Pir Bux son of Muhammad Suleman Chacher was tried along with two others by the learned Additional Sessions Judge, Kandh Kot, for the murder of Abdul Khalique under section, 302/34, P. P.
C. The learned Judge while acquitting the co-accused convicted Pir Bux and sentenced him to death by his judgment dated 19-3-1977. The sentence of death has come up before this Court for confirmation and the convict has also appealed against the conviction and sentence which will both be disposed of by this judgment.
2. The occurrence in this case took place on 5th June, 1975 at about 11 a. m. At the Tea Shop of P. W.
Qadir Bux in village Khaji Taluka Kashmore District, Jacobabad- It is alleged that Abdul Khalique 'was sitting along with P. Ws. Vali Muhammad and Sahib in the Tea Shop when P. W. Qadir Bux was also present, when the appellant Pir Bux along with Muhammad and Mahrab all three armed with guns suddenly appeared and challenged Abdul Khalique. Thereafter the appellant aimed his gun at Abdul Khalique who stood up and tried to close the door of the room, but in the meantime the appellant fired a shot, which pierced through the door of the room and hit Abdul Khalique on the chest. The latter fell down near the door and the P. Ws. Raised cries. Thereafter the assailant ran away. The P. Ws. Then saw that Abdul Khalique had died. Wali Muhammad then leaving the two P.
Ws. Near the dead body left for the Buxapur Police Station which is about 9 miles from the scene of offence, and lodged the report at 1 p. m., which was recorded by H. C. Dhani Bux.
3. H. C. Dhani Bux then proceeded to the scene of offence which was shown to him by the first informant. He prepared the Mashirnama of the scene of offence in presence of two mashirs namely Buxio and Shah Muhammad.' At the scene of offence he found the dead body of Abdul Khalique lying in the shop with gun shot injury and saw blood on the floor. Since the floor was cemented he secured the blood with the aid of cotton swabs. He also secured two pellets from the scene and apart of the door which had a hole caused by the gun shot. He further secured two wads of the fired cartridge as well as one empty from the scene. He sealed at the spot the articles secured from the scence of offence in presence of the aforesaid mashirs. He also pre--pared the inquest report. He then despatched the dead body to the Medical Officer Buxapur for post-mortem examination and report through P. C. Abdullah. The Medical Officer Buxapur was however, not available and as such the dead body was taken to the Medical Officer, Kandhkot. He then recorded the statement of P. Ws. Sahib and Qadir Bux. On 10-6-1975 he arrested the appellant Pir Bux in presence of the same two mashirs and prepared the mashirnama of arrest. The appellant is said to have led the police and the mashirs to his house and produced a .12 bore licensed gun in his name, along with three cartridges. The appellant also produced the licence of his gun. All these articles were secured under mashirnama in presence of the said two mashirs. The gun was sealed at the spot. On the same date he also arrested co-accused Mehrab and secured from him a 12 bore single barrel gun along with four live cartridges, in presence of the same mashirs. On 14-6- 1975 he arrested co-accused Mehrab in presence of mashir Mitho and Muhammad Azeem and secured from the accused a licensed - 12 bore gun and three live cartridges. On 16-6-1975 H. C.
Dhani Bux got 164, Cr. P. C. Statement of P. Ws. Qadir Bux and Sahib recorded before the Mukhtiarkar and F. C. M. Kashmore. The empty secured from the scene of offence and the gun secured from the possession of the appellant were sent to the Ballistic Expert. Karachi for examination. The blood secured from the scene of offence was also sent to the Chemical Analyser, Karachi. Both the reports were received and were in positive. It was found that the empty was fired from the gun secured from the appellant and the blood was found to be of human origin. The investigation was then handed over to the S. H. O. Who after usual verification submitted the charge sheet against the accused in the Court.
4. The appellant and the co-accused are close relations, accused Muhammad being the brother and accused Mehrab being the son-in-law of the appellant. The defence of the appellant was one of denial and false implication on account of enmity. It was stated by the appellant that he had a dispute over land with informant Wali Muhammad and his cousin. In the year 1972 the appellant had filed 107, Cr. P. C. Pro--ceedings against the informant and P. Ws. Sahib and others. The appellant asserted that it was on account of this empty that the said two witnesses had falsely deposed against him.
5. The prosecution case rests upon the ocular testimony of informant Vali Muhammad (P. W. 1) and Sahib (P. W. 2). In addition there is the evidence of recoveries of the licensed gun from the possession of the appellant and the empty secured from the scene of offence which has been found to have been fired from the said gun. The medical evidence consists of the testimony of Dr. Shahal Bijarani who found the following injuries on the body of the deceased.
(1)Eight lacerated wounds punctured type 3/4" in diameter structure deep each 1/2" to 2--" away from each other on lower lei anterior and lateral chest. Slight charring present. Wound o entrance.
(2)Two lacerated wounds punctured type 1" in diameter structure deep 2" away from each other on left lower back chest. Wound of exit.
Finally the prosecution relies upon the evidence of motive.
6. Before discussing the evidence it would be pertinent to state that in the first information report the informant had alleged that one Umer had given the hand of his daughter to the deceased in marriage and in exchange the deceased had promised the hand of a girl to the said Umer.
However, instead of taking the girl for himself, Umer asked the deceased to give the girl to the appellant to which the deceased was not agreeable. 1t was stated that the deceased was willing to give the hand of girl to anybody except the appellant. On account of this the appellant and the co- accused were annoyed with the deceased and had threatened to take the girl under all circumstances.
7. It was first contended on behalf of the appellant that the Convic--tion of the appellant is not sustainable on the evidence of the two alleged eye-witnesses as their testimony is tainted with enmity unless it is supported with independent corroboration either by circumstances or by ocular evidence from unimpeachable source. From the prosecution case it would appear that the incident had taken place in the presence of three witnesses. The two witnesses produced at the trial were, as already stated, the informant Vali Muhammad and his cousin P. W. Sahib. Both these witnesses are the cousins of the deceased. It has been admitted by informant Vali Muhammad that they have got a dispute with the accused persons in the case over the land and that the appellant had filed 107, Cr. P. C. Proceedings against him, P. W. Sahib and others. This fact is further supported in the statement of the appellant with the copy of the complaint under section 107, Cr. P.
C. In which it was stated that the appellant had applied on 8-6-1972 to the S. P. Jacobabad in which the appellant had complained against the informant and others of having come upon his lands and threatened him to surrender the possession. In this application the appellant had cited Muhammad Bakhsh and Mehrab the acquitted co-accused in the case and his wit--nesses. This application was forwarded by the S. P. To the S. H. O. Police Station, Buxapur who filed the complaint on behalf of the State. There is therefore, no doubt that the testimony of the eye-witnesses is highly interested.
8. It is further in the evidence that the Tea Shop where the-incident occurred is located in the middle of the Bazar in the town Khahi. There are about 4(10-500 houses in village Khahi and about 50-6Q shops. Admittedly the shops were open at the time of the incident which cannot but be regarded as the peak business hour. It is anybody's guess as to the number of people that must be attracted upon a shot fired in a Bazar during business hours. Yet the prosecution chose to reply on the evidence of couple of close relations whole only reason to be present at the psychological moment was over a cup of tea. It is not difficult to visualise that there was no dearth of independent and natural witnesses among the shopkeepers in the vicinity. Be that as it may, the only independent witness who was the most natural witness, namely, Kadir Bux to whom the Tea Shop where the murder took place belonged and who admittedly witnessed the crime, was given up by the prosecution at the instance of the informant. In view of these circumstances it is imperative to look for independent corroboration.
9. There being no ocular corroborative evidence, the only circum--stance relied upon by the prosecution was the recovery of empty from the scene of offence which has been found to have been short from the gun produced by the appellant. However, the mashir who was examined in support of the recovery P. W. Shah Muhammad is again no other than the informant Vali Muhammad's own brother. Unfortunately therefore, the evidence of recovery itself suffers from the same infirmity and such corro--borative evidence cannot be held to be from an unimpeachable source. It is a pity that the head constable who investigated the case chose to pick up such a close relation of the complainant side both on the day he visited the scence as well as five days later when he secured the gun and live cartridges from the possession of the appellant. It is now well estab--lished that a piece of evidence itself requiring corroboration cannot qualify as corroborative evidence.
10. Mr. S. Nasiruddin sought to argue that the fact of recovery would still be established with the testimony of the Investigating Officer even if the evidence of the mashir is excluded from the consideration He placed reliance in this behalf on the cases of Muhammad Khan v. Dost Muhammad (PLD 1975 SC 607) and Misri Khan v. Kala Khan (PLD 1977 SC 462). In our view the two cases are distinguishable. In Muhammad Khan's case the confirmatory evidence relating to the recovery of incriminating articles was assailed on the basis of section 103, Cr. P. C. Inasmuch as the requirement of law with regard to the presence of respectable witnesses of the locality at the time of recovery was not satisfied. The contention was repelled on the ground inter alia, that the two witnesses of recovery were not produced as according to the evidence on oath of the S. I. P. "because they were won over by the defence" and this part of the statement of S. I. P. Bad gone unchallenged. In the present case it is not stated by any witness on oath including the Investigating Officer that P. W. Kadir Bux was won over. The statement was made in an application by informant Vali Muhammad whereupon the learned A. P. P. Incharge of the pro--secution gave up the witness.
In the other case their Lordships, in regard to the testimony of the Police Officer in support of the recovery of the crime weapons observed that "in the cross-examination of the A. S. I Muhammad Ashraf nothing was brought to show that he had acted dishonestly or unusually in relation to these recoveries". However, their Lordships further accepted the testimony of the mashir of recovery despite the fact that he was a relation of the deceased on the ground that both parties were closely related to each other and therefore, the mere fact of relationship could not be treated as the determining factor unless it is further ascertained whether the witness concerned had in fact aligned himself closely with one party against the other. It was urged on behalf of the appellant that the investigation was taken up by the Head Constable although usually in a murder case a more responsible Police Officer is entrusted with the investigation. It was further argued and when we agree that the investigating officer acted unusually in his investigation in view of several factors. It seems he did not attempt to examine the shopkeepers in the vicinity of the scene of offence who were natural witnesses of the incident and on both occasions, namely, at the time of recovery of empty as well as at the time of recovery of the gun he made the brother of the informant as a mashir.
Be that as it, may, it cannot be argued that the Police Officer's evidence should invariably be relied upon as a rule in case the supporting evidence is interested. In Muhammad Khan's case already referred to above it was observed that the Court will ordinarily insist .On a strict compliance with the requirement of section 103, Cr. P. C. And view its non-compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses or omission to examine them in Court. It is therefore clear that although in principle a Police Officer's evidence can be relied upon in support of recovery of incriminating articles but each case must depend upon its own facts and the Court must be on guard to view with suspicion any extraordi--nary conduct on the part of Police officer to adopt a course which will nullify the effect of the safeguards provided by section 103, Cr. P. C. In using the words "respectable witnesses" the obvious legislative intend--ment was to guard against concoction. Failure to secure an independent witness to be the mashir of the recoveries when admittedly such witnesses could be easily available is a circumstance which reflects upon the weight to be attached to this evidence. Besides as will appear from the dis--cussion regarding the question of motive, the Investigating Officer for no obvious reason failed to examine Umer whose name was disclosed in the F. I. R. These circumstances are sufficient to hold that Investigating Officer acted in an unusual manner and therefore, it will be unsafe to place reliance on his sole testimony as corroborative evidence.
11. It was finally contended on behalf of the appellant that although it is not necessary for the prosecution to establish motive for the crime in all cases but once motive is alleged, the failure on the part of the prosecution to establish motive has been held to react on the entire prosecution evidence. In the background of the enmity that stands proved and admitted, the motive alleged, in our consideration to say the' least is highly improbable. It was alleged that Umer to whom the; deceased had promised the hand of the girl in marriage in exchange of his daughter, had asked the deceased to give the girl to the appellant: who, was inimical to the deceased. This should be the motivation for the dreadful crime in broad day light in circumstances demonstrating high, handedness is not a normal course of human conduct, At any rate the) all important witness of this episode, namely, Umer has not been pro--duced at the trial in support of the motive. It was held in Nazir Muhammad v. State (PLD 1974 Kar. 274) that where motive for the crime is alleged but subsequently not proved and was abandoned at the trial, it becomes all the more necessary to scrutinise the credentials of the witnesses who speak about the guilt of the accused persons on the premises of a false motive, as motive is an important constituent, in such a case, of the prosecution case.
12. The evidence as discussed above requiring as it does independent corroboration, lacks totally in confirmatory evidence and as such; we are of the confirmed opinion that it would be unsafe to rely on such tainted evidence.
13. In the result we accept the appeal and set aside the conviction and sentence. The reference therefore, stands dismissed.
14. We had announced the decision in this case by a short order on 31-1-1978 and above are the reasons for that decision.