MUNIB AKHTAR, J.---Appellants Muhammad Yousif and Ghulam were each convicted, and sentenced to life imprisonment with fine of Rs, 50,000 by the learned Additional Sessions Judge, Tondo Adam by judgment dated 28-7-2007 in Sessions Case No,99 of 2000 for the murder of Huzur Bux. Huzur Bux was murdered on 8-4-2000, and the learned trial Court gave the following description, in brief, of the prosecution case:-- "That on 9-4-2000 complainant Ismail son of Ghullain Nabi, by caste Buriro, resident of village Wazir Buriro, Taluka Tando Adam, lodged F.I.R. at Police Station Tando Adam, stating therein that his brother Hazoor Bux resides in village Chatoon Mal deli Buriro. He has further disclosed that on 8-4- 2000 at noon time lie was available in his house. Meanwhile, P.Ws. Ghullam Rasool came there and disclosed that on 8-4-2000 at noon time lie along with P.Ws. Hayat and Ghulam Hyder were cutting wheat crop near their house. Meanwhile, fight in between the dogs of Hazoor Bux and accused Yousif had taken place which was intervened by Hazoor Bux by throwing pieces of mud. Meanwhile, accused Ghulam and Yousif came there. The accused Yousif was armed with hatchet. The accused Yousif objected the action of Hazoor Bux and thereafter, accused Ghulam grappled with him and accused Yousif caused hatchet blow to him. After receiving this information complainant.came to the house of Hazoor Bux and found him injured and unconscious thereafter, he had -brought him to Taluka Hospital Shandadpur, from where, he was referred to Liaquat Medical University Hospital Hyderabad where he succumbed to his injuries, thereafter, complainant left above said witnesses over dead body and came to police station and lodged F.I.R."
2. The following charge was framed against the appellants by the learned trial Court on 14-10-2000: -- "That, you on or about 8th day of April, 2000, at 1200 hours, opposite the house of deceased in village Chatto Mal, Taluka Tandoadam, did commit murder by intentionally and knowingly caused the qatl-e-amd of Hazoor Bux by causing injuries with hatchet blows and thereby committed an offence punishable -tinder sections 302, 34, P.P.C, within the cognizance of this Court.
' And, I hereby direct that you be tried on the aforesaid charge by this Court." - ' The prosecution examined the following witnesses at the trial:--
(1) Javed Iqbal, the medico-legal officer who conducted the postmortem of the deceased (hereinafter referred to as "P.W.1")
(2) Muhammad Ismail, brother of the deceased and the complainant who lodged the F.I.R.
(hereinafter referred to as "P.W.2")
(3)Muhammad Hayat, eye-witness of the incident (herein after referred to as "P .W.3.")
(4)Ghulam Hyder, eye-witness of the incident. (herein after referred to as "P.W.4")
(5)Abdul Qayoom, mashir of the place of incident and of the arrest of the accused-appetiants and recovery of the blood-stained hatchet (hereinafter referred to as "P .W.5")
(6)Muhammad Khan, tapedar, who prepared the sketch of the place of incident (hereinafter referred to as "P.W.6")'
(7)A.S.-I. Atta Muhammad, incharge of police post Bago Wadadani and Investigating Officer (hereinafter referred to "P.W.7")
(8)HC Muhammad Punhal, who was posted at Police Station Market, Hyderabad (hereinafter referred to as "P.W.8")
3. The accused-appellants were examined under section 342, Cr.P.C., but neither of them appeared as a witness in his own defence, nor did they examine any witnesses or produce any other evidence. After considering the prosecution evidence and hearing learned counsel for the accused-appellants and State counsel, the learned trial Court was satisfied that the prosecution had been able to establish its case, and convicted and sentenced the appellants as noted above.
The learned trial Court held as follows:-- "It is case of prosecution that the accused Ghulam grappled with deceased while accused Muhammad Yousif caused hatchet blows from blunt/sharp side on head and other parts of body of deceased. According to the medical evidence available on record there is injury on the head of deceased caused by hard and blunt substance. The medical evidence is also in consistence with the ocular evidence regarding the time of injuries.
' According to the case of prosecution the accused Muhammad Yousif had voluntarily produced blood-stained hatchet used in crime before the police. The said weapon (hatchet) was sent to the Chemical Examiner. According to the report received from Chemical Examiner the hatchet stained with human blood.
' The police had also secured blood-stained clothes ,of deceased and earth from the place of wardat and was sent to Chemical Examiner. According to the report of Chemical Examiner the , human blood was available on cloths of deceased and earth secured from place of wardat.
According to the case of prosecution accused Muhammad Yousif had voluntarily produced blood- stained hatchet before the police in presence of Mashir Abdul Qayoom. The P.W Abdul Qayoom had also supported the version of prosecution and deposed that accused had voluntarily produced blood-stained hatchet before the police in his presence.
' In view of above discussion I am of the Opinion that both accused have participated in the crime.
The accused Ghulam grappled with the deceased and enable him to save himself from the blows or to move from place of wardat and has facilitated co-accused Muhammad Yousif for causing hatchet blows to deceased, while accused Muhammad Yousif caused blows on the vital part of deceased which caused his murder. Therefore, prosecution have proved the charge against both accused for the offence punishable under section 302/34, P.P.C., the point is replied as proved."
4. Learned counsel for the appellants submitted that the learned trial Court had erred materially in concluding that the prosecution had been able to establish its case beyond reasonable doubt. She submitted that the blood-stained hatchet said to have been recovered from the place pointed to the police by appellant Yousif had been sent for chemical examination after about two years, Learned counsel submitted that this delay was not explained at all by the prosecution, and the learned trial court erred materially in failing to appreciate this aspect of the matter. Learned counsel submitted that the witnesses P.W.2 to P.W.4 were all related to the deceased and there were no independent witnesses to the incident. As regards the crucial eye-witnesses, P.W.3 and P.W.4, she further submitted that there were material contradictions in their testimonies, and all of these factors had been erroneously ignored by the learned trial Court. She also contended that the F.I.R. had been lodged with a delay of about eight hours, which delay remained unexplained, and was significant and relevant in the circumstances of the case. There had been a delay both in the arrest and the recovery of the alleged murder weapon, the hatchet, although the incident was allegedly witnessed by P.W.3 and P.W.4, and both the accused-appellants had been specifically identified in the F.I.R. Learned counsel also made certain submissions regarding the location where the incident was stated to have occurred. Learned counsel also relied on certain decisions in support of her case, and these are considered below.
5. Learned DPG opposed the appeal, and supported the impugned judgment. His case was that that prosecution had fully established its case, and the appellants had been lightly convicted for the heinous offence of murder. He submitted that the evidence of P.W.1, the doctor who carried out the postmortem, had not been effectively refuted, and clearly established that the deceased had been killed as a result of one or more blows received from a hard and blunt substance during an assault, which was consistent with him having been attacked with a hatchet, as testified by P.W.3 and P.W.4. After his arrest, appellant Yousif had voluntarily taken the police to the place where lie had hidden the murder weapon, i.e,, the blood-stained hatchet. There had been no delay in the' registration of the F.I.R. The entire incident had been witnessed by the two eye-witnesses, and the defence had been unable to shake their testimony. He also submitted that while the blows from the hatchet had been given by appellant Yousif, the other appellant, Ghulam, was fully involved in the crime, and had rightly convicted along with Yousif. The prosecution case had been fully made out, beyond reasonable doubt.
6. I have heard learned counsel for the parties, and gone through the record with their assistance.
There were of course two eye-witnesses to the murder, and obviously, their evidence is crucial to the prosecution case. (The evidence of P.W.2, the complainant, was, as is evident from even a bare perusal of his examination-in-chief, based entirely on hearsay and was.wholly inadmissible, and it is a matter of regret that the Learned trial Court appears not to have paid heed to this aspect of the matter. However, this error is fatal because there were two eye-witnesses to the incident). Now, the respective roles attributed to the accused-appellants are clearly differe'nt, and therefore, their cases need to be considered separately. I first consider the case of appellant Ghulam. The testimony of the two eye-witnesses, P.W.3 and P.W.4, is essentially the same, and it therefore suffices to refer to only one of them. This is how P.W.4 described in his examination- in chief what he had seen.happening:-- "I know complainant Ismail and P..W. Hayat. I also know deceased Hazoor Bux and he was brother of complainant Ismail.- I know the accused persons present in the Court and they are my caste fellows. Deceased Hazoor Bux was living in village Chatoon Mal, at the time of incident accused persons were living' in village Chatoon Mal and the complainant Ismail was living in village Wazir Buriro. This incident took place about more than four years back.. It was about 12-00 noon, when P.W. Ghulam Rasool, Hayat and Qayoom were cutting the wheat crop in my lands and I was also along with them in the process of cutting wheat crop which belong to me. There were three dogs of accused Ghulam and one dog of deceased Hazoor Bux and they started fighting with each other and Hazoor Bux was trying to separate the dogs by stoning the dogs with mud stones on which accused Ghulam asked Hazoor Bux as to why he is trying to separate the dogs, and then accused Ghulam grappled Hazoor ' Bux and accused Yousif gave hatchet blows to Hazoor Bux on his head. We gave hakals to accused persons but they did not heed and after getting blows with hatchets Hazoor Bux fell down and became -unconscious. I saw injured Hazoor Bux and he has received injuries on his head. P.W.
Ghulam Rasool went to inform the complainant Ismail and Ismail came to village where I narrated him the entire incident as deposed by me."
7. As is obvious, if appellant. Ghulam was at all liable for the murder of the deceased, it could only be by reason of section 34, P.P.C., and that in fact, is the basis on which he has been convicted by the learned trial Court. The basis on which this section is to be applied is well-established, and learned counsel for the appellants referred to Muhammad Yagoob v. The State PLD 2001 SC 378, where it has been-observed as follows:-- "Insofar as section 34, P.P.C. is concerned it deals with the acts done by several persons in furtherance of amnion intention. It is neither a punitive section nor does enact a rule of evidence but mainly relates to the concept of joint liability, it simply means that if two or more persons intentionally commit an offence jointly which amount to as if each of them had committed it individually and they will have to share the consequences jointly subject to the condition that at the time of commission of offence each of them remained present (a mere presence at the spot would not be ipso facto sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of intention) and the offence was committed with common intention which presupposes prior concert. It must be proved that the offence was committed in concert pursuant to the pre-arranged plan. It was held a few decades earlier by this Court which still holds the field that "it is well-established that a common intention pre-supposes prior concert.
It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (1955) SCR 1083, (1955) Cr.L.J 572).
' It is also well entrenched legal position that "the section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of common intention of all or to prove: exactly what part was played by each of them.
The principle which the section embodies in participation in some action with the common intention of committing a crime; once such participation is established, section 34 is at once attracted PLD 1969 SC 1 58, AIR 1960 SC 889, AIR 1956 All. 341 (DB)." (pg. 383; emphasis supplied)
' In my view, the learned trial Court erred materially in concluding that appellant Ghulam was liable to be convicted by reason of section 34, P.P.C. Whether the common intention is the result of a Pre- arranged plan, or arises on the spur of the moment, it must nonetheless A in either case be properly established by the evidence. As the Supreme Court has held, "the incriminating facts must be incompatible with the innocence of the accused and' incapable of explanation on any other reasonable hypothesis". Even if the evidence of P.W.4 is accepted at face value, it certainly does not establish any common intention of appellant Ghulam to commit the murder of the deceased with appellant Yousif. Indeed, P.W.4's testimony is consistent with the perfectly reasonable hypothesis that the dogs of two parties were fighting, and the deceased wanted to separate them and attempted to do so, but appellant Ghulam wanted the fight to go on, and therefore grappled with the deceased in order to prevent him from separating the dogs. The conclusion arrived at by the learned trial Court, i.e,, that appellant Ghulam grappled with the deceased in order to prevent him from saving himself or fleeing, and thus facilitated the assault on him by appellant Yousif, is not, in my view, borne out or supportable by the evidence. The factum of common intention was therefore not proved beyond reasonable doubt, and it necessarily follows that the appeal of, appellant Ghulam must be allowed.
8. I turn now to consider the case of appellant Yousif. Learned DPG correctly pointed out that the evidence of P.W.1 (the medico-legal officer who carried out the postmortem was not effectively rebutted, and hence it stood established that deceased Hazoor Bux had been killed as a result of One or more blows from a hard and blunt substance during an assault, which was consistent (or at least not inconsistent) with him having been attacked with a hatchet. I start by considering the recovery and connection of the murder weapon with appellant Yousif. As noted above, P.W.5 was the mashir of both the place of incident, and the arrest of the accused and the recovery of the hatchet. The witness stated in his examination-in-chief as follows:-- "The police interrogated accused Yousif and he disclosed that he committed the murder of Hazoor Bux with hatchet which he had concealed and he voluntarily became ready to produce the hatchet from the hedge of his house. The police took accused Yousif and he produced hatchet with which he committed the murder of Hazoor Bux. The hatchet was blood-stained and police sealed the hatchet in parcel in my presence on the place of recovery."
'The learned trial Court accepted the evidence of this witness, but in my view, committed a material irregularity while doing so. The purported "confession" of appellant Yousaf to the police was of course .entirely inadmissible. But even his statement that the blood-stained hatchet to which he led the police was the one "used in. crime" (to use the words-of the learned trial Court) was inadmissible under Article 40 of the Qanun-e-Shahadat Order, 1984. This is a well-settled proposition; which was recently reaffirmed and explained' by the Supreme Court in Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCM R 1604 (per Rahmat Hussain Jafferi, J.).
Reference was made to several decisions from the Indian jurisdiction to explain the proper scope and extent of Article 40. In that case, the recovery of blood-stained bailchas was made upon the statement of the accused, and the Supreme Court observed as follows:- "As regards the recovery of -blood-stained bailchas, the prosecution relied upon the evidence of P.W.3 and P.W.18. The evidence of P. W.3. reveals that on 18/19-104994 at 10/11-00 p.m., in the Police Station Wah Cantt. the S.H.O. interrogated the appellant and on the said interrogation. lie, inter alia, disclosed that he could lead to the recovery of bailchas, the weapon of Offence. The statement. "He could lead to the recovery of bailchas" is admissible under Article 40 of the Order, but subsequent statement regarding "weapon of offence" is inadmissible. Reference is invited to the basic authority of the Privy Council on the above subject delivered in the case of Kotavya v. Emperor (AIR 1947 (34)
PC 67), which has consistently been relied upon by the superior Courts of this country and so also of India." (para 20; emphasis supplied)
' All that was legally :admissible in the present case was that a blood-stained hatchet. was recovered through appellant Yousif. The further or additional statement that it was the "crime" weapon was wholly inadmissible, and the learned trial Court erred 'Materially in failing to keep this in mind. Thus, the two relevant facts legally admissible were that the deceased had been killed as 'a result of blows that could have been received from a hatchet, and a blood-stained hatchet had been recovered from appellant Yousif. Now, the hatchet was received at the Chemical Examiner's office on 18-5-2002, i.e about two years after it had been recovered. The report stated that -it was stained with human blood. Delay in sending blood-stained items for examination is not necessarily fatal (see, e.g., Muhammad Zubair and another v. The State 2002 SCM R 1141), but obviously, the longer the delay, the more the credibility of the evidence stands eroded, and in D appropriate cases, the item may lose all evidentiary value (see, e.g., Ghulam v. The State 1981 PCr.LJ 732 (SHC; DB) and Khamiso v. The State 1981 PCr.LJ 898 (SHC: DB). In a situation where the bloodstained item is sent for chemical examination with delay much depends on the attendant circumstances, and the nature and quality of the other evidence. That evidence, in the present case, is the testimony of the two eye-witnesses, P.W.3 and P.W.4. I have carefully considered what these witnesses have said in the light of their cross-examination, and the submissions of learned counsel for the appellants, and ultimately have come to the conclusion that their testimony has not been shaken. I also do not find, contrary to what learned counsel for the appellants urged, any material contradiction in their evidence. Nothing has been established as would show that they were inimical to the appellants or were interested or biased, whether against the appellants or in favour of the complainant side.
Their evidence is credible. Their presence at the place of the incident appears to be natural, and is believable. They clearly and, categorically testified that they saw appellant Yousif attack the deceased with a hatchet. It was a daytime incident, and around midday when the assault took place. The distance between them and the scene of the incident was such that they could easily have seen what was happening. As soon as they saw the assault, they challenged the appellants ("raised hakals") at which the latter ran away. They went immediately to the place where Hazoor Bux had fallen, and saw that he had received head injuries. When all of the relevant, and. legally admissible, facts are taken together, namely, (a) the testimony of eyewitnesses who saw appellant Yousif attacking the deceased with a hatchet, (b) the recovery of a blood-stained hatchet from a place indicated by the said appellant (which was indeed, his own house), and (c) the medical evidence (which is consistent with the ocular testimony), the prosecution was, in my view, able to prove its case against appellant Yousif beyond reasonable doubt. The said appellant failed to establish anything to the contrary, and therefore, notwithstanding the errors made by the learned trial Court as, noted above, in the end I conclude that he was rightly convicted.
9. For all of the foregoing reasons therefore, I am satisfied that the prosecution was not able to establish its case beyond reasonable doubt as regards appellant Ghulam, and the learned trial Court erred materially in coming to the contrary conclusion. Accordingly, the appeal of appellant Ghulam is hereby allowed and he.is acquitted and shall be forthwith set at liberty unless otherwise required in some other case. As regards appellant Yousif, I am satisfied that the prosecution was able to establish its case against him beyond reasonable doubt and therefore, his appeal is hereby dismissed.