1. ' Appellants abovenamed, being aggrieved by judgment, dated 4th November, 1982 of the learned Second Additional Sessions Judge, Sukkur, in Sessions Case No, 19/80, by which appellants have been convicted under section 302/34, P.P.C. And sentenced to imprisonment for life and to pay fine of Rs, 2,000 or in default to suffer further R.I. For six months, have preferred the above appeal, on the following facts and grounds:-- ' The case of prosecution briefly stated is that on 1st January, 1980 at about 8-30 a.m., the complainant Ali Khan lodged his F.I.R. With the Police Station Mirpur Mathelo, stating therein, that he resides in village Nathu Gabole. The appellant Sawan and others are residing in a village near to village Nathu Gabole, and there was dispute between them over land. The appellants used to treat the complainant party, that they would see them. Last night while the complainant and his sons Kehear (deceased) and P.W. Haji Ghulam Nabi were sitting in their house, when at about 11-30, the appellant Misri gave a call to the deceased Kehear from outside. The deceased responded and went outside. After meeting the appellant Misri, the deceased returned and informed his father that he was accompanying the appellant Misri and going out with him. When till about mid-night, the deceased did not return, the complainant took Its second son Ghulam Nabi and nephew Haji Hazoor Bux and went in search of the deceased. They first went to the house of the appellant Misri and found that he was absent. The complainant and others wanted to return to their house. At that moment, they heard cries. After covering some distance, they reached the land of Ghulam Qadir Latki. P.W. Ghulam Nabi is stated to have flashed the torch, towards the direction, from where the cries were being heard. On torch light, they saw four appellants running away armed with hatchet.
2. On reaching at the spot, they found the dead body of Kehear, lying with hatchet injuries, on his person. The complainant then reached the Police Station Mirpur Mathelo and lodged the report at 8-30 a.m., covering the distance of 13 miles as already stated herein above.
3. ' S.H.O. Lal Bux recorded the F.I.R. As per instruction of the complainant and, thereafter visited the place of occurrence, which was pointed out by the complainant. He found the dead body of Kehear. The Mashirnama of injuries and inquest report were prepared. The dead body was removed to the Hospital for post-mortem examination and report. The torch was produced by P.W.
4. Ghulam Nabi and such Mashirnama was prepared. On the same day the S.H.O. Recorded the statements of P.Ws. Haii Ghulam Nabi. Haji Huzoor Bux and Haji Jam. On 3rd January, 1980, he arrested the appellants Misri, Khamiso and Behram. He interrogated the appellant separately. On the same day, the appellant Misri produced blood-stained hatchet and clothes. He led the S.H.O.
5. And Mashirs to his house and produced blood-stained hatchet. This appellant produced one loin- cloth stained with human blood. These articles were lying concealed under bushes. He secured the same and such Mashirnama was prepared. These articles were also sealed. On 15th January, 1980 the S.H.O. Arrested the appellant Sanwan. On 16th January, 1980 statements of P.Ws. Ghulam Nabi and Hazoor Bux were recorded by the Hon. Magistrate Ghotki under section 164, Cr.P.C. However, all observing all usual formalities the appellants were challaned in the Court of Civil Judge and F.C.M.
6. Mirpur Mathelo. The case was sent to the Sessions Court Sukkur. The learned Sessions Judge sent the present case to the learned trial Court for disposal according to law.
7. ' A formal charge for an offence punishable under section 302 read with section 34, P.P.C. Was framed against the appellants to which they pleaded not guilty and claimed to be tried. Thereafter, the trial of present case started.
8. ' The prosecution in support of its case has examined P.W.1 Nawab Ali (Exh. 10), P.W.2 Ali Khan (Exh.
9. 12), P.W.3 Haji Ghulam Nabi (Exh. 14), P.W.4 Haji Hazoor Bux (Exh. 15), P.W.5 Dr. Abdul Ghafoor (Exh. 16), P.W.6 Muhammad Rafique (Exh. 18), P.W.7 Allahdino (Exh. 19), P.W.8 Haji Jam (Exh. 26), P.W.9 Lal Bux (Exh. 27) and thereafter, the learned A.P.P. His statement Exh. 29 closed the side of prosecution. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants abovenamed as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo, of appeal.
10. ' The learned Advocate for the appellants in support of the above appeal submitted as under:--
(a) That this is an unwitnessed murder.
(b) That identification of appellant Misri in respect of the call given by him on the basis of his voice cannot be considered to be sufficient for purposes of identification and in support thereof the learned Advocate for appellants relied upon case reported in 1970 PCr.LJ 633.
(c) All the P.Ws. Are closely related to the deceased including Mashir and in view of the admitted enmity between the parties, no reliance can be placed on their statements without independent corroboration. In support of this the learned Advocate for the appellants relied upon case reported in PLD 1981 Kar. 1 and PLD 1973 SC 321.
(d) That there was no ocular evidence at all in respect of the murder in question except circumstantial evidence which has been considered by the learned trial Court as ocular evidence for purposes of the conviction of the appellants, which is contrary to the law laid down .By the Superior Courts and as such convictions of the appellants on such evidence, without independent corroboration cannot be sustained.
(e) That the alleged recoveries have not been proved by respectable and independent Mashirs.
11. In.Fact P.W. Allahdino, one of the Mashir of such allege recoveries had not supported the prosecution case, but the learned trial Court has wrongly held, that he has supported the prosecution case. The second Mashir which was examined by prosecution had not at all supported the prosecution case in respect of the alleged recoveries, although he was examined after the prosecution realised that P.W. Allahdino, the earlier Mashir has not supported the prosecution case.
(f) That there is contradiction in the medical and oral evidence regarding the time of the murder.
12. According to medical evidence on record, the murder took place after the deceased has fully digested his night food, whereas according to the prosecution witnesses the murder had taken place within 2 hours on taking of such meals. In view of the above submissions the learned Advocate for the appellants urged that prosecution has failed to establish its case beyond.
13. Reasonable doubt against all the appellants abovenamed.
14. ' The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as the prosecution story of the incident is improbable and furthermore there are no eyewitness of the murder in question and the circumstantial evidence is based on the statements of P.Ws. Who are inter-related and against whom the appellants have alleged enmity and as such their statements required independent corroboration, which is not at all available in the present case, as alleged recoveries cannot be relied upon, as the Investigating Officer failed to pick independent and respectable Mashirs of the locality although they were available, but have close relation of the complainant side and further because the Mashirs in question have also not supported the prosecution case.
15. ' 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 and the impugned judgment as well as cases cited by the learned Advocate for the appellants.
16. ' In view of complainants own admission in F.I.R. That there existed land dispute between parties, on account of which appellants used to threaten them, the story given in F.I.R. How appellant Misri called deceased and deceased went with him, on the face of it looks improbable. No doubt complainant and other P.Ws., before learned trial Court gave up this motive of enmity, perhaps as they realised, it would come in their way. In addition to this, identification of appellant Misri as person, who called the deceased, on the basis of voice, is also doubtful and cannot be relied upon.
17. All P.Ws. Are closely related to complainant and in the face of the admitted enmity and disputes between the parties over land, no reliance can be placed on their statements, without independent A corroboration, in my opinion, specially as none of the P.Ws. Are eyewitnesses and their evidence is only circumstantial.
18. ' Learned trial Court for purposes of corroboration relied upon alleged recoveries from appellants. I have carefully gone through the statements of P.Ws. Allahdino and P.W. Haji Jam, the alleged Mashirs of recoveries. P.W.8 Haji Jam has not at all supported prosecution case in respect of alleged recoveries, whereas P.W.7 Allahdino in his statement before the learned trial Court categorically stated, that appellant Bahram and Khamiso produced nothing before the police, but stated that appellant Misri did produce blood-stained hatchet and clothes. In his cross, he stated, that when police came to Vardat appellants were present, but according to prosecution they were arrested after three days, as mentioned in Mashirnama of their respective arrests. He however, stated that they were not arrested by police at Vardat, though they were present. Statement of P.W.
19. Allahdino, who is also related to complainant does not inspire confidence at all, in view of various contradictions in the said statement itself. Investigating Officer failed to choose independent respectable Mashirs of locality for alleged recoveries, for which he has given no explanation at all and as such no reliance can be placed on said recoveries, in my opinion. In addition to this medical evidence also does not support the time of alleged death. Keeping all this in view, prosecution has B failed to establish its case beyond reasonable doubt against the appellants, in my opinion.
20. ' Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them by giving them benefit of doubt and direct that they be released forthwith, if not required in any other case.