' Appellants abovenamed, being aggrieved by judgment dated 3rd April, 1982 of the learned 1st Additional Sessions Judge, Dadu, in Sessions Case No,306/80 by which appellant No,1 has been convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs,4,000 and in default to suffer further R.I. For one year and the appellant No,2 has been convicted under section 323, P.P.C. And sentence to suffer R.I. For one year, have preferred the above appeal on the following facts and grounds:-
2. The brief facts of the case are that on 21st June, 1980 at 10.30 a.m. The complainant Abdul Rehman lodged his F.I.R. At P.S. Sehwan, in which he stated in brief, that he lives in villagejNibaho Burdi and that there is house of Allah Warrayo Burdi on the northern side of his house, intervened by and street passing from east to west. That on 21st June,1980 in the morning, his brother Dur Muhammad asked him and his brother Mubarak to excavate foundation for raising wall and while they were excavating the foundation and Dur Muhammad was sitting near them at about 8.30 a.m., the appellant Allahditto, Imam Bux and co-accused Allah Warayo Khanan, Janan, Murid and Madad. Came there. That out of them Allah Warrayo had Lathi in his hand, whereas the others had hatchets in their hands. That the accused Allah Warayo abused and asked Dur Muhammad as to why he was getting excavated the foundation on their side in the street, whereupon Dur Muhammad asked him to be a gentleman and told him that he was getting ,excavated the foundation on his side. On this the accused Allah Warayo instigated the other accused not to spare the complainant party and on his instigation the accused/Appellant Allahditto gave sharp-sided hatchet blow to Dur Muhammad on his neck and Imam Bux also gave blow to Dur Muhammad with back side of the hatchet. That the accused Mir Muhammad, Madad and Khanan gave sharp-sided hatchet blows to Mubarak on his head and with back side of hatchet on his back. That the accused Khanan caused him sharp-sided hatchet blow on his head and Allah Warayo gave him Lathi blows. That they raised cries and fell down 'and on their cries the P.Ws. Ali Gohar and Allahditto came running, who also saw the accused causing blows to them and beseached the accused in the name of Holy Quran Sharif. That thereafter the appellant as well as co-accused went away to their houses, abusing the complainant party and taking away the hatchet and Lathis with them.
That they narrated the facts of the incident to the P.Ws Ali Gohar and Allahdino on their enquiry.
Then they saw Dur Muhammad lying dead with hatchet injury on the back of his neck and bleeding.
That the accused had dispute with them over land and on the pretext of the foundation they caused hatchet blows to Dur Muhammad and murdered him and gave hatchet and Lathi blows to the complainant and his brother Mubarak. He left the witnesses at the guard of the dead body of the deceased Dur Muhammad and brought the injured Mubarak to the P.S. Sehwan, where he lodged his F.I.R. Exh.9.
3. The A. S. I. P. Muhammad Qasim, incharge P.S. Sehwan, recorded his F.I.R. Exh.9 and immediately referred the injured Mubarak to the hospital at Dadu, as the injured Mubarak was in serious condition. He saw the injuries on the person of the injured Abdul Rahman in presence of the Mashirs Pirano and Issa Khan and prepared such Mashirnama of the injuries Exh.18. He accompanied the complainant Abdul Rahman to the hospital and saw the injuries on the person of the injured Mubarak, in presence of the same Mashirs and prepared such Mashirnama Exh.19. He then came to the Vardat and visited Vardat in presence of the same Mashirs, shown to them by the complainant Abdul Rahman, situated on the northern side of the house of the complainant Abdul Rahman in village Nibaho Burdi. He saw the excavation of foundation of wall from west to east about 12 feet in length. He also saw blood lying on the Vardat about 2 feet away from the excavated foundation. He also saw the dead body of the deceased Dur Muhammad lying on a cot, about 12 feet away from the excavated foundation. He secured the blood-stained earth from the Vardat, sealed it and prepared such Mashirnama Exh.20. He prepared the inquest report Exh.21 in presence of the same Mashirs and despatched the dead body, through P.C. Allahditto, to the M.O., Sehwan, for post- mortem examination and report. He arrested the accused Khanan, Janan, Murid, Madad, appellants Allahditto and Imam Bux from Arazi Bus Stand, in presence of the same Mashirs and prepared such Mashirnamas of their arrest Exh.22. Then the accused Khanan after arrest, voluntarily led him and the Mashirs to his house, took out a blood-stained hatchet from a corbin lying in the courtyard of his house and produced before him. He secured the blood-stained hatchets, sealed it and prepared such Mashirnama Exh.23. Then similarly the accused Janan took out a bloodstained hatchet from bunch of Lai trees, near village Nibaho Burdi and produced before him. He secured the blood-stained hatchet, sealed it and prepared such Mashirnama Exh.24. Then the appellant Allahditto similarly led him and the Mashirs to the bunch of Lai trees, took out a blood-stained hatchets and produced before him and also took out a blood-stained red coloured shirt from other bushes and produced it also before him. He secured the blood-stained hatchet and the blood-stained shirt, sealed them and prepared such Mashirnama Exh.25. Similarly the accused Imam Bux led him and the Mashirs to his house and took out a blood-stained hatchet and the blood-stained shirt from his house and produced before him. He secured the blood-stained hatchet and the bloodstained shirt, sealed in separate parcels and prepared such Mashirnama Exh.26. Then the accused Madad took out a blood-stained hatchet from Lai bushes and produced before him. He secured the blood-stained hatchet in presence of the same Mashirs, sealed it and prepared such Mashirnama Exh.27. Similarly the accused Murid led him and the Mashirs to his house and took out a blood-stained hatchet lying under Relies and produced before him. He secured the blood-stained hatchet, sealed it and prepared such Mashirnama Exh.28. On the same day he arrested the accused Allah Warrayo at Sabil, in presence of the same Mashirs and prepared such Mashirnama of his arrest Exh.29. The accused Allah Warayo also, after arrest, led him and the Mashirs to his house and took out a Lathi of Manjhadri from corbin and produced before him. He secured the Lathi and prepared such Mashirnama Exh.30. He then brought the accused and the property at the Police Station Sehwan. On 22nd June,1980, he recorded 161, Cr.P.C.
Statements of the P.Ws Ali Gohar, Allahdino and P.C. Allahditto. On 23rd June,1980 he produced the case papers before S.H.O. For verification. On 28th June,1980 he produced the P.Ws. Ali Gohar and Allahdino before the Mukhtiarkar and F.C.M., Sehwan for recording their 164, Cr.P.C. Statements. On the same day he recorded 161, Cr.P.C. Statement of the P.W. Mubarak as it was certified by the M.O., Sehwan, that the P.W. Mubarak was able to give statement. He then handed over the case papers to the S.H.0 Massu Khan, who challtined the accused in the Court of Civil Judge and F.C.M., Sehwan.
4. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants as hereinbefore mentioned while acquitting co-accused Allah Warayo, Janan, Khanan, Madad and Murid, and consequently the appellants have filed the above appeal on the grounds mentioned in the memo, of appeal. The learned Advocate for the appellants in support of the above appeal submitted as under:-
(a) That on the same set of evidence the learned trial Court acquitted the five co-accused, but convicted the present appellants.
(b) that out of four P.Ws., who are alleged to be the eye-witnesses, P.Ws. 1 and 2 were brothers of the deceased, supported the prosecution case, whereas the two other P.Ws. Namely, P.Ws. 3 and 4 did not support the prosecution case at all.
(c) That the learned trial Court disbelieved statements of P.Ws. 1 and 2 in respect of acquitted co-accused persons and as such their statements required independent corroboration against the present appellants, which is not at all available in the present case, as the recoveries have not been believed by the learned trial Court and there is an admitted enmity between these P.Ws. And the appellants.
(d) There. Are contradictions between the medical evidence and ocular evidence.
(e) That the learned trial Court for the purposes of corroboration has relied upon motive which too is absent, as far as appellant No,1 is concerned and the motive cannot be used for our poses of corroboration.
5. In support of the above contentions the learned Advocate relied upon cases reported in PLD 1960 SC 387, PLD 1981 Kar. 1 and 1981 SCM R 613.
6.The learned Advocate appearing for the State on the other hand submitted, that prosecution has established its case against the appellants abovenamed by the statements of P.Ws. 1 and 2 on account of the motive established by the prosecution and consequently the impugned judgment is based on cogent reasons and therefore, he fully supports the same.
7. I have carefully considered the above submissions made- by the learned Advocates before me, and I have gone through the R &. Ps. Of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocate for the appellants.
8. It is an admitted position, that the P.Ws. No, 1 Mubarak is the brother of the deceased and was himself injured in the alleged incident. In his cross-examination, this witness had admitted, that appellant Allah-ditto had no concern whatsoever with arising out of the wall in question. This witness further admitted, that there was an enmity with co-accused Allah Warayo and the appellant Allahditto over land dispute. P.W No,2 Abdul Rehman is also the brother of the deceased and as such an interested witness, in view of this, the statefnents of both these witnesses required independent corroboration, specially as their statements in respect of the acquitted co-accused persons, was not believed by the learned trial Court. The alleged recoveries have been disbelieved by the learned trial Court for cogent reasons. In view of this reliance on the alleged motive on the basis of the statements of P.Ws. Mubarak, Abdul Rehman as corroborative piece of evidence by the learned, trial Court was not at all justified, in view of the law laid down by the D.B. Of this Court in case reported in PLD 1981 Kar.l. The other cases cited by the learned Advocate for the appellants also support the contentions of the learned Advocate for the appellants, and therefore, I am of the opinion, that prosecution has failed to establish its case beyond reasonable doubt, against the present appellants as well.
10. Therefore, I allow the above appeal and set aside the conviction of the appellants and sentences awarded to them by the impugned judgment and acquit them by giving benefit of doubt and direct that both the appellants be released forthwith, if they are not required in any other case.