' This order will dispose of the two appeals, Criminal Appeal No, 101 of 1985 and Criminal Appeal No, 102 of 1985. By a separate judgment in Criminal Appeal No, 102 of 1985 appellant Budho has been convicted under section 13(e) of the Arms Ordinance and sentenced to R.I. For one year.
' In Criminal Appeal No, 101 of 1985 both the appellants Matto And Budho have been convicted by the IInd Additional Sessions Judge, Nawabshah by means of judgment dated 15-5-1985 by which he convicted the appellants under section 302/34, P.P.C. And sentenced each of them to suffer imprisonment for life and fine of Rs, 5,000. In default of payment of fine it was. Directed that each of the appellants will suffer R.I. For six months. The appellants were also directed to pay Rs, 5,000 as compensation to the heirs of the deceased and in default of payment to suffer R.I. For three months.
2: The facts in brief are that P.W. Sonal, complainant in his First Information Report .Exh. 10 stated that he and his maternal-uncle Photal cultivate the lands of one Abdul Ghafoor Sahto which is near to their village. On 14-6-1980 Abdul Ghafoor has made the Batai of the wheat and had put the wheat in gunny bags and had kept the other wheat in the. Dera. During night time when he was sleeping on the gunny bags, his maternal-uncle Photal and his Masi's husband. Kamil were sleeping on the cot. He heard gun fire report and the cries of deceased Photal on which he and Kamil got up. He flashed his torch and saw Budho son of Talio armed with a gun and Matto son of Mehboob armed with a hatchet. Both the accused challenged them to extinguish the torch.
Thereafter accused Matto asked Budho not to spare them on which Budho fired at them but it did not hit Mem as they hid behind the gunny bags.. Both the accused then ran away from the Wardat.
They went and saw that deceased Photal had received fire-arm injuries. The deceased informed them that Budho had fired at him and that he was accompanied by. Matto who was armed with a hatchet. It is also stated in the F.I.R. That this incident had taken place at the instigation of Faizoo son of Mouladino, Ibrahim son of Faizoo and Dilber son of Wall Muhammad. On the cries Daim son of Mirza and Allandino son of Talib and other persons came there. The complainant leaving the witnesses to keep watch over the dead body went to lodge the report.
' P.W. Nawab A.S.I. Incha.Rge Police Station Kandiaro recorded the First Information Report. He then went to the Wardat which was shown to him by the complainant. There he recorded the statements of the witnesses. The deceased was lying on the cot. He noted the fire arm injuries on the person of the deceased. P.W. Ghulam Kadir S.H.O. Verified the investigation from A.S.I. Nawab Khan. He received the papers on 17-6-1980. On the same day accused Matto appeared before him.
On 18-6-1980 on spy information he went to the village Abdul Budh where he arrested the accused Budho in presence of Mashirs Laldino and Muhammad. On 21-6-1980 accused Budho produced crime weapon which was lying concealed in the heap of wheat chaff. He also produced the report of the Examiner and the Ballistic Expert. These reports are in the positive. The accused in their statements denied the prosecution allegations.
3. On the assessm ent of the .Evidence the learned trial Judge came to the conclusion that the deceased had died as a result of fire-arm injuries and the appellants have committed the offence.
' The death of the deceased has not been denied. It has been established through the medical as well as ocular evidence.
4. In order to bring home the charge the prosecution has relied upon the evidence of P.W.1 Sonal and P.W.2 Kamil Shah. Corroboration was sought from the evidence of P.W.3 Daim and P.W.4 AllandiNo, Next piece of evidence is recovery of gun from accused Budho from his house. The motive was discarded by the trial Judge. According to the prosecution the motive was that the deceased had committed the murder of Daud. Daud was husband of the mother's sister of the accused. The dying declaration was also considered as a corroborative piece of evidence.
' Dr. ,Shafqat Memon P.W.5 performed the post-mortem on the dead bddy of the deceased and found the following injuries on his person: ' Wound of entrance 2" x 2" muscle deep with blackening on the right side of the chest. On internal examination the doctor found that the right lung was punctured on the location corresponding to the injury. The injury was ante-mortem in nature and appeared to have been caused by a fire-arm like gun or country-made pistol. The external injury was sufficient to cause death in the ordinary course of nature.
5. First we would consider the ocular testimony of the two witnesses who have stated that they had witnessed the incident and identified the accused on the torch light. According to complainant Sonal at about 12-15 a.m. He heard the gunshot report and the cry of Photal. He and Kamil got up from sleep. He had torch which he flashed, and saw accused Matto and Budho armed with hatchet and gun. Both the accused challenged him to put off the torch but he did not put off the torch.
Thereupon accused Matto instigated accused. Budho not to spare them. Accused Budho then fired his gun at them but it did not hit them as they took shelter behind the gunny bags. P.W.2 Kamil has also corroborated the statement of P.W.1.
' Learned counsel for the appellants has assailed the evidence of the eye-witnesses on the ground that the witnesses were sleeping and on the report of the gunshot they woke up and it is not believable that the accused would stand there after giving gunshot injury to the deceased. This contention has sufficient force because the witnesses were sleeping. They woke up on the report of the gunshot. The deceased had received only one gunshot injury and if the accused had come to take the revenge from the deceased then after causing him gunshot injury there was no reason to stand there because after committing the offence they would not have aUowed any one to see them particularly when the night was dark. It is also strange that the accused persons had the knowledge before coming to the Wardat where the deceased was sleeping. Another feature of the case is that it is alleged by the Two witnesses that after the accused had left the Wardat they went to the deceased who at that time had Sustained injury and he informed them that Budho had caused him gunshot injury and Matto was armed with hatchet. If the two witnesses have identified the accused in the light of torch then how it is possible that the deceased who had received gunshot injury was in a position to identify the culprits particularly when the night was dark and it is not the case of these two witnesses that they had identified the culprits without flashing the torch. If we disbelieve the statements of the two witnesses about the oral dying declaration of the deceased then the statements of the witnesses about the actual incident becomes doubtful. The Mashirs and the Investigating Officer nave not seen any mark of bullets on the gunny bags though it is stated by these two witnesses that they took shelter behind the gunny bags and the accused had fired at them. Then the first informant has made a departure from the First Information Report wherein he has stated that deceased had also told them that Faizoo son Of MouladiNo, Ibrahim son of Faizoo and Dilbar son of Muhammad were his enemies and it might be their instigation, but he had not mentioned this fact in his deposition. Corroboration has been sought from the evidence of the two witnesses Daim and Allahdino who were attracted to the scene on the cries of the complainant but they had come after the accused persons had left the Wardat. The arrival of these witnesses after the incident is also doubtful because Daim had come from his village which was at a long distance but no witness from that village had come to the scene. The other witness Allahdino has stated that he was present in his cultivation but he does not remember the survey number under his cultivation and further stated that on the night of incident there was no fixed time to get the water and it was on his sweet will to have the water of his need. This statement on the face of it is incorrect because rotation of water for the irrigation is fixed and even a layman knows this. The motive as alleged by the witnesses is that Daud was murdered and the deceased was suspected to be the murderer of Daud. P.W.1 has admitted in his statement that Daud had died as a result of his coming under the train.
' As regards the recovery the appellant Budho was arrested on 18-6-1980 but the single barrel gun was secured from him on 21-6-1980 i.e. After three days of his arrest. He was in police custody during this period and it has not been stated by. The Investigating Officer when the accused agreed to lead the police for the recovery. The Investigating Officer has admitted that he has searched the house of the accused before his arrest and nothing incriminating was found. There are two mashirs of recovery namely Laldino and Muhammad. Laldin has not supported the recovery. However the other Mashir Muhamma has supported the recovery. The accused alone is not residing in th G otak. The other family members are also there. The recovery in vie of the fact that it had been recovered after three days of the arres of accused Budho has lost its evidentiary value and, therefore, I cannot be relied upon.
The dying declaration cannot be accepted once we rule out o consideration the statements of the two eye-witnesses. The witnesses are related inter se.
As the recovery had not been accepted, therefore, the conviction of the appellant Budho under section 13(e) of the Arms Ordinancej cannot be sustained.
6. The appeals are, therefore, accepted and the conviction and sentences recorded against the appellants are set aside. They be released forthwith, if not required in any other case.
' The appeals were accepted by a short order dated 13-4-1986 and the above are the reasons for the same.