K. A. GHANI. J.--Naubat son of Amir Bux Bangalani was convicted under section 302/34, P.P.C. For having been found guilty of the murder of Bahadur Ali son of Sohrab by Sessions Judge, Jacobabad by judgment passed on 19th May, 1979. He has been sentenced to death and to pay fine of Rs. 1,000, in default of payment of fine to suffer further R. I. For one year if sentence of death is not confirmed or it is altered by the High Court. He was further convicted under section 13-D Arms Act and sentenced to suffer R. I. For two years if the death sentence against this accused is altered to substantive sentence against him would run conse--cutively.
2. (i) In the same case the other two accused Rahim and Chaneeh both sons of Qadir Bux Bangulani were convicted under section 302/34, P. P.C. And sentenced to suffer imprisonment for life and pay a fine of Rs. 1,000 or in default of payment to suffer further R. I. For one year.
These accused were given benefit of doubt for the offence under section 13-D, Arms Act and were acquitted of the offence. It was also ordered that if the amount of fine is paid by the accused then half of it be paid to the complainant as compensation under section 544-A, Cr. P. C.
(ii) Jogison of Amir Bux Bangulani the fourth accused is an abscon--der.
3. That the accused have filed appeal against their convictions and the matter has also come before us for confirmation of the sentence of death given to the accused Naubat.
4. The prosecution case was that a little after mid-night between 15th and 16July 1977, the complainant Sohrab was sleeping in the open courtyard of his house situated in village Belo Khan Banglani, Deb Jarion, along with members of his family, and in the same courtyard were sleeping Bahadur Ali son of Sohrab aged about 21-22 years and Mst. Singhar sister of Sohrab. At about past midnight complainant Sohrab were up on gun report and cries of murder raised by Bahadur Ali,th where upon Sohrab flashed his torch and on its light saw Rahim D.1 and Mohammad Chaneeb both sons of Qadir Bux Banglani residents of near Jario Bhanger and Jogi and Naubat both sons of Amir Bux Banglani residents of near Bacharo standing armed with guns. Rahim D.1 challenged them not to approach him as he had killed Bahadur Ali as Karo with Mst. Bhain were of his brother Bux Ali. Out of fear complainant and members of his family did not go near the accused. All the accused then went away towards west firing in the air. This incident was alleged to have been witnessed by Walt Mohammad brother of complaint Sohrab and his sister Mst. Singhar. After the accused had gone, these persons saw Bahadur Ali lying dead with gun shot injuries, on his left side of the chest. Early in the morning complainant Sohrab left his house to lodge report at Police Station Thul, District Jacobabad which he did at 7.30 p.m. On 16th July, 1977. The said Police Station is about six miles from the place of incident. In the F.I.R. The motive assigned for the crime is stated to be the declaration made by Rahim D.1 that he had killed Bahadur Ali as Karo with Mst. Bhain were of his brother Bux Ali".
5. On the same day (16th July) Din Mohammad, S. H.O., Police Station proceeded to the wardat.
Mashirnama of Jai-Wardat (Exh. 13) was prepared. The dead body of deceased Bahadur Ali was found lying on the cot. He had a hole caused by gunshot on left side of the breast and there was `blackening around the wound". The Ganji had a large hole and pellets appeared to have passed through the Ganji from its back side. The Rilhi was stained with blood and two blood-stairfed pellets of S.G. Were lying on the Ganji. The Rilhi and pellets were taken into possession by the Police. Blood stains were also stated to be lying beneath the cot. Blood-stained earth was taken into possession by the Police and sealed. The deceased on his person had a white tetron shirt, white Ganji and a blue Popleen loin-cloth. Blood-stained clothes were lying over the dead body. Other material facts recorded in this mashir--nama of Jai-wardat are reproduced below; "House of Waloo and Piaro Banglanis are about 50-60 paces away towards south. One empty cartridge of .12 bore of Shaheen Co., of red colour is lying about 10 paces away froth the Jai-wardat, i.e., from the dead body to its West. It was found to have been fired and it has odour of gun- powder. It was taken into possession by the police and sealed into a parcel. There is. Uncultivated land of complainant. The foot-print marks are not visible at the, vardat due to rubish material at the vardat."
6. The aforesaid mashirnama was stated to have been prepared in the presence of (1) Ghulam Qadir son of Haji Jan Mohammad Banglani, resident of village Own and (2) Degi son of Haji Abdul Rehman's Banglani, resident of village Own both of Deh, Chandar, Taluka Thul, and was signed by these two mashies.
It is to be noted here that both these mashirs (Ghulam Qadir and Degi) are related to Sohrab, the complainant.
7. Inquest report (Exh. 14) was also prepared on 16July, 1977 at 10-00 a.m. In which motive against col. 4 for murder of Bahadur by Chaneeh, Rahimdil, Jogi and Naubat by giving gun shot injuries is noted "as Karo". The mashies to this inquest report are the same two persons Ghulam Qadir and Degi.
8. Mashirnama of recovery of torch produced by Sohrab (Exh. 15) and mashirnama of recovery of torch, produced by Wali Mohammad (Exh. 16) were prepared on the same day (16July, 1977) and was again witnessed by Ghulam Qadir and Degi, who are mashies to the other mashirnamas as well.
9. Accused Rahimdil son of Qadir Bux was arrested on 2May, 1978 at bank of Begari Canal near Village Channa Mashirnama of arrest is (Exh. 20) and the mashies were Badruddin and Imdad Hussain Shah.th th nd
10. Accused Naubat s/o Amir Bux and Chaneeh son of Qadir Bux Banglani were arrested on 14th August 1977 at Thal Police Station itself. The mashies of the arrest of these two accused were again Ghulam Qadir and Degi.
11. On 15th August 1977 in the presence of mashies, Ghulam Qadir and Degi, and the S. H. O. Thu] P. S. Mr. Din Mohammad, accused Naubat is stated to have voluntarily agreed to produce the gun which was allegedly used by him in commission of the offence. He led them to Thul Distributory At- 15 (Wah) and expressed that deceased Pahadur wag murdered with that gun which was unlicensed. The Sup was seen to be in working order and its upper part was a rusted condition.
Village of Nek Mohammad Banglani is about 3 furlongs from this place. Toward eastern bank of this were is abandoned land of accused Jogi and Others. On its southern bank there are houses of accused Jogi and others and in these katcha houses no body lived. This mashirnama (Exh. 18) was prepared by Mr. Din Mohammad S. H. O. And is witnessed and signed by Ghulam Kadir and Degi.
12. The injuries suffered by the deceased according to medical examination report were as follows:-
(1) One oval punctured lacerated entrance wound --" in diameter 1" lateral to the middle of sternum on the front left side chest. Blackening and burning clothes and wounds present.
(2) Four oval punctured lacerated wounds of the exit each ----- c.m. In diameter. In diameter of 2' close to each other on the back left side chest in the middle 1--' lateral to, vertebral column left side."
The S.H.O. Din Mohammad sent blood-stained earth, empty cartridge, and the gun to the Chemical Examiner and Ballistic Expert, their reports are Exhs. 24 and 25 respectively. The accused were challaned.
13. The case of the accused is that of denial.
14. The prosecution examined number of witnesses in support of the charge against the accused.
The evidence can be categorised mainly in three parts (i) Ocular evidence (ii) Recovery of gun (i.e)
Expert's evidence.
15. The ocular evidence at the trial consisted of P. W . 1 Sohrab (Exh. C). (father of the deceased), P.
W. 2, Mst. Singhar Exh. 8 (Sister of Sohrab) and P. W. 3 Wali Mohammad P. W. 3 (Exh. 10) brother of Sohrab).
It may be noted that none of the witnesses actually saw any of the accused giving the gunshot to the deceased Bahadur Ali which used and resulted in .His death. There is no direct evidence in this regard, brat the prosecution has relied upon the statements of complainant Sohrab. Wali Mohammad and Mst. Singhar as furnishing evidence connecting all the accused with the murder of Bahadur Ali. We therefore propose to examine the evidence of these witness and taking them together consider the case in its light to find if the offence is proved to have been committed by the accused, beyond any reasonable doubt.
This first thing which is to be noted is that the offence was committed at past midnight at the house of complainant but the complaint was lodged at 7-30 a. m. After a delay of about six hours at Police Station, Thul which is at a distance of about 6 miles from the place of the crime. The F.I.R.-- was lodged by Sohrab father of the deceased. Submission of the learned counsel for the accused is that the delay in lodging the complaint was due to consultations and meeting at the place of crime between the complainant and his relations (who included Ghulam nadir and Degi) to decide as to who could be the persons who committed the offence and be involved in the case. According to the learned counsel unkown persons had committed the offence but after consultations amongst themselves and m their own hurried decision the complainant parties took the view that Rahimdil, one of the accused in this case, could be responsible for it and thus decided to lodge the complaint against him, and that at the same time, in order to revenge the alleged crime, roped in and involved in the case his other relations i.e. The other three accused namely Mohammad Chaneeh (brother of Rahim D.1) Jogi son of Amir Bux and Naubat son of Amir Bux (the last two are cousins of Rahim D.1. The learned counsel then took us through the F.I.R. Lodged by Sohrab. It may be mentioned here that the house, of P. W. Wali Mohammad (brother of complainant Sohrab) is adjacent to his house with common open courtyard, but it is not stated therein that he was sleeping in the courtyard. We would like to reproduce here the said F. I. R., in extenso: "Complaint is that I am residing in village Belo Khan Banglani and adjoining to me my brother Wali Mohammad is also residing. I have four sons. The name of my elder son is Bahadurali and he is aged about 21-22 years. The other sons are minor. During past night I was sleeping with my family members in the courtyard of my house as usual. The courtyard of the house is open. My son Bhudur Ali and my sister Mst. Singhar were also sleeping there. At about past mid-night time I were up on gun report and cries of murder! Murder of Bahadurali I flashed the torch and on its light I saw Rahi--mdil & Mohd Chaneeh both sons of Qadirbux Banglani resident of near Jaric Bhanger and Jogi and Noubat both sons of Amirbux Banglani resident of near Bacharo were standing armed with guns. Rahimdil challenged us not to approach him as he bad killed Bahadurali as Kayo with Mst. Bhain, the were of his brother Buxali. Out of fear we did root go near the accused. Accused persons went away towards west firing in the air. This incident was also witnessed by my brother Wali Mohammad and my sister Mst. Singhar. Then we saw Bahadur Ali lying dead with gunshot injuries on his left side of chest. Due to odd hours of night we stayed for the night at the dead body and early in the morning I left the dead body end I have come for report that accused person have murdered my son Bahadur Ali innocently by levelling false allegation of Kara-Kari. I am complainant. Justice be done."
The complaint shows that none of the witnesses saw as to who fired the gun and committed the murder, and that the complainant Sohrab had to flash his torch and on its light it is alleged that he saw Rahimdil. Mohammad Chaneeh, Jogi and Naubat, the four accused standing armed with guns. The burden of committing the offence is squarely placed on Rahimdil alone who is alleged to have challenged the inmates not to approach dim as he hail killed Bahadur Ali as Karo with Mst.
Bhain the were of his brother Bux Ali. Thus the motive for the crime as per FIR is also clearly attributed to Rahim D.1 alone.
The other important thing in F. I. R. To be noted is that it was stated by the complainant that "accused persons went away towards West firing".
16. With the assistance of the learned counsel for the accused and the counsel for State, we have been taken through the record.
A careful consideration of the evidence given by the eye-witnesses Sohrab, Wali Mohammad and Mst. Singhar in our opinion do not inspire confidence and they contradict in any material aspects and being evidence of interested persons who have involved four persons of the same family appears, to be unreliable and cannot be safely relied upon. In reaching the above conclusion we would refer to the various aspects of the case as discussed below:- "I heard one gun report. The accused did not fire with gun while leaving the jai-wardat. I had not stated in the F.I.R. That my house and the house of Wali Mohammad is near the courtyard. Mst.
Singhar P. W. 2 (Exh. 8) also did not state that the accused went away firing in the air.
"Accused ran away after the incident. I did not hear any gun report. I had not stated before the Police or 164, Cr. P. C. Statement that the accused while going away fired the guns in the air."
The witness Wali Mohammad P.W. 3 Exh. 10 also in his statement deposed that the accused after the incident went away. No mention is made by him that they left the place firing in the air. Another important aspect of the-case is that in the F.I.R. Which was filed after delay of about 5-6 hours on 16July 1977 the motive for the crime was given by Sohrab P. W. I in the following words:--- "Rahimdil had challenged us not to approach him as he had killed Bahadur Ali as Karo with the were of his brother Bux Ali "th The motive for killing thus stated was the illicit relation of the deceased Bahadur Ali with Mst. Bhain were of Bux Ali brother of accused Rahim D.1 and the blame for the murder of Bahadur Ali as laid upon Rahimdil who it was alleged to have killed Bahadur Ali as Koro with his brother's were. But Mst.
Singhar P. W. 2 (Exh. 8) in order to involve all the accused, (i.e. Members of the family) went on to state that Rahim D.1 had challenged by threatening that:---- "if we went to them they would kill us and they had killed Bahadur Ali as Kara with Mst. Bhain."
The statement of hers clearly shows that she is not a reliable witness but her statement is motivated, These statements are clear improvement upon the story which was set up by Sohrab to involve all members of one family, of the accused). The reason for involving them appears to, be the disputes on account of ---Sanghabandi." agreement according to which daughter of Rahim D.1 was agreed to be given to the son of Wali Mohammad in exchange of daughter of Wali Mohammad to be given to the son of Rahim D.1. Suggestion was made to Mst. Singhar P. W. 2 in cross-examination but she denied any such "Sanghabandi" agreement. This is what she stated in her cross-examination: "There was no Sanghabandi of accused Rahim D.1 with Wali Mohammad. Daughter of Rahim D.1 was not agreed to be given to son of Wali Mohammad,"
However, the above statement of Mst. Singhat is contradicted by Wali Mohammad P. W. 3 (Exh. 10) who in his cross-examination admitted:--- "About six months prior to the incident I and accused Rahim D.1 had agreed to exchange our daughters and to give them in marriages to our sons but subsequently we went back from that agreement."
Thus false involvement of these accused in this case by Sohrab or his brother Wali Mohammad for murder of Bahadur Ali on account of Sanghabandi dispute cannot be ruled out particularly in view of the fact that these three witnesses namely Bahadur, Mst. Singhar and Wali Mohammad produced as eye-witness by the prosecution have contradicted and differed in material respects. It would be unsafe to rely upon their evidence without independent corroboration. It may also be noted here that it would be unnatural for all the four accused who entered the courtyard on a dark night (at past mid-night obviously to conceal their identity) to have night remained standing at the place of wardat after killing Bahadur and making no attempt to bide their identity and line up at only 10 feet away from the cot on which Bahadurali was killed and thus giving opportunity to complainant Sohrab as well as his brother Wali Mohammad to arrive and to flash their torches and thus be easily identified. In the circum--stances in which the offence was committed, the accused who actually murdered Bahadur Ali must have left the place of wardat taking advantage of darkness of the night. The fact that Bahadur Ali was killed by one gunshot and no other injury was caused by any other accused person is a strong indication, that there was only one person, who committed the offence, but he escaped immediately after the occurrence and that the three witnesses, Bahadur Ali, Wali Mohammad and Mst. Singhar did not see the person who committed the crime Sohrab were up subsequently and did not know who was the killer. Ghulam Qadir and Degi (who acted mashirs throughout) arrived at the place of wardat from distant but different villages. The learned counsel for the appellants submitted that it is strange that they arrived simultaneously. According to him these two persons conferred with complainant party and then decided to lodge complaint against Rahim D.1 on account of Sanghabandi dispute and involved the other three members of the same family also as accused in the case to avenge the insult.
It is also important to note that complainant and these witnesses for the prosecution had in the first instance suppressed the Sanghabandi dispute with Rahim D.1, and Sohrab the complainant went so far as to completely deny the dispute nr difference on Sanghabandi ago stated in the cross-examination:- "Mat. Lal Khatoon daughter of accused Rahimdil, was promised to be given in marriage to Hamal when they were minors. In exchange of Mst. Lai Khatoon, Mst. Sihat, daughter of Wali Mohammad was to be given to Dewar. These engagements are subsisting but the spouses are minors. It is not a fact that accused Rahimdil had refused to give his daughter to Hamal."
The credibility of these three prosecution witnesses (Suhrab Mst. Singhar and Wali Mohammad) is further shaken, by the fact noted strove that in the F. I. R. As well as in evidence in Court, the complainant Suhrab, had stated that when he were up and saw Rahim D.1, the said accused declared that he (i.e. Rahim D.1) had killed Bahadur as Karo with Mst. Bhain were of his brother but in evidence in Court, the other two witnesses, namely Mst. Singhar and Wali Mohammad implicated all the four accused, and stated that Rahim D.1 had stated that "they" (all the accused) had killed Bahadur. It may also be noted here that in their statements under section 164, Cr. P. C. Both these witnesses had stated that Rahim D.1 had declared that "he" had murdered Bahadur Ali.
17. We, now turn to the nature of evidence of the P. W, 4 Ghulam Kadir (Exh. 12) who along with Degi had acted as co-mashir. Both these mashirs, belong to different villages. Ghulam Kadir, is resident of village own and his house is two Kohs away from the place of wardat, while Deli Khan the other Co-mashir is resident of Village Own at distance of about 1-- furlong away from wardat. Yet it is strange that both these witnesses claimed to have arrived at the wardat at the same time. Witness Ghulam Qadir claims to have been called by the Police This witness cannot be treated as an independent witness. He acted as mashir to mashirnamas of Jai-vardat (Exh. 13), Inquest Report (Exh. 14) and also to Exh. 15 and Exh. 16, which are mashirnamas of recovery of torches from Sohrab (P. W. 1) and Wali Mohammad (P. W. 2). Moreover this witness and Degi Khan continued to visit the Police Station situated about 6 miles from place of incident. Further they also acted as mashirs to arrest of accused Chaneeh and Naubat (Mashirnama Exh. 17). Ghulam Kadir in his evidence however stated in cross-examination:-- "Accused Chaneeh and Naubat were not arrested in my presence I do not know how many miles away my Village is from Thul. Memo of arrest was prepared at the police station. I was present in Thul Town on that day."
This witness further stated:-- "I do not know when the accused were arrested by the Police" ..........." I do not know how many miles away my Village is from Thul."
But as we have noted above this witness (Ghulam Kadir) as well as other Co-mashir Degi Khan, acted as mashirs to mashirnama of arrest of Chaneeh and Naubat (Exh. 17) and the date of arrest as per mashirnama 14August, 1977 is shown to have been prepared at police station is Thul, but no other mashir/witness is called except the same two mashirs i.e. Ghulam Qadir and Degi Khan.
Their presence at the police station at the time when accused Naubat and Chaneeh appeared there and got themselves arrested is also a strange incident. Another reason to render the evidence of this witness, liable to be disbelieved is that according to this witness, Ghulam Kadir (Exh. 12) he and Degi acted "as mashirs of arrest of accused Chaneeh and Naubat about 3-4 days after the incident. It would however be recalled that the incident took place on 16th July. 1977 and the gate of arrest of these accused as per mashirnama is 14th August, 1977 at Police Station Thul (Exh. 17), that being so the above statement of Ghulam Kadir (Exh. 12) again stands not only contra- -dicted but belied.
18. Further according to Ghulam Kadir (P. W. Exh. 12) he and Degi Khan acted as mashirs to the recovery of the crime weapon, the guts at the pointation of accused Naubat (mashirnama (Exh. l8).
Nowhere it is to be noted that this witness is stated to be present at the time of arrest of Naubat, and he stated about the recovery of the crime weapon the gun, and in his cross-examination he stated:-th ---I do not know when accused (i.e. Naubat and Chaneeh) were arrested by the Police Naubat produced the gun next day, or third of his arrest. For that purpose also I was called by police from my Village."
The witness is conveniently forgetful of the time when the gun is stated to have been recovered and gives the date as "next or third day of his arrest." Earlier this witness had stated in examination- in-chief that accused Naubat and Chaneeh were arrested about 3 or 4 days after the incident (which took place on 16th July, 1977) and thus the date of the alleged recovery of the gun of the next day third day of his arrest, would be 17th July or 19th July. 1977. However the mashirnama of recovery of sun (Exh. 18) is dated 15th August 1977. The story of recovery of gun at the pointation of the accused Naubat thus cannot be safely relied upon. Further doubt is created to the authenticity of this alleged recovery from the fact that there appears to be no reason to call Ghulam Kadir and Degi Khan from their distant Village to Police Station at Thul Town, when independent witness could easily be available in the said Town itself. Naubat allegedly led the Police Officer Din Mohammad and the said two mashirs to Thul Distributory A. R. 15 (Wah) and "from large Boora Bushes, which were on the northern bank of the watercourse he (Naubat) produc--ed a gun". . The gun is not even shown to have been hidden or otherwise concealed though from the description of the place of recovery it could be seen that sufficient means could be available to the accused for concealing the crime weapon. In fact Ghulam Kadir (P. W. 12) in cross-examination then stated:- "The gun was lying in Boora bushes and that was not hidden in the ground."
This witness mashir Ghulam Kadir was even unable to give the distance between the Police Station and place of recovery, where be was allegedly taken by Naubat. He stated in his cross- examination that:- "I do not know what is distance between the place from where the gun was produced and the Police Station or the gun was produced and the Police Station or the vardat."
He further stated:-- "I donor know if my thumb impression mark was obtained on the sealed parcel in which gun was put by the Police."
Another aspect to be noted before we proceed further is that Ghulam Qadir and the two mashirs who have acted through out as mashirs in this case at every occasion appeared on the scene though they lived not only at distant but different places. Ghulam Qadir lived about 2-2-- miles away from the place of wardat and Degi Khan 1-- furlong away from the place. The evidence on record however shows that there are houses of Waloo and Piaro Banglanies in the neighbourhood, about 50-60 paces away from lace of wardat which fact is mentioned in the Mashir of Jai wardat (Exh, 13). No reason has been shown as to why these neighbours or any of them were not attracted when the incident took place or mashirnamas were prepared at the wardat.
19. Mr. Azizullah Sheikh, the learned counsel for the accused further argued that the alleged " Empty" for the first time is mentioned in Exh.
13. It is shown in it that the same was lying 10 paces away from Jai-wardat i.e. From the dead body, but in the F. I. R. There is no mention of an empty lying at the place of occurrence. His further submission is that according to mashirnama of Jai-Wardat (Exh. 13 the blood-stained Relhi, Pellets) empty and blood stained earth were taken into possession by the Police on 16th July, 1977, but only blood stained earth was sent to the Chemical Analyser and empty cartridge and gun, were sent to the Ballistic Expert. The blood stained Relhi or the bloodstained part of the said Relhi was not sent to the Chemical Examiner. Nor the "Pellets" which as per mashirnama (Exh. 13) stated to be blood-stained, were sent to the Chemical Examiner or Ballistic Expert. The further argument of the learned counsel, is that though, as noted above the incident took place on 16th July, 1977, but the parcel containing blood-stained earth was sent to Chemical Analyser on 28th July. The report in respect thereof from the Chemical Examiner (Exh. 24) is dated 11March, 1978, after a period of almost eight months.th It was argued that "Empty" was allegedly taken in possession by the Police on 16th July, 1971 and the gun was stated to have been recovered on 15th August, 1977, the report of the Expert shows that the parcels were received by him on 28th September, 1977 and the report is dated 31st December, 1977 (Exh. 25). The submission of the learned counsel is that the delay in sending the articles to the Experts is fatal and he relied on the following observations of the learned Division Bench of this Court in the case reported as Wazir v. State (PLD 1960 Kar. 674 "As just stated above the gun was produced by Soomar on 26July, 1956, but it was not despatched to the Expert until 18October, 1956. This delay in our view materially retracts from the value of the evidence provided by the identification of the run as one of the weapons used in committing the offence."
We fully agree with the learned counsel that the delay in this case for the above reasons detracts from the evidentiary value and therefore cannot be relied upon.
20. The learned counsel further submitted that the Report (Exh. 25) of the Ballistic Expert contains no reasons in support of his opinion, and therefore the same cannot be relied upon. He supported his arguments by reference to the case of Manzoor v. State (PLD 1979 Kar. 276) where it was held:- "There is a mass of case-law on the point that reasons for opinion of an expert become necessary but most of these cases relate to evidence of Chemical Examiner but there appears to be no reason why reasons of the Ballistic Expert should be dispensed with if reasons of a Chemical Examiner are necessary. On the contrary there is a greater necessity, for obtaining the reasons of a Ballistic Expert in support of the opinion because such opinion is based only on personal impression and observation. On the other hand the evidence of Chemical Examiner is based on methodical and Scientific examination of some objects and the chances of incorrect opinion in such cases are slender and remote."
We are in respectful agreement with the above observations and no hesitation in holding that the Report of Ballistic Expert (Exh. 25) contains no reasons and cannot be relied upon for the principles stated above, besides on the ground of delay.
21. The last submission of the learned counsel for the appellants is that though in F. I. R. Rahim D.1 was alleged to have declared that he had killed Bahadur as Karo with Mst. Bhain were of his brother Bux Ali, but the learned Sessions Judge convicted Naubat for the alleged murder of Bahadur and under section 13-D, Arms Act on the ground of alleged recovery of gun from accused Naubat and report of Ballistic Expert though he acquitted all the other accused for the offence under sec--tion 13-D, Arms Act by giving them benefit of doubt. We have already held that the recovery of the gun at the pointation of Naubat has not been proved and the evidence in that respect cannot be relied upon, and we have also found that the report of Ballistic Expert is of no evidentiary value as it contains no reasons and thus the conviction on Naubat for the alleged murder of Bahadur for the said reason cannot be sustained.
22. In the circumstances of the case, we are of the opinion that the evidence produced by prosecution is not of the nature of unimpeach--able character, it does not inspire confidence and it is unsafe to rely upon the same without independent corroboration. The evidence 'has been found contradictory in many material respects. The case against the appellants is not proved beyond reasonable doubt. The appellants are therefore given benefit of doubt and the appeal is allowed and the conviction and sentence against all the accused is set aside and they are acquitted. They are ordered to be released forth with unless required in any other case.
The reference is not accepted.th th