1. Appellants above named, being aggrieved by judgment dated 30 October, 1978 of the learned Sessions Judge, Thatta, in Sessions Case No. 90/76, by which appellants have been convicted under' section 302/149, 325/149, 324/149, 323/149 &. 148, P.P.C. And-sentenced to various terms of imprisonment and fine, the principal sentence being that of Imprison--ment for Life for an offence under section 302/149. P. P. C. In addition to fine of Rs. 3,000 or in default to suffer further R.I. For one year, each have preferred the above appeal, on the following facts and grounds :- Broad facts of the prosecution case are, that all the appellants, except accused Haroon Holani (at Serial No. 1), reside at village Dhandhari in Taluka Ghorabari, Distt. Thatta. Deceased Muhammad Umar Memon's relations also used to reside in Deh Dhandhari, Taluka Ghorabari. The deceased Mobi. Umer held some land in Deh Dhandhari, and also in the adjoining Deh Beli. Two of the survey numbers identified by numbers i84 and 185, in Deh Beli, belonging to him were situated close to the village of appellants, Jats by caste. The appellants, who are Jats by caste, were opposed to the deceased Muhammad Umar ventures to develop that and for putting it under cultivation in the month of July, 1976. He went there alongwith his haris Ali, Ibrahim, Ismail and Hassan, Sulleman, Nonro and Mahmood and also took a tractor, in the morning hours of 29th or July, 1976. They started doing clearance of the soil and undertook its ploughing by means of a Tractor. It is alleged that all the appellants co-accused went there, armed with guns, a revolver, hatchets and a lathi it about 12 o'clock miff-day, and commanded the deceased Muhammad Umar to discontinue working on the land. The deceased Muhammad Umar told them, that he was developing his own land and he would continue doing it. Upon this, appellants, Haroon Jat, and co-accused Shafi Muhammad and Uris shot at him from guns they were armed with, appel--lant Haji Ali Khan shot atth him from a revolver, he was armed with,- and thereafter the rest of the appellants as well as co- accused, except Ibrahim struck him by means of hatchets, they were carrying, and appellant Ibrahim gave him lathi blows. Ibrahim and Aali ventured to intervence and they too were shot at and were also given hatchets and lathis blows Muhammad Umar died there and then, while Ibrahim and Aali were seriously injured. The assailants then went away to their village, carrying away their arms/weapons. Sulleman, from amongst the companions of deceased Muhammad Umar, informed the deceased's brother Muhammad Yaqoob and Siddik at their village. They went to the wardat and found; Muhammad Umar lying murdered and P. Ws. Ibrahim and Aali lying injured. Muhammad Yaqoob rushed to Ghorabari P. S., at a distance of about fourteen miles, and lodged report there at about 3 p. m.
2. S. H. O. Ghorabari, Khair Muhammad registered the crime. He then proceeded to the wardat and inspected it on the same day in presence of Alam and Muhammad mashirs. He secured the corpse of Muhammad Umar, having fire-arm and hatchet injuries, prepared. Its inquest report avid forwarded it to Civil Hospital, Thatta, through Muhammad Hussain H. C, for its post-mortem examination. He also examined injuries on P. Ws. Ibrahim and Aali and prepared their mashirnama in presence of same mashirs and recorded their statements and then referred them to Civil Hospital, Thatta for their medico-legal examination. He observed blood on the ground at the wardat and collected the blood-stained dust and packed it under seal. He secured three fired cartridges from the wardat and packed them under seal separately. He -then recorded statements of P. Ws. Muhammad Siddik, Allahdino, Hassan Sulleman, Ismail, Mahmood and Nooro.
3. He arrested co-accused Shafoo, Khan Muhammad, Uris, Ibrahim Ramoon and appellants Haroon Jat, Sahibdino and Yaqoob and Haroon Holani at their village near the wardat on 30th July, 1976, in presence of Adam and Muhammad mashirs. Appellant Haroon produced before him two guns one borne on the licence of appellant Darya Khan and the other on that of appellant Muhammad Yaqoob. He seized the guns and packed them under seal separately. Accused Shafoo produced before him a gun borne on the licence of co-accused Soomar. He packed it under seal. Co--- accused Uris produced before him a gun, borne on the licence of Ali Khan. He seized it and packed it under seal. Co-accused Ramoon, Haroon Holani and appellant Sahibdino and Yaqoob produced a hatchet, each, from a nearby jungle and the S. H. O. Seized them. The hatchets produced by appellant Sahibdino and Yaqoob had blood stains, while the other hatchets did not have blood stains. The S. H. O. Packed the hatchets under sal separately. Co-accused Ibrahim produced a lathi from the same jungle. The S. H. O. Seized it. There were no bloodstains on it. Accused Haji Ali Khan was arrested by the S. H. O. At his village Dhandhari on 3rd August. 1976. He produced his licensed revolver and the S. H. O. Seized it and packed it under seal in presence of Adam and Muhammad Mashirs. Appellant Darya Khan was arrested, at Ghorabari P. S. By Muhammad Hussain H. C. On 30th July, 1976. All the appellants as well as co-accused were challaned on 13th August, 1976. The arms recovered from the appellants as well as co-accused and the fired cartridges secured from the wardat were forwarded to the Ballistic Expert. The blood--stained weapons recovered from some of the accused, indicated above, were forwarded to the Chemical Examiner on the same day. The report of the Ballistic Expert revealed that two of the crime empties secured from the wardat were fired from the shot gun borne on the licence of appellant Darya Khan ; and the third crime empty bad been fired from the gun borne on the licence of appellant Yaqoob. The revolver recovered from appellant Ali Khan was found in working condition, but the Ballistic Expert could not form his opinion about the time of last firing from it. The report of the Chemical Examiner indicated, that the hatchets recovered from appellant Sabibdino and Yaqoob were stained with human blood.
4. All the appellants and co-accused denied their involvement in the incident. They had alleged false implication on account of enmity. They have stated that the deceased Muhammad Umar had tussle over that land with Sarang Jat and others and that he had made armed attack on them (Sarang and others) and they had put up resistance. They have alleged that Sarang and others were spared and they were substituted in their place. Appellant Darya Khan Yaqoob and Haji Ali Khan have admitted that their licensed guns were secured by the police. But they have denied, that their guns were produced by co-accused Haroon and Uris. They have stated that their guns were recovered from them. The appellant Ali Khan has also admitted securing of his licensed revolver from him. The rest of accused had denied that they had produced any weapons. Appellant Darya Khan and Ali Khan have advanced plea of alibi.
5. Prosecution has adduced evidence of corpse-bearer Muhammad Hussain (P. W. 1), complainant Muhammad Yaqoob (P. W. 2) mashir Muhammad (P. W. 3), eye-witness Sulleman (P. W. 4), Tapedar Muhammad Ibrahim (P. W. 5), mashir Adam (P. W. 6), injured Ibrahim alias Iboo (P. W. 7), eye-witness Hassan (P. W. 8). Medical Officer Dr. Moinuddin (P. W. 9), eye-witness Ismail (P. W. 10), injured Ali (P. W. I1), and the Investigating Officer Khair Muhammad S. H. O. (P. W. 12).
6. The appellants had examined in their defence four witnesses, namely Allah Bachayo (D. W. I), Imam -Bux (D. W. 2), Khalifa Muhammad Ishaque (D. W. 3), and Allah Bux (D. W. 4).
7. The learned trial court taking into consideration the evidence adduced before it, while acquitting co-accused Shafi Muhammad Khan, Muhammad Uris, Ibrahim, Ramoon and Haroon Halani convicted and sentenced the appellants as mentioned in impugned judgment and consequently appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
8. The learned Advocate for the appellants in support of the above appeal submitted as under :- (a)That all P. Ws. Are interested witness and as held by the learned trial court their statements required independent corroboration, which is not all available in the present case.
(b) That the reliance of the learned trial court on allege recoveries as corroborative pieces of evidence is misconceived, as P. W. 6 Adam (Mashir) is not the resident of locality and stays 22 miles away from wardat and places from where appellants are alleged to have been arrested. I.O. Has given no explanation for not picking up respectable mashirs of the locality, though such mashirs were easily available and as such mandatory provisions of section 103, Cr. P. C. Were vitiated and consequently no reliance can be placed on such recoveries for purposes of corroboration. In support of this contention, the learned Advocate for the appellants relied upon cases reported in 1980 SCMR 2.25, 1974 Cr. L J 137 and 1983 SC MR1.
9. (e)That learned trial Court has without cogent reasons discarded statements of D. W. Imam Bux and Khalifa, in respect of plea of alibi raised by appellant Ali Khan and Darya Khan in utter disregard of the law laid down by cases reported in PLD 1973 SC 418 and PLD 1982 SC 429.
(d) That gun recovered from appellant Ali Khan is licensed and Ballistic Expert does not connect the said gun with crime, but still the learned trial court has considered this as corroborative evidence against this appellant, as deceased had bullet injuries; in utter disregard of law laid down by cases reported in 1982 SCMR 162, PLD 1964 Kar. 356, PLD 1976 Kar. 438 and 1975 PCr. LJ206.
(e) That no incriminating article was recovered from the possession of the appellant Darya Khan but in spite of this the learned trial court on the basis of appellant Darya Khan's gun alleged to have been recovered from possession of appellant Haroon Jat, used said production, as corroborative piece of evidence against this appellant, which corroboration cannot legally be sustained.
10. The learned Advocate for the complainant submitted, that he fully supports the impugned judgment on account of cogent reasons given by the learned trial Court for its conclusions acid findings.
11. The learned Advocate for the State also submitted, that he was fully supporting the impugned judgment, on the following grounds :-
(a) That presence of P. W. 7 and P.W. 11 injured witnesses cannot be doubted. P. W. 4 and P. W. 8 are the haris of deceased and no enmity is alleged against them. Compelled with these recoveries made from appellants which have been proved by P. Ws. 6 and 10, prosecu--tion has fully established its case against the appellants beyond reasonable doubt.
(b) In support of above contentions the learned Advocate for the State relied upon cases reported in PLD 1962 SC 269 and 1969 P Cr. L J 57.
12. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R. & P. Of the learned trial court and impugned judgment and cases cited by the learned Advocates before me.
13. P. W. 4 Sulleman is hari of the deceased and has fully supported the prosecution case. However the appellants have alleged enmity against him, which was put to him in his cross-examination.
14. However the denial defence version put to him.
15. P. W. 7 Iboo is injured witness. He has also fully supported the prosecution case. He is also Hari of the deceased. He further stated that he and P. W. Aali entreated the assailants to spare deceased, on which assailants who were armed with guns fired at both of them and they received pellets injuries. He further stated, that P. W. 4 Sulleman left for informing relatives of the deceased. However he also denied defence version put to him. However be admitted, that he had no acquaintance with any assailants before the incident and might have seen them casually. He further stated, that he cannot say who gave him blows. He stated, that he was first shot then and given hatchet and lathi blows.
16. P. W. 8 Hassan is hari of the deceased. He has fully corroborated statement of P. W.7 more or less and has denied enmity suggested to him.
17. P.W. 10 Ismail is the son of injured P.W.
11. He has also corroborated statements of P. Ws. 4, 7 and 8.
18. No enmity is alleged against this witness. He further stated, that P. Ws. Were clearing foundation of trees.
19. P. W. 11 Ali is injured witness and is relation of the deceased. He stated P. Ws. And he were clearing thorns and P. W. 10 his son was work--ing Tractor. He however denied, that they were uprooting trees. He also denied defence version of the incident.
20. I have carefully gone through the statements of above 5 P. Ws, who are alleged to be eye- witnesses. P. W. 7 and P. W. 11 are injured in the incident and their presence cannot be doubted.
21. Appellants have alleged enmity against P. W. 4 who had to some extent admitted the same, in his cross-examination. As far as P. W. 7 is concerned no enmity is alleged against him at all, except that he is hari of the deceased and as such is described as interested witness by appellants. In my opinion, statements of P. Ws, 4, 8, 9 & 10 have been corroborated by the statement of P. W. 7 Iboo against whom no enmity is alleged. Learned Advocate for the appellants submitted that this witness was not put to identification test, as he only casually knew the appellants and as such no reliance can be placed on his statement. I am afraid, I see no force in this arguments, as this P. W.
22. Was not put such direct question whether he knew the names of the appellants before incident. I find that this P. W. In his cross-examination stated, that he had no acquaintance with appellants and may have seen them casually. This means that P. W. 7 knew the appellants by names and as such he named them in his statements, but had no direct contact with them. But nowhere such direct question was put to him how he identified appellants. In addition to this prosecution has retied upon recoveries from the appellants as corroborative piece of evidence, against them. I find prosecution has establish said recoveries by statement of P. W. 6: Adam and by statement of I. O., against whom no enmity is alleged by present appellants. Cases cited by the learned Advocate for discarding statements of P. W. 6 and I.O., as far as recovery are concerned are based on different facts and as such not applicable to the facts of the present case. Statement of D. W. I Allah Bachayo D. W. 4 Allah Bux in my opinion has been rejected by learned trial court for cogent reasons.
23. However prosecution case against appellants Darya Khan and Haji Ali Khan is not free from doubt, on account of the plea of alibi raised by the appellants before the learned trial court and prima facie established by the statements of D. W. 2 Imam Bux and D. W. 3 Khalifo, as well as on account of the fact, that no gun was recovered from appellant Darya Khan according to prosecution, but his gun was recovered from appellant Haroon Jat and licence revolver recovered from appellant Ali Khan is not connected by Ballistic Expert with crime in question. In view of this I disagree with the conclusions and findings of learned trial Court, that since gun belonging to appellant Darya Khan, which is alleged to have been produced by Haroon Jat, is connected with crime according to Ballistic Expert Report, it becomes corroborative piece of evidence against the said appellant Darya Khan, as gunshots are attributed to him by P. Ws. Similarly the reasoning of the learned trial Court, that since deceased had injury caused by revolver, which was recovered from the appellant Ali Khan, it can be used as corroborative piece of evidence against him, in spite of Ballistic Expert Report, which has not connected the use of said revolver with crime. Rejection of statements of P.
24. Ws. 2 &'3, by the learned trial Court is also, not based on cogent reasons, in my opinion. In view of these conclusion of mine, in my opinion, prosecution has failed to establish its case beyond reasonable doubt as far as appellants Darya Khan and Haji Ali Khan ate concerned, whereas prosecution has established its case against appellants Haroon son of Warrayan Jat, Sahibdino and Yaqoob, beyond reasonable doubt by the statements of P. Ws. 4, Sulleman, P. W. 10 Ismail and P. W. 1 I Ali, which statements have been fully corroborated by the statement of P. W. 7 Iboo, against whom no enmity is alleged. I find his statement straightforward and convincing, as well as by recoveries of blood-stained hatchets from the possession of appellants Sahibdino and Yaqoob and gun from possession of appellant Haroon which was used in incident according to Ballistic Expert Report. Since these three appellants came to wardat duly armed and took part in incident, common intention obviously existed between them and as such all these three appellants are guilty for murder of deceased, equally.
25. The contention of the learned Advocate that no reliance can be placed on P. W. 6 Adam, mashir of recovery, as he is not resident of the locality, also has no force. Learned lower court has considered this aspect and for cogent reasons accepted his statement, in spite of this fact and I see no, reason to disagree with the conclusions of the learned trial Court on this account, as no questions were put to I. O., why he did not select mashirs of the nearer localities. The alleged discrepancies in medical and ocular evidence arc also such, that it does not affect the statements of P. Ws. I further find, that learned trial Court also considered this aspect and for cogent reasons came to conclusion, that there existed no such glaring discrepancy in medical and ocular evidence. I see no reason to disagree with this finding of the learned trial Court also on this account.
26. In view of my above conclusions I allow the above appeal as far as appellants Darya Khan and Ali Khan are concerned by giving this benefit of doubt and acquit them and discharge the bail bonds executed by them in above appeal.
27. However, I dismiss the above appeal as far as appellants Haroon, Sahibdino and Yaqoob are concerned. However, I alter their conviction from sections 302/149, 325/149, 324/149 and 323/149 and under section 148. P. P. C. To one under section 302/34, 325/34, 324/34 and 323/34 and maintain their convictions under section 447, P. P. C. As well as sentences awarded to them by impugned judgment, except their convictions under, section 148, P. P. C. And direct that all sentences of imprisonments awarded by them by impugned judgment to run concurrently. I also maintain fine of Rs. 3,000 and Rs. .1,000 imposed on each of the three appellants by impugned judgment and in default of payment of said fines to suffer further R. I. For one year and three months as mentioned in said impugned judgment.
28. However, I direct that benefits of the provisions of section 382-B, Cr. P. C. Be given to all the three appellants in respect of the period of their detention as under-trial prisoner, towards their substantive sentences, in addition to all other remissions to which appellants may be entitled in accordance with rules.