the complainant party, their names were mentioned in the F. I. R. As well as in the challan, they could be natural witnesses being the residents of the same village, where incident had taken place. Their testimony could have provided the requisites corroboration. But the fact that they were dropped also casts doubt on the prosecution case.
5. The learned counsel for the State 'Mr. Imam Bux has candidly submitted that on account of the infirmities and improbabilities in the prosecution case, he was unable to support the judgment: In our view rightly so.
For the aforesaid reasons we allow the appeal of all .The appellants and order their release henceforth unless they are required in any case or under any other law.