ABDUL HAYEE KURESHI, J.-On the conclusion of the hearing of this appeal we had, by a short order, allowed this appeal, setting aside the judgment of conviction and sentence, and declined to confirm the death reference. The reasons for such order are as follows :-
2. The five appellants, namely Lashkari son of Din Muhammad, Guloo alias Gul Hassan son of Rabib, Muhammad Khan son of Khamiso, Abdul Majid son of Shah Bux and Murad A.I son of Khair Muhammad, all Brohi by case, were tried on charges under section 302/148/149, P. P. C. For causing the death of Nazar Muhammad and Muhammad A.I, by the 1st Additional Sessions Judge, Jacobabad. The appellants were found guilty of the said offences and convicted. Each one of the appellants was sentenced to death for the offence under section 302;149, P. P. C. And also to pay a fine of Rs. 5,0000 (in default R. I. For two years). Under section 148, P. P. C. Each one of the appellants was sentenced to R. I. For two years. Appellants Muhammad Khan and Abdul Majid were also tried separately and found guilty under section 13-D, Arms Act since they were tried separately on such charge and convicted by the same Court and a sentence of two years rigorous imprisonment was imposed on them in these cases, in the main case of murder no separate sentence for the offence under section 13-D, Arms Act was imposed. All the five appellants filed a consolidated appeal through Mr. Azizullah K. Shaikh, Advocate, challenging their conviction and sentence in the case of murder and unlawful assembly. Appellants Muhammad Khan and Abdul Majid have also filed separate appeals against their conviction under section 13-D, Arms Act and the sentence imposed for that offence. We have heard all the appeals together as the points of fact and law involved are common. Mr. Ghulam A.I Agha, Advocate, has appeared before us for the State. He has not supported the convictions and sentenced imposed on the appellants.
3. The brief facts of the case are that deceased Muhammad A.I and Nazar Muhammad alongwith witnesses Shah Muhammad, Taj Muhammad and Meer Muhammad, who are residents of a village near Madeji in Taluka Garhi Yasin, started from their village for Sukkur on 13-2-1972, because they had to meet their relations, who were involved in a case of murder, which case was fixed for hearing before the Sessions Court at Sukkur on 14-2-1972 viz. The following day. It was at 5 p.m. That they reached near Madeji Railway Station in a tonga and since some time was left for the train going from Madeji to Sukkur to arrive, they stayed at the Hotel of Abdur Rahim, presumably to take tea. After about 15 minutes one jeep bearing white colour and carrying the five appellants came and stopped near the hotel. The faces of these appellants were open. While appellants Lashkari, Guloo and Murad A.I were known to the witnesses Shah Muhammad, Dad Muhammad and Meer Muhammad by appearance and name, the remaining two appellants were not known to these witnesses at least by name. The prosecution story further is that appellant Murad A.I was armed with a rifle, appellant Lashkari with a double-barrel gun and appellants Guloo, Muhammad Khan and Abdul Majid with single barrel guns. These appellants challenged deceased persons stating that they had got their brother Shabul killed and therefore they would take revenge. Saying so, the five appellants fired at the deceased Muhammad A.I and Nazar Muhammad causing their instantaneous death. It is stated that while Shah Muhammad proceeded to Madeji Police Out Post to lodge a report, the remaining two witnesses, namely Taj Muhammad and Meer Muhammad continued to remain at the hotel of Abdur Rahim. The fire-arm reports attracted many persons to the scene of occurrence and four out of such persons, namely Muhammad Asghar, Muhammad Mithal, Muhammad Bashir and Gul Sher were Railway employees at Madeji Station. Hotel--keeper Abdur Rahim hid himself on account of fear. The identity of the other persons who visited the scene of occurrence is not disclosed but it appears that several persons including some tongawallas were present or had come to the scene.
4. The first information report was lodged by Shah Muhammad at Madeji Police Outpost within 21 hours of the incident and the same was transcribed in the 154, Cr. P. C. Register at Gaheja Police Station on the same day at 10-30 p.m. The five appellants who had came in a jeep are stated to have left the scene in the same jeep but the evidence does not disclose the direction in which they went.
5. Assistant Sub-Inspector Abdullah took up the investigation and visited the scene of occurrence that very night but for the reason of absence of lighting arrangements he did nothing more than detailing a guard over the dead bodies and the scene of occurrence. On the next day complainant Shah Muhammad pointed the various places which were relevant to investigation of the crime. The dead bodies which were lying at the scene with gunshot injuries on them were sent to the Medical Officer after preparation of inquest report in presence of mashirs Khair Bux and Muhammad Rahim.
Four empty cartridges and one empty bullet were also recovered from a place 19 paces away from the dead bodies. The two deceased persons were also carrying licensed single-barrel guns in separate leather bags together with cartridges and these guns and cartridges were also seized.
The statements of eye-witnesses Taj M muhammad and Meer Muhammad as well as Hotel-Keeper Abdur Rahim were recorded by the same Police Officer, who thereafter handed over tree case papers to the S. H. O. Asrar Ahmed for further investigation. Appellants Gulloo and Lashkari were arrested presumably by S. H. O. Asrar Ahmed on 1-3-1972 but of the remaining three appellants Abdul Majid and Muhammad Khan were arrested on or about 2-3-1972 and Murad A.I on 19- 5-)1972.
6. It was on 14-3-1972 that A. S. I. Abdullah received the case papers again for further investigation.
Although on the record the date is stated to be 14-2-1972 but to such extent it appears to be a .Mistake because the evidence discloses that two guns were recovered room and at the instance of appellants Muhammad Khan and Abdul Majid on 15-3-1972 by A. S. I. Abdullah Khan and on that date the investigation papers were not with him but with S. H. O. Asrar Ahmad to whom such papers head been transferred on 14-2-1972. Suffice it to say that on 15-3-1972 the weapons were recovered and on the previous day an identification parade as held in which complainant Shah Muhammad and witnesses Tai Muhammad and Meer Muhammad had identified appellants Muhammad Khan a- -d Abdul Majid.
7. On completion of investigation an interim charge-sheet was submitted on 3-6-1972 and a final charge-sheet on 4-9-1972. The case related to the District of Sukkur but by an order of High Court it was tried by the 1st Additional Sessions Judge, Jacobabad.
8. The primary evidence against the five appellant 'a consists of ocular testimony furnished by complainant Shah Muhammad and witnesses Taj Muhammad and Meer Muhammad. While Shah Muhammad is a nephew of deceased Nazar Muhammad, Dad Muhammad is a cousin of Shah Muhammad and Masat of deceased Nazar Muhammad, and witness Meer Muhammad is also related to the deceased as well as complainant Shah Muhammad. The other eye-witness is hotel- keeper Abdur Rahim, who has not identified any one of the appellants and while he has deposed as to the general pattern of the crime he has stated that he had taken shelter in order to avoid any possible injury to him. The other witnesses as stated above are Muhammad Bashir, Muhammad Asghar, Muhammad Mithal and Gul Sher. All of them are Railway employees at Madeji Station and while the first is the Station Master, the second is Assistant Station Master and the remaining two are Pointsmen. These witnesses had arrived at the scene soon after bearing the gun reports and thereafter Station Master Muhammad Bashir also tent a report to his superior officers stating the circumstances of this crime and such report states that some outsiders had fired about 8 bullets near the IIIrd Class Waiting Hall and two persons had died. None of these four witnesses stated anything in regard to identity of assailants nor did they state that the names of the assailants having been disclosed to them. The two other witnesses are Muhammad Anis and Kader Bux, who according to the prosecution case are respectively the owner and repairer of the jeep which brought the appellants to the scene and took them back. None of these two witnesses has stated anything in regard to the appellants or any of them having requested for or obtained possession of the jeep. The other witnesses whose mention needs to be made are mashirs Khair Bux and Muhammad Rahim, who not only acted as mashirs of the scene of occurrence, inquest, recoveries from the scene, on 13-2-1972 but also acted as mashirs in regard to recovery of guns from appellants Abdul Majid and Muhammad Khan on 15-3-1972. The two guns recovered from Abdul Majid and Muhammad Khan together with crime empties found at the scene were examined by Ballistic Expert Mukhtar Ahmed, who has been examined as a witness and who has deposed that out of the crime empties one each had been fired from the two guns recovered. Dr. Ramchand, who held the post-mortem examination on the dead bodies, was examined during committal proceedings and his evidence was brought on the file of the Sessions Court as Exh.
53. The remaining witnesses are Police Officers concerned with the investigation of the case, the corpse bearer and some other formal witnesses. Each one of the appellants denied to have taken part in this transaction and appellant Laskhari has produced a previous judgment of the Additional Sessions Judge, Sukkur, showing that there was a previous murder in which appellant Guloo and some other relatives of his were tried and acquitted. Appellant Murad A.I has also examined Abdul Wasi as a witness in his defence to show that on the date of incident he was an in-door patient in the Civil Hospital at Karachi.
9. Having sated the brief facts of the case it would appear that the evidence against appellants consisted of ocular testimony furnished by complainant Shah Muhammad and P. Ws. Dad Muhammad and Mir Muhammad which is corroborated by motive. In addition, it may be stated that in regard to appellants Muhammad Khan and Abdul Majid there was evidence of identification, recovery of guns at their instance coupled with the opinion of M 1khtar Ahmed, the Ballistic Expert. It is needless to advert to the medical evidence in this case because the death of two deceased persons in these established circumstances of the case is not disputed. Suffice it to say that both the deceased persons had injuries by shot-guns and rifle.
10. Initially it ,would be worthwhile considering the evidence of three eye-witnesses. Each one of these eye-witnesses is related to the deceased and they are related inter se. While Shah Muhammad was nephew of deceased Nazar Mohammad, Dad Muhammad is masat of Nazar Muhammad and even Meer Muhammad is shown to be related to the deceased as well as complainant Shah Muhammad, although the actual relationship has not been specified. The two deceased persons were also cousins inter se. There is a background of enmity between the parties and a series of murders, most of them retaliatory, have taken place. Even at the time of commission of this offence a murder case was pending before the Sessions Court at Sukkur in which P. W. Dad Muhammad was an accused alongwith three other persons, who are also related to Dad Muhammad. This case arose out of the murder of one Shabul, who is stated to be a close relative of the appellants. Complainant Shah Muhammad has, in his cross-examination, stated the details about the several murder cases in which both parties were involved and for the sake of convenience the following passage from his evidence is reproduced: "Rahoo father of present accused Guloo was murdered about 12 or 13 years back. In the first instance Yar Muhammad and Imam Bux were challaned and deceased Nazar Muhammad was absconder but later on he was also challaned. All the three were acquitted in that case. Deceased Nazar Muhammad was my uncle. Yar Muhammad and Imam Bux accused in that case are brothers of deceased Nazar Muhammad. After 6 or 7 years of the murder of Rahoo, Khan Muhammad Brohi was murdered in Shikarpur town. Deceased Khan Muhammad was our nekmard.
In the murder case of Khan Muhammad Brohi, the present accused Guloo, and Sherro, Shabul and lumo Brohis were challaned. Deceased Khan Muhammad was murdered in retaliation of murder of deceased Rahoo. All the four accused in the murder case of Khan Muhammad were also acquitted.
Deceased Shabul was murdered in retaliation to the murder of Khan Muhammad Brohi. In the days when these present murders took place, the case against Raza Muhammad, Dad Muhammad, Allah Bux and Sher Muhammad was pending in the Sessions Court, Sukkur, for the murder of Shabul. At that time Raza Muhammad Dad Muhammad were on bail in that case while Allah Bux and Sher Muhammad were in custody."
11. It would thus be seen that the three eye-witnesses are deeply interested and inimical to appellants Lashkari, Guloo and Murad A.I. The rule in regard to corroboration of the evidence of the interested and inimical witnesses, although a rule of caution has virtually ripened into a rule of law.
The Supreme Court has, on numerous occasions, stated the rule and cautioned against acceptance of such testimony without corrobora--petition for the reason that false implication is not very rare in this country. One has no hesitation in saying that a murder in such society infuses in A the mind of the family of murdered person a desire to avenge and thus a series of murders had taken place. When feelings between the parties become embittered false implication or inflation in the number of accused very often is resorted to. It is precisely for such reason that the Courts are to be on guard and normally look for some corroboration lending an assurance to the evidence of witnesses.
12. In the present case there also are some inherent infirmities and improbabilities in the evidence of eye-witnesses. First of all the motive as alleged by the prosecution is that the appellants resorted to these killings for the remote reason of previous murders and the proximate reason of the murder of Shabul whose case was pending in the Sessions Court and was fixed on the day following the incident. In this case prosecution witness Dad Muhammad was an accused. It seems to be incoherent behaviour on the part of the appellants to spare Dad Muhammad and not even to attempt to cause any injury to him, although he was present at the scene. No doubt the working of a man's mind is known only to him but still the Courts look to what are called surrounding circumstances of the case in u order to determine the guilt or innocence of a person tried on a capital charge. In that context the prosecution story, as disclosed by the three eye-witnesses, is that while the two deceased persons sat on one bench in the hotel of Abdur Rahim, the three witnesses were sitting on another bench. To such extent the version given by Abdur Rahim, hotel- keeper is different and he has stated that all the five persons meaning the two deceased and the three witnesses after getting down from the tonga sat on the bench which was lying just outside the hotel. In cross-examination, to our utter surprise the defence counsel tried to dwell on this aspect of the case and then the witness stated that it was correct that the two deceased persons were sitting separately on one bench. However, the circumstances of the case are that all the five persons had come together and were on an on--ward journey to Sukkur for the same purpose and for such reason they would not be sitting separately at the hotel of Abdur Rahim. By the latter statement Abdur Rahim means to say that all the five persons sat together, although two deceased persons sat on one bench while the remaining three witnesses sat on another bench.
Surely it would be very improbable that the three witnesses would be sitting far away from the two deceased persons. In such circumstances the absence of any injuries on the witnesses assumes importance. No less than four guns and one rifle had been used and at least six empty cartridges were recovered at the scene while some spent cartridges might have been taken away by the assailants in the barrel of their guns. The absence of injuries on the witnesses casts a doubt in regard to their testimony as also in regard to their presence at the scene. There is yet another aspect of the case which deserves consideration. It is the case of the prosecution that some other persons were sitting at the hotel of Abdur Rahim, that Abdur Rahim himself was present, that four Railway employees had come to the scene immediately after the incident, that there is a Tonga Stand in front of the hotel of Abdur Rahim, and several persons had appeared on the scene immediately after the occurrence. The identity of persons who thus came on the scene after the incident has not been disclosed by the witnesses except in regard to the four Railway employees and the hotel keeper. Witnesses Dad Muhammad and Meer Muhammad have stated that many persons came to the scene after the incident and some of them were their friends and relatives to whom they had disclosed the names of the assailants. No such relative or friend has been examined in Court nor has Dad Muhammad disclosed their names. Even Abdur Rahim, Hotel- keeper was not informed as to who the assailants were. P. W. Muhammad Bashir, who is the Station Master, has stated in his evidence that he made enquiries from the people who had collected at the scene in regard to the occurrence because he had to convey this information to the police, but he was only informed that some persons, who were hiding behind the bags, had fired at the deceased and killed them. Such statement indeed gives a different version to the incident.
Muhammad Bashir actually gave information to the Police in regard to these murders. Similarly, the three other Railway employees, namely Assistant Station Master Muhammad Asghar and Pointsman Muhammad Mithal and Gut Sher who came to the hotel of Abdur Rahim immediately after incident were not informed in regard to the identity of the assailants by the witnesses. In addition, it may be stated that the deceased and the witnesses had come to Madeji Station in a tonga. It would not have been difficult for the witnesses to locate the driver of the tonga or for the Investigating Officer to find out whose tonga had been used for the purpose of bringing the deceased and the witnesses to the hotel of Abdur Rahim. Strangely enough, no attempt had been made to locate the tongs-driver, what to speak of examining him in Court. While dealing with this aspect of the case, it would be worthwhile adverting to the statement of complainant Shah Muhammad, who had stated in his evidence that before lodging the report he had given information in regard to the commission of this crime to his relatives and one Khuda Bux, who is the Nekmard of village. Such relatives have not been named and neither they nor Nekmard Khuda Bux has been examined in Court. In regard to the jeep, it may straightaway be said that the number of the same was not noted by any person and two witnesses, namely Muhammad Anis and Kadir Bux were examined in Court presumably with a view to establish that the jeep of Muhammad Anis had been used for the purpose of commission of this crime but both these witnesses have not supported the prosecution case and have totally denied in regard to this jeep ever having been lent to Murad A.I or any other appellant. Finally, it may be stated that in regard to appellants Muhammad Khan and Abdul Majid, the complainant gave no description or features in the first information report.
13. To sum up it appears that apart from the fact of the complainant Shah Muhammad and witnesses Dad Muhammad and Meer Muhammad having a deep-seated grudge against appellants Lashkari, Guloo and Murad A.I, their evidence even on its merit does not inspire full confidence and create a room for doubting their testimony.
14. The learned trying Judge was conscious of the character of these witnesses but for thepurpose of sustaining a conviction he has thought it proper to use motive as corroboration. No doubt in law motive can oftenly be used as corroboration but in cases of this nature motive is just a second name of enmity and in relying on such motive which is born of enmity the trying Judge followed a wrong process of appreciation of c evidence. This is not one of these cases where only one side has a grievance but looking to the series of murders and cases between these parties it was wrong process followed by trial Court to have used motive as corroboration in the present case. The trial Court has referred to and relied on1 Roshan's case PLD 1977 SC 557although the citation quoted in the judgment is wrong. Muhammad Yaqoob A.I, C. J., at page 577 of the report has stated the case in regard tocorroboration of interested witnesses by independent evidence in the following words; " . . . . There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness. Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. Ifthat was the rule then the accused have only to destroy the evidence which may be used as corroboration and got scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends upon the facts of each case and instances are not wanting where this Court has upheld the conviction of the accused based entirely on the testimony of the `interested' witness."
On analysis of the above-quoted passage from the judgment in Roshan's case, it would appear that his Lordship the Chief Justice expressed that corrobora--petition of interested witnesses was not a universal or invariable rule but at the same time his Lordship has stated that before uncorroborated testimony of an interested witness is accepted the presence of the witness has to be proved beyond doubt and it is to be established that no independent witness was available. His Lordship has in coming to such conclusion, referred to and considered the cases of Niaz v. The State (1), Shihab Din v. The State (2) and Nazir v. The State (3). However, on facts as appearing at page 578 of the report containing the judgment in Roshan's case it would clearly appear that in that case ocular evidence was "amply corroborated". By the recoveries of empty cartridge and shells from the spot, recovery of arms from the appellants, the evidence of arms expert, as well as medical evidence and evidence of motive. The trial Court, therefore, acted erroneously in relying on the judgment in Roshan's case for founding a proposition that previous enmity was not sufficient to disbelieve the witnesses when in fact the question is not whether the witness should be disbelieved but the question is one regarding the necessity or desirability of corroboration.
15. The evidence in regard to identification of appellants Abdul Majid and Muhammad Khan also does not inspire confidence. As stated above no description or features of these two appellants were mentioned in the first information report, although the incident is said to have taken place in broad daylight and the faces of the assailants were open. There is no means of knowing the data on the basis of which these two persons were arrested by the Police. The date of arrest of these two appellants has also not merged in the murder case but in the two cases against these two appellants for the offence of being in possession of unlicensed arms the record discloses that they were arrested on 1-3-1972. The identification parade was held on 14-3-1972 and during the 13 days period they were in police custody. No explanation has been furnished in regard to the inordinate delay in holding the identification parade but it can be said with all correctness that in the absence of good reasons delay in holding the identification parade robs the identification evidence of all its sanctity. No explanation has been submitted by the investigating officer to justify such inordinate delay. What is more, that the identification parade was held at the police station and Magistrate Dayaram, who supervised the proceeding, went to the extent of obliging the police by going to the police station for holding the parade. In regard to the parade itself, a few facts are significant and deserve attention. P. W. Dad Muhammad has stated that during the course of investigation they (meaning he himself and the other witnesses) used to come to the police station for making, enquiries about the case and he also told witness Meer Muhammad that the two unidentified assailants had been arrested, and such information was conveyed by Meer Muhammad to him whereupon he bad come to the office of Mukhtiar kar at Shikarpur as if he had known, that Magistrate Dayaram, who being the Head Munshi or subordinate to the Mukhtiar kar, would be holding the parade. The circumstances indeed are suspicious. In regard to the happenings on the day the parade was held, Dad Muhammad has stated that he reached Shikarpur at 8 or 10 a.m.
And met bayaram Head Munshi-cum-Magistrate, who told them that the two accused were detained at New Foujdari Police Station and that he alongwith the witnesses should go there, upon which they all came to the said police station. A sentence then appears in the evidence of Dad Muhammad which reads as follows :--
(1) PLD 1960 SC 387(2) PLD 1964 SC 177
(3) P.L D 1962 SC 269 "The two accused were in lock-up at New Foujdari Police Station from where they were brought out and they were made to stand in the verandah. Six other persons were mixed up with these two accused persons. We all the three went together and identified the present two accused correctly."
The first sentence does not appear in the Paper book, presumably owing to mistake of the copyist but during the hearing we saw the original record and corrected the Paper book. The above passage would shoo that this identification parade was nothing less than a farce. The witnesses had seen the two accused in the lock-up and had also seen them being brought out and therefore they had ample opportunity of seeing the two suspects before identifying them. What is more that all the three witnesses were called together for the purpose of identification. Complainant Shah Muhammad has not stated in details in regard to this identification parade but has only stated that he was called and put to identification test at Shikarpur Foujdari Police Station. Witness Meer Muhammad has again given a different version and he has stated that the parade was held in the Cell of the Police Station. He has also stated that all the three witnesses had come together towards the cell for identification.
16. On a reading of the judgment of the trial Court an impression is gathered that the -trying judge was in divided mind as to whether he should rely on the evidence of identification. He has expressed disapproval in regard to mixing of six other persons with two suspects as also in regard to all the three witnesses going together at the time of identification. After stating so the trying Judge expressed himself as follows :-- "In these circumstances the identification of the two accused by the P. Ws. Cannot be relied upon and this item of evidence is therefore held unreliable."
However, after having said what is quoted above, the trying Judge adverted to the evidence of Dad Muhammad and Shah Muhammad to the effect that both appellants Abdul Majid and Muhammad Khan were related to the remaining three appellants and resided at a distance of 3 or 4 miles from Shikarpur town. On such premises the trial Court recorded a conclusion in the following words; " . . From the perusal of the statement of the eye-witnesses I have also gained strong impression that these two accused were known to the witnesses by faces and not by name and that is why the complainant had mentioned in the F. I. R. That on seeing the two accused they will be able to identify them."
Ultimately the trying Judge has again stated that while watching the demeanour of the eye- witnesses, he has observed that the witnesses had identified Abdul Majid and Muhammad Khan without the slightest hesitation and therefore despite the identification parade being unreliable, identification in Court could be safely relied upon.
17. The fallacy in the arguments of the trial Court is obvious. Either the witnesses knew Abdul Majid and Muhammad Khan or they did not know them. In the first information report an impression was created that these two assailants were not known to the complainant when in fact the complainant knew them as also the relationship which they bore with the remaining three appellants. Under such circumstances either the witnesses have prejudiced themselves by concealing the fact of their knowing these two appellants of the identification parade which carries no sanctity, does not advance the prosecution case.
18. The next piece of evidence against appellants Abdul Majid and Muhammad Khan is recovery of unlicensed guns. These guns are stated to have been recovered after 13 days of the arrest of these two appellants during which period they were in Police custody. Although the appellants were arrested on 1-3-1972 and on the same day these two appellants are stated to have voluntarily agreed to produce the guns. The mashir In regard to recovery of these guns is Khair Bux, who is the same person who had been called as a mashir on the date of offence for the purpose of acting as a mashir of the scene of occurrence, inquest of dead bodies, etc. It has been revealed on the record that on both occasions this mashir was picked up from Madeji town by A. S. I. Abdullah, although he lived at some distance. This mashir has stated that he knew the deceased persons since a long time as they belonged to the same locality. He is admittedly of the same case, as the deceased and prosecution witnesses, although he states that he is not related to them. He also stated that he knew Assistant Sub-Inspector. Abdullah previous to the incident. The twin mashir Muhammad Rahim has not been examined.
19. In regard to recovery of the guns- the prosecution story is that the appellants Abdul Majid and Muhammad Khan as well as mashir Kbair Bux had gone alongwith A. S. I. Abdullah. As stated by mashir Khair Bux appellant Muhammad Khan is stated to have taken out a gun by digging out a place near the inspection path of the Rice Canal, and appellant Abdul Majid had also produced a gun from a place which was on the bank of this Canal. It would appear that while appellant Muhammad Khan had to dig out the ground for producing the gun, appellant Abdul Majid had produced the gun lying on the bank of Rice Canal. The police officer has in his evidence stated that both the appellants produced the weapons by digging out some place. It may also be stated that while the police officer stated that the two appellants led him to the place o recovery Mashir Khair Bux has not stated so. The recovery of these weapons is, therefore, not reliable, more so as a desire on the part of prosecution to implicate these two appellants is patent.
20. The two weapons were sent to Mukhtar Ahmed, the Ballistic Expert. Mashir Khair Bux has not stated that these guns were sealed on the sport. In fact no such question was even asked from him by the prosecutor. However, these two guns alongwith the spent cartridges and some live cartridges were sent to the Ballistic Expert on 27-2-1973 viz. After eleven months of recovery. Since the guns had not been sealed and the same were available at the police station for an inordinately long period the chances of manipulation or substitution of spent cartridges were not remote. At least such a chance was available. No explanation has been given for that inordinate delay except a bald statement to the effect that the case) property had been kept with a Muharrir at the police station. Under these circumstances the recovery of the guns and the evidence in regard to matching of the crime empties with the recovered weapons does not inspire confidence:
21. The only other piece of evidence relied upon by the prosecution against appellants is that of abscondence. There is no evidence to believe that any serious efforts were made by the police officer in making arrest of the accused. In any case no warrants bad been issued against them.
This evidence of abscondence is of very little significance.
22. Appellant Murad A.I has produced defence evidence to establish an alibi to the effect that on the day of incident he was an in-door patient in Civil Hospital at Karachi. Such evidence has not been believed by the trial Court. It is not necessary to go into this aspect of the case as the ocular testimony against Murad A.I has been held unreliable.
23. For all these reasons all the appellants are acquitted in all the three appeals namely Criminal Appeals Nos. 10; 11 and 12 of 1978. The, death sentence imposed upon them is not confirmed. They shall be set at liberty immediately unless they are required in any other case.
The notice to P. W. Muhammad Anis for showing cause why he, Should not be prosecuted for perjury is also vacated.