1. Appellant above named, being aggrieved by judgment dated 30-8-1978 of the learned Additional Sessions Judge, Dadu, in Sessions Case No. 256 of 1976, whereby appellants have been convicted under section 148/447/302, 323, P. P. C. Both read with section 149, P. P. C. And sentenced to imprison--ment for life and to pay fine of Rs. 1,000 or in default to undergo further R:1. For six months and appellant Imam Din has further been convicted under section 379, P. P. C. And sentenced to suffer one year's R. I. Have preferred the above appeal on the following facts and grounds :- Prosecution case as disclosed in the F. I. R. Exh. 6 is, that all the appel--lants duly armed with a rifle, guns and hatchets formed an unlawful assembly in survey No. 153 of Deh Bisharat Kachhri Taluka Mehar on 3-2-1975 at about 12.30 noon. It is the case of the prosecution, that this survey number alongwith other survey numbers was taken on lease for five years by P. W. Ali Nawaz Dero from Evacuee Trust Property Board, where first informant Muhammad Hassan was employed as a Hari as well as Kamdar. The remaining survey numbers were cultivated by Habibullah, Muhammad Yousif, Kando, Ahmed, Pirano, Abbas and Hakim. One day before the incident at afternoon time Muhammad Hassan, Habibullah, Pirano and Kando were present in survey No. 154 cultivated by Muhammad Yousif; when Haji Ghulam Muhammad, Atta Muhammad, Abdul Rasool and Kaiser came over there and claimed that they had taken the aforesaid survey numbers on lease and that in future they should not come to the lands. The witnesses however did not listen to them and stated that they had raised Rubbi crop on the lands as Haris, therefore they will not abandon the lands. Haji Ghulam Muhammad and others after abusing the witnesses went away proclaiming that in case they visited the lands on the next day, they will suffer the consequences. Muhammad Hassan asked Habibullah to inform Wadero Ali Nawaz about this mishap. On the fateful day in the morning first informant Muhammad Hassan, his brother Muhammad Yousif, deceased Birro, Ali Akbar and Hakim went to the survey numbers as usual. Muhammad Hassan had taken. His licensed gun with him. He alongwith Birro went to survey No. 153 under the cultivation of Malook, while others went to their respective survey numbers. Muhammad Hassan leaving the gun under the care of Birro went to case himself and when he got free he found the present appellants on the survey number in question. It is alleged, that appellant Abdul Aziz was armed with a rifle, appellant Nooh and Shahabu ddin were carrying guns of '12 bore, while all others had hatchets and lathis with them. After declaring that the witnesses bad been prevented from coming to the lands on the earlier day appellant Abdul Aziz fired a rifle shot which struck Muhammad Yousif, who raised cry and fell down. Accused Shahabuddin fired a gun shot at Birro, but he missed the target, while Birro picked up the gun of Muhammad Hassan and fired in his self-defence which hit appellant Mahmood. At this moment Abdul Aziz fired a rifle shot at Birro, who on being hit fell down Appellant Imamdin picked up the gun of Muhammad Hassan lying by side of Birro, while Taj Muhammad, Abdul Latif, Ali Gohar and Hassan gave lathi and hatchet blows with back side to P W. Hakim on his survey number. Thereafter all the accused dispersed including Imamdin carrying away the gun of Muhammad Hassan. In the meanwhile Muhammad Yousif Hakim and Ali Akbar also came to the place of incident. Deceased Birro Leaving dead, while watch a dead of Birro, P.W. Muhammad Hassan rushed to Police Post Faridabad and lodged his report at 1.15 p.m. The same day.
2. After recording the F. I. R., A. S. I. P. Ali, Ahmed proceeded to the place of wardat. He secured blood- stained earth and an empty cartridge from that place. He referred the dead body of deceased Btrro for post-mortem examination. He noted the injuries of Muhammad Yousif and Hakim Ali and prepared a memo. Both the injured were referred to Medical officer, Mehar for examination, treatment and certificate. After recording tie statements of Muhammad Yousif and Hakim Ali arid Ali Akbar the A. S. I. P. Returned back to Faridabad, where appellant Mahmood was already present and this appellant lodged a counter-report of the incident which was recorded at 6.10 p. m. In relation to an offence under section 307, 148/33, P. P. C. In this F. I. R. It was complained, that this appellant at about 12.30 noon in the lands of Ghulam Hyder Rind sustained gunshot injuries on his F side face and shoulder at the hands of Hassan and Malook and 10-11 unidentified persons. A. S. I. P.
3. Arrested appellant Mahmood, noted injuries --on his person and referred him for examination, treatment and certification. On 4-2-1975 he arrested appellant Abdul Azia, Abdul Latif, Abdul Halim, Shahabuddin, Nooh, Ghulam Hyder, Imamdin and prepared such Mash. -namas. On this day he raided the house of accused Shahabuddin and secure a single barrel gun from the said house in presence of Mashirs Muhamnx Khan and Suhbat. He also raided the houses of appellant Abdul Halim a Abdul Latif separately and secured one hatchet each from both the hour Similarly a hatchet was recovered from the house of accused Ghulam Hyder on search. It is alleged that on interrogation appellant Imamdin voluntarily offered to produce a gun used in the commission of the crime. He led the Investigating Officer and Mashirs to the Dera of Paddy crop and produced a single barrel gun belonging to Muhammad Hassan. On his return :0 Faridabad A. S. I. P. Registered a case under the Arms Act against appellant Imamdita. On the same day P. W. Muhammad Hassan produced his gun licence before the A. S. I. P. On 5-2-1975 accused/appellant Ali Gohdr. Lal and Hassan were arrested. On the search conducted in their houses a hatchet was recovered from each of the houses. On 7-2-1975 P. Ws Muhammad Yousif, Ali Akbar and Hakim Ali were produced before the Mukhtiarkar and F. C. M., Mehar for recording their statements under section 164, Cr. P: P.
4. On 9-2-1975 during interrogation appellant Abdul Aziz voluntarily produced a rifle used in the commission of the crime by leading the Investigating Officer to his house and taking it out from the hedge. As had no licence to retain the rifle a case under the Arms Act was registered against him.
5. On 15-2-1975 one Atta Muhammad produced his licence respect of the gun recovered from the house of Shababuddin. Since Shahabudin had no licence or authority to retain the, gun a case under the Arms was also registered against him.
6. From the evidence of A. S. I. P. Ali Ahmed it further appears that 2-2-1975 P. W. Habibullah had registered a report against Haji Ghulam Muhammad, Atta Muhammad, Kaisar and Abdul Rasool, which was recorded 431 for a non-cognizable offence. Apprehending the breach of peace Atta Muhammad. Kaiser and Abdul Rasool were however sent up under sec--tion 107/151, Cr. P. C. In the Court of Mukhtiarkar and F. C., Mehar, whereas HAP Ghulam Muhammad could not be secured.
7. Blood-stained earth sent to the Chemical Examiner was found to be stained with human blood.
8. On 7-2-1975 S. H. O., Mehar P. W. Nale Chango on receipt of an spy information went to the village of appellant Taj Muhammad and arrested him in the presence of Mashirs Suleman and Photo. It is alleged that on interrogation he voluntarily produced a hatchet without any blood stains from his house.
9. Autopsy on the dead body of Birro was performed by Dr. Shamsul Haq who found the following injuries on its external examination.
(1) Fire-arm wound of entrance --" x --" x deep into brain cavity with blackened borders on the left temporal region communicating with injury No. 2.
(2) Fire-arm wound of exit 3" x 1" deep into brain cavity on the right occipital region communicating with Injury No. 1 internally mentioned above.
10. On internal examination this witness found that the scalp and membrance of the brain were ruptured at the site of Injuries Nos. I and 2. While the skull was broken at the site of these injuries, the brain was damaged through and through at these sites. In the opinion of the Doctor the death was due to shock and haemorrhage as a result of aforesaid injuries, which were ante -mortem and caused by a bullet. According to him Injury No. 2 is the exit wound of Injury No. 1, which was individually sufficient in the ordinary course of nature to cause the death, of the deceased.
11. On the person of P. W. Muhammad Yousif a septic wound with loose margins on the posterio lateral surface on the upper of the left heal 1--" x 1--" x skin deep, simple in nature was found. In order to determine the kind of weapon he was referred to Civil Surgeon, Dadu, but he did not appear before the latter.
12. On the person of P. W. Hakim following injuries were found which were simple in nature. He has also referred to Civil Surgeon, Dadu for X-ray examination, but it appears that he did not report to the Civil Hospital, Dadu.
(1) Abrasion on the top of the left shoulder --" x --" x nil.
(2) Contusion on the lateral surface of the left shoulder 2" x --" x nil.
(3) Contusion of the back of the left shoulder 3" x --"
(4) Swelling of the left shoulder.
(5) Contusion transversely across the vertebral column of back of chest 3" x 1--" x nil.
13. On completion of investigation all the appellants were challaned in the lower Court for committal inquiry, but on account of abolition of commit--ment proceedings, the case was subsequently sent to the Court of Sessions for trial.
14. At the trial all the appellants pleaded not guilty to the charge, while the prosecution examined first informant Muhammad Hassan, Y. W. I, injured Muhammad Yousif, P.W.2, Ali Akbar, P.W. 3 injured Hakim, P. W. 4, Mashir Muhammad Khan, P. W. 5, Tapedar Muhammad Anwar, P. W. 6, Corpse bearer Muhammad Pariah, P. W. 7, Mashir Photo, P. W. 8, S. H. O. Nale Chango P. W. 9 Ali Nawaz, P. W. 10, A. S. I. P Muhammad Hafeez Shah, P. W. 11 A. S. I. P. Ali Ahmed, P. W. 12, Habibullah, P. W. 13, and Dr. Shamsul Haq P. W.
14. The remaining witnesses were given up by the A. P. P. As being unnecessary. In their respective statements appellants have denied the allegations against them and alleged that the witnesses have deposed due to enmity over the lands. Appellant Mahmood has produced 30 documents consisting of complaints in previous cases, depositions of witnesses and judgments to show, that there has been litigation between the parties since long. When questioned about the F. I.
15. R. Lodged by him he stated, that be had lodged it against other persons, but it was not properly recorded He has denied that he had sustained injuries at the hands of deceased Birro, as alleged by the prosecution. No evidence in defence was however adduced.
16. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellants above-named as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
17. The learned Advocate for the appellants in support of the above appeal submitted as under:
(a) That all the P. Ws. Are inter-related and/or interested witnesses and there is an admitted enmity between the complainant side and the appellant in respect of which various documents were produced before the learned trial Court and consequently no reliance can be placed on the statements of the prosecution witnesses, without independent corroboration which is not at all available in the present case. In support of this contention the learned Advocate for the appellants relied upon cases reported in PLD 1981 kar.1; PLD 1973 SC 321 and 1982 SCMR 49.
(b) That the Mashir of the alleged arrest and recoveries from the appellants is closely related to the complainant side and further-- more the weapons alleged to have be; ,n recovered from the appellants cannot be connected with the crime in question, as there is no Ballistic Expert's report produced by the prosecution.
(c) P. W. 2 Muhammad Yousif was not believed by the learned trial Court and as such the doubt regarding the veracity of the statements of the other prosecution witnesses has been created. In support of this the learned Advocate for the appellants relied upon reported in 1982 SCMR 162; 1975 P Cr. L J 206 and PLD 1976 Kar. 438.
18. (d)That there are material discrepancies in respect of the arrest dates of the various appellants and the recoveries also made from some of them were delayed recoveries and as such no reliance can be placed on prosecution evidence at all. In support of this the learned Advocate for the appellant relied upon cases reported in 1978 P Cr. L J 369.
19. The learned Advocate appearing for the State on the other hand submitted, that he fully supports the impugned judgment, for th.- reasons given in the said judgment.
20. I have carefully considered the above submissions made by the learned Advocate for the appellants and have gone through the R & P of the learned trial Court and the impugned judgment as well as through the various authorities cited by the learned Advocate for the appellants.
21. The prosecution case rests on the statements of eye-witnesses P. W. 1 Muhammad Hassan (complainant)., P. W. 2 Muhammad Yousif (brother of P. W. 1), P. W. 3 Ali Akbar (Relation) and P. W. 4 Hakim (Relation). Out of these eye-witnesses the learned trial Court did not believe the statement of P. W. 2 Muhammad Yousif for cogent reasons.
22. P. W. 10 Ali Nawaz is the lessee of the lands in question over which the dispute arose between the parties. This witness has admitted, that previously Taj Muhammad Qaiser, Khan Muhammad Bux and Lal Bux used to cultivate his lands, but thereafter as the said persons misappropriated the produce of the lands, he removed them and appointed Habibullah, Hassan, Yousif, Ab1bas, Hakim and Pirano as his Haris on the said lands. In view of the statement of this witness, the enmity alleged by the appellants with the complainants party gets support. P. W. 5 Muhammad Khan is one of the Mashirs of the arrest and production and/or recoveries of weapons from the appellants.
23. I have gone through hi, statements and I find that he has deliberately denied portion of his previous statements and his statement does not inspire confidence and as such it will be unsafe to rely on the statement of -such witness.
24. It may further be noted that appellant Abdul Aziz is alleged to have produced the rifle 5 days after his arrest and furthermore in the absence of ballistic expert report, the said gun is not at all connected with the crime in question. Appellant Sbahabuddin is alleged to have produced gun, by which P. W. Yousif is alleged to have received injury. However, the learned trial Court has not believed the evidence of this prosecution witness relating to such injury. Appellant Mahmood had lodged a counter F. I. R. And had injury on his person. However, in the F. I. R. Of this ease, no part is assigned to him in the incident in question. It is an admitted position, that four eye-witnesses of the incident namely P. Ws. 1, 2, 3 and 4 are closely related and there is admitted enmity between the parties over the land in B dispute and consequently no reliance can be placed on the statements of these witnesses without independent corroboration, which in the present case, in my opinion is not at all available, as the hatchets allegedly recovered from the appellants did not have blood- stains on them and there is no ballistic expert report regarding the fire-arms recovered and/or secured from the possession of the appellants and as such recoveries of these weapons cannot be used as a piece of corroborative evidence. In view of this the cases reported in PLD 1981 Kar. 1 ; PLD 1973 SC 321 and 1982 SCMR 49 are fully applicable to the present case and consequently prosecution has failed to establish its case against the present appellants, beyond reasonable doubt, in my opinion.
25. Therefore I allow the above appeal and set aside conviction and sentences awarded to the appellants and acquit the appellants by giving them benefit of doubt and discharge the bail bonds executed by the appellants.