1. ' Z.C. VALIANI, J.-- Appellant abovenamed, being aggrieved by judgment, dated 14-1-1982 of the learned Additional Sessions Judge, Kandhkot, in Sessions Case No, 149/79, by which appellant has been convicted under section 302/149, P.P.C. And sentenced to suffer Imprisonment for life and to pay fine of Rs,1,000 or in default to suffer further R.I. For 3 months and further" directed to pay compensation of Rs,10,000 and in default of said payment to suffer further R.I. For six months, has preferred the above appeal, on the following facts and grounds: ' The F.I.R. Of this occurrence was lodged by Sadiq son of Harian Shambani Bugti, resident of Lal Mohammad Bugti on 22-12-1976 at 3.50 p.m. According to F.I.R., the complainant is resident of village Lal Muhammad Bugti. On the day before previous day of occurrence, three buffaloes of Lal Muhammad Bugti had been stolen away from his village. The footprints were tracked by the complainant alongwith Khan Muhammad son of Karim Bux Gishkori resident of Ghulam Sarwar Dombki Taluka Kandhkot and Bangul son of Illahi Bux Khoso resident of village Illahi Bux Khoso Taluka Kandhkot. The footprints went towards North. The complainant was armed with an unlicensed rifle of 7 mm and 17 live bullets, Bangul had a double barelled gun, while Khan Muhammad had a single barelled gun and both had cartridges also. They followed the footprints track, which they missed at the Nau-Wah bridge of Shahi Wah and they stood there for tracking out further footprints. At about 2-30 p.m they saw Khalid Khan son of All Bilawal Khan Dombki, Norrok son of not known Dombki and three unidentified persons who came there duly armed.
2. Khalid was armed with a rifle and rest had guns. As soon as they arrived they advanced a Hakal to Bangul declaring, that since Khoso had committed murder of their brother Amanullah Dombki he should be ready for the revenge of the same. With that all the culprits fired at Bangul, which hit Bangul, who raised cries and fell down. On seeing Bangui falling down, the assailants ran towards the complainant and his companion and snatched the arms and ammunition from them and tied their hands. Villagers were attracted to the scene on firearm reports, but their names were not known to the complainant. Those villagers were left by the dead body and the complainant and Khan Muhammad were taken by all the assailants to the Police Station, where the complainant lodged the F.I.R. The complainant further disclosed in the F.I.R., that he would be able to identify the other assailants, whose names he could not give in the F.I.R.
3. ' The F.I.R. Was taken down by S.H.O. Buxapur Police Station namely Mulazim Hussain Shah, who is since dead. The S.H.O. First recorded the F.I.R. Of absconding co-accused Khalid Khan at 3-20 p.m., as Crime No, 84 of 1976 for an offence under section 307/34, P.P.C. And 13-D, Arms Ordinance, in which the complainant Sadiq and P.Ws. Khan Muhammad were shown as accused as well as co- accused persons, therefore, the complainant and Khan Muhammad were put under arrest. Then as per Mashirnama (Exh.26) the S.H.O. Inspected the place of occurrence on pointation of complainant Sadiq at 4-20 p.m. On the same day and secured the dead body. He held inquest on the dead body and forwarded the same to Medical Officer Buxapur for post-mortem examination and certificate. He secured a D.B.B.L Gun No, 482 of .12-bore and a bag containing 20 live cartridges, which were lying near the dead body. He secured two empty cartridges from the barrels of that gun and 8 other empty cartridges in sets of 4 each from two different places of the site of occurrence. The empty shells of 7 mm and 3 missed bullets were also recovered from there. The gun, empties and missed bullets and blood-stained earth collected from there were sealed into parcels. He has also secured 4 partly smoked Bledis. It further appears from the memo. (Exh.25) that on the same day absconding co-accused Khalid produced a D.B.B.L Gun No, FF319 of .16-bore alongwith two live cartridges and copy of licence, co-accused Ghutto produced a S.B.B.L. Gun No, 962 of .12-bore alongwith 2 live cartridges and copy of licence while co-accused Aman Ali produced a D.B.B.L Gun No, 14444 of .12-bore alongwith 4 live cartridges and copy of licence. Earlier absconding co-accused Khalid Khan, while producing the complainant Sadiq and P.W. Khan Muhammad had produced the arms and ammunition secured from them viz. a rifle No, 203053 of 7 mm and a bandolier containing .12-bore bullets attributed to complainant Sadiq and one gun S.B.B.L. No, 2442 of .12-bore alongwith a leather bag containing 14 live cartridges secured from P.W.
4. Khan Muhammad. 'On 22-12-1976 the S.H.O. Examined Khan Muhammad, Aman Ali Ghutto, Shaukat and Gulsher, Saith and Abdul Majeed. On 23-12-1976 he examined Karam Ali, Sher Ali, Unar, Hakeem and Muhammad Azeem, while on 25-12-1976 he examined Abdul Hakeem and Dhani Bux.
5. ' On 26-12-1976 the investigation was assigned to Sayed Muhammad Abid, Shah, S.H.O., Saddar Police Station, Jacobabad by the Superintendent of Police, Jacobabad. He went to Buxapur Police, where he examined the complainant, who was in police lockup in the countercase on 27-12-1976 by recording his further statement and on his pointation he inspected the place of occurrence for which he prepared a memo (Exh.19) in presence of Mashirs Din Muhammad and Ghulam Hyder. On 28-12-4976 he examined Jameel Ahmed, Tariq and Hafiz Abdullah and on 29-12-1976 he examined a number of other witnesses namely Abdul Qadir, Hassad Khan, Ghulam Rasool, Habibullah, Nukhumdin, Fazal Muhammad, Khair Muhammad, Shah Nawaz, Abdullah Sabzoi, Khillan Shaikh, Pannah Shaikh, Abdul Rehman Dombki, Khair Muhammad Bahalkani, Sher Muhammad Bahalkani, Khan Muhammad Gishkori and Saeed Khan Dombki. On 29-12-1976 he inspected the place of occurrence. Of the theft of buffaloes of Saeed Khan, in presence of Mashirs Hassad Khan and Sher Muhammad. On 30-12-1976 he obtained tentative opinion of the Medical Officer. Lastly, on 6-1-1977 he examined P.W. Rahim Khoso, the brother of deceased Bangui Khan Khoso. On 10-1-1977 he got the statement of P.W. Khan Muhammad recorded by S.D.M. Jacobabad and then returned the papers to the Suprintendent of Police, Jacobabad, therefore, on 14-11-1977 S.H.O. Mansoor Ahmed Chandio arrested co-accused Gulsher, Aman Ali, and Chutto from Buxapur. He also arrested co- accused Shaukat Ali on 9-12-1977 and appellant Tariq on 6-2-1978. Co-accused Narook had, however, himself appeared before Sessions Court, Jacobabad, where he was granted bail before arrest, which was confirmed on 28-1-1978. The guns, rifle and empties in both cases were sent to Ballistic Expert who received the same on 20-1-1977.
6. ' At the trial the prosecution produced as many as 15 witnesses namely P.W.1 Sadiq, the complainant: P.W.2 Khan Muhammad, eye-witness; P.W. 3 Saidoo Khan; P.W. 4 Abdul Rehman; P.W.
7. 5 P.C. Abdul Latif, the corpse-bearer; P.W. 6 Sher Ali P.W. 7; Muhammad Pannah P.W. 8; Din Muhammad, the Mashir; P.W.9 Ghulam Hyder, the co-mashir; P.W. 10 Muhammad Usman, another Mashir P.W. 11 Bashir Ahmed Tapedar, who prepared the site sketch; P.W. 12 Doctor Amerali, the Medical Officer, who conducted the post-mortem examination; P.W. 13 Sayed Muhammad Abid Shah S.H.O., one of the Investigating Officers; P.W. 14 Manzoor Ahmed Chandio, who arrested the appellant as well as co-accused persons and P.W. 15 Mukhtiar Ahmed the ballistic expert. Since the Investigating Officer Mullazim Hussain Shah, the then S.H.O., was .Dead P.W. 11 Muhammad Usman, who was conversant with his handwriting was examined for the purpose of proving the steps taken towards the investigation at the initial stage. As regards the death of S.H.O. Mullazim Hussain Shah, the evidence of Court witness P.C. Abdul Kareem was recorded on 14-12-1980. The remaining witnesses were given up by the learned A.P.P. Vide his statements (Exhs. 11 and 16). The statements of appellant as well as co-accused persons were recorded under section 342, Cr.P.C., wherein they denied all the allegations and pleaded innocence. Co-accused Norook, however, pleaded alibi stating, that from 17-12-1976 to 27-12-1976 he was an indoor patient at Civil Hospital, Karachi and was all along in the Hospital on bed No, 17 in the skin ward. He produced his discharge slip (Exh.39) and discharge certificate as (Exh.40) and in the light of this plea, he examined the defence witness Doctor Nassarullah Malik, R.M.O. Civil Hospital Karachi (Exh.46) who also produced the record of the ward.
8. ' Learned trial Court taking into consideration evidence adduced before it, while acquitting co- accused Norooq, Shaukat Ali, Aman Gul Sher and Chutto, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently said appellant has filed the above appeal. Whereas complainant Sadiq son of Mirza, has fi led Cr. Rev.App. 40/83 against the acquittal of the six co-accused persons by impugned judgment, dated 14-1-1982 and for award of higher punishment to appellant Tariq Ali, on facts and grounds mentioned in memo. Of said Revision petition. Since both these matters arise out of common judgment, we propose to dispose of both these matters by this common judgment.
9. ' The learned Advocate for appellant in support of the above appeal submitted as under:
(a) That name of appellant Tariq is not at all mentioned in F.I.R. In support of this relied upon PLD 1960 Kar.
10. 674.
(b) That appellant is alleged to be armed with rifle, but there were no rifle injuries on person of the deceased according to medical evidence brought on record.
(c) That learned trial Court acquitted 5 co-accused on the ground that investigation was dishonest, but on the same evidence, it has convicted appellant, though his name is not at all mentioned in F.I.R. And as such conviction of the appellant cannot be sustained on this ground alone.
(d) Even in counter-F.I.R. Lodged by absconding co-accused Khalid, name of present appellant at Vardat is not mentioned at all.
(e) That P.W. 2 Khan Muhammad, the only other eye-witness of the incident did not mention the name of appellant in his 161, Cr. P.C. Statement, but for the first time mentioned the presence of appellant before learned trial Court and as such no reliance can be placed on his statement without independent corroboration, which is not at all available in present case, as nothing incriminating was recoverd from appellant. In support of this learned counsel relied upon cases reported in 1982 SC MR 1049 and 1982 SCM R 162.
(f) That there is discrepancy in medical and ocular evidence regarding distance of firing and as such no reliance can be placed on statement of P.Ws. Alleged eye-witnesses without independent corroboration, which is not at all available in present case.
11. ' Learned counsel appearing for State, at the outset submitted that he was not supporting impugned judgment in respect of the conviction of the appellant, on account of the cogent grounds urged by the learned Advocate for appellant.
12. ' Applicant and his counsel in Revision. Petition No, 40/83 were called absent in spite of notice for hearing for 24-1-1984 was sent as far back as 15-1-1984 by registered post A/D and as such we decided to dispose of this petition as well, with the assistance of State counsel.
13. ' We have carefully considered the submissions madk by learned Advocates before us and have gone through the R&P of the learned trial Court as well as impugned judgment and cases cited by the learned counsels before us.
14. It is admitted, position, that name of appellant Tariq is not mentioned in F.I.R. According to P.W. 1 Sadiq, he knew appellant Tariq in spite of this, he did not mention the name of appellant in his F.I.R.
15. P.W. 2 Khan Mohammad in his statement before the learned trial Court stated Khalid, Tariq and Norook were armed with rifles. No doubt P.W.1 Sadiq for the first time named appellant before learned trial Court and stated that he was alined with gun. However, according to P.W. 5 Dr. Amerlal, injury No, 2 which caused the death of deceased Bangui was caused by pellets and as such by gun. P.W. 5 further stated, that there was no charring or blackening near injuries and as such said injuries were caused from distance. However, P.W. 1 Sadiq, before the learned trial Court stated, that assailants fired from short distance. In view of this there are apparent discrepancies in medical and ocular evidence of P.Ws. 1 and 2 the only alleged two eye-witnesses of the incident. It may further be noted that in counter-F.I.R. Exh. 35 which was filed by absconding co-accused Khalid, name of present appellant is not at all mentioned. In view of this also presence of appellant Tariq at the time of incident is not free from doubt, as even P.W. 1 Sadiq did not mention his name in his F.I.R. Exh.6, although he knew appellant, as admitted by him, in his statement before the learned trial Court. Learned trial Court acquitted 5 co-accused on the same set of evidence, on the ground that investigation was not honest. It may further be noted, that P.W. 2 Khan Muhammad did not mention presence and participation of appellant Tariq in his statement under section 161, Cr.P.C. In view of these facts on record, in our opinion statements of P.W. 1 Sadiq and P.W. 2 Khan Muhammad required independent corroboration, but the same is not at all available, as even learned trial Court did not rely on recoveries and Ballistic Expert Report for cogent reasons. Learned trial Court accepted the alibi of co-accused Norrok, who was named in F.I.R. Exh.6, by P.W. 1 Sadiq and acquitted him. This shows that no reliance at all can be placed on the uncorroborated statements of P.W. 1 Sadiq as well as P.W. 2 Khan Mohammad, who had not named present appellant in his statement under section 161, Cr.P.C. In our opinion conviction of the appellant on the basis of the uncorroborated statements of P.W. 1 and P.W. 2 would be unsafe in view of the facts and circumstances of present case, which have been brought on record. We are of considered opinion, that prosecution has failed to establish its case against present appellant beyond reasonable doubt. Cases cited by learned Advocate for appellant fully support the contentions urged by him before us.
16. ' Therefore, we allow the above appeal of appellant Tariq and set aside his conviction and sentences awarded to him by impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in above appeal.
17. ' In view of our above discussions about prosecution evidence brought on record, we see no force in the Revision petition filed by complainant Sadiq, which is also dismissed and notices issued to