' ZAKAULLAH LODHI, J.-Appellants Ghulam Nabi, Dasti, Allauddin and Mohammad Unis alias Phoonger were tried alongwith acquitted accused Khadim Hussain and deceased Sher Khan under section 302/149, P. P. C. By learned Additional Sessions Judge, Larkana who vide his judgment dated 11th August, 1975 convicted and sentenced the appellant Allauddin to death and to the rest to imprisonment for life. He also convicted the appellants to 7 years' R.I. Under section 307/149, P. P. C.
The appellants have filed appeal to assail the validity of their conviction and sentence whereas the learned Additional Sessions Judge has referred the case under section 374, Cr. P. C. For confirmation of the death sentence passed against appellant Allauddin. This judgment will dispose of both the appeal as well as the reference.
2. According to the prosecution story Ata Mohammad and Mrs. Bhagul were killed by the appellants on 5th December, 1973 at "Tripahri" time on the land of Sultan Bozdar, Deh Mohammad Khan Jalbani, Taluka Rata Dero, District Larkana. The report was lodged at Police Station Rato Dero which is situated at a distance of 4 miles from the wardat. According to the F. I. R. The complainant alongwith his brother Sikandar, Ma Mohammad, Mst. Bhagul, his brother's wife, Mst. Zargul, children Sardar Khan, Sher Bibi and Sasi had gone to harvest the paddy crop in the land of Sultan Bozdar. At that time the buffaloes of appellant Allauddin trespassed into the paddy crop and the complainant drove them out upon which the appellant Allauddin's son came to inquire as to why his cattle have been driven out from the cultivation. The boy was told that since the cattle were spoiling the crop therefore they had been driven out of the field. The boy felt annoyed by the reply and went away, At "tripahri" time appellants alongwith acquitted accused Khadim Hussain and deceased Sher Khan came to the paddy field duly armed with guns. Appellant Dasti instigated his companions to attack them upon which Mohammad Unis alias Phoonger fired his gun at the complainant, Complainant raised cries which attracted Abdul Rehman and Ghulam Siddiq. In the meantime appellant Allauddin fired the gunshot which hit Afst. Bhagul. Ghulam Nabi fired at complainant's brother Sikandar. Dasti and Sher Khan also fired their guns which hit Ata Mohammad and children Sardar Khan, Sher Bibi and Sasi. The complainant has further provided for the offence motive by stating that the accused was inimical with them as he was a witness against them in a criminal case. The report was recorded by Mohammad Nazir S.H.O. Ahmed Pur on the same day at about 5.30 p.m. He reached the vardat and secured blood-stained clothes from the injured. He also recorded dying declaration of deceased Ata Mohammad. He sent injured to Rato Dero for medical examination and treatment. He recorded the statement of P. Ws. Abdul Rehman and Ghulam Siddiq. On the following day he visited the vardat which was situated in uncultivated land of Sultan Bozdar in Deh Mohammad Khan Jalbani Taluka Rato Dero. He secured the blood and also one empty cartridge from a distance of 10 or 16 paces away from the vardat. He also prepared inquest report of the dead bodies. On 1st December, 1973 he arrested the appellant Ghulam Nabi, then on 1 I th December, 1973 he arrested appellant Allauddin, acquitted accused Khadim Hussain and Dasti.
Appellant Dasti produced his licensed gun to the Investigating Officer. On 31st December, 1973 appellant Unis voluntarily appeared at the police station and he was taken into custody. After necessary investigation the challan was submitted to the Court of Civil Judge and F. C. M., Rato Dero.
3. Dr. Shafi Mohammad examined the injured and held autopsy on the dead bodies of Ala Mohammad and Mst. Bhagul. Ata Mohammad had following injuries on his person :-
(1) A lacerated punctured wound rxr x scalp deep on head.
' In the opinion of the doctor the injury was caused by fire-arm. He has not stated as to whether it was sufficient to cause death or not.
' He also held autopsy on the dead body of Mst. Bhagul on 6-12-1973. He found following injury on her person :-
(I) One punctured wound x t" x brain cavity deep on occipital region, brain substance oozing out.
' In his opinion death was caused due to-.Shock and haemorrhage consequent upon the injury which was caused by the fire-arm.
' The other injuries were also examined by him. Sikandar had following injuries :-
(1) A lacerated punctured wound rxrx muscles deep on right thigh back side.
(2) A lacerated punctured wound rxrx muscles deep on right thigh medial.
(3) A lacerated wound r xr x muscles deep on tongue.
(4) A lacerated wound r x 4' x muscles deep n upper lip, no charring present, two upper inciser teeth and one Cower inciser tooth dislocated.
' Inthe opinion of the doctor the injuries were simple in nature,' Sher Bibi had following injury :-
(1) Lacerated punctured wound r x r x muscles deep on right medially, The injury was simple in nature. Arbab had following injury on his person :-
(I) A lacerated punctured wound r xr x muscles deep on left shoulder-joint. ' injury was simple in nature.
' Vst. Sasi had following injury on her person (1) A lacerated punctured wound fm xix muscles deep on right chest upper part.
' The injury was simple in nature.
' Sardar Khan had following injury on his person (1) A lacerated punctured wound r xix muse les deep on right high, ' The injury was simple in nature, ' Mst. Zar Gut had following injury on her person .-
(1) A lacerated punctured wound x x muscles deep on left ica, The injury was simple in nature.
4. In their defence the appellants have pleaded innocence,
5. The prosecution has furnished ocular testimony of Arbab, Sikandar, Mst. Zar Gul and Ghulam Siddiq in support of the case. These witnesses are closely related to each other. Arbab is brother of Sikandar who is husband of deceased Mst. Bhagul. Sikandar is brother of Arbab. Mst. Zar Gul is wife of Sikandar. Ghulam Siddiq is brother-in-law of complainant. All these witnesses have stated that on the day of occurrence all the deceased and injured persons were working in the paddy field of Sultan Bozdar of whom they are hark. They were busy in cutting the paddy when the cattle belonging to appellant Allauddin trespassed into the land and they drove out the cattle. After a little while son of appellant came to enquire as to why the cattle had been driven out upon which he was.Told that it was done so because they were spoiling the crop. He felt annoyed and left the place. At about "tripahri" time all the appellants alongwith Sher Khan and acquitted accused Khadim Hussain came there duly armed with guns. Appellant Dasti instigated the other accused and upon his instigation Mohammad Unis alias Phoonger fired at the complainant. Appellant fired at Mst. Bhagul. Ghulam Nabi fired at Sikandar. Dasti and Sher Khan fired their guns which hit deceased Ata Mohammad, mST. Zar Gul and children Sardar Khan, Sher Bibi and Sasi. Apart from the ocular testimony, there is also the dying declaration of deceased Ma Mohammad which has been disbelieved by the trial Court for want of corroboration. As far as testimony of P. Ws. Arbab, Sikandar, Mst. Zar Gul and Ghulam Nabi is concerned, it cannot be implicitly relied upon without corroboration from an independent source because the witnesses are related inter se. Though they have denied the relationship when specifically asked about it in crotaiptamination, yet it is an admitted feature that they are closely related, 'their denial of relationship makes it all the more clear that they want to hide the fact of relationship so as to bring home the guilt to the Appellants.
These witnesses have already admitted that the appellants were on inimical terms with them. In these circumstances it would be unsafe to place, implicit reliance on their testimony. Moreover, the detail with which they have described the commission of the offence seems to be unnatural. Each of the witnesses could not be expected to say in all that detail as to whose gunshot has hit whom, particularly when all the appellants are supposed to have fired the gunshots at a time. Besides this the testimony of these witnesses has not be relied upon as far as Khadim Hussain is concerned. It would therefore be difficult to believe the same for the purposes of the appellant. Recovery of empty cartridges also does not support the testimony of the eye-witnesses. The witnesses say that the empties were recovered from the vardat whereas the fact is that it was recovered from a distance of about 10 or 15 paces away from the vardat on the western side of the bank of canal. As far as production of the gun from the appellant Mohammad Unis is concerned its recovery has been proved by a Mashir who was working as a Cook in the house of the Investigating Officer at the relevant time. It is quite natural that the employee of the S. H. O. Cannot be regarded as an independent witness. There is no corroborating evidence at all and if the discovery of gun and empty cartridges are set aside Trom consideration, there would be no corroborating evidence forthcoming to corroborate the testimony of the eye-witnesses. As already discussed earlier, the testimony of the interested witnesses cannot be believed and conviction of so many appellants cannot be allowed to rest upon the uncorroborated testimony of the interested eyewitnesses.
6. As far as conviction under section 307, P. P. C. Is concerned, the learned counsel for the State has conceded that since the injuries were simple in nature and there was no evidence of intention to kill therefore the appellants could not be convicted under section 307, P. P. C. They can be convicted under section 324, P. P. C. Alone. However, as observed earlier, there is no reliable evidence against them. They cannot accordingly be convicted on this score also.
7. For the foregoing reasons, we set aside the conviction and senten passed against the appellants.
The reference for the confirmation of death sentence passed against Allauddin is not accepted.
The appellants shall be set at liberty forthwith unless they are required in connection with any other case.
' ALL HYDER, J. -I agree.