B. G. N. KAZI. J. ---Boolo Sheedi son of Guloo Sheedi, aged about 70 years, resident of village Meyoon Dost Mohammad, was shot dead in the shop of Ghulam Mohammad, Carpenter in Samano Para village Rajo Khanani in Taluka Tando Bagy, Six accused namely Wazir and Ali Mohammad son of Sultan. Mir Khan and Gullo sons of Ali Khan. Mir Lakhi alias Mir Ghulam Shah son of Mir Mohammad Khan Talpur and his son Mir Mohammad Khan were tried under section.302/34, P. P. C. By the Sessions Judge, Badin who by his judgment dated 22nd October, 1979 convicted Wazir son of Sultan under section 302, P. P. C. And sentenced him to suffer life imprisonment. The remaining five accused were acquitted. Wazir son of Sultan has filed the instant appeal against 'his conviction and sentence.
2. The arguments of Mr. Allah Dino Memon, Advocate for the appellant and Mr. Ghulam Ali Agha, A.
A.-G- for the State were heard and the appeal was allowed and the appellant was acquitted by a short order dated 27th November, 1980. The reasons for the aforesaid decision and order are as under.
3. The facts as stated in the complaint of Allahditto son of Boolo Sheedi, of which cognizance was taken and the trial held are that Boolo Sheedi deceased his sons Allahditto, Allah Jurio and Rasul Bux resided together in village Meyoon Dost Mohammad, near village Rajo Khanani in Taluka Tando Bago. Manakhi and Shaikhani, Tapo Wasi Adil Taluka Tando Deceased Boolo owned agricultural land bearing Survey Nos. 83, 82, 80, 79, 78, 73 and 76 in all measuring about 50 acres, situated in Deha Bago which he and his sons used to cultivate jointly. Accused Mir Lakhi alias Mir Ghulam Shah Talpur and his son Mir Mohammad Khan wanted to grab the land and therefore there was litigation since the year 1974. The aforesaid Talpur accused had taken forcible possession of the land through their minions the remaining four accused. It was the cast! Of complainant Allahditto that on 2nd July, 1975 at 6-30 p. m. When he was sitting at home in his village P. W. Jumo son of Mahboob Sheedi had come running and had informed him that while be, was going to village Rajo Khanani from his field and had reached near the shop of Ghulam Mohammad Carpenter in Samano Para, he had seen the six accused of whom Wazir was armed with a gun and Mir Khan. Ali Mohammad and Ghulam with hatchets. Accused Mir Lakhi and his son Mir Mohammad Khan had instigated the other accused asking them not to spare Boolo who was at the time in the shop of Ghulam Mohammad Accused Wazir had then fired his gun at Boolo who was shot in the abdomen and fell down dead.
4. On receiving the information complainant had rushed to the scene of offence alongwith Jumo.
He found his father lying dead. P. Ws. Mohammad, Lakhano and many other persons had collected there.
5. Allahditto further alleged that he had gone to Police Post Rajo Khauani to lodge F.I.R. But although he had mentioned the names of Mir Lakhi and his own, son Mohammad Khan as accused persons who had killed his father, the Police declined to record their names in the F.I.R.
6. Being aggrieved he had sent telegram to the Prime Minister of Pakistan and applications to other authorities. He, had also filed complaint with D. M. Badin and as the police did not challan the two Talpur accused and he had no faith in the justice of Civil Judge and F. C. M., Tando Bago at his instance the D. M., Badin had forwarded his direct complaint to Civil Judge & F. C. M. Matli for disposal. Incidentally both the police case and the direct complaint case were received by the Sessions Judge Badin. The police case was only against four accused excluding the two Talpur accused whereas the direct complaint case was against all the six accused. It was the direct complaint case which was proceeded with by the Sessions Judge, Badin.
7. A perusal of the record shows that the evidence given is not sufficient to sustain the conviction of the appellant as has been conceded by Mr. Ghulam Ali Agha, the learned A. A.-G. Appearing on behalf of the State.
8. The only alleged eke witnesses of the incident named are P, Ws. Jumo, Mohammad and Lakhano.
P. W. Lakhano was given up on the plea that he had been won over by the accused. Although P, Ws.
Mohammad and Jumo were local persons and had stated that the murder had taken place in a crowded locality in a shop where there were nearby" other shops and although according to them many persons had witnessed the incident and 5 to 7 relations of the deceased had collected and were seen on the spot, they have not given any names of such witnesses.
9. It is admitted position that both Mohammad and Jumo the alleged eye witnesses are caste fellows and relations of the deceased, They are therefore interested persons. According to the allegation in the complaint as well as the F.I.R. The motive of the crime is stated to be enmity due to dispute over agricultural land and although as will be discussed hereafter the evidence regarding motive is not sufficiently convincing and is weak, the enmity between the parties is admitted in the very complaint. The testimony of such interested witnesses, to be believed needs corroboration by independent evidence whether direct of circum. Stantial which is missing in the case. There are serious discrepancies in the version of the two witnesses with regard to the incident. P. W. Jumo stated that all the six accused came together and Mir Lakhi and his son Mir Mohammad Khan who incited the other accused whereupon, Wazir had shot dead the deceased. Whereas P. W, Mohammad stated that he had seen Ali Mohammad, Mir Khan and Gullan coming from one street and Mir Lakhi, Mir Mohammad Khan and Wazir had coma from another street. According to P. W.
Mohammad it was Wazir who threw out the challenge. He does not state that Mir Lakhi and his son incited the other accused. The learned Sessions Judge observed that he did not believe the evidence of Mohammad who is brother-in-law of the deceased and also his ---masat' because the witness could not say whether the deceased was standing or sitting at the, time he was shot at and therefore it was difficult to believe that Mohammad was actually an eye-witness.
10. Statements of Allahditto, Jumo and Mohammad had been recorded under section 164, Cr. P. C.
And they had not implicatsd accused Mir Lakhi and his son Mir Mohammad Khan whose names did not transpire in the F.I.R. Lodged immediately after the incident and therefore it is confended that since the witnesses had varied their earlier statements their testimony on that account alone is not worthy of credit. Mr. Allahdino Memon the learned counsel for the appellant has also contended that since the learned Sessions Judge had discarded the testimony of the same witnesses vis-a- vis the other five accused there was no reason to accept the same against the appellant. This contention is of substance since the only piece of evidence which could be considered against accused Wazir is production of gun. However, the gun is a licensed gun and there is no evidence proving its use in the commission of the crime as the only empty cartridge secured by the police, though not from the scene of offence, according to the ballistic experts' report was not fired from the gun. It may also be remarked that P. W. Mukhtiar Ali the mashir of recovery of weapons namely the gun from appellant Wazir and hatchets from Ali Mohammad, Mir Khan and Gullo has not supported the prosecution and has stated that he was shown the gun etc. Lying at the Police Station and that nothing was secured from or at the instance of any accused,
11. The Yearned Sessions Judge while convicting the appellant had awarded the lesser penalty as according to him the evidence against him was weak. Such weak evidence should not have been considered sufficient for conviction.
12. The evidence with regard to motive is neither convincing nor adequate. There is no evidence documentary or otherwise to show that the land in question belonged to the deceased. It is the case of Mir Lakhi that the land in Deh Manakhi is his ancestral property. He had gifted it to his daughter and the gift had been accepted by the Land Commissioner. The Land comprising of these survey numbers and Survey No. 74 was resumed by the Government but wag ultimately granted to his grandmother Mst. Hajyani by the Land Commissioner. As regards land in Deh Shaikhani measuring about 23-26 acres he had gifted it to his son and such gift was also accepted by the Land Commissioner. He further stated that the Revenue Officer had illegally put the name of the deceased to the Khata for which his son had filed a suit in the civil Court which was decreed in 1974 In his favour it was his case that in fact the land was given in possession of his son Mir Mohammad Khan in November, 1974 under warrant of possession issued by the Civil Court In Execution Application No. 2/74 dated 19th November, 1974 and since then they are in peaceful possession of the land. The above version of accused Mir Lakhi is supported by the evidence of Ghulam Rasool, Reader of Civil Court, Tando Bago who had brought the R & P of Civil Suit No. 1/74 of Civil Court Tando Bago. The Survey Nos. Men--tioned were 73, 78, 79, 80, 81 and 83 and the suit was decreed on 30th April, 1974. He produced decree which was in favour of Mir Mohammad Khan and execution application together with the warrant of possession. There is mashirnama showing delivery of possession of the land to Mir Mohammad. This was long before the incident which took place on 2nd July 1975.
13. S. H O. Kbursheed Ahmed, who has been examined as a defence witness has fully supported the version that in the First Information Report lodged by Allahditto complainant only accused Wazir, Ali Mohammad, Mir Khan and Gullo had been mentioned and there was no evidence against Mir Lakhi and Mir Mohammad Khan, He has also produced the report of Eallistic Expert which is to the effect that the empty cartridge was not fired from the gun of appellant Wazir.
14. The learned Sessions Judge while deciding, the direct complaint case, stated that by his judgment the State, No. 268/75 also stood disposed of, which indicates consolidation of criminal proceedings anti could be considered a technical error in view of majority decision of the A Supreme Court in Criminal Appeals No. 8 and 9 of 1965 (Nur Elahi v. State (PL D 1966 SC 708) as there is no indication that the Police case was withdrawn by Public Prosecutor under section 494, Cr. P. C. It is apparent from the record of the case that sets of witnesses in the case of direct complaint and the Police case were the same and the set of accused in the two cases were the same except for addition of names of 2 accused in the direct complains case. The instant case as indicated is one of insufficient and unreliable B evidence and therefore, order of retail would not make any difference.
15. Under the circumstances stated we consider the evidence against the appellant to be insufficient to support the conviction and we allow the appeal and acquit him.