1. ' Appellants abovenamed being aggrieved by judgment, dated 30th September,1978 of the learned 3rd Additional Sessions Judge, Sukkur, in Session Case No, 1038 of 1975, by which Appellants have been convicted under section 302, P.P.C. Read with section 34, P.P.C. And each one of them sentenced to suffer life imprisonment and to pay fine of Rs,5,000, which if realised the half amount of the fine was to be paid as compensation to the heirs of the deceased, and in default of payment of the said fine to suffer further R.I. Of 6 months each, have preferred the above appeal on the following facts and grounds:- ' The prosecution case as briefly disclosed in the First Information Report lodged by Complainant Ralio is that on 4th December,1975, at about 7-15 a.m, he (Complainant) alongwith deceased Noor Muhammad and P. W. Ahmed (his nephews), were going to their respective places of duty. The complainant party when reached on Jarwar Road, near Chandio's Machine, it is alleged both appellants namely Muhammad Ayoub and Saifal armed with Single Barrel Guns emerged out of the borrow-pits giving 'Hakal' to deceased Noor Muhammad. They opened fire at deceased Noor Muhammad which hit on him and fall down lying injured. The motive alleged in the F.I.R. Is to take the revenge of the murder of one Wahid Bux related to the appellant. On the report of complainant a case under section 307/34, P.P.C, and section 13(d) of the Arms Ordinance, was registered at Police Station Mirpur Mathelo and investigation started.
2. ' As deposed to by A.S.I. Abdul Sattar P.W.7, who was Incharge of Police Station Mirpur Mathelo, on the day of incident, the F.I.R. Exh.14, was recorded by him. The injured Noor Muhammad who was brought by the complainant at the Police Station was in a serious condition due to gun-shot injuries. According to this witness he was able to speak, so he informed Mukhtiarkar and F.C.M, Mirpur Mathelo, requesting him to record the Dying Declaration of the injured at the Police Station.
3. Mukhtiarkar P.W.-8, Abdul Sattar came immediately within 20 minutes and recorded the Dying Declaration of injured Noor Muhammad which is Exh.23. The A.S. Then prepared the Mashirnama of the injuries on the person of Noor Muhammad which he has produced in Court as Exh.9. He then referred the injured to Ghothi Hospital, as the Medical Officer in Mirpur Mathelo, was not available.
4. He recorded the statement of P.W. Ghulam Hussain and Ahmed. Thereafter, he proceded to the place of Vardat in the Company of complainant Palio, which is at a distance of one mile from the Thana. He prepared the Mashirnama of Vardat in the presence of Muhammad Amin and Ghulam Muhammad Mashirs and collected blood-stained earth which was sealed on the spot. He produced the Mashirnama as Exh.10. He then started searching the appellant in their houses but they were not found. The A.S.I. Then came back to the Thana, where he received telephonic message that injured had expired in the Hospital. A.S.I. Ziadah Khan of Ghotki Police Station had prepared the Inquest Report of the dead body in Ghotki Hospital. Appellant Muhammad Ayoub was employed in Army and posted in Karachi, so he rushed to Karachi for his arrest. There in Karachi he was told by one Hawaldar that in the absence of Captain, appellant Ayoub could not be handed over to Police. He waited for the Captain and was subsequently informed that Captain could come back on 11th December,1975, so he came back from Karachi, on 7th December,1975, and handed over the Police papers to S.H.O. Noor Muhammad Jalbani, as he was transferred to another Police Station.
5. ' S.I.P. Noor Muhammad Jalbani P.W.9, as stated by him took-over the investigation of this case on 9th December,1975. He verified the investigation already conducted by A.S.I. Abdul Sattar. By that time no appellant was arrested so he went in search of appellant Saifal in his village and arrested him in the presence of Mashir Muhammad Amin and Wali Dad under Mashirnama Exh.28. Appellant Ayoub was arrested by A.S.I. Ghulam Rasool from Karachi, and produced before him on 13th December,1975. On interrogation appellant Ayoub on the same day volunteered to produce the Crime Weapon viz. The Gun and then led the Police party and the Mashirs Muhammad Amin and Ghulam Muhammad to a place which is one furlong from the Vardat near Dad Daghari Road, and took out a Single Barrel Gun which was lying concealed in the bushes in a ditch. The gun was opened and in its barrel an empty Cartridge was found stuck. He secured the same under Mashirnama Exh.12, and sealed it in the presence of Mashirs. Since appellant Ayoub had, no licence of the gun so he registered a separate case against him under section 13(E) of the Arms Ordinance, vide Crime No, 128 of 1975. He directed the Tapedar to prepare the sketch of Vardat and also obtained the post-mortem Notes. He despatched the blood-sained earth to the Chemical Examiner and produced his report as Exh.29, which is in positive. After completing the investigation he submitted two separate challans in the Court. The gun was not sent to the Expert as no crime empty was found from the Vardat.
6. ' At the trial the prosecution in support of its case has examined P.W.1 Gul Muhammad Tapedar, P.W.2 Ghulam Muhammad Mashir, P.W.3 complainant Palio, P.W.4 Ahmed, P.W.5 Ghulam Hussain, P.W.6 A.S.I. Ziadah Khan, P.W.7 Dr. Mahboob Ali Soomro, P.W. Abdul Sattar Exh.22 (P.W.7 incorrectly numbered which should have been P.W.8), P.W.8 Abdul Sattar Mukhtiarkar (Exh.24), Muhammad Ayoub S.I.P. C.W.1 Exh.26, Investigating Officer S.I.P. Noor Muhammad P.W.9 and the remaining witnesses were given up and the prosecution side was closed vide statement Exh.30.
7. ' The appellants in their statement under section 342, Cr.P.C. Have pleaded innocence and denied the prosecution allegation against them. They have stated that on account of enmity they were involved. Appellant Muhammad Ayoub has stated that at the time of incident he was present in Karachi on his duty in 53 Cavalry Malir Cantt. He has produced such Certificate which is Exh.31-A.
8. Appellant Saifal has produced a certified true copy of a plaint Exh.33, showing that the wife of Noor Muhammad deceased had filed a suit for declaration against her husband and that deceased had enmity with other persons. Appellant Ayoub had examined D.W.1 Bashir Ahmed a Dafedar from 53 Cavalry Karachi Cantt.
9. ' 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 all the P.Ws. Are inter-related and on account of admitted enmity between the parties, their statement required independent corroboration, which is not at all available in the present case.
(b) That the dying declaration cannot be relied upon in view of the Medical Evidence on record in support of this contention.
(c) That recoveries were disbelived by the learned lower Court for cogent reasons. The learned Advocate relied upon cases reported in 1978 SCM R 303, PLD 1974 P Cr. L J 77, P 1 D 1977 Kar. 541 and 865.
(d) That the plea of Appellant Muhammad Ayoub in respect of ali was duly proved by the statement of D.W.1, which has been wrongfully discarded by the learned trial Court.
11. The learned Advocate appearing for the State on the other hand submitted that he was fully supporting the impugned judgment on account of following grounds:-
(a) That the statements of all the P.Ws., alleged eye-witnesses are straightforward and have been corroborate by the statement of P.W. Ghulam Hussain.
(b) That the learned trial Court has in cogent reason dis-believed the plea of ali bi of appellant Muhammad Ayoub.
(c) That the statement of the alleged eye-witnesses has been fully corroborated by dying declaration, by Medical evidence and the statement of P.W. Ghulam Hussain.
12. In support of the above contention the learned Advocate has stated relied upon cases PLD 1966 SC 264 and PLD 1970 SC 13.
13. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as through impugned judgment and the cases cited by the learned Advocates before me. Prosecution case rests upon the statements of P.Ws. Palio, and Ahmed as eye-witnesses and P.W. Ghulam Husain as corroborative witnesses and P.W. Abdul Sattar (Mukhtiarkar) and P.W. Ghulam Muhammad (Mashir) for purposes of recoveries etc. P.W. Palio and P.W. 4 Ahmed the alleged eye-witnesses are closely related to the deceased and appellant has alleged enmity with them on account of the murder of Waheed Bux, brother of the appellant Saiful, in which appellant Saiful was complainant and relatives of complainant party were accused and on account of murder of Karim Bux, brother of P.W. Ghulam Husain, the which case Wahid Bux brother of appellant Saiful and others were accused. In addition to this there are material contradictions in the statements of P.W.3 and P.W.4. According to P.W.4 he only identified appellant Ayoub, as the face of other appellant was muffled. This fact is denied by P.W.3, who stated before the learned trial Court that as faces of appellants were not muffled, they identified both of them. For all these reasons no reliance can be placed on the statements of these two eye- witnesses without independent corroboration, in my opinion.
14. ' Prosecution for purposes of such corroboration relied on the alleged recoveries made at the pointations of the appellants. I find that the learned trial Court relied upon recovery of gun from appellant Ayoub, as corroborative piece of evidence, though it was not sent to Ballistic Expert to connect the gun with crime, on the basis of statement of P.W. Ghulam Muhammad (Mashir) and 1.0. I have gone through the statement of P.W.1 Ghulam Muhammad, who has admitted close relationship with the deceased and complainant. He further admitted murder case against Ali Nawaz, who is nephew of complainant, is pending, in which appellant Saiful is complainant. He further admitted that when he reached Vardat 40/50 people were present. In spite of this 1.0. Did not care to pick independent and respectable Mashirs from Vardat and this violated mandatory provisions of section 103, Cr.P.C. In addition to this gun was alleged to be produced from lands belonging to Government, but was hidden in bushes. In view of this even exclusive possession of the said gun becomes doubtful, as far as appellant Ayoub is concerned. It may further be noted that original Mashirnama of alleged recoveries was not at all produced by prosecution, before learned trial Court. In view of all .These facts, in my opinion learned trial Court has erred in relying on such recovery for purposes of corroboration.
15. ' The next piece of corroborative evidence on which prosecution has relied is dying declaration of the deceased Exh.23, which was recorded by P.W.9. Abdul Sattar, Mukhtiarkar. According to this witness deceased was in senses and gave his declaration in Sindhi, which he translated. He admitted that he did not take signatures or thumb impression of deceased on said declaration, for which he gave explanation that his hands were soaked with blood. However, according to P.W.7 Dr.Mahboobali deceased would have become semi-unconscious on account of shock within one hour of report as such report of such injuries. P.W.8 Abdul Sattar A.S.I. Who recorded F.I.R., stated before learned trial Court, that deceased's condition was such bad, that he did not record his statement for purposes of F.I.R. He further stated that deceased was only in position to answer to questions which were put to him. This means that deceased was not in fit condition to give in his own verbatim dying declaration Exh.23, as it is shown to have been given by the deceased. C It would be unsafe to rely on such dying declaration, when deceased has denied any enmity with the appellants, in spite of murder cases between the parties, as hereinbefore mentioned.
16. ' The last piece of corroborative evidence on which prosecution has relied is the statement of P.W.5 Ghulam Hussain. According to him he reached the vardart on hearing gun-shots and was told by P.W. Palio, that appellants had fired at deceased Noor Muhammad. He thereafter, went away to his duty. He denied relationship with complainant P.W. Palio. However, in his cross-examination he admitted that his brother Karim Bux was murdered, in which case Wahid Bux brother of appellant Saiful was accused. In the face of this admitted enmity, his statement itself requires corroboration as one weak piece of evidence cannot corroborate other weak piece of evidence. In view of this even if his statement is taken into consideration, it would require independent corroboration, which is not available.
17. Keeping in view the above appraisal of prosecution evidence made by me, in my opinion prosecution has failed to establish its case beyond rasonable doubt against both of the appellants, without taking into consideration even alleged ali bi of appellant Ayoub.
18. ' 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 since appellants are on bail, I cancel the bail bonds executed by appellants in above appeal.