' AJMAL MIAN, J.--By this common judgment, we intend to dispose of the above criminal appeal and criminal revision which are directed against the judgment, dated 23-11-1986 passed by the learned IInd Additional Sessions Judge, Hyderabad in Sessions Case No, 312 of 1982 under section 302/34, P.P.C. Acquitting accused Lalan son of Ramoon Sathyo and convicting appellants/accused Ali son of Ramoon Sathyo and Eiden son of Ghulam Muhammad under section 304, Part II read with section 114/109, P.P.C. The former was awarded sentence of 10 years' R.I. And to pay a fine of Rs,10,000, in default of payment further R.I. For 2 years and to the latter 5 years R.I. And to pay fine of Rs,2,000 and in default in payment to suffer further R.I. For one year. The above two appellants have filed the above appeal whereas the complainant P.W. Muhammad Yousuf son of Achar filed the above revision application under sections 439 and 439-A, Cr.P.C. Praying for enhancement of the sentence to maximum punishment of death of the three accused.
2. On the last date of hearing, namely, on 12-1-1988 when the above appeal and the revision had come up for hearing the learned counsel for the appellants in the above appeal and the respondents in the above revision Messrs Muhammad Hayat Junejo and Ghulam Haider Memon pointed out that in view of the judgment in the case of Shera and 6 others v. The Crown PLD 1954 FC 141 decided by the Federal Court of Pakistan, the above revision was not competent. Thereupon Mr. Khamisani requested for time to study the point. Today when the above appeal and the revision were taken up for hearing Mr. Khamisani had candidly submitted that in view of the above judgment of the Federal Court the revision was not competent as the conviction recorded in the present case was not under section 302/34, P.P.C. But was under section 304, Part (II) read with section 114/109, P.P.C. And, therefore, in the absence of an acquittal appeal the revision cannot be filed for enhancement of sentence to death. Mr. Muhammad Hayat Junejo to re-enforce the above objection has also referred to the Privy Council case, namely Kishan Singh v. The King Emperor 1955 Indian Appeals 390 in which the appellant was tried by a Sessions Judge under section 302 of the Indian Penal Code on the charge of murder but he was A convicted under section 304 for culpable homicide not amounting to murder. Upon revision the High Court convicted the appellant for murder and sentenced him to death. The Privy Council in appeal held that the finding of the trial Court on the charge of murder was to be regarded as an acquittal and, therefore, in the absence of filing of an acquittal appeal in respect of the above charge in revision the accused could not have been convicted for murder by the High Court. The above view was followed in the above Federal Court case. The same view was taken, inter alia, by a Division Bench of the erstwhile High Court of West Pakistan in the case of Rahim Bux v. The State PLD 1956 (W.P.) Kar.
475. We, therefore, dismiss the above revision as being incompetent.
3. As regards the above appeal, it may be advantageous to state the facts leading to the filing of the same. P.W.2 Muhammad Yousuf lodged F.I.R. On 1-8-1982 at 21-00 hours in respect of the murder of his brother Noor Muhammad (hereinafter referred to as the deceased) in front of his house situated in Deh Palal situated about 18 miles north-east of Police Station Bulri Shah Karim, alleging therein that he owned certain agricultural land which was cultivated by him with his deceased brother and Hamid, and that his caste fellows, namely, Eidoo son of Ghulam Ali, Ali son of Ramoon, Lalan son of Ramoon, Yakoob, Allah Dino and Jano all by caste Sethya were residents of the same village adjacent to their house. It was further averred that there was matrimonial dispute between the complainant party and Eido, Lalan and Ali for about last 4/5 years; and that on the day of incident in the afternoon, his deceased brother had gone to the field for cutting grass for the cattle in the bullock-cart. It was further alleged that in the evening Yakoob, Allah Dino and Jano had come at his house for private work and while they were talking with each other at about 6-00 p.m. His deceased brother parked the bullock-cart containing grass in the cattle pen in front of the house and while he was unloading grass from the bullock-cart, Eiden Sethyo also came driving his cattle-cart from outside which collided with their cart. Thereupon there was exchange of harsh words. It was alleged that Eidoo took out 'Adda' (a wooden block) from his cart and tried to give blow to the deceased, who grappled with him. It was also alleged that Eiden called Lalan and Ali and asked them not to spare the deceased, upon which Ali and Lalan came there allegedly armed with hatchet and Lathi respectively. It was also alleged that Ali inflicted hatchet blow from the sharp side in consonance of which he fell down. It was further averred that the complainant party gave Hakals to Ali and others and rushed towards the place of incident and on seeing them coming the accused persons ran away. After that the complainant Yakoob, Jano and Allah Dino carried the deceased to the Government Hospital Tando Muhammad Khan directly by Datsun for immediate treatment but just after their arrival the deceased expired there. It was also alleged that leaving Yakoob, Allah Dino and Jano he came for lodging the F.I.R.
' In pursuance of the above complaint accused was arrested on 2-8-1982 under Mashirnama of arrest (Exh.22) under which blood-stained shirt from the person of appellants accused Ali also secured.
4. The prosecution in support of the case examined four alleged eyewitnesses, namely, P.W.1 Atta Muhammad, Tapedar P.W.2 Muhammad Yousuf, complainant and the brother of the deceased, P.W.3. Yakoob uncle of the complainant and the deceased, P.W.4 Allah Dino cousin of Pandhi father-in-law of the complainant. The prosecution also examined P.W.5 Nabi Bux one of the Mashirs to the Mashirnama, a cousin and brother-in-law of the complainant, P.W.5 Adam Khan, Police Constable, P.W.6 Dr. Qutab Ali Shah, Medical Officer who carried out the post-mortem and prepared post-mortem report (Exh.30), P.W.7 Mehboob Ahmed, S.H.O. Of the Police Station Bulri Shah Karim who investigated the case.
5. The prosecution also relied upon the recoveries of the blood-stained shirt and hatchet from appellant Ali under Exh.22 and Exh.24 and the chemical examiner's report (Exh.32) which was in the affirmative. It also relied upon the motive. It may be observed that the above recoveries against appellant Ali have been relied upon by the learned Additional Sessions Judge, whereas he discarded the unblood-stained Adda and Lathi recovered from accused Eiden and Lalan respectively under Mashirnama Exhs.23 and 25.
6. The appellants/accused in their 342, Cr.P.C. Statements denied the factum of having committed the offence and stated that they were involved due to enmity. The appellant Ali has also stated that one Pundhi, the father-in-law of the complainant had committed theft of his father-in-law Kharo Sathio and because of that said Pundhi was externed from the village and, therefore, he was falsely implicated.
7. The learned Additional Sessions Judge acquitted accused Lalan and convicted the present two appellants in the above terms. They have, therefore, filed the above appeal, whereas complainant has filed the above revision which has been dismissed.
8. In support of the above appeal Messrs Muhammad Hayat Junejo and Ghulam Haider Memon, learned counsel for the appellants have urged as follows:-
(i) That since admittedly there was enmity between the appellants and the complainant party, the testimony of the alleged eye-witnesses cannot be accepted without having reliable corroborative piece of evidence.
(ii) That the presence of the alleged two eye-witnesses P.W. Yakoob and Allah Dino is doubtful and, therefore, their testimony cannot be relied upon. That since apparently F.I.R. Was recorded after the investigation, no reliance can be placed on the testimony of P.W. Mehboob Ahmed, S.H.O. And Investigating Officer.
(iv) That no reliance can be placed on the recoveries against appellant Ali as the Mashir to the alleged recoveries was P.W.S. Nabi Bux son of Pundhi who had personal motive against Ali as stated by him in section 342, Cr.P.C. Statement. On the other hand Mr. Rashid Tariq Khan, learned counsel appearing for the State has submitted that the eye-witnesses are natural witnesses and, therefore, they can be relied upon and that there was nothing wrong with the recoveries.
9. P.W.1 Muhammad Yousuf, the complainant and the brother of the deceased in the F.I.R. Himself has disclosed the enmity between them and the accused party. This enmity has also been admitted by the alleged eye-witnesses in their testimony. In this view of the matter, no implicit reliance can be placed on their testimony without having independent reliable corroborative piece of evidence, which is a settled law by now. Against the appellant Ali, there is additional piece of evidence in the form of recovery of the blood-stained shirt from his person under Mashirnama 22 and the blood-stained hatchet under Mashirnama 24 and there is chemical examiner report Exh.32 in the affirmative. The learned counsel for the appellants have submitted that there has been delay of several months in despatching the above articles to the chemical examiner and, therefore, on that account also the same are liable to be discarded, whereas Mr. Rashid Tariq Khan, learned counsel for the State has submitted that simpliciter delay in the despatch of the above blood- stained articles in the absence of any evidence of tampering with the same will not render the above recoveries inadmissible or unreliable. In our view, simplicitor delay in despatching of the blood-stained articles cannot be fatal, if there is no doubt as to the recoveries and as to the non- tampering with the sealed parcel but in the instant case as the recovery itself is doubtful in view of the fact that the Mashir to the recovery P.W.5 Nabi Bux had a personal motive against the appellant Ali and, the recovery has not been proved by reliable evidence. The S.H.O. Cannot also be relied upon for the reason that there seems to be some force in the contention of the learned counsel for the appellants that the F.I.R. Was recorded after the investigation. In this view of the matter, the above recoveries cannot provide the requisite corroborative piece of evidence.
10. As regards the presence of alleged two eye-witnesses P.W. Yakoob and Allah Dino, it may be observed that the prosecution case before the learned Additional Sessions Judge was that Allah Dino wanted to take from P.W.1 Muhammad Yousuf his land on lease and the other two persons, namely, Yakoob and Jano accompanied him. In this regard it may be pointed out that in the F.I.R.
The above purpose has not been disclosed but it has been stated that they had come to the complainant's house for private work. Additionally the purpose of their presence disclosed by them in their testimony apparently is not reliable as Muhammad Yousuf P.W. Had a total agricultural land to the extent of 28 Acres which he was cultivating as per F.I.R. Along with his two brothers and as per his testimony through two Haris. In his testimony he has stated that it was the first occasion when the above three witnesses had visited his house for the above purpose and thereafter they had never visited for the said purpose, whereas P.W. Yakoob has stated that he had accompanied Allah Dino for witnessing the payment of the lease money, which statement is apparently belied by the above statement of P.W.1 Muhammad Yousuf. There could not have been any payment without first settlement of the terms.
11. Adverting to the question whether the F.I.R. Was recorded after investigation, it may be pointed out that there are three versions as to the examination of witnesses by the S.H.O. And Investigating Officer. According to him he examined the witnesses at the hospital, whereas as per P.W. Allah Dino they were examined at the place of Wardat and as per Yakoob at the police station. Apart from the above fact, as per P.W. Yakoob the accused were arrested from their h9use on the day of incident at night on 1-8-1982, whereas under the Mashirnama of arrest (Exh.22) the arrest has been shown on 2-8-1982 at 20-00 hours. We are, therefore, of the view that the contention of the learned counsel for the appellants as to the recording of the F.I.R. And the manner of investigation is not unfounded.
12. For the aforesaid reasons, we allow the above appeal and set aside the convictions and sentences awarded against the two appellants. We order their release forthwith unless they are required in some other case.
' These are the reasons in pursuance of a short order of even date.