G. M. KOUREJO, J.-The appellant Soomro son of Mewo Chandio was tried alongwith his brothers Sehto and Sachoo for an offence under section 302/34, P. P. C. For having committed murder of Sohrab by the learned Sessions Judge, Badin, who by his judgment dated 16th December, 1979 acquitted Sehto and Sachoo of the charge, whereas convicted the appellant for an offence under section 302, P. P. C. And sentenced him to imprisonment for life. The appellant has preferred this appeal against the, conviction and sentence. There is also a suo moto revision for the enhancement of sentence.
2. The facts of the prosecution case as disclosed in the F. I. R. Briefly stated are that the complainant Porho and his deceased brother Sohrab used to reside in the same house in village Mewo Chandio, taluka Tando Bago. On the night of 15th August, 1978, they were sleeping in their house as usual when at about. 1.30 a.m. Complainant Porho heard whispering in the courtyard of the house. He got up and found the present appellant Soomro alongwith his brothers Sehto and Sachoo near the Cot of deceased Sohrab. They were . Armed with lathies. The appellant caused a lathi blow on the head of Sohrab who raised cries. Abdul Jabbar and Muhammad Panah who were standing nearby challenged the appellant and his co-accused Sehto and Sachoo. Thereafter, they all caused lathi blows to Sohrab. The complainant Porho Abdul Jabar and Muhammad Pannah witnessed the incident. The appellant and his co-accused threat--ened them and ultimately ran away. Appellant Soomro said that he had taken revenge, complainant Porho, Abdul Jabar and Muhammad Pannah went near the deceased and saw that he had injuries and was bleeding and found that he was dead. On their cries Murad Chandio, Abdul Sattar Chandio and other people from the village came there. They also saw that deceased Sohrab had injuries and had expired. They were narrated the entire incident. Leaving those present, the complainant Porho went to Ghulam Shah Mori and related the incident to Ali Akbar Chandio who advised him to lodge report at police Outpost Rajo Khanani. The com--plainant Porho went to Rajo Khanani Police Outpost and lodged the F I. R.
Whereas Ali Akbar left for the scene of offence. The motive for the offence is stated to be a previous dispute between the parties as the appellant Soomro had gone to the village of the complainant Porho and deceased Sohrab and others and they had a quarrel with him and had caused him injuries. Sehto, the brother of the appellant as a result had lodged complaint at Tando Bago Police Station against the deceased and others. It is, therefore, that the appellant and his two brothers Sebto and Sachoo have committed murder of deceased Sohrab.
3. Mushtaq Ahmed, A.S.I.P. Rajo Khanani Police Outpost recorded the F. I. R. Lodged by complainant Porho in daily diary on 15th August, 1978 at 6 00 a.m. Vide Exh.
30. He then visited the wardat in presence of mashirs Dhani Bux and Hazoor Shah. It was situated in the house of complainant Porho who pointed out the same to the police. The dead body of Sohrab was lying there. There was blood on the bedding which was lying on the Cot. He secured the blood-stained articles and prepared them into sealed parcels vide mashirnama Exh.
23. He then prepared inquest report on the dead body vide Exh. 24., and sent the same for post-mortem examination. Thereafter he recorded statements of Abdul Jabar, Muhammad Pariah, Abdul Sattar and Murad. He sent the report recorded in the daily diary to Police Station Tando Bago for incorporating the same in 154, Cr. P. C.
Book, S.H.O. Ghulam Rasool, then reached the wardat and verified the investigation. On 17th August, 1978, he arrested the appellant and his co-accused Sehto and Sachoo in presence of mashirs vide Exh.
23. He recovered lathis from appellant Soomro and his co--accused Sachoo produced by them separately in presence of mashir Dhani Bux and Hazoor Shah vide Exhs. 26 and 27.
They were not stained with blood.
4. S. H. O. Ghulam Rasool of Tando Bago Police Station incor--porated the F.1 R. Received from Rajo Khanani Police Outpost in 154, Cr. P. C. Book at Tando Bago police station on 15th August, 1978 vide Exh.
30. He then visited the wardat where A. S. I. P. Mushtaq Ahmed was already investigating the offence. He verified his investigation. On 17th August, 1978 he got 164, Cr. P. C. Statements of P. Ws.
Abdul Jabbar and Muhammad Panah recorded from the Court of Civil Judge and F. C. M., Tando Bago. He then challaned the appellant alongwith his two co-accused Sehto and Sachoo in the Court.
5. Muhammad Farooq Medical Officer Tando Bago conducted the post-mortem examination on the dead body of deceased Sohrab on 15th August, 1978., On external examination he found the ,following injuries :-
(1) Contusion 2" x 1" on right upper arm.
(2) Contusion 1" x 1" on right shoulder joint.
(3)Contusion with swelling 8" x 2" on right frontal region extendingto right ear.
(4)Lacerated wound 1/2 x 1/2" on right maxillary area.
(5)Lacerated wound 1/2" x 1/4" x 1/4" on right pinna of ear.
On internal examination he found that there was, extra cavacion of blood on inter surface of the scalp. Blood clot seen corresponding to injury No. 3. There was 8" long fracture in transverse extending from right frontal region towards right ear with fracture of right parietal bone.
Intracranial haemorrhage was present all over the brain. Haemorrhage was present in all membring of brain. From the external and internal examination the Medical Officer was of the view that cause of death was due to coma which was result of intra cranial hemorrhage due to injury No. 3 and laceration of brain. All the injuries were anti-mortem. All injuries appeared to be caused by some hard blunt substance. Injury No. 3 individually and all the injuries collectively were sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was half an hour. Injuries Nos. 1, 2. 4 and 5 were simple in nature and were not on the vital part of the body. The injured might have gone into coma within half an hour of receiving of the injuries and could speak before getting into coma.
6. The appellant has denied all the allegations against him and has claimed to have been falsely implicated due to enmity. According to him the prosecution witnesses had fought with him and caused him injuries. One of his co-accused his brother namely, Sehto had filed a complaint against the prosecution witnesses vide F. I. R. Exh. 32-A. He has further contended that he was prosecution witness in that case in which the present prosecution witnesses and others were acquitted. According to him they have also got dispute with the complainant party over a plot of land in village Ghulam Shah. He has further contended that the prosecution witnesses are related inter se and are interested and they have falsely implicated him. He examined no evidence in defence.
7. There is no dispute that deceased Sohrab died as a result of injuries above-mentioned as alleged by the prosecution. The only dispute is as to whether the present appellant Soomro was amongst those who caused lathi injuries to him and committed his murder. The prosecution case hinges on the ocular evidence of, complainant Porho and prosecution witnesses Pariah and Abdul Jabbar, recovery of lathi from the appellant and that of motive. The ocular evidence has been assailed on behalf of the appellant by his learned counsel Mr. Syedain Zaidi mainly on the grounds that it suffers from serious improbabilities and is not reliable, is highly interested and, therefore, cannot be acted upon without independent corroboration which is lacking in the circumstances of this case and that in any c6se the learned Sessions Judge has acquitted his two co-accused disbelieving the ocular, version and he had no reasonable grounds to convict the appellant on the basis of the same evidence.
8. As regards the first contention, according to the F. I. R. At the time of incident P. Ws. Abdul Jabbar and Muhammad Panah who were standing nearby challenged the appellant and his co-accused but according to the complainant Porho version in Court and that of Abdul Jabbar and Muhammad Pariah hems elves they were attracted on cries from their houses. It is improbable that they could have been present nearby the place of wardat at such odd time at 1. 30 a. m. As no reason for it has been assigned by the prosecution. It is also contended that their houses are not close to the place of incident so as they could have been attracted by the cries. The complainant's version in that respect has been belied not only by the other witnesses of the incident but also by Tapedar Noor Muhammad who prepared the sketch of the scene of offence. According to complainant Por to there are only three houses at the place of incident. According to him it is incorrect that there are 50 to 60 houses in the village in which the incident took place. He says that the three houses belong to him, deceased Sohrab and P. Ws. Abdul Jabbar and Muhammad Panah. According to him Hazoor Shah lives 1/2 mile away from the scene of offence and houses of Manganhars are also at a distance of about 1/2 miles from the scene of offence to the west. He further states that houses of Abdul Jabbar and Muhammad Panah are at a distance of 20 to 23 feet away from the wardat and that it is incorrect that they live about four acres away from them.
According to him Abdul Sattar and Murad were also attracted by the incident who live I/2 mile away from the wardat and so the appellant and his two co-accused. He is supported in that respect by Abdul Jabbar and Muhammad Panah but not by P. W. Muhammad Murad who is his cousin and was also attracted by the incident and reached the wardat immediately. According to this witness Muhammad Murad there are about 10-15 houses in the village in which he and complainant Porho lives. According to him further Hazoor Shah resides about 20 to 25 paces from the house of deceased and the complainant. According to him further the house of Manganhars are about 15 paces away from the wardat. He further states that the house of P. W. Abdul Jabbar is about 40-50 paces away from the wardat. Similarly, Tapedar Noor Muhammad who prepared the sketch of the scene of offence has deposed that the houses of P. Ws Abdul Jabbar and Muhammad Panah are --at about 157 feet from the place where the incident took place. According to him the house of Hazoor Shah was about 125 feet from the place of incident. He has further stated that Moso, Bachayo and Khabar Mangan--hars live near the wardat and their houses are about 50 to 60 feet from the place of incident. He further states that there are 50 to 60 houses in the village where the incident took place and that each house has a separate enclosure. The version of P. W . Muhammad Murad and Tapedar Noor Muhammad would clearly show that other people Hazoor Shah and Manganhars above named live nearer to the place of incident, than P. Ws Abdul Jabbar and Muhammad Panah and that there are about 50 to 60 houses in the village where the incident took place and not only three houses as has been deposed by the complainant.
The complainant Porho's version, is therefore, clearly belied in that respect by P. W. Muhammad Murad who is his cousin and was attracted by the incident and immediately rushed to the scene of offence and Tapedar who visited the scene of offence and prepared the sketch and appears to be a disinterested witness in the case. It is, therefore, very much doubtful that the P. Ws Abdul Jabbar and Muhammad Pariah were at all attracted by the incident and were present at the scene of offence and bad at all witnessed the -incident. P. W. Muhammad Murad who also came to the place of incident soon does. Not talk of their presence at the scene of offence and the evidence of Tapedar very clearly shows that their presence at the scene of offence at the time of incident was doubtful for the reason that there was no cause for them to be attracted from far away distance when those who lived closer to the scene of offence could not be attracted. It is, therefore, that the com--plainant Porho in his F.
1. R. Disclosed that they were present close by at the time of incident when they had no occasion for it at such an odd hour, otherwise he knew that they were living too far away and could not have been attracted by the incident. The ocular version of complainant Porho and P. Ws. Abdul Jabbar and Muhammad Pariah is also belied by the medical evidence on the record. According to the ocular version of this witness the deceased died instantaneously, whereas the medical officer deposes that the time between the injuries and the deceased getting into comma was about i/2 hour and that the deceased could speak before getting into coma. The ocular evidence is further belied by the medical evidence inasmuch as according to the ocular version the appellant as well as two of his co-accused who were all armed with lathis went on causing lathi blows, one after the other to the deceased but the deceased had only five injuries of which four were simple in nature. The conduct of the complainant and the two prosecution witnesses Abdul Jabbar and Muhammad Panah who are close relatives of the deceased is also unnatural inasmuch as they made no attempt to intervene and save the deceased while he was being assaulted though they could have so done it very easily. All these circumstances very clearly show that the incident was not witness--sed by any or the three eye-witnesses and obviously it was an unwitnessed incident.
9. So far the second contention to the effect that the ocular version of the complainant Porho and P. Ws. Abbdul Jabar and Muhammad Panah is interested and in the absence of independent corroboration no safe reliance could be placed on it, though the complainant Porho has denied that P. Ws. Abdul Jabbar and Muhammad Pariah are his relatives. P. W. Abdul Jabbar has admitted that complainant Porho is his 'Masat'. It is further admitted in the evidence that P. W. Abdul Jabbar and Muhammad Panah are brothers inter se. Admittedly, therefore, P. Ws. Abdul Jabbar and Muhammad Pariah are close relatives of complainant Porho. It is further admitted in the evidence on record that the com--plainant Porho and P. Ws. Abdul Jabbar and Muhammad Panah are inimical to the appellant and his co-accused who are his brothers, inasmuch as only about little more than two weeks before the incident there was a fight between the parties and one of the co- accused of the present appellant namely, Sehto had filed complaint against P. Ws. Abdul Jabbar and Muhammad Panah and others in which they were acquitted. It is alleged that the parties had also dispute over a plot of land with complainant Porho and prosecution witnesses Abdul Jabbar and Muhammad Pariah. Therefore, they were very clearly inimical to the appellant and his two co' accused on account of their recent fight and previous litigation, and had clearly a motive to falsely implicate them. Accordingly, the evidence on the record is very clear to the effect that the ocular evidence adduced by the prosecution of the complainant Porho and P. Ws. Abdul Jabbar and Muhammad Pariah is interested. It also very clearly suffers from inherent improbabilities as already discussed above. Ali Akbar Chandio to whom the complainant Porho reported the incident before lodging the F. I. R. Has also not been examined and the presumption would arise that in case he had been examined he would not have supported the prosecution case. In these circumstances, it would be highly unsafe to place implicit faith on the ocular evidence without independent corroboration which is lacking in the present case, for the simple reason that the lathi alleged to have been recovered from the appellant is neither proved to have been recovered from him in view of the evidence of the mashir of such recovery namely Dhani Bux who does not speak of such recovery and that admittedly it was not blood-stained and was rightly discarded by the learned Sessions Judge.
10. So far the motive is concerned, it is not satisfactorily proved in the circumstances of this case. In any case, in view of the state of evidence on record motive alone cannot form a sole basis of conviction against the appellant in the circumstances of the case.
11. As regards the third contention, the learned state counsel Mr. N Imam Bux Shaikh. Has fairly conceded that the case of the present appellant is not distinguishable from that of his two co- accused Seh to and Sachoo and that the learned Sessions Judge could not legally convict the appellant on the basis of the same evidence which he rightly disbelieved in case of his two co- accused who have been acquitted by the learned Sessions Judge.
12. In view of the above discussion, the case of the present appellant is not free from reasonable doubt. The learned state counsel has also very rightly not supported the case of the prosecution against the appellant for such reason. Accordingly the conviction and sentence passed against the appellant is set aside, he is acquitted and his appeal is allowed. Consequently, the suo moto revision stands dismissed. The appellant be set at liberty forthwith if not required in any case.