NASIR ASLAM ZAHID, J.-The three appellants Suleman scan of Iddan, Ghulam son of Iddan and Abdul Rashid son of Amir Bux have filed this appeal against the judgment dated 28th June, 1979 of the Ex Officio Additional Sessions Judge, Sukkur, who convicted them under section 302/34, P. P. C.
And sentenced each one of them to death to be hanged by the neck till he be dead. In addition, the appellants have been sentenced to pay a fine of Rs. 1,000 each or in default to suffer R. I. For 6 months. The remaining two co-accused iddan son of Khan and Shahmir son of Kamo were acquitted by the trial Court. For an offence under section 13.0 of the Arms Ordinance, appellant Suleman had been separately committed for trial and by his judgment, dated 28th June, 1979 the Additional Sessions Judge disposed of both these cases as a joint trial was held. Appellant Suleman was also convicted for the offence under section 13-D of the Arms Ordinance and sentenced to suffer R. I. For one year. The appeal filed by the appellants challenges also the conviction of the appellant, Suleman under the Arms Ordinance. The case has also been referred to this Court for confirmation of the death sentence passed against the three appellants. This judgment will dispose of the criminal appeal filed by the appellants as well as the confirmation case.
According to the prosecution. Murder of deceased Azizullah son of Nabi Bux was committed at about noon time on 23rd July, 1974 near the garden of the complainant Nabi Bux son of Muhammad Bux in village Wah Burio, Deh Kandhra, District Sukkur, the place of occurrence being two miles towards East of Police Station Kandhra, District Sukkur. The F. I. R. Was lodged at 1405 hours on the same day by Nabi Bux, father of the deceased. According to the F. I. R., the complainant resided in Wah Buriro along with his sons. Azizullah and Shaft Mohammad, and on the day of the incident Azizullah was sleeping on a mat inside the `manah' whale the complainant and Shafi Mohammad were working in the garden, as it was the date season, when at noon time Iddan son of Khan Mohammad and Shahmir son of Kamo passed from there looking at the complainant and his sons and after a short while these two along with the three appellants, namely Suleman son of Iddan, Ghulam son of Iddan and Abdul Rashid son of Molvi Amir Bux (and son-in-law of Iddan) who were residents of the same village and also relatives of the complainant, came to the garden of the complainant. At that time Suleman had a revolver in his hand whilst Ghulam and Abdul Rashid had hatchets in their hands. On cries, being raised Rahim Bux and Ghulam Qadir both sons of Shahidino also came running from nearby otak challenging the accused. According to the complainant, all present saw Suleman firing three shots at Azizullah which struck him in the stomach, and Ghulam and Rashid gave Azizullah hatchet blows. Azizullah died after a while gasping for breath. Suleman thereafter fired twice in the air and shouted that if any one came near, he would be murdered and due to this fear no body went near them. The complainant as well as his son Shaft Mohammad, and Rahim Bux and Ghulam Qadir saw the appellants running away with the revolver and hatchets after murdering Azizullah. The complainant then left Rahim Bux and Ghulam Qadir near the corpse and went straight to Wadero Moula Bux and sent his son Shad Mohammad to call Hadi Bux, son-in-law of the complainant. The complainant informed Wadero Moula Bux about the murder and then he went to Police Station Kandhra for lodging the report.
According to the complainant, the accused had suspected deceased Azizullah to be on illicit terms with Mst. Zahuran daughter of Iddan, and who was also sister of Suleman and Ghulam, and were of Rashid.
3. The prosecution ocular evidence comprises the testimony of the complainant Nabi Bux (P. W. 1) and two neighbours, namely Rahim Bux (P. W. 2), Ghulam Qadir (P. W. 3) both sons of, Shahdino.
Complainant's son Shaft Mohammad an eye-witness, according to the F. I. R., has not been examined. According to the prosecution, this ocular testimony is corroborated by the evidence of Hadi Bux (P. W. 4) who is the son-in-law of complainant Nabi Bux, and the recoveries of the bullets and empties, the blood-stained shirt from the person of appellant Rashid two blood-stained hatchets and the crime pistol wrapped in a blood-stained handkerchief recovered from appellant Suleman. Prosecution evidence also dealt with the motive.
4. The learned Additional Sessions Judge believing the ocular testimony, and, also relying upon the recoveries and the evidence of Mashir Moula Bux, convicted the three appellants before us under section 302/34, P. P. C. And awarded them the capital sentence but acquitted the remaining two accused, namely Iddan and Shahmir Suleman was further convicted under section 13--D of the Arms Ordinance for being in possession of afire-arm without a licence and sentenced to R. I. For one year. The reasons for acquitting Iddan and Shahmir are given in para. 43 of the judgment of the trial Court which reads as follows.
"As regards accused Iddan and Shahmir, ne active part has been assigned to them. They are supposed to have only been present there and witnessed the murder and then gone away. They have been unarmed throughout and this circumstance weighs heavily on the side of their innocence. There is no overt act evidence which might directly implicate them or connect them through any common object with the incident, and no adverse conclusion is permissible on any supposed or imaginary ground. The charge against both these accused Iddan and Shahmir is thus held as not proved."
5. Ikramul Haque (P. W. 6) S. H. O. Police Station, Kandhra, who recorded the F. I. R. On 23July, 1974 investigated the case. He secured the blood-stained earth, 3 empties of -32 bore pistol and two lead pieces (bullets). The tado (mat) on which the dead body was lying was also secured. After making the inquest report, the S. H. O. Referred the dead body to Medical Officer, Rohri for post- mortem examination. Accused Ghulam, Iddan, Shahmir and Abdul Rashid were arrested four daysrd later on 27July, 1974. According to the witness, accused Rashid "had a blood-stained shirt which appeared to have been washed...". One hatchet was then recovered from bushes at the pointation of accused Rashid which hatchet was still stained with blood. Two days later, that is 6 days after the crime, P. W. Ikramul Haque, on spy information skilfully raided the house of Iddan (as per mashirnama, Exh. 9 dated 29th July, 1974) at about 5-30 a. m. And arrested accused Suleman and while doing so when he searched the person of the accused a pistol was found wrapped in an handkerchief which was blood-stained from the fold of the loin-cloth at the time worn by Suleman.
Suleman had no licence for the pistol. Both these items were secured and sealed. The pistol, empties and sealed pieces were sent to the Ballistic Expert and rest of the items to the Chemical Analyser for report.
6. Dr. Ghulam Mustafa (P. W. 9), Incharge Medical Officer at Civil Hospital, Rohri, performed the post-mortem. According to the post-mortem report (Exh. 31 dated 24th July, 1974) there was semi digested food material in the stomach of the deceased, and the following injuries and damage were found on the body:-- External examination
(1) Three lacerated wounds with charing each 1/8" x 1/8" x muscle deep 1" apart from each other, two inches superior to the umbilicus over the abdomen.
(2) One incised wound 8" x 1" x cutting the muscle trachia and oesophagus through and through at the level of thyroid cartilege transversely over anterior aspect of the neck.
(3) One incised wound 2" x --" x muscle deep over medial end of left clavicle over the chest.
(4) One incised wound 1--" x --" x muscle deep over the middle of left clavicle.
(5) One incised wound 3" x 1" x muscle deep over lateral end of left clavicle.
(6) One incised wound 1--" x --" x cutting the muscles and bone traversily over middle of left mendible.
(7) One incised wound 1--" x --" x muscle deep over posterior aspect of distal --" of left arm.
(8) One incised wound 1--" x --" x muscle deep over posterior aspect of middle of left arm.
(9) Three lacerated wounds each --" x --" x muscle deep three inches apart from each other over the middle of the back."
Internal examination ---(1) Lyranx and trachia were cut through and through.
(2) Oesopegus cut through and through.
(3) Small intestine was purforated.
(4) Large intestine was purforated.
(5) The stomach contained little quantity of semi-digested food material."
7. According to Mr. Azizullah Shaikh, learned counsel for the appellants, the prosecution case rest upon four pieces of evidence; namely, (i) the ocular evidence of eye-witnesses Nabi Bux, Rahim, Bux and Ghulam Qadir; (ii) corroboration through the testimony 'of Hadi Bux and the recoveries; (i.e) motive for the crime being the charge of illicit, relations between the deceased Azizullah and Mst. Zahuran sought to be established through the evidence of Nabi Bux, Rahim Bux and Ghulam Qadir; and (Iv) the fourth piece of evidence on behalf of the prosecution was the medical evidence of Dr. Mustafa (P. W. 9) whose testimony was recorded at three different occasions. On the first occasion, he was examined before the committal Court on 10May, 1975. Second time he was examined to the trial Court on 24October, 1978 and then the third time he was recalled and further examined on 15th May, 1979 at the request of the Special Public Prosecutor.
8. Apart from the above evidence, there is the formal evidence of Tapedar Mohammad Safdar (P.
W. 7) who described the topography of the place of wardat and who also made a sketch of the place of incident and the evidence of the Investigating Officer, S. H. O. Ikramul Haq (P W. 6). In their statements, appellants Suleman and Ghulam had relied on their alibis that on the date of incidentth th th they could not possibly be present at the scene of incident at noon time as both had gone to the Civil Hospital, Sukkur. Suleman had gone to the Hospital to Sukkur where his tooth was extracted by the dentist and Ghulam had taken his were Maryam to the Hospital where she was examined by a doctor: They produced medical certificates attempting to prove their alibis and in defence they examined ere Abdullah, a Clerk in Civil Hospital, Sukkur, who produced registers of the Hospital supporting the alibis of appellants Suleman and Ghulam. It was further pleaded by the accused that, the appellant Iddan held certain agricultural lands jointly with complainant Nabi Bux and other persons and on account of property disputes in relation to the said lands the complainant was inimical towards the accused and got them implicated with the help of P. W. Rahim Bux and P.
W. Ghulam Qadir who were alleged to be near relations of the complainant.
9. According to Mr. Azizullah Shaikh, this was an unwitnessed crime and on account of enmity between the parties the appellants were falsely implicated. According to the learned counsel, there are material contradictions between the respective testimonies of the 3 eye--witnesses and the testimonies also differ in material respect from the facts narrated in the F. I. R. Great stress has, however, been Laid by the counsel on the contradictions between the statements of eye-- witnesses and the medical evidence, which contradictions, according to the counsel, are so far reaching that a reasonable doubt arises regarding the guilt of the three appellants or in any case the ocular testimony requires corroboration.
10. In the F. I. R. Nabi Bux refers to the firing by Suleman through the use of a revolver when in fact a pistol had been used. According to the learned counsel even if this misdescription of the weapon of offence is overlooked, no mention is made in the F. I. R. Of the empties, and as it was alleged that the Suleman fired 3 times and later on it was established that the weapon used was a pistol and not a revolver, there would have been empties on the scene of wardat, but no mention is made about the empties in the F. I. R. The complainant Nabi Bux, who was examined as P. W. 1, has also not mentioned in his testimony about the empties. Similarly, neither Rahim Bux nor Ghulam Qadir, the other two eye-witnesses, mention anything about the empties in their evidence. It is for the first time when Moula Bux; the mashir, is examined that mention is made of the shells. The other witness, who refers to the empties, is the Investigating Officer, S. H. O. Ikramul Haque. There are also minor discrepancies in the evidence of the eye-witnesses regarding the cries raised at the time of the incident. In our view, the misdescription of the pistol as a revolver, the non-mention of empties in the F. I. R. And in the evidence of the eye, witnesses and the minor discrepancies relating to cries are not material by themselves to render the testimony of the eye-witnesses wholly false or for demolition of the prosecution case. It is an established position in law that it is not mandatory ,that the F. I. R. Should contain every minute and possible detail about the incident. What is required is that material facts are stated in the F. I. R. So as to give a correct account of the incident or wardat.
11. The main ground of attack on behalf of the appellants against the prosecution case as built up by the three eye-witnesses is that their version is in direct conflict with the medical evidence produced by the prosecution itself. According to these eye-witnesses, the crime is supposed to have taken place at noon time. The post-mortem report (Exh. 31) of Dr. Ghulam Mustafa, who was also examined as a witness for the prosecution, shows that semi-digested food was present in the stomach of the deceased Azizullah, and according to the witness the deceased must have taken food 2-4 hours before his death. If the incident bad happened in the morning or at noon time, according to the learned counsel, the only meal the deceased could possibly have taken, would be break fast. Breakfast, according to the learned counsel, is generally taken in the rural areas early in the morning just after sunrise. Accordingly, the learned counsel argued that the medical evidence establishes the time of offence prior to 12 noon and this contradicts the time given by the eye- witnesses.
12. Secondly, according to Dr. Ghulam Mustafa there were 3 different sizes of injuries by hatchets as regards breadth of the injuries. As per post-mortem report, the breadth of the injuries through hatchets were --" x --" and 1" in breadth and according to the learned counsel for the appellants this points out that perhaps 3 hatchets were used.
13. The third major contradiction between the testimony of the eye-witnesses and the evidence of the doctor, according to Mr. Azizullah Shaikh, was in connection with use of hatchets by Rashid and Ghulam first or firing of 3 bullets by Suleman. According to all the eye--witnesses, the deceased was fired at first 3 times by Suleman and then Rashid and Ghulam gave hatchet blows to the deceased. The 3 eye--witnesses are very clear in their evidence about the succession of events in this regard. However, the medical evidence is to the contrary. According to Dr. Ghulam Mustafa, injuries by hatchets were caused first and bullet injuries were caused 2/3 minutes later on. Mr. Azizullah Shaikh has pointed out that Dr. Ghulam Mustafa was examined in committal proceedings and at the trial before the Additional Sessions Judge, an application was made on behalf of the appellants for his examination in the trial Court, but the same was rejected. Then at a later stage a request was made on behalf of the prosecution that the doctor should be examined in the Sessions Court, which request on behalf of the prosecution was granted and it is in his evidence before the Sessions Court that the above evidence was given regarding the succession of injuries caused to the deceased. No re-examination was made on behalf of the prosecution as regards the evidence of the doctor about the injuries through hatchets being caused first. This doctor was again recalled for further re-examination at the request of the prosecution, which request was again granted by the Sessions Court in the interest of justice as would be evident from the diary of the trial Court dated 13th May, 1979 but even in this further re-examination no attempt or effort was made to question the doctor regarding his evidence that hatchet injuries were caused first and bullet injuries later on.
14. There is no discussion in the judgment of the trial Court in respect of the last two contradictions mentioned in the previous paragraph between the evidence of the eye-witnesses and the testimony of the doctor. As regards the presence of semi-digested food found in the stomach, the learned trial Court reconciled the apparent contradiction regarding the time of tire incident by observing that after the first meal at 6 a. m. The deceased might have taken something light to eat at about 11 a. m. What was also possible was that nothing was taken by the deceased after breakfast and the death took place between 8 a. m. And 10 a. m. If the testimony of the doctor is to be believed then serious doubts are created as regards the prosecution story presented by the. 3 eye-witnesses. If 3 hatchets were used and if the incident had happened much before noontime on the day of the incident and if the hatchet injuries were caused first and bullet injuries later on, the evidence of the 3 eye-witnesses would not be sufficient for proving the case against the appellants. The learned counsel for the appellants is correct when he contended that in view of the conflict between the medical evidence and the testimony of the eye-witnesses, coupled with the fact that eye-witness Shafi Mohammad was not examined and the enmity between the complainant and accused, the evidence of the eye-witnesses becomes weak and this weak piece of evidence requires corroboration, from independent and unimpeachable evidence. We are in agreement with the learned counsel for the appellants that the contradictions between the medical evidence and the evidence of the eye-witnesses are of such degree that it would not be safe to sustain conviction of the appellants only on the testimony of the eye--witnesses in the absence of corroboration specially in view of the other two factors noted.
15. We now deal with the question of enmity between the complainant and the accused and the question whether Rahim Bux, (P. W. 2) and Ghulam Qadir (P. W. 3) were interested witnesses. In his cross-examination, complainant Nabi Bux had denied that he had purchased agricultural land jointly with Iddan and others on that he had cheated Iddan in respect of this land but this stands disproved from the extract of Khasra Girdawari of Deh Kandhra (Exh. 35-C) showing joint ownership and original sale dated 7th October, 1943 (Exh. 35-D) evidencing purchase of land jointly by Nabi Bux and Iddan. Being relations owning agricultural property jointly, possibility of enmity between the parties cannot be ruled out specially in view of the wrong testimony given by the complainant regarding joint ownership of property. As regards the brothers Rahim Bux (P. W. 2) and Ghulam Qadir (P. W. 3), it was alleged, by the defence that Nabi Bux complainant and these two brothers were closely related inasmuch as Nabi Bux is uncle (Khaloo) of Rahim Bux and Ghulam Qadir. This suggestion was denied by these brothers and Nabi Bux. In view however of the allegation of the defence and conflict in the medical and ocular testimonies, the conviction cannot be maintained on the evidence of these two without corroboration.
16. Motive has also not been proved as there is no independent evidence in this respect. Rahim Bux (P. W. 2) and Ghulam Qadir (P. W. 3) in their evidence give the source of their knowledge about the motive of this crime as the complainant Nabi Bux (P. W. 1), but P. W. I in his evidence does not say that he had informed Ghulam Qadir and Rahim Bux regarding the suspicion about deceased Azizullah having an affair with Mst. Zahuran. Nabi Bux (P. W. 1), father of the deceased, himself only states in his evidence that, the, deceased was suspected to be having an affair with Mst. Zahuran, tire `Kari', without disclosing the source of his information or that he himself was aware of this sordid affair. The only other witness who makes reference of the motive is Hadi Bux (P. W. 4) son-in- law of the complainant. His evidence regarding motive is as follows:- "The accused Rashid is my consin while accused Ghulam is my brother-in-law and I know that they had been suspecting the deceased to be 'Karo' with Mst. Zahuran were of Rashid accused."
He just says that "I know" but he does not give the source of his information or how he came to know about this affair. It is further significant to note that there is no mention or reference as to what happened to the `Karl'. Mst. Zahuran. Prosecution has failed to tie up this loose end. If the motive was correct and if the accused's honour had been jeopardised to such an extent by this suspicion that they killed the `Karo' in cold blood in broad daylight, the life of `Karl' would not have been spared. But as observed earlier, there is no evidence about what happened to Mst. Zahuran.
There are grave doubts about the authenticity of this charge in view of the state of evidence on record.
17. According to the prosecution, the version as given by the eye--witnesses finds corroboration from the testimony of Hadi Bux (P. W. 4) and the recoveries. Hadi Bux in his evidence has said that Shafi Mohammad, brother of the deceased Azizullah and son of the complainant Nabi Bux, had come to him and narrated the details about the incident. Hadi Bux is the son-in-law of the complainant and according to Mr. Azizullah Shaikh, his testimony is inadmissible in evidence being hearsay as Shafi Mohammad has not been examined by the prosecution. Shafi Mohammad, according to the F. I. R. And the prosecution story, was an eye witness and he has not been examined on the ground that he was ill. We are not impressed by the reason given for not examining Shafi Mohammad and the presumption in the circumstances would be that in case fie had been examined, his testimony would have gone against the prosecution. Secondly, the contention of the learned counsel is correct that the evidence of Hadi Bux in so far as he repeats what Shafi Mohammad had told him is all hearsay on account of Shafi Mohammad not having been examined as a witness. Mr. Azizullah Shaikh in this connection referred to section 60 of the Evidence Act and has also relied upon the case of Pahlwan v. State (PLD 1975 Kar. 84) decided by this Court. The relevant portion of this judgment is in para. 5 at page 86 of the report. This judgment supports the contention of the learned counsel and we are of the view that the evidence of Hadi Bux being inadmissible cannot in law be accepted as corroboration of the prosecution story as given by the 3 eye-witnesses.
18. The other piece of evidence which could possibly corroborate the testimony of the eye- witnesses is the recovery. The first recovery is of the blood-stained shirt from the person of appellant Rashid on 27July, 1974 at about 11-30 a.m. This blood-stained shirt was recovered at the time four of the accused, namely Iddan, Shahmir, Ghulam and Rashid were arrested on 27July, 1974 at 11.30 a. m. According to the mashirnama, an attempt had been made by Rashid to wash the blood stains on his shirt but in spite of this effort some stains were there on the shirt at the time of arrest on 27th July, 1974, whereas the crime is supposed to have taken place on 23rd July, 1974, four days earlier. Then, at the pointation, whereas the crime is supported to have taken place on 23rd July, 1974, four days earlier. Then, at the pointation of appellant Rashid, one blood-stained hatchet was also secured at 12-30 p. m. On the same day, i.e. 27July, 1974. There is no mention in the evidence of what happened to the other hatchet. The third recovery was made on 29th July, 1974 when the last accused Suleman was arrested from his house early in the morning at 5-30 a. m.
According to the mashirnama from the fold of his loin-cloth a blood-stained `roomol' was recovered and in the blood-stained `roomal', the crime pistol was wrapped, which pistol was also recovered. If the prosecution story is to be believed appellant Suleman, having committed the crime 6 days earlier, keeps the weapon of offence in a `roomal' which is blood-stained wrapped up in his loin cloth and keeps these incriminating items on his person for 6 days after the offence till he is arrested in his own house.
19. The recoveries as stated above were made on 27July, 1974 and 29July, 1974. The three items recovered were sent to the Chemical Examiner on 28th September 1974, that is after about two months, from Sukkur and these were received in the office of the Chemical Analyser at Karachi on 10th October, 1974. The Chemical Examiner does not give his report till 25th January, 1975. According to his report dated 25January, 1975, the blood-stained shirt of Rashid and the `blood-stained hatchet recovered from Rashid as well as the `roomal' recovered from Suleman showed signs of human blood.
20. According to the learned counsel for the appellants, if the accused had committed this crime as alleged on account of the illicit relations between the deceased and the were of Rashid, the appellants would either have given themselves up to the Police immediately after committing the crime, but if on the other hand, they were not inclined to do so, they would have taken measures for destroying the incriminating evidence on their person or in their possession. It was contended that the allegation against Rashid was that he had washed his blood-stained shirt in the nearby canal.
If this was so, Rashid could very well have thrown the blood-stained hatchet in the canal but this was not done, and accord--ing to the prosecution, the blood-stained hatchet was recovered at the pointation of Rashid from the bushes. According to the learned counsel, the prosecution story about the recovery of the blood-stained `roomal and the pistol from the person of Suleman is also highly improbable. This accused was arrested from his own house after 6 days of the incident.
According to the prosecution, he was found sleeping with the blood-stained 'roomal' and the pistol kept conveniently in the fold of his loin-cloth. The facts regarding the recoveries of these items are, to say the least, unusual but the additional reason that has persuaded us to reject these recoveries as evidence corroborating the testimony of the eye--witnesses is the fact of delay in the despatch of these items from Sukkur to the Chemical Analyser at Karachi and the further delay in the receipt of these items at Karachi and then in the submission of the report by the Chemical Examiner. There is no explanation on the record on behalf of the prosecution as regards the delay of about 2 months from the date or recovery of these items and the date of their despatch to Karachi on 28September, 1974. There is also no explanation of over 3 months delay in the submission of the report by the Chemical Examiner. Mr. Azizullah Shaikh in this connection has referred to the case of Gulzar v. State (1976 P Cr. L J 419) where one month's delay was considered by a Division Bench of the Lahore High Court to be sufficient for rendering the recoveries as valueless. In the case ofth th th th th th th Kalander Bux v. The State (1972 P Cr. L J 820) a Division Bench of this Court considered 4 months unexplained delay to be sufficient to minimise the authenticity of the circumstantial evidence.
Similarly in the case of Muhammad Hafeez v. State (1978 P Cr. L J 57) it was held by a Division Bench of this Court that 41 days unexplained delay cast serious doubts about the genuineness of the recoveries. In the present case, there is a delay of nearly 5 months and on account of the unusual circumstance of the recoveries and 5 months delay, we consider it unsafe to rely upon these recoveries as evidence far corroboration purposes.
21. The other recovery is of the pistol and the crime bullets. The Ballistic Expert has not been examined but his certificate refers to the 3 bullets received by him as M-1 and M-3, but in his report regarding the bullets having been fired from the pistol recovered, the Expert does not refer to M-1 and M-2 but refers to C-1 and C-2. These are apparently typing mistakes and cannot be considered as a material defect so as to reject the report of the Ballistic Expert. Other inaccuracies and defects pointed by the learned counsel for the appellant in the report of the Ballistic Expert in connection with the seals affixed on the packages containing the crime bullets and empties have substance, but we do not consider it necessary to go into these in great detail as on account of the unexplained inordinate delay of nearly five months in the despatch of these items of recovery to the Ballistic Expert and the date of submission of report by him it would be unsafe to rely upon these recoveries In the case of Allahando v. State (1969 SCMR 714) a delay of four months in the despatch of the parcels containing the crime pistol and empty cartridges led the Supreme Court to observe that the evidence of the Ballistic Expert could not be taken to be a strong piece of evidence to warrant the conviction of the appellant in that case.
22. Apart from this, Mr. Azizullah Shaikh has strenuously argued that no reliance can be placed on these recoveries as Moula Bux (P. W. 5) who is the solitary mashir examined on behalf of the prosecution in respect of all the recoveries was a profession and witness on behalf of the Police. In the 3 mashirnamas prepared in respect of the recoveries and arrest of the accused, the same are signed by Moula Bux and Abdul Razzak, the other mashir. However, Abdul Razzak had not been examined as a witness and in respect of these recoveries, the prosecution has relied upon the evidence of Moula Bux as a mashir. Although under the law it is not necessary that all the mashirs who have signed the mashirnama should be examined, but in the facts of this particular case we are of the view that the failure on the part of the prosecution to examine Abdul Razzak has greatly affected the prosecution case relating to the recoveries. Moula Bux in his cross-examination has stated that apart from this case he had only appeared as a mashir in one other case. However, the evidence that has been brought on record is clearly contradictory to this evidence. In one case in which Moula Bux had appeared as a mashir which case was being tried by First Class Magistrate, Rohri, the learned Magistrate had noted that Moula Bux was a professional mashir of the police and had appeared in every case as a mashir from Police Station Kandhra. The learned counsel for the appellants has referred to the case of Abdus Samad v. State (PLD 1964 SC 167), in which the Supreme Court discarded the evidence given by a Police mashir. In view of the unusual nature of recoveries, the fact that the mashir Abdul Razzak, who might have been an independent mashir, had not been examined and the fact that Moula Bux has been proved to be a professional pet mashir of the Kandhara Police Station from which police station the present case also arises, we are inclined to agree with the learned counsel for the appellants that the testimony of mashir Moula Bux be discarded, which becomes an additional factor for rejecting the evidence as to recoveries.
23. The defence had set up, in so far as Ghulam and Rashid are concerned, the alibi that on the day of the incident they were in Sukkur Civil Hospital. According to the statement of Rashid recorded under section 342, Cr. P. C. One of his teeth had been extracted on 23rd April, 1976 in the Civil Hospital, Sukkur and he produced a certificate to that effect and according to the statement of appellant Ghulam, he had accompanied his were Mariam to Civil Hospital, Sukkur where she had cc been examined as an outdoor patient. The defence also examined D. W. Mohammad Abdullah, Clerk in the Civil Hospital, Sukkur, who produced the register of the hospital and through him the medical certificates produced by these aforesaid two appellants were sought to be proved. The learned Sessions Judge did not accept the alibi and we do not find any cogent reason to disagree with the learned Sessions Judge in this regard. However, the learned Sessions Judge seriously erred in observing that failure to establish the alibi defence taken by appellants Suleman and Ghulam also came as an adverse circumstance against them. In this connection Mr. Azizullah Shaikh contended that this approach of the learned Sessions Judge was against the established law as Laid down by the superior Courts in this country, and as this was one of the circumstances which led the learned Sessions Judge to convict the appellants, the appellants are entitled to benefit of doubt on account of this illegality committed by the Sessions Judge. In the case of Ellahi Bux v.
State (1969 SCMR 584), our Supreme Court has in very clear terms confirmed the well-established principle of law that failure on the part of the accused to prove the defence of his alibi does not recoil to his disadvantage. The fact that an accused has not been able to prove an alibi should not be used against the accused as the burden still remains on the prosecution to prove the case against the accused beyond any reasonable doubt. We are in agreement with the contention of the learned counsel for the appellants that the observation by the learned Sessions Judge that failure to establish the alibi by the accused should be taken as an adverse circumstance against them is not the correct exposition of law.
24. Mr. Shaukat Zubedi, the learned counsel who appeared on behalf of the State, also conceded that on the state of evidence and weaknesses in the prosecution case, the appellants are entitled to the benefit of doubt. According to Mr. Zubedi, the testimony of the eye-- witnesses does not inspire confidence for the additional reason that by their evidence they had falsely implicated implicated the two acquitted accused, Iddan and Shahmir. He further conceded that in the case the corroboratory evidence was lacking. He further submitted that the evidence of the Investigating Officer Ikramul Haque (P. W. 6) became suspect on account of his selecting a stork witness, namely Moula Bux (P. W. 5) who was a pet Police mashir in all cases from Kandhra Police Station. In brief, learned counsel for the State has not supported the convictions.
25. As a result, we hold that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. We do not confirm the sentence of death against the appellants and allow the appeal filed by the appellants and set aside their conviction and sentences. The appellants are acquitted of all charges. All the three appellants shall be released forthwith if not required in any other case.