1. Appellant above named, being aggrieved by judgment dated 24-2-1982 of the learned Additional Sessions Judge II, Khairpur, in Sessions Case No. 100/79 and 165/79, whereby appellant has been convicted under section 302, P. P. C. And sentenced to suffer imprisonment for Life and to pay fine of Rs. 2,000 or in default to suffer further R. I. For one year, has preferred the above appeal on the following facts and grounds :- The facts of the F. I. R. Lodged by Abdul Khair on Police Station Kotdigi on 14-9-1979 at 11-30. Are that complainant Abdul Khair is Zamindar. His brother Yar Muhammad has got S. No. 853 of deh Bapho in respect of which S. No. Co-accused Abdullah and Abdul Gbani Shambanies and others had raised dispute, which is pending. Apart from that there is 107, Cr. P. C. Proceedings between the complainant party and co-accused Abdullah and Ghani and others in the Court of S. D. M. In which proceedings co. Accused Ghani and Mocharo were not appearing in the Court. On 13th September, 1979 at evening time constables Ghulam Jilani and Yaseen of P. P. Jiskani came to the complainant and asked him that they have got to execute the warrants on co-accused Mocharo and Ghani and wanted that the complainant should accompany them to show their houses. Complaint accompanied the P. Ws and shown them the houses of Ghani and Mocharo, but both the co- accused ran away on seeing the police. At about 8-00 a.m. Of the day of incident viz. 14-9-1979 when the complainant, his nephew Shamasdin deceased and Shahmir, Soofan and Manzoor Shambanies were present in their respective houses whose houses are adjacent to complainant's house. The appellant Lal Khan and co-accused Ghani sons of Ghulam Hyder Shambani, armed with D. B. B. L. Guns accompanied by their companions Abdullah and Mocharo, who were also armed with guns came and out of them appellant Lal Khan started giving abuses to the complainant, that they yesterday had brought the Police to execute warrants against them. In the meantime deceased Shamsdin came in front of appellant as well as co-accused and began to reason with them, that they should not raise quarrel and go to their houses, but at this juncture appellant Lal Khan fired his gun at Shamsdin which hit him in the chest, who as a result of injury fell down on the ground and the incident was seen by the witnesses Soofan, Shahmir and Manzoor, who gave Hakkals to the appellant. Thereafter the appellant as well as co-accused went towards their houses, after firing in the air and while going they also set on fire their Landhi. Complainant and the P. Ws. Came over Shamsdin, but he had died. Complainant leaving the P. Ws. On the dead body of Shamsdin came on Polio Station Kotdiji and his F. I. R. Exh. 8-A was recorded by A. S. I. P.
2. Ghulam Nabi Alamani. The F. I. R. Was received by Bashir Ahmad A. S. I. Incharge P. P. Jiskani for investigation of the case, he challaned the appellant Lal Khan and co-accused Abdul Ghani showing the accused Abdullah and Mocharo as absconders.
3. During the trial of this case the supplementary challan against Abdullah and Mocharo were submitted after their being arrested. Both the cases have been amalgamated and disposed of by a single judgment, as the facts and the evidence bang common against the all co-accused and appellant.
4. All the appellant as well as co-accused had pleaded, that the case against them was false and the crime empty has been foisted on them. They have further stated, that all the P. Ws. Are interested and inimical against them over the land and other matters. In their further statement appellant Lal Khan had pleaded, that he has got a dispute with the complainant over the land and other matters for the last few years. He has also stated, that Abdul Khair had forged a document in favour of his brother Yar Muhammad purporting to show, that the appellant Lal Khan's brother Waris had sold the land to them and cases in respect of which transaction are pending in various Courts.
5. Complainant has also filed false case against .Him and his brother in the Court of Mukhtiarkar Kotdiji, Sukkur and at various places. According to him Shamsdin deceased was his near relative and cousin of Shamsdin is married to his brother (accused) Dildar and Shahmir's real cousin is married with Ibrahim uncle of appellant. Appellant Lal Khan has further stated, that in fact complainant had enmity with deceased Shamsdin, as mother of Shamsdin was murdered by his father, as Kari. She was uterion sister of complainant Abdul Khair. They have, therefore, killed Shamsdin and have foisted this case on him and co-accused who are his near relatives and therefore they have avenged the murder of their uterion sister. He has further stated, that Muhammad Peryal Mashir is brother of com--plainant and Mashir Wazir is fast friend of complainant, Manzoor is son of complainant and P. W. Shahmir is nephew of complainant. He has also stated, that he is an old and disabled man from his right arm. He has produced true copy of judgment Exh.
28. Accused Mochar. Had stated, that he is related to Lal Khan appellant and had adopted the further statement of Lal Khan. Abdullah is brother of co-accused Moc4aro and is also related to appellant Lal Khan. He had also adopted the statement of Lal Khan. He had also claimed in addition alibi and with respect to which he had submitted, that he had gone to Karachi on the day of incident with his cattle for selling. He had also stated that he produced such receipts in defence before police. He had produced 164, Cr. P. C. Statements of Dharo, Bakhtiar, Imdad, Lal, Bazar and Ghulam Sarwer, Exhs. 35 to 39.
6. The learned trial Court, taking into consideration the evidence adduced before it, while acquitting three co-accused, convicted the appellant above--named as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in memo. Of appeal.
7. The learned Advocate for appellant in support of the above appeal submitted as under :-
(a) That there was no motive to kill deceased, as stated by P. W. 3 Shahmir. Enmity was with complainant, but he was not attacked at all. In view of this no reliance can be placed on statements of P. Ws. With--out independent corroboration, as all P. Ws. Are closely related to complainant. In support of this contention, the learned counsel for appellant relied upon cases reported in PLD 1981 Kar. 1 and 1979 SCMR557.
(b) That injuries sustained by deceased supposed to have bled, but no blood was found on cot or ground, where deceased body was found lying and as such wardat of incident could not have been one alleged by P. Ws. In support of this contention the learned Advocate relied upon case reported in 1981 SCMR 132.
(c) That there was delay in lodging of F. I. R. Of 3-- hours, which has not been explained satisfactorily by the complainant and as such consultation and false implication cannot be ruled out.
8. (d)That alleged recovery regarding empty was made 50 paces away from alleged wardat. Mashir P. W. Wazir said nothing about whether it was sealed on the spot, and as such no reliance can be placed on Ballistic Expert Report for purposes of corroboration, as according to P. W. Wazir gun was not smelt by police in his presence. P. W. Wazir further stated, that he has not seen police picking up empty from wardat, in his presence.
9. In view of above submissions, the learned counsel submitted, that prosecution has failed to establish its case beyond reasonable doubt, on the same basis as acquitted co-accused persons.
10. The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as empty alleged to have been secured about 50 paces away from deceased body, was not sealed in the presence of P. W. Wazir Mashir, as he has not so alleged in his deposition and as such case of the above appellant is on all fours with that of the acquitted accused persons. In addition to this, wardat of alleged incident is also not certain, as there was no blood either on cot or ground under the dead body. In view of all these facts, in his opinion prosecution has failed to establish its case beyond reasonable doubt against the appellant above named as well.
11. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for appellant.
12. It is clear from the impugned judgment that learned trial Court -came to conclusion, that statements of alleged eye-witnesses required independent corroboration, on account of the fact, that these P. Ws. Are closely related and connected with each other. In, my opinion (1) on account of admitted enmity between the complainant and appellant as admitted by P. W. 3 and (2) on account of the fact, that though according to these prosecution witnesses, complainant was available at wardat, but still appellant did not harm him, but is alleged to have murdered deceased, against whom he had practically no motive at all and (3) as P. W. 3 and P. W. 4 the only other alleged eye-witnesses of the incident, beside complainant are his nephew and son, it would be unsafe to rely on the statements of these 3 P. Ws. Without independent corroboration. For purposes of such corroboration, in the case of present appellant learned trial Court relied upon licensed gun alleged to have been produced by the appellant and Ballistic Expert Report which connected the said gun with empty alleged to have been recovered from wardat and distinguished his case from remaining acquitted co-accused persons. In view of this I have carefully gone through the statement of P. W. 7 Wazir Khan, the alleged Mashir of empty from wardat. This witness admitted, that other Mashir with him was real brother of complainant. He further admitted, that he did not see police actually finding and picking up empty from wardat nor he saw police smelling the gun in his presence, to determine whether it was used recently. He also admitted that he saw no blood at wardat, including on cot on which deceased was lying and/or on ground underneath the cot. In his cross he admitted, that he was aware of disputes between complainant and appellant, but did not act as Mashir in faisla. He further stated, that appellant was holding gun in his hand and sitting in Otak, when be was arrested, which is rather unusual. He also admitted, that there are houses of Brohis etc. Near the place of appellant. Due appraisal of hi evidence shows, that recovery of empty actually from wardat is doubtful and further nowhere in his statement this P. W. Has stated, that the said empty was sealed on the spot in his presence. In view of this Ballistic Expert Report connecting such recovered empty with licensed gun allegedly recovered B from the possession of appellant, loses its value, as corroborative piece of evidence against the appellant, in my opinion, as the gun in question is licensed gun and according to appellant it was produced before police by him alongwith licence. Further the manner, in which gun was found in possession of appellant at the time of his arrest is also not believable, as there is nothing on record to show, why appellant was holding said gun in his possession, while sitting at Otak long after incident. Keeping in view the admitted enmity between complainant and appellant and the fact that respectable independent Mashirs could have been available to police, still police chose; brother of complainant as second Mashir shows, that police investigation was, not above board and as such no reliance can be placed on the statement of I. O., that empty was in fact recovered from wardat and sealed at the spot, when these facts are not confirmed by P. W. 7 Wazir Khan, the Mashir of alleged recovery of empty. In view of this no reliance can be placed on Ballistic Expert Report only for connecting the alleged empty with the gun and crime in question, for purposes of corroborative evidence against appellant, in murder case, specially when the gun alleged to have been recovered, and/or produced by appellant is admittedly licensed gun.
13. Therefore in my opinion, case of above appellant is on all fours, with the case of acquitted 'D co- accused persons and cannot be distinguished from them, on the basis of alleged recovery of gun from appellant and empty from the wardat, on the basis of Ballistic Expert Report. Hence prosecution has failed to establish its case against the above-named appellant as well, beyond reasonable doubt.
14. 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 he be released forthwith, if not required in any other case.