1. ABDUL KADM SHAIKH, J.-This appeal, by Special Leave, is directed against the judgment of Sind High Court dated 14th February, 1970 by which appellant's conviction under section 302, P. P. C. And sentence of life imprion--ment and fine of Rs. 2,000 recorded by the Sessions Judge, Hyderabad were confirmed and his appeal,, was dismissed.
2. According to the prosecution, appellant had detained a married woman belonging to the caste of Manzoor (deceased), and on this account Manzoor had remonstrated with him which led to the incident in the present case at noontime on 10th May, 1976 in front of building known as Baitul Fayyaz on Massat Road, Hyderabad. At that time, appellant was standing under the shadow of a tree and when Manzoor passed by, appellant called him and there was exchange of abuses between them during which appellant took out a knife from the folds of his trousers and struck blows on Manzoor as a result of which the victim fell down and died on the spot. The incident was witnessed by Khair Muhammad, Muhammad Siddique, Khadim Hussain and Muhammad Younis but they did not intervene as the assailants were armed with a knife. Afterwards Khair Muhammad went to inform his brother Khamiso, father of the deceased, who came to the spot. In the meantime Mr. Victor, A. S. I. P. Attached to Market Police Station, Hyder--abad reached the scens of offence on receiving telephonic message from one Bashir Umrani that Manzoor's dead body was lying by the roadside. The Police Officer conducted investigation in part and then took Khamiso to the police station where Khamiso lodged F. I. R. With S. H. O. Khaliq Ahmad who conducted further investigation in the case.
3. Appellant was arrested on 20th May, 1976 from the house of one Nagina, and he is said to have led the Police party and the Mashirs to the recovery of knife from overhead water tank of the -house.
4. No blood was noticed on the weapon, yet it was sent to the Chemical Analyser whose report subsequently received confirmed that the weapon was not stained with blood.
5. At the trial the prosecution. Case was, sought to be supported by the ocular testimony of four witnesses Khadim Hussain, Muhammad Siddique, Muhammad Younis and Khair Muhammad as corroborated by the recovery of the weapon used in the crime namely the knife and also the motive stated earlier. The first two witnesses did not support the prosecution case while the remaining two fully implicated the appellant in the crime. The Sessions Judge. Hyderabad who tried the case disbelieved the motive alleged by the prosecution and held that the incident occurred suddenly for the reason that it was discernible from the record. He also did not place reliance on the circumstantial evidence of the reccovery of the knife, but in his view the ocular testimony of P. Ws. Muhammad Younis and Khair Muhammad furnished a safe and reliable basis for the foundation of the guilt of the accused.
6. On appeal by the convict a Division Bench of the High Court of Sind however believed the prosecution evidence as to the motive and also the recovery of knife at the behest of the accused in addition to the ocular testimony of P. Ws. Muhammad Younis and Kbair Muhammad and on this view of the case refused to interfere with the conviction and the sentence passed against the convict.
7. Special leave to appeal was granted by this Court on 8th January, 1980, in order to examine whether in view of the several infirmities in the prosecution evidence it constitutes a safe and sound basis for upholding the guilt of the accused on the charge framed against him.
8. Mr. Muhammad Hayat Junjo, learned counsel for the appellant firstly referred to the statements of Muhammad Younis; and Khair Muhammad in support of the submission that the narration of incidents given by the is not only discrepant but totally unworthy of reliance. According to P. W.
9. Khamiso who immediately reached the spot on learning the news from his brother Khair Muhammad about the murder of his son, he did not Meet any eye-witnesses at the vardat ; in his words, "Nor anybody informed m as to how the incident took place" whereas Muhammad Younis's 'Claim was that he waited near the dead body still Khamiso came there and later on the Police Officer, Mr. Victor also reached in response to the telephonic message. Muhammad Younis indeed added that "Khair Muhamma brought Khamiso to the vardat Khamiso covered the face of the deceased with the cloth and then proceeded to police station to lodge report. I had informed the Khamiso that Faizoo had murdered Manzoor and ran away." The claim of Khair Muhammad that he had witnessed the occurrence fro inside a hotel where he was taking tea is belied by Maula Bakhsh, Tapedar, P. W.
11. The Tapedar had prepared the sketch of the scene of offence on the pointation of P. W. Khair Muhammad who had shown his position at th scene of offence at point `B' which was on the read and not inside any shop B or building. According to the Police Officer Mr. Victor Khamiso was already present at the vardat when he reached there whereas Khair Muhammad state that when he brought Khamiso to the vardat he found the Police already present there along with Muhammad Siddique, Muhammad Younis and Khadim Hussain.
10. It is thus obvious that the respective claims set up by P. W., Muhammad Younis and Khair Muhammad are not only contradicted by each other but. Ar also wholly unreliable. The prosecution evidence as to the recovery of the knife allegedly secured at the instance of the accused was not believed by the learned Sessions Judge for the cogent reasons that the weapon was not proved to be stained with blood and also that the Mashir Abdul Razak had not cor- C rectly picked out the knife said to have been produced by the accused. Both the Mashirs of the recovery namely Abdul Razak and Abdul Sattar ar brothers inter se and are relatives of P. Ws. Kbair Muhammad and Khamiso. They are not even the residents of the same locality. These are very weighty reasons which have prevailed with the -learned Sessions Judge but unfortu--nately those were not noticed by the learned Judges in the High Court. Their Lordships also felt content with the prosecution evidence as to the motive by simply observing that "story relating to motive as stated above also stood established in ne evidence of complainant Khamiso and P. W. 7 Khair Muhammad". This part of the prosecution case was not relied upon by the learned Sessions Judge for the reason that the allegation that some time before the incident the accused had detained a married woman belonging to the casts of the deceased over which there had been a quarrel between them was too vague, even the name of the woman concerned was not disclosed and the evidence on the point was far from being conclusive.
11. After having gone through the record of the case .We are clearly of the view that the evidence led by the prosecution in support of the charge framed against the appellant is thoroughly unsafe basis upon which his guilt could be rested.Mr. Abdul Sattar Shaikh learned Additional Advocate- General also-frankly admitted that he finds himself unable to support the prosecution case.
12. For the reasons given above this appeal must sums and is accordingly allowed with the result that the convictions and the, sentences passed again the appellant are set aside and he shall be released forthwith unless he is required in soave other connection.