1. ' Appellants abovenamed, being aggrieved by judgment dated 7th September, 1983 of the learned Sessions Judge, Badin, in Sessions Case No,100 of 1975, by which appellants have been convicted under section 302, P.P.C. Read with section 34, P.P.C. And sentenced to suffer imprisonment for life and pay compensation of Rs, 1.000 each under section 544-A, Cr.P.C. Or in default to suffer further R.I. For six months and appellant Dost Ali has also been convicted under section 323, P.P.C. And sentenced to pay fine of Rs,500 or in default to suffer further R.I. For three months, have preferred the above appeal, on the following facts and grounds.
2. ' The case disclosed by the complainant in the F.I.R. Is, that he owned about 300 Acres of land which was situated in deh Kapoor. On the day of the incident deceased Nawab Khalid Rauf came to his Otaq, in a jeep at about 11.00 a.m. P.W. Bahawal was sitting with him at that time. The deceased had leased out his land to one Ghulam Rasool Punjabi. The complainant had stood surety for payment of lease money regularly to the deceased by the lease. The deceased asked the complainant to get him the lease money from Ghulam Rasool, as he had guarantted its regular payment. The deceased asked the complainant to accompany him to the village of Ghulam Rasool and get him the lease money, where upon complainant Bahadur and P.W. Bahawal went alongwith Nawab Khalid Rauf in the jeep to the village of Ghulam Rasool. When they reached near the village, the jeep had to be stopped because there was watercourse in between which cut off the path leading to the village of Ghulam Rasool. The complainant, P.W. Bahawal, and the deceased got down from the jeep and walked the distance to the village. On the way they met appellant Muhammad Hassan, who saw them going to the village of Ghulam Rasool. Ghulam Rasool was not available in the village. They however met P.W. Rehmatullah, who informed them that Ghulam Rasool had left for Jhudo. They all remained with P.W. Rehmatullah for an hour and also had tea with him.
3. Thereafter, they set out to the place, where the jeep was standing P.W. Rehmatullah and an unknown person, who they came to know later on was Yousif accompanied them upto the jeep.
4. When they reached near the jeep, appellant Muhammad Hassan came out from the bushes nearby and fired at the deceased with a gun, but the shot did not strike him. Appellant Muhammad Hassan then called out the other appellant as well as co-accused, who were hiding behind the bushes and also fired another gun-shot at the deceased, which struck him in the leg. Appellant Muhammad Hassan also instigated the other appellant as well as co-accused, who were all recognized by the complainant to kill Nawab Khalid Rauf. Co-accused Miro (deceased), Sobdar and Budho were armed with revolvers, while co-accused Mohram, appellant Dost Ali and absconding co-accused Mushtaq were armed with hatchets and Lathis. The appellants as well as co-accused encircled the Nawab. Absconding co-accused Mushtaq inflicted hatchet injuries on his head. Co-accused lddal also fired his gun. Nawab Khalid collapsed on receiving the injuries and died on the spot. Deceased accused Miro also fired a revolver shot at the complainant, but it missed him. Appellant Dost Ali however gave him hatchet blows. P.Ws. Rehmatullah and Yousif ran away from the scene of offence. The appellants as well as co-accused then placed the dead body of Nawab Khalid Rauf in the jeep. They also made P.Ws. Bahadur and Bahawal sit in the jeep and forced the driver P.W. Ghous to drive the jeep to the village, where co-accused Iddal resided. It was at the distance of about half a mile from the Vardat. They stopped the jeep there, took out the dead body and kept it in front of the house of and had caused injuries to the deceased. In view of this admitted fact, the statement of P.W. Bahadur Khan required independent corroboration. In addition to this P.W. Bahadur Khan had also moved application for the 'cancellation of the bail of the accused persons and as such he is highly interested witness. P.W. Rehmatullah is also alleged to be an interested witness, as he had taken lease of the land of deceased. P.W. Bahawal Khan's presence is not at all mentioned by P.W. Rehmatullah nor by P.W. Ghous and as such his presence at the scene of offence is not free from doubt. P.W. Muhammad Ghous, the alleged independent eyewitness of the incident was not believed by the learned trial Court for the cogent reasons given in the impugned judgment. The recoveries of' alleged incriminating articles, even from the present appellants were not taken into consideration by the learned trial Court, as these articles were neither sent to the Chemical Examiner and/or to the Ballistic Expert and as such there is nothing on record to connect the said articles with the crime in question. In addition to this the alleged articles were not even produced before the learned trial Court and consequently no reliance can be placed on such recoveries. In view of these facts on record in my opinion the statement of P.Ws. 6, 9, 8 and 12 required independent corroboration, but the same i5 not at all available in the present.
5. The prosecution evidence against the acquitted co-accused was same, as against the present appellants and since such evidence was not believed in the case of the acquitted accused persons, it would be unsafe to rely on A such evidence in respect of the present appellants. This conclusion of mine is fully supported by the cases reported in 1982 SCMR 51, 1982 SCM R 1049 and 1980 SCMR 225. The learned trial Court even did not believe, that counter-F.I.R. Alleged to have been lodged by Muhammad Hassan was in fact lodged by him. In view of this in my opinion prosecution has failed to establish its case beyond reasonable doubt against the present appellants as well, as there is nothing on record to establish the alleged common intention of the present appellants, for causing murder of the deceased.
6. ' Therefore I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and acquit them by giving benefit of doubt and direct that all the appellants be released forthwith if not required in any other case.