ZAFFAR HUSSAIN MIRZA, J.---The appellant has been convicted and sentenced to death under section 302, P. P. C. By the learned Sessions Judge, Badin (Mr. Allah Bakhsh A. H. Memon) by his judgment dated 22-2-77. Additionally the appellant was separately tried and convicted under section 13-E, Arms Ordinance and sentenced to R. I. For one year. This judgment will dispose of both appeals filed by the appellant and the reference for confirmation of death sentence.
2. The occurrence in this case took place on 29-3-75 at 6-30 p. m. In the land of one Abdul Hakeem at Deb Sonhari, Taluka Tando Bago, District Badin. The allegation of the prosecution is that the sister of the murdered man Bachoo by the name Mst. Noorbhari was married to one Kamal and in exchange Kamal's sister Mst. Sughar was given in matrimony to Muhammad Rahim brother of Bachoo Mst. Sughar had developed illicit intimacy with the appellant and about four days prior to the incident she had clandestinely escaped from the house of her husband. Muhammad Rahim thereupon complained about this to Ali Muhammad. Khair Muhammad Umed Ali and Photo. They searched for her but failed to trace her out. They suspected the appellant to have taken away Mst.
Sughar and accordingly made enquiries from Kamal who however, showed his ignorance as to the whereabouts of the woman. It was therefore suspected that Kamal too had a hand in keeping Mst.
Sughar with the appellant. The matter was then reported to Muhammad Hashim Khalifo. On the day of the incident at about 6-30 p. m. Bachoo went to bring back his sister Mst. Noorbhari from the ho; se of Kamal who had been given in exchange for Mst. Sughar and as he was coming with his sister towards his village, the appellant and Kamal came running after him armed with a gun and a hatchet respectively. On instiga--tion of Kamal the appellant fired a gunshot at Bachoo which hit him on the thigh and he fell down. Photo who is the maternal-uncle of Bachoo was standing in his fields and witnessed the incident. He along with P. Ws. Umed Ali and Khair Muhammad went for help but they were challenged by the appellant not to come near else they would also be killed.
Thereafter the appellant took Mst. Noorbhari towards his house. The witnesses went over and saw that Bachoo bad died on account of injury sustained by him and saw that there was blood at the scene of offence. Leaving P. Ws. Khair Muhammad and Umed Ali at the dead body, Photo left for Tando Bago Police Station. He reached there at 8-00 p: m. And lodged the report which was recorded by A. S. I. Zahoor Khan.
3. A. S. I. Zahoor Khan after recording the F. I. R. Proceeded to the vardat and saw the dead body of deceased Bachoo lying there with gunshot injury on his thigh. There was blood lying on the ground.
He secure 1 the blood-stained earth and prepared the mashirnama in presence of the mashirs Nazir and Haji. In the presence of the same mashirs he also prepared the inquest report of the dead body and sent the dead body through P. C. Malook to Medical Officer, Tando Bago for autopsy. On account of nightfall he remained at the scene. He examined P. Ws. Mst. Noorbhari, Umed Ali, Khair Muhammad and Muhammad Rahim. On 30-3-75 he arrested the appellant from his otaq in presence of the same mashirs. The appellant produced a gun from under his bed. One empty and one live cartridge were found present in the gun. Such mashirnarna was prepared in presence of the same mashirs. He then returned to the Police Station and registered a case under section 13 (d), Arms Ordinance against the appellant. He also got the statements of P. Ws. Mst.
Noorbhari, Muhammad Rahim, Khairoo (Khair Muhammad) and Umed Ali recorded under section 164, Cr. P. C. On 2-4-75 acquitted accused Kamal surrendered himself at Police Station and was arrested in presence of the mashirs. The A. S. I. Then handed over the papers to S. H. O. Zaffar Ali of Tando Bago Police Station. The S. H. O. Verified the investigation already conducted by the A. S. I.
And on 5-4-75 he recorded the statement Mst. Sughar. On 9-4-75 he examined Khalifo Muhammad Hashim and Amir Bux. He received post-mortem report on the same day. He sent the blood-stained earth to the Chemical Analyser and gun and the cartridges to Ballistic Expert for report. On 16-4-75 he challaned the accused in Court.
4. The Ballistic Expert found that the empty had been fired from the left barrel of the gun received by him. The Chemical Analyser also sent his report in the positive and opined that the earth was found to be stained with human blood.
5. The appellant denied the allegations of the prosecution and pleaded his innocence. In the committal Court his plea was that he was implicated due to enmity.
6. The case of the prosecution rests upon the ocular testimony as well as the evidence of motive and recovery of the crime weapon from the possession of the appellant along with an empty cartridge found to have been fired from the gun. The learned Sessions Judge who tried the appellant believed the testimony of P. Ws. Photo, Umed Ali, Muhammad Rahim and Khair Muhammad and also held that the prosecution has established the motive. He found corroboration in the evidence of recovery. However, since the witnesses produced by the prosecution did not support the case against co-accused Kamal, the learned Sessions Judge found the case not to have been proved against co-accused and acquitted him.
4. Before us it was contended on behalf of the appellant that the ocular testimony is totally unworthy of credit due to the wholly discrepant and inconsistent evidence of the witnesses. The learned Additional Advocate-General appearing on behalf of the State also found himself unable to support the conviction on account of inconsistencies appearing in the evidence of witnesses and total lack of corroborative evidence.
8. We find substance in the submission of the counsel that the evidence of the witnesses is wholly unreliable. The prosecution produced five witnesses at the trial as witnesses of the occurrence.
They are complainant Photo who is the 'Masat' (maternal aunt's son) of the deceased, P. W. Umed Ali cousin of the deceased, P. W. Mst. Noorbhari sister of the deceased, P. W. Muhammad Rahim brother of the deceased and P. W. Khair Muhammad uncle of the deceased. Out of these witnesses P. W. Mst. Noorbhari who was the bone of contention and immediate cause of the occurrence has not supported the prosecution. She was declared hostile and cross-examined by the learned D. P.
P. In the trial Court. In her evidence she deposed that on the night of incident she was sleeping in her house when she heard a gun shot outside. She went running out of the house and saw her brother deceased Bachoo lying dead. She denied that complainant Photo and P. Ws. Umed Ali and Khairoo came there. She was contradicted with her 164, Cr. P. C. Statement and her statement before the Court of Sessions at Hyderabad (where the evidence seems to have been first recorded). But the defence brought on record her statement in the committal Court where she had similarly stated that she saw her brother Bachoo murdered but did not see any person near the place of incident. The learned Sessions Judge has therefore excluded her evidence from considera--tion.
9. Out of the remaining witnesses complainant Photo supported the prosecution case in the trial Court but was contradicted with his statement in the committal proceedings where he had stated that he had come on cries and "saw an unidentified man running away after firing, with his backside to me". He also did not support the version in the F. I. R. That the appellant fired at the deceased at the instigation of the co-accused Kamal. The next witness P. W. Umed Ali stated in his evidence that he was in his fields along with Khair Muhammad when they heard the cries. He, P. W.
Khair Muhammad and complainant Photo went running towards the cries, with Photo leading the other two. When they reached about a block's distance from the scene they saw Bachoo lying dead and the appellant standing with a gun. He has denied the existence of criminal intimacy between Mst. Sughar and the appellant. P. W. Muhammad Rahim, as stated above is the brother of the deceased and husband of Mst. Sughar who has been associated with the motive for the crime.
According to this witness he was standing in the fields when deceased Bachoo was bringing back their sister Mst. Noorbhari from the house of Kamal. He heard gunshot and went over. He saw Bachoo lying dead while the appellant was standing there with a gun. P. W. Photo, Haji and others were already there. According to this witness the appellant kept on standing at the dead body till the police arrived and was arrested on the spot. The gun was also secured by the police, so he states, at the scene. However, mashir of recovery, P. W. Haji states that the appellant had produced the gun along with the cartridges from the otaq where be used to live. As stated in the narration of the facts- the A. S. I. Had reached the scene of occurrence on the same day and arrested the appellant on the next day. According to the Investigating Officer, the appellant produced, the gun with the cartridges from under his bed after arrest. This witness was contradicted with his statement recorded in the Court of Sessions at Hyderabad where he had stated that upon hearing cries at about 4 p. m. On the day of incident he rushed towards the scene and saw the appellant with the gun and therefore, did not approach near the vardat. It was also pointed out that the name of this witness does not transpire in the F. I. R. Nor the complainant Photo in his deposition mentioned his presence at the scene of offence. The last witness P. W. Khair Muhammad in his evidence before the trial Court deposed to have seen the appellant firing with his gun at the deceased. He also stated like P. W. Muhammad Rahim that the appellant kept on standing with his gun at the scene of occurrence until the police arrived at 8.000 p. m. And arrested him. He was however, contradicted with his committal Court statement where he had stated that night of incident was dark. We were at a distance of about 4 acres when we heard the gunshot." This admission reflects seriously upon his veracity as any eye witness of the incident. He could not possibly have seen and. Identified the culprit from such a distance. His version that the appellant kept on standing is contradicted by the complainant who states that the appellant after firing at the deceased took away Mst. Noorbbari to his house. It is also contradicted by the evidence of mashir Haji and the Investigating Officer as already pointed out. Besides according to his admission the incident took place in the dark night which is totally inconsistent with the prosecution case.
10. The discrepancies and inconsistencies mentioned above seriously detract from the credibility of the oral testimony. The contradictions are material and cast a serious doubt on the veracity of the evidence of which benefit has to be given to the appellant. We are unable to agree with the assessm ent of the oral testimony by the learned Sessions Judge who summarily dismissed the above discrepancies with an observation that every omission is not a contradiction so as to discredit the witness. We are wholly unable to agree with the learned Judge that the contradictions are inconse--quential.
11. It was argued on behalf of the appellant that the evidence of recovery of the gun does not materially connect the appellant with the crime and is otherwise unreliable. It was pointed out that it was a licensed gun belonging to one Haji Ali Muhammad Jamali. Admittedly nothing incrimina-- ting yeas found at the scene of offence to connect the crime with this gun. The empty was also secured lying in the barrel of the gun and not from the scene of offence so as to establish any connection between the occurrence and the gun in question. Thus no material significance can be attached to this evidence, Further it was rightly argued on behalf of the appellant that it was for the prosecution to show how the appellant got held of the gun from its licensed owner.
12. For the foregoing reasons, we have reached the conclusion that the charge has not been proved against the appellant. The evidence of the prosecution having been disbelieved in regard to the capital charge, we also cannot place any reliance on it as regards the charge under sec-- tion 13 (d) of the Arms Ordinance.
13. In the result, we allow both appeals and set aside the appellant' convictions and sentences under section 302, P. P. C. And section 13 (d), Arms Ordinance. Consequently, the reference for confirmation of death sentence stands rejected. The appellant shall be released forthwith if not required in any other case.
14. We had announced the decision in these two appeals by a short order on 12-2-78 for reasons to be recorded later. Aforementioned are the reasons for the decision