1. ' Appellants abovenamed, being aggrieved by judgment; dated 22nd August, 1981 of the learned 1st Additional Sessions Judge, Hyderabad, in Session Case No,240/80, by which appellants have been convicted under section 302/34, P.P.C. And sentenced to suffer imprisonment for life and to pay fine of Rs,1,000 each Cr in default to suffer further R.I. For one year each and have been directed to pay Rs,1,000 each, as compensation to the legal heirs of the deceased or in default to suffer further R.I.For six months and appellant Pero is also convicted under section 341. P.P.C. And sentenced to suffer R.I. For one month and to pay fine of Rs,200 or in default to suffer further R.I. For 10 days, have preferred the above appeal, on following grounds:- ' The brief facts of the prosecution case as disclosed in the F.I.R. Exh. 10 are, that the complainant Abdullah had lodged the report before the S.H.O., Bulri P.S. On 28th August, 1980 at 4-00 a.m. And stated that on the last evening, his cousin Gulsher had come to him from Deh Kinjar in a bullock cart and told him.That he wanted to bring "Wooden Bans" from the village, therefore, he should accompany him. He and his maternal-cousin Soomar had accompanied Gulsher and went to the Otak of Noor Muhammad Shah where they reached at about 8-00 or 9-00 p.m. The above persons had taken meals. Gulsher and Yousuf Shah brothers of Noor Muhammad Shah slept together on a cot, while. The complainant and Soomar slept in the bullock cart of Gulsher, after taking meals. The complainant has stated that at about 2-00 a.m. Night, he woke up on an abuse, to keep sit down, otherwise he would be killed followed by the .Abuse. On this P.W. Soomar also woke up and they saw that appellant Dino, Mehar and Fakiro were causing hatchet injuries to Gulsher, who was sleeping on the cot. The culprits were identified in the moonlight. The complainant Abdullah challenged the appellant not to kill Gulsher and the a ellants ran awa towards eastern side. While running, appellant ino said, that he had taken the revenge of the murder of his father. On the cries, P.W. Noor Muhammad Shah arrived at the Vardat and the complainant had narrated the story to Noor Mohammad Shah. They went to the deceased. They found that the deceased had 16-17 injuries. At that time, Yousuf Shah had also come from the nearby bushes. After that, the complainant went to the police station, leaving Yousuf Shah, Soomar at the dead body, at the Vardat. The complainant has narrated the motive of the incident, that about 4-5 years back, Usman, the father of appellant Dino was murdered and in that case, Ghulam Muhammad, Yaqoob and Siddiq, all brothers of Gulsher were challaned, but they were acquitted about one month, prior to the incident. The complainant has stated that due to said dispute, Lakhano, the father of the deceased Gulsher, had shifted from Deh Bagharak to Deh Kinjar. About 10-12 days, prior to incident, Haji Gullan had informed Ghulam Muhammad, the brother of the deceased, that the appellant will take the revenge of murder of their father.
2. ' The S.H.O., P.S. Bulri had recorded the F.I.R. Verbatim. The S.H.O. Then recorded the statement of Noor Muhammad Shah, who was with the complainant. He then went to the Vardat of this Crime, where he prepared the Mashirnama of the Vardat in presence of Mashirs Pandhi and Kadir Bux. He had collected the blood-stained earth, the two bloodstained Relhis, one blood-stained pillow, one white blood-stained Chadar and one blood-stained .Shirt which was lying near the pillow, in presence of the same Mashirs. He had also prepared the sketch of the Vardat and inquest report in presence of same Mashirs. The S.H.O. Had handed over the dead body to P.C. Rasool Bux for taking it to Medical Officer for post-mortem examination. He then recorded the statements of Soomar, Yousif Shah and Ghulam Muhammad. He had recorded the further statement whereof the complainant. The S.H.O. Then went to the village of the appellants with the help of Majno Jamali, he had searched the houses of appellants Fakir Muhammad, Allahdino and Mehar and secured blood-stained hatchets from their houses. He had prepared such Mashirnama in presence of same Mashirs. The S.H.O. Had also searched the house of appellant Pinu. In the evening, Majno Jamali had produced appellants Dino before him and the S.H.O. Had arrested the appellant on the next day, the remaining appellants were produced before him and the police had arrested those appellants. P. C. Rasool Bux had produced the loin-cloth of the deceased, which was secured by the S.H.O. Who prepared such Mashirnama. He then recorded the statements of P.C. Rasool Bux, Muhammad Rahim and Muhammad Ibrahim. On 3rd September, 1980, he got 164 Cr.P.C.
3. Statements of Soomar and Yousuf Shah recorded before Civil Judge & F.C.M.Tando Muhammad Khan. He then despatched the clothes of the dead body and articles to Chemical Analyser. On 13th September, 1980, the appellants were challaned in the Court of Civil Judge and F.C.M. Tando Muhammad Khan from where the appellants were sent up to the Court of Sessions, Hyderabad, for trial as mentioned above.
4. ' A charge under section 302/34, P.P.C. Had been framed against all the appellants and a charge under section 341, P.P.C. Had also be framed against appellant Piru. But the appellants had pleaded not guilty to all the charges. In support of the case, the prosecution had examined Abdullah the complainant as Exh. 9, Muhammad Rahim as Exh.12, Muhammad Ibrahim as Exh. 13, Dr. Qutub Ali Shah the Medical Officer as Exh.14, Muhammad Yousuf As. Exh.16, Lakhano as Exh. 17, Muhammad Soomar as Exh.19, Noor Muhammad Shah as Exh. 20, Ghulam Muhammad as Exh.21, P. C. Rasool Bux as Exh. 22, S.H.O., Sabir Hussain the Investigating Officer as Exh.23 and Qadir Bux as Exh.34.
5. ' The appellants in their statements under section 342, Cr.P.C., had denied all the allegations of the prosecution. They had stated that Usman, the father of appellant Dino, was murdered in which case Ghulam Muhammad, Yacjoob and Siddiq, the brothers of Gulsher were challaned, but they were acquitted in the said case. They have stated that they had not killed deceased Gulsher.
6. ' The appellants, in their defence, have examined D.Ws. Majno as Exh.42, Haji Gul Muhammad as Exh. 45 and Dr. Anwar Hussain as Exh.46. The learned trial court taking into consideration the evidence adduced before it convicted and sentenced the appellants abovenamed as herein., before mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal. The learned Advocate appearing for the appellants in support of the above appeal submitted as under:-
(a) That in F.I.R. Name of appellant Peru was not at all mentioned nor P.W. 1 Abdullah and P.W. 7 Muhammad Sumar saw appellant Peru at the time of incident and as such it is clear, that prosecution has failed to establish its case beyond reasonable doubt against this appellant, specially as alleged recoveries have been discarded by learned trial Court for cogent reasons and no reliance can be placed on the statement of P.W. 2 Muhammad Rahim, in respect of alleged extra-judicial confession made by this appellant to the said witness nor any reliance can be placed on the statement of P.W. 3 Muhammad Ibrahim, that he had seen this appellant together with other appellants duly armed. The counsel further submitted that no reliance can be placed on the statement of P.W. 5 Muhammad Yousuf, as he did not disclose about Peru to complainant, before complainant went to police station to lodge F.I.R. For which P.W.5 has given no cogent explanation.
(b) That identification of the appellants on moonlight is weak piece of evidence and in the face of distance between bullock cart and place where deceased was sleeping as given in Exh.24 Mashirnama of Wardat, it is doubtful, that P_Ws. Could have identified appellants. In support of this learned counsel relied upon cases reported in 1969 P Cr. L J 815, 1968 P Cr. L J 1077 and PLD 1978 Kar. 792 and submitted that on this ground alone all appellants are entitled to benefit of doubt.
(c) That in view of admitted enmity no reliance can be placed on the statements of P.Ws., who are closely related and connected with each other, without independent corroboration which in the present case is not at all available.
(d) That appellant Fakiro's left arm is weak, as per statement of D.W.3 Dr. Anwar Hussain and as such it was impossible for said appellant to have given any hatchet blows, even if his presence is believed at the time of incident and consequently his case is distinguishable from the cases of other two appellants namely Allahdino and Mehar.
(e) That learned trial Court discarded statements of D.W. Without giving cogent reasons. The learned counsel submitted, that statement of these D.Ws. At least creates doubt on the prosecution case, which must go to appellants.
7. ' The learned Advocate appearing for complainant on the other hand submitted, that appellant Peeru had removed P.W. Yousuf Shah from the Wardat and kept him in bushes and as such the said appellant was not seen by other P.Ws. And consequently his name does not appear in the F.I.R.
8. In addition to this the learned counsel for the complainant submitted, that P.W. 3 Dr. Anwar Hussain's statement does not establish, that appellant Fakir Muhammad was incapable of using hatchet in spite of damaged arm. As far as the contention of the learned Advocate for the appellants, that the identification of the appellants on moonlight was not possible the learned counsel for the complainant submitted that according to P.W. Kadir Bux the Mashir of the Wardat, bullock cart was only 12/10 paces away from the Wardat and as such identification of the appellants by P.Ws. In question was possible. As far as mentioning of 30 paces between bullock cart and the actual Wardat in the Mashirnama of the Wardat, the learned counsel for the complainant submitted that the said sketch was prepared by Tapedar not with the help of any eye-witnesses and as such no reliance can be placed on such sketch. The learned Advocate further submitted, that cases reported in PLD 1978 Kar. 792, 1968 P Cr. L J 1077 and 1969 P Cr. L J .815 on which the learned Advocate for the appellants has relied upon are based on different facts and he relied upon case reported as PLD 1962 SC 269 in this connection. The learned Advocate for the complainant further submitted; that the statement of interested prosecution witnesses have been fully corroborated by the statement of P.W. 2 Muhammad Rahim, whose statement under section 161, Cr.P.C. Was recorded on the very next day.
9. ' The learned Advocate appearing for the State on the other hand submitted, that he was supporting the impugned judgment fully except in the case of appellant Peeru as his presence has become doubtful on account of the fact, that his name was not mentioned in the F.I.R. By complainant. 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 as well as impugned judgment and cases cited by the learned Advocates before me. Prosecution case rests upon the ocular evidence of P.Ws. Abdullah, Soomar and Yousuf Shah and on corroborative evidence of P.W.
10. Noor Muhammad Shah and medical officer. Prosecution has also relied upon extra-judicial confession of the appellants Peru and Mehar and circumstantial evidence of recovery of blood- stained hatchets and lastly on motive.
11. I find that learned trial Court for cogent reasons discarded circumstantial evidence of alleged recoveries of blood-stained hatchets from the houses of appellants. I see no reason to disagree with this finding of learned trial Court. As far as extra-judicial confession of the appellants Peru and Mehar are concerned, I have carefully gone through the statements of P.Ws. Muhammad Rahim and Ghulam Muhammad. Admittedly pt P.W. 8 Ghulam Muhammad is real brother of deceased Gul Sher and in the fact of admitted enmity over previous murder between the parties, his statement requires independent corroboration and as such his statement regarding alleged extra-judicial confessions alleged to have been made to P.W. Muhammad Rahim, cannot corroborate statement of P.W. Muhammad Rahim, in this connection. Extra-judicial confession is always a weak piece of evidence and as such it would be unsafe to accept uncorroborated statement of P.W. 2 Muhammad Rahim in this connection, against the appellants Peru and Mehar. Motive is double- edged weapon and as such by itself cannot corroborate P.Ws. In view of these conclusions, we are left with ocular evidence of P.Ws. Abdullah, Soomar and Yousuf and corroborative evidence of P.W.
12. Noor Muhammad Shah and Medical Officer P.W. Abdullah and P.W. Muhammad Soomar who are near relations of deceased and on account of admitted enmity between the parties, their statements require independent corroboration. For such corroboration, prosecution has relied upon statements of P.Ws. Muhammad Yousuf Shah and Noor Muhammad Shah. P.W. Noor Muhammad Shah in his statement before the learned trial Court stated, that on Hakals, when he reached Vardat, he saw Gulsher was dead and P.Ws. Yousuf Shah, Soomer and Abdulrah were present and P.W. Abdullah and Soomer told him that appellants Dino, Fakiro and Mehar gave hatchets blows to the deceased and killed him. At that time even P.W. Yousuf Shah did not name appellant Peru and Abdullah and he left for lodging F.I.R I find even P.Ws. Abdullah and Soomar had not named appellant Peru to P.W. Noor Muhammad Shah nor the name of appellant Peru was mentioned in F.I.R., as one of the assailants. No doubt P.W. 5 Yousuf Shah has stated, that appellant Peru dragged him away from the cot of deceased, in bushes and threatened him to remain quiet and he had hatchet. Since this fact was not disclosed by him to P.W. 7 Noor Muhammad Shah and complainant Abdullah, before they went to lodge F.I.R. It would be unsafe to rely on this portion of his statement without independent corroboration, which is not at all available against appellant Peru. In view of this, in my opinion, prosecution has failed to prove its case against appellant Peru, beyond reasonable doubt. As far as remaining appellants are concerned statements of P.W.
13. Abolullah and Soomar have been corroborated by statements of P.Ws. Yousuf Shah and Noor Muhammad Shah. It may be noted that appellants he alleged no enmity against P.W. 5 Muhammad Yousuf and P.W. 7 or Muhammad Shah. As far as contention of the learned Advocate for appellants, that P.W. Abdullah and Soomar could not have identified appellants on moonlight, on account of alleged distance of bullock cart from place of murder, I see no force, as except in Mashirnama of Vardat, which was not prepared at the pointation of any eye-witnesses, all P.Ws.
14. Have stated, that bullock cart was only 5/6 paces away from place of murder and as such identification on moonlight was possible. Cases cited by the learned Advocate for appellant in this connection are based on different facts and as such not applicable to present case. The only question which now require consideration is defence evidence D.W.1 Majno's statement has no direct bearing on the facts of present case. D.W. 2 Haji Ghulam Muhammad in his statement denied, that he had conveyed working to P.W. Gul Muhammad. Since no reliance is placed on such information by me his evidence also is not material for consideration of the case against appellants. D.W. 3 Dr. Anwar Hussain was examined to prove, that left arm of appellant Fakiro was incapable of being used for giving hatchet blows. I have carefully gone through his statement and do not find anything to suggest, that appellant could not have lifted weight of hatchet and used right arm for giving hatchet blows. In view of this in my opinion defence witnesses have failed to support appellants, case at all.
15. Therefore, I dismiss the above appeal as far as appellants Allahdino, Fakir Muhammad and Mehar are concerned, as I find no merits in their appeal. However. I allow the above appeal as far as appellant Piru s/o Yar Muhammad is concerned and acquit him by giving him benefit of doubt and set aside his conviction and sentences awarded to him by impugned judgment and direct that he be released forthwith if not required in any other case.