ABDUL HAYEE KURESHI, J.-Appellant Imam Bux was tried along with Ismail and Badlo on charges under section 302. P.P.C. And 13-D Arms Act, in the Court of Session Judge, Jacobabad. While the appellant Imam Bux was found guilty on both the charges and sen--tenced respectively to death and R.I. For two years, co-accused Ismail and Badlo were acquitted, Imam Bux appellant has filed an appeal through Mr. Muhammad Hayat Junejo, Advocate, and the learned a Sessions Judge has also submitted the case for confirmation of death g, sentence imposed on the appellant. We have heard Mr. Hayat Junejo for the appellant and Mr. Murtaza Hussain for the State. On the con--clusion of the hearing of the appeal we had by a short order allowed the appeal, acquitted the appellant and declined to confirm the sen--tence of death and reasons for such order presently follow.
2. The brief facts of the case are that Nazo the brother of appellant was married by Mst Naziran, who is the daughter of complainant Budho 1tnd grand-daughter of deceased Ahmad. Few days before the occurrence which had taken place on 25th March, 1976, Mst. Naziran and her husband Nazo had been brought by complainant Budho and deceased Ahmad to their house because appellant Imam Bux was believed to be on illicit terms with Mst. Naziran, his brother's wife. It is the prosecu--tion case that about eight days before the occurrence appellant Imam Bux had come to the house of the deceased and demanded return of Mst. Naziran but such demand was repelled on the ground that the appellant was on terms of intimacy with Mst. Naziran. The prosecution case is that on 25th March, 1976, at 7-00 a.m. The appellant along with acquitted accused Ismail and Badlo, who are related to the appellant and are otherwise brothers inter se, had come to the house of the deceased in village Chatto Ghanio, Deh Chandan, Taluka Thul. At that time the appellant was armed with a pistol, acquitted accused Ismail with a gun and Badlo with a hatchet. They gave a call to deceased Ahmad who came out in the courtyard of the house and upon appellant Imam Bux demanding the return of Mst. Naziran the deceased refused whereupon acquitted accused Ismail instigated appellant Imam Bux who fired one pistol shot at deceased Ahmed hitting him on the right side of the face resulting in instantaneous death. It is stated that the appellant with the acquitted accused ran away towards south and after their departure cries were raised which attracted many persons to whom the transaction which resulted in death of Ahmad was disclosed.
Leaving the dead body of Ahmad at the scene of occurrence complainant Budho proceeded to Thul Police Station which is at a distance of 3 miles and lodged the first information report at 8-30 a.m., the same being recorded by S.H.O. Muhammad Parial. It may straightway be stated that while the report made no reference to acquitted accused Ismail and Badlo, complainant Budho filed a direct complaint on 14th April, 1976, in the Court of Sessions Judge, Jacobabad, implicating these two accused also. The police officer came to the scene of occurrence and prepared a mashirnama of the same and he also secured an empty cartridge lying at the scene. The blood lying at the scene was also secured and the dead body was sent to the dispensary at Thul, where Dr. Muhammad Alam performed port-mortem besides examining the dead body externally. Only one injury was found which is of the following nature: - "One oval punctured lacerated wound, 1' x 1" x bone deep through and through charring present on the right side front face and on the rigormatic arch with exit wound on the back side of the right side neck inch in diameter with fracture of first and second cervical vertebrae on the back along with the spinal cord fractured."
The appellant was arrested by A.S.I. Fakir Muhammad from his house near village Lai Khan Buriro on 28th March, 1976 and on interro--gation he led to the recovery of pistol which he produced from the roof of his house in presence of mashirs Mitho and Todo. The crime weapon and the crime empty was sent to the Forensic Science Laboratory on 4th June, 1976, and an opinion to the effect that the crime empty had been fired from the crime weapon was recorded by one Muhammad Ahmad and such report has been placed on the record as Exh.
26. The ballistic expert has not been examined and the report contains no reasons for the opinion. No micro composite photograph has been placed on record and there is no means of knowing whether such photographs were taken.
3. At the trial the prosecution examined complainant Budho, son of the deceased, Mst. Sahib, the widow of the deceased, Mst. Naziran, the grand-daughter of the deceased and Mithal, the sister's son of the deceased as eye-witnesses and evidence in regard to motive for they crime has also been furnished by these witnesses. On the point of recovery the prosecution has examined A.S.I.
Fakir Muhammad in regard to the pistol and S.H.O. Muhammad Parial in regard to the empty cartridge. The mashir who entered the witness-box was Mitho and he did not support the prosecution so that he was declared a hostile witness and permitted to be cross-examined by the prosecution. The other relevant evidence is that of Dr. Muhammad Alam, who examined the dead body and Tapedar Razzaq, who prepared the sketch of the scene shown to him by complainant Budho The remaining witnesses are formal.
4. While the appellant examined no witness in his defence, he denied the prosecution case. He stated that he had no illicit connection with Mst. Naziran who was his brother's wife. He also stated that Nazo was not living with him. He attributed his implication in this crime to the reason of enmity of the witnesses with him. The acquitted accused Ismail and Badlo also denied the prosecution case and stated that they had been implicated because they were related to appellant Imam Bux.
5. On such state of evidence the prosecution rests on the ocular testimony of Budho, Mst. Sahib.
Mst. Naziran and Mithal, which is sought to be corroborated by the evidence of recovery of pistol and the spent cartridge. The prosecution has additionally relied on the evidence of motive.
6. In regard to motive for the crime, one is left in grave doubt. Normally persons do not commit adultery with the wives of their brothers, but even to such cases where an intrigue is carried on, both the wrong--doers live in perpetual fear of their lives and it would indeed be a very rare phenomenon that the karo would even pass by the house of kari after the intrigue has come to be known. It would be beyond comprehen--sion and rather incredible that the karo would have the audacity to come upto the house of kari and demand her hand in spite of the knowledge of the intrigue. The story in this case is indeed fantastic for the prose--cution wishes us to believe that after the illicit connections between Imam Bux and Mst. Naziran became known, the husband of Mst. Naziran forgave her misdeed and on the contrary came to live with her in the house of her parents. The witnesses, who have given evidence on the point have stated that Nazo continued to live with Mst. Naziran in the house of deceased Ahmad for a few days and then left as if on the pulse of Ghairat beating hard, to kill his brother Imam Bux. There is: y nothing on the record to' indicate or even suggest that Nazo chastised or' reprimanded his brother imam Bux or his wife Mst.
Naziran. The case of illicit intimacy, which according to custom among the Balochis is often referred for faisla to the headmen has also not been resorted to in this case. The report and evidence discloses that complainant Budho had made a complaint to his nekmard Lal Khan and his Sardar Ayoob Khan in regard to the violation of Mst. Naziran by Imam Bux but nope of them has been examined.
7. On the point of illicit relations between the appellant and Mst. Naziran, there are different and inconsistent versions. Complainant Budho has stated that about 8 days before the incident he had heard that appellant Imam Bux have developed illicit intimacy with Mst. Naziran and he has further stated that Nazo had declared Mst. 'Naziran as kari with his brother. Mst. Sahib who is again the widow of the deceased has given a different version stating that Nazo had seen appellant Imam Bux having sexual intercourse with his wife Mst. Naziran and thereafter Nazo had brought Mst.
Naziran to her house and started living with there Mst. Naziran has again stated that deceased Ahmad had seen her in compromising position with appellant Imam Bux and thereafter she and her husband Nazo had come to live in the house of the deceased where Nazo had divorced her because she was kari. Mithal, who is the sister's son of deceased and lives in the same enclosue three made a statement that Mst. Naziran had not stated to him that she has kari with appellant Imam Bux, it would thus seem that apart from the improbability of the prosecution version on the point of motive there are serious discrepancies and contradictions in the evidence of different witnesses on the same point.
8. It has also been stated by complainant Budho that he had sold his daughter Mst. Naziran to some other person, meaning thereby that Mst. Naziran was agreed to be married to some other person during the subsistence of her marriage with Nazo. Such a version again appears to be at complete variance with the version of Nazo coming to live in the house of parents of Mst. Naziran.
9. In regard to the ocular-account of the transaction two different 'versions have been given by the complainant Budho in the first information report and the subsequent complaint. In the first information report he had not mentioned the names of Ismail and Badlo as the persons who had come with appellant Imam Bux but it appears that with a view to implicate the relatives of Imam Bux he filed a private complaint in which be mentioned the names of acquitted accused and stated that they had come armed with gun and hatchet, levelled the weapons at him and the witnesses and Ismail even instigated appellant Imam Bux who com--mitted the murder. It would thus seem that a desire to inflate the number of accused for ulterior reasons is patent.
Complainant Budho had stated that S.H.O. Muhammad Parial had not recorded his report and had only obtained his thumb-impression on a white piece of paper. The story appears to be unbelievable because the Police officer had thereafter taken some serious steps in investigation and as the law requires him to do he must have sent a copy of the first information report to the Court of the Magistrate having jurisdiction within 24 hours. In our view the subsequent complaint is clearly an afterthought and only exhibits a desire on the part of the complainant to implicate more members of the family of the appellant. Such criticism applies equally to the evidence of the other witnesses, namely, Mst. Sahib, Mst. Naziran as well as Mithal, who are also closely related to the complainant.
10. In regard to the actual account of the transaction the Courts have always looked at the prosecution case from various angles in order to find out the veracity of witnesses. In the present case it is stated in the prosecution case that there are 40 houses in the village and in spit of many persons coming to the scene on hearing the gunshot none has been examined in Court. The names of Todo, Mithal, Jurio and Ismail have been mentioned in the evidence as the persons who had come on the scene immediately and to whom the circumstances of the transaction had been disclosed but none of them had been examined in Court nor have the Police Officers deposed in regard to their having been examined although S.H.O. Muhammad Parial has stated that the houses of Todo, Golo and Kaoro are near the scene of occurrence. The learned Sessions Judge while dealing with the cases of Ismail and Badlo has recorded the following reasons for acquitting them: - "So far as the case of the other accused is concerned, that is doubt--ful. Names of other accused are not given in the first informa--tion report, nor it is suggested in the F.I.R. That besides Imam Bux, there was any other assailant also. It is not brought in the evidence by the prosecution as to whether accused Ismail and Badlo are so closely and thickly related to Imam Bux accused so as to induce them to join him in the crime. No doubt accused Ismail and Badlo in their statements in the Court have stated that they are related to accused Imam Bux but that does not clear the nature and closeness of the relationship. The direct complaint was-filed on 14th April, 1976, i.e., about 20 days after the incident. No document is produced to show that the complainants side made a report or a representation to any authority against the police for omitting the two accused. There is only ocular evidence against these two accused without any material corroboration."
While we agree with the process of reasoning adopted by the learned Sessions Judge for acquitting co-accused Ismail and Badlo, we must point out that evidence against Ismail and Badlo was also furnished from the same source and by the same witnesses who had implicated appellant Imam Bux. When a witness implicates more than one accused, the Courts can divide credibility only in exceptional circumstances for it is difficult to comprehend how the evidence of the same witness cant be relied upon in the case of one accused and disbelieved in the case of others. 1n such circumstances the fact of acquittal of co-accused strongly reacts in regard to the case against the remaining accused. For such reasons the superior Court of the country have on several occasions laid down rules of caution in acceptance of such testimony. A Division Bench judgment in the case of Saboo and others v. The State (PLD 1966 Kar. 637) also refers to a situation of the same nature. In that case which was one of murder evidence was furnished by three eye- witnesses. The names of two out of the several accused were not mentioned in the first information report so that they were acquitted and the remaining accused were convicted. On the appeal by the convicted accused even their conviction was set aside because accord--ing to the learned Judges "the evidence of all three eye-witnesses became doubtful". In such circumstances it would be unsafe to uphold convic--tion of some of the accused while acquitting the rest when the eye-- witnesses treat each one of the accused with the same brush. Under these circumstances it becomes necessary for the Court to look for corroboration before sustaining conviction of the convicted accused.
11. While dealing with the ocular evidence it may also be stated that there is abundant evidence to show that Mst. Naziran had not witnessed the incident. The first information report does not mention her as an eye-witness. She herself in her Police statement has not stated that she was present at the time of occurrence and on the contrary stated that she has gone to the jungle side presumably to ease herself. .
12. In regard to the distance from which the appellant shot at the deceased there is considerable controversy. Dr. Muhammad Alain had found charring on the wound and although he has stated that the deceased might have received 'injuries from a distance of less than 12 feet, it is established by forensic science that charring by reason of cartridge pellets would be caused only when the object is within 4 to 6 feet from the nozzle of the crime weapon. Complainant Budho has stated that the appellant was at a distance of 5 paces i.e. About 15 feet, at the time he shot at the deceased. Tapedar Abdul Razzak was shown the scene of occurrence by complainant Budho and he has stated that the place shown by Budho as the place from where the deceased had been fired at was about 30 feet from the place where the dead body was lying. S. H. O. Muhammad Parial has again stated that the empty cartridge was lying near the dead body at a distance of about 2 or 3 paces but when he was confronted with the mashirnama of the scene of occurrence he admitted that it was mentioned therein that the empty cartridge was lying in the bed of watercourse which must be at some distance from the courtyard of the house where the deceased fell. The same police officer in his anxiety to reconcile his varying statement again went on to say that the watercourse passes through the courtyard of the house of the deceased but when he was confronted with the memo of scene of occurrence which he had himself prepared he again gave a different version and stated that the watercourse was adjacent to the house. It would seem that S. H. O. Muhammad Parial was at pains to explain the charring found on the dead body and for such reasons he started giving different versions but the same have not advanced the case of prosecution in such regard rather has weakened the same.
13. Coming to the evidence of recovery-, mashir Mitho has not supported the prosecution in regard to recovery of the empty cartridge at the scene or a pistol from the appellant. No doubt the prosecution made a request to the Court for permission to cross-examine this witness and such permission was granted but what passes our comprehension is that in spite of mashir Mitho having not supported the prosecution, no attempt was made to call and examine the co-mashir Todo who is riot only living in the house which is adjacent to the house of the deceased but is also stated to have come immediately on the scene of incident. There was hardly any chance of the co-mashir Todo obliging the appellant or withholding evidence. Cinder such circumstances we are left with the bare word of the Police Officer in regard to the recovery and such word has been contradicted by prosecution witness Mitho. In the instant case we are unable to find any substantial reason for believing the evidence of Police Officer.
14. The report of the ballistic expert also does not have the characteristics of expert evidence. The ballistic expert has not been examined in Court and what is more that even the report produced in Court does not show the reasons or the points of similarity between the test cartridge and. The crime cartridge. In the case of Manzoor and another v. The State, which was the subject-matter of Criminal Appeal No. 261/76, we have considered the position that emerges on account of absence of reasons for the opinion of ballistic expert. Judgment in this case was announced on 27-8-1978 and for the reasons that were detailed in that judgment we had kept out of consideration the opinion of the ballistic expert. It is the bounden duty of the prosecution) to assist the Court in judging the correctness of expert opinion and such satisfaction of the Court can only be fostered by the prosecution placing material before the Court which persuades it to examine the reasons for the opinion and arrive at its own conclusions. In the' present case we have even called for the case property lying in the) Malkhana and we found that the test empties have also not been forwarded. We have considered whether we should record additional evidence but even that was not possible because during the hearing of the appeal of Manzoor and others v. The State we had wanted to examine the ballistic expert but were informed that the same ballistic expert has retired more than a year back and his whereabouts are not known. The evidence of recovery of pistol and the crime empties for such reason also does not advance the case of the prosecution.
15. We find that the ocular evidence is not confidence inspiring, evidence of motive is not believable and the evidence of recovery is insubstantial and not complete. For all these reasons we allow this appeal, set aside the judgment of conviction and consequent sentence. We also decline to confirm the sentence of death.