Appellant above-named, being aggrieved by judgment dated 16th January, 1982 of the learned 1st Additional Sessions Judge, Dadu, in Sessions Case No. 292/80, by which appellant has been convicted under section 302, P. P. C. And sentenced to imprisonment for life and to pay fine of Rs.
5,000 or in default to suffer further R. I. For one year has preferred the above appeal, on the following facts and grounds.
The prosecution story in nutshell is that on 17th September, 1980 at 8.30 p. m. The complainant Thangao lodged his F. I. R. At P. S. Jobi, in which he stated in brief, that he is Hari of Ghazi Khan Lund.
That there is village Butra near his village, in which Haji Allah Dito and others are living. That there are lands of Achar Panhwar on the southern side of the village, which are cultivated by Haji Allah Dito and his relatives, who pass by the houses of his village and go to the lands. That his nephew Amir Bux and others had res--trained Panhwars from passing by their houses, but they did not care and on this 2/3 times there had been harsh talk of his relatives with the Panhwars. That on the day of the incident, he was at his village when at about 5.00 p. m., he heard cries coming from Naro Wahh and on hearing cries, he, Paryal, Jan Muhammad, Ali Bux and Amir Bux went running in that direction. When they reached bank of Wah at "Sar" bushes, they saw Dhani Bux with injuries on his head and raising cries. They also saw Haji Allah Dito armed with gun, Rasulo and Khuda Bux armed with hatchets and Nooro armed with lathi standing there. On their reaching Haji Allah Dito fired gun shot at them, which hit Amir Bux on the left side of his chest and Amir Bux fell down and all the four appellants went away. That the P. W. Dhani Bux told them, that he was grazing cattle there, when all the four appellants came there and asked him that they were restrained by the complainant from passing by there village and there had been dispute on this 2/3 times and threatened him. The P.
W. Dhani Bux also told them, that the appellant Allahdito gave him a blow with butt of the gun on his bead and the appellant Nooro caused hint lathi blow on the upper portion of his arm. Then all of them removed the injured Amir Bux on a cot to Dadu and when they reached Hajjan Pir, Amir Bux, died. He has also stated in his F. I. R. That they brought the dead body of the deceased Amir Bux to the Civil Hospital, Dadu, where he left the others at the guard of the dead body and himself came to P. S. Johi for lodging his F. I. R.
The S. H. O Mahmood Ali of P. S. Johi recorded his F. I. R. Exh.
12. The P. W. Dhani Bux also came to him at the P. S. And he recorded 161, Cr. P. C. Statements of P. W. Dhani Bux saw his injuries in presence of the mashirs Dadan and Muhammad Suleman and pre--pared such mashirnama of his injuries Exb.27. On 18th September, 1980 he visited wardat in presence mashirs Allah Bachayo and Loung, shown to him by the complainant Thangao, situated on the bank of Nara Canal. He prepared the mashirnama of wardat Exb. 10 in pre--sence of the mashirs Muhammad Chuttal and Allah Rakhio.
He examined the P. W. Paryal under section 161, Cr. P. C. He then visited another wardat in presence of mashirs Allah Bachayo and Loung, shown to him by the P. W. Paryal, situated near village Ghazi Khan on its south-east corner. He saw blood lying on the second wardat. He secured the blood- stained earth from the wardat, sealed it and pre--pared such mashirnama Exh.
34. The P. W. Paryal produced before him an empty cartridge and disclosed to him, that it was secured from wardat.
He secured the empty cartridge, sealed it and prepared such mashirnama Exh. 35, in presence of the same mashirs. He recorded 161 Cr. P. C. Statements of the P. Ws. Jan Muhammad and Ali Bux. On 20th September, 1980 he came to the police line Dadu, gave a letter to the Line Officer and arrested the co-accused Khuda Bux from Police Line Dadu and prepared such Mashirnama of his arrest Exh.40, in presence of the same mashirs. On the same day he arrested the appel--lant Haji Allah Dito. Co-accused Rasulo and Nooro from the otak of Wadero Mir Khan in village Butra, in presence of the same mashir and prepared such mashirnama of their arrest Exh.
36. The appellant Haji Allahdito after arrest, produced his licensed gun and the licence of the gun, which he secured and sealed the gun in presence of the same mashirs and prepared such mashirnama Exh.
37. The co.
Accused Rasulo after arrest produced before him a hatchet from his house. He secured the hatchet, in presence of the same mashirs and prepared such mashirnama Exh.
38. Similarly the co-accused Nooro produced a lathi before him from his house, which he secured in presence of the same mashirs and prepared such mashirnama, Exh.
41. On 21st September, 1980 he produced the P. Ws. Dhani Bux Paryal, Ali Bux and Jan Muhammad before Mukhtiarkar and F. C. M. Johi for recording their 161 Cr. P. C. Statements. On 4th October, 1980 he challaned the appellant in the Court of Civil Judge and F. C. M. Johi. The learned Civil Judge and F. C. M. Johi sent up the case to the Court of Sessions for trial.
The learned trial Court framed the charge against the appellant as well as co-accused Exh. 2, recorded their plea vide Exh. 3 to which they pleaded not guilty and claimed to be tried. The prosecution had examined the mashir Muhammad Chhutal Exh. 9, the complainant Thangao Exh.
11, and the P. Ws. Dhani Bux Exh. 13, Muhammad Paryal, Exh. 15, Dr. Moula Bux Exh. 17, Dr. Muhammad Sadiq Exh.
19. Ali Bux Exh. 22, Jan Muhammad Exh. 24, Dadan Exh. 26, A. S . I. Jan Muhammad Exh. 28.
P. C. Ali Nawaz Exh. 31, Allah Bachayo Exh. 33, Ghulam Kadir Exh. 42, and S, H. O. Mahmood Ali Exh. 45, The A. P. P. Had closed the prosecution side vide his statement Exh.
48. The statements of the appellant Haji Allahdito as well as co-accused Rasul Bux, Nooro and Khuda Bux had been recorded at Exh. 49 to 52 respectively, in which they have denied all the allegations. The appellant Allah Dito in his statements Exh. 49 had on the contrary alleged, that the P. W. Ali Bux used to cultivate the land of Achar Panhwar, who drew out the P. W. Ali Bux from cultivating his land and gave it to him for cultivation, hence the complainant party have falsely implicated him at the instance of the P. W.
Ali Bux. He has also alleged in his statement, that the deceased Amir Bux was murdered by the P.
Ws. As they suspected Amir Bux to be on illicit relations with the wife of P. W. Jan Muhammad and that the incident of the deceased Amir Bux was witnessed by Din Muhammad Mirbahar and Mir Khan Panhwar. The other co-accused have adopted the further statement of the appellant Haji Allahdito. They have claimed to examine the D. Ws. Din Muhammad, Mir Khan and Muhammad Achar in defence vide their statements Exh. 53 but had examined none in their defence and had closed the defence side vide statement Exhs. 54 and 55 of their Advocates.
The learned trial Court taking into consideration the evidence ad--duced before it, while acquitting co-accused Rasul Bux and Khuda Bux, convicted and sentenced the appellant above named as hereinbefore mentioned and consequently the appellant has filed the above appeal on the grounds mentioned in the memo of Appeal.
The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That case of present appellant was on all fours with two -acquitted accused persons, except in respect of licensed gun recovered from his possession. But connection of the said gun with crime in question is doubtful, in view of the contradiction between I.O. And recovery mashir P. W. Parial about recovery of alleged empty cartridge from wardat.
(b)The P. Ws. Changed the place of incident as given in F. I. R., in their statements before the learned trial Court and as such no reliance can be placed on the statements of such P. Ws., without independent and reliable corroboration, which is not available against present appellant, in view of discrepancies between I, O's statement and that of P. W. Parial, alleged re--covery mashir, about recovery of empty cartridge from wardat.
(c)Trial Court has held, that P: Ws. Have exaggerated prosecution case and as such no reliance can be placed on statements of such P. Ws. In support of this, the learned Advocate for appellant relied upon case reported in 1982 SCMR 162 and 1049.
The learned Advocate appearing for the State at the outset sub--mitted, that he was not supporting impugned judgment, as-case of present appellant as on all fours with acquitted accused persons. As con--nection of gun recovered from appellant with the crime, in spite of Billastic Experts report is doubtful, on account of discrepancy between I.O's statement and P. W.
Parial mashir, about recovery of empty cartridge from wardat.
I have carefully considered the above submissions made; by the learned Advocates before me and have gone through R and P of the learned trial Court and impugned judgment and cases cited by learned Advocate for appellant.
The learned trial Court in spite of coming to conclusion, that, P. W. Dhani Bux (injured) had exaggerated the incident, but still accepted his statement, as far as present appellant and rejected the same in respect of acquitted co-accused persons, on the basis of case reported in 1976 P Cr. L J 237.
It is admitted position, that all P. Ws. Are closely related to each other and had enmity and dispute with appellants, side, at least over passage near their houses, which has resulted in some earlier incident in view of this, statements of all these P. Ws. Required independent corroboration, in my opinion. In addition to this P. W. 2 Thangao resiled from the version of incident given by him in F. I. R.
Inasmuch as he before the learned trial Court talked of two vardats, whereas in F. I. R. He only talked about one wardat. There is also delay of over 5 hours in lodging of F. I. R. Which has also not been explained. P. W. 4 Muhammad Paryal is alleged, eye-witness and had stated before the learned trial Court, that he had produced empty, lying at wardat before police, when police came to wardat for the first time, but did not state, that said empty was sealed by police, at, wardat. 1n cross he denied that he had given empty cartridge from his possession. However, according to P. W. 14 Muhammad-Ali S. H. O.P. W. Paryal had produced empty cartridge before him, who stated that he had secured from wardat and had taken the same lust to his house and then was produced by him before him. In view of this, discrepancy about alleged recovery of empty cartridge and the fact that Exh. 34, clearly states that no empty cartridge was found at said wardat, where deceased received fire-arm injury, still P. W. 12 Allah Bachayo the mashir of the said wardat, stated before learned trial Court, that said empty cartridge was secured from wardat. Exh. 35 shows that it was produce by P. W. Paryal, but not recovered from wardat, by police. Exh. 35, shows, that it was old cartridge and did not smell of recent firing. In the face of such evidence on record, no reliance can be placed on Ballistic Expert report to connect the gun secured from appellant, to have been used in the incident in question. Therefore, in the absence of positive and direct evidence, that the gun secured from the appellant was actually used in the incident, the said recovery, in spite of Ballistic Expert's report, cannot be used as corroborative piece of evidence against the present appellant in my opinion. Therefore we are left with the statements of alleged eye-witnesses, who are very closely re--lated to each other and there is admitted enmity between complainants party and appellants party over passage near the house of complainant party, which was being used by appellants party. In view of this, it would be unsafe to rely on the statements of P. Ws including Dhani Bux without independent corroboration, which is not at all available against present appellant as well. In view of this I disagree with the conclusions and findings of learned trial Court, in respect ref above appellant.
Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and direct that appellant be released forthwith, if not required in any other case.