A. V. AKHUND, J.----In 1970-71 P. W. Mst. Riaz Bibi married deceased Muhammad Ali, and a child was born to them. In 1974, there started misunderstanding between them as the deceased suspected the character of Mst. Riaz Bibi. She got annoyed with the deceased and went away to the house of her father, acquitted accused Miandad. In spite of the efforts made by the deceased, there was no settlement and Riaz Bibi did nor come back to him. Even in the morning, on the day of occurrence, Nakmards had tried to intervene so that Riaz Bibi could go back to the deceased, but her father, Miandad, refused to send her. The deceased was, however, warned by Miandad not to pass his house.
2. On the day of incident, 28th August, 1976, at about 3-30 p. m. The deceased happened to pass by the house of Miandad whose two sons-----appellant Tai Muhammad and acquitted accused Munsif Khan were sitting outside. Munsif Khan caught hold of the deceased and started beating him. Miandad came out of the house. He instigated his sons to kill the deceased. Appellant Taj Mohammad took out a chhuri and hit the deceased in his right side chest above the nipple.
Muhammad Ali died on the spot. At about 4-15 p. m. On the same day, P. W. Karam Ellahi, brother of the deceased, lodged an F. I. R. With New Town Police Station. After investigation, the police sent up Miandad and his two sons-Taj Muhammad and Munsif Khan to stand their trial under section 302, read with section 34, P. P. C.
3. Appellant and the acquitted accused denied having committed murder of deceased Muhammad Ali.
4. The VII Additional Sessions Judge, Karachi, by judgment dated 21st May, 1979, acquitted Miandad and Munsif Khan because, in his view, they were not present at the time of occurrence, but found appellant Taj Mohammad guilty of causing death of deceased, convicted him under section 302, P.
P. C. And sentenced him to imprisonment for life, fine and compensation to heirs-of the deceased.
5. This is an appeal against the conviction and sentence passed against Taj Muhammad appellant.
6. Evidence of P. W. 7, Dr. Sayed Iqbal Ahmed who performed post-mortem examination on the dead body of Muhammad Ali, proves that Muhammad Ali died of shock and haemorrhage as a result of the following injury caused with a sharp and pointed weapon like knife or chhur:- Incised wound right side chest front just above right nipple from mid line measuring 2--" x 1" x cavity deep, oblique in direction.
On internal examination of the deceased, the right side of lung was showing incised wound of '1/2" x through and through and right side of heart showing incised wound --" x --" x chamber deep.
7. The trial Judge has based the conviction of appellant on the following evidence:--
(a) Ocular evidence of P. Ws. Karam Ellahi and Abdul Qayoom;
(b) Recovery of blood-stained clothes from the person of the appel--lant;
(c) Recovery of blood-stained chhuri from the roof of house of one Iqbal at the pointation of the appellant;
(d) Simple injury with some sharp-edged weapon, in the left hand of the appellant; and
(e) Motive.
8. Mr. Shaukat Zubedi, appearing for the State, does n support conviction for cogent reasons with which w agree: He urged.
(i) Ocular evidence is not believed by trial Court in respect of co-- accused Miandad and Munsif Khan, and therefore, such evidence cannot be relied upon in respect of appellant without independent corroboration;
(ii) Since corroboratory evidence on record is not proved, there is no corroboration of ocular evidence ; and (i.e) In his statement, the appellant was not asked to explain (a) injury on his hand, (6) recovery of blood-stained clothes from his person, (c) bloodstains on the knife secured at his instance.
9. There are two eye-witnesses, namely, P. W. 1 Abdul Qayoom, and, P. W. 3, complainant, Karam Ellahi who depose they saw appellant gave knife blow to Muhammad Ali who died on the spot.
They had also deposed that acquitted accused Munsif Khan had caught hold of Muhammad Ali, while one of the witnesses, complainant Karam Ellahi said, that acquitted accused Miandad instigated appellant Taj Muhammad and Munsif Khan to kill Muhammad Ali. The evidence of these witnesses does not inspire confidence for the following reasons; They were disbelieved by the trial Court in respect of the part they assigned to each of the acquitted accused Munsif Khan and Miandad who both were found by the trial Court not to be present at the time of incident. P. W.
Abdul Qayoom was arrested and challaned many a time in gambling cases by the police. He has made some false statements in his evidence as to the time when police examined him, and the period of time within which the occurrence took place. Karam Ellahi P. W. Is brother of the deceased. He is biased against the appellant whose family have detained were of his deceased brother, which resulted in this murder, Admittedly, 25-30 people collected there. They would have been independent witnesses. But none was examined. In these circumstances, it needs independent and reliable corroboration to substantiate the evidence of eye-witnesses before they can be relied upon.
10. Appellant and his co-accused examined in defence D. W. 1 Gulab Khan and D. W. Fazal Rehman's who state they have shops at the distance of 300 to 400 paces from the place of occurrence, and, when they went on the spot on the cries, no body could tell them who had caused the death of Muhammad Ali. According to both of them P. W. Karam Ellahi came late and he was also inquiring who had killed the deceased. But the defence evidence is after thought as no question with regard to their presence was suggested in cross-examination to P. W. Karam Ellahi and/ or Abdul Qayoom.
11. There is only evidence of Investigating Officer P. W. 8, S. I. Muhammad Irtiza that he secured a blood-stained shalwar from the person of Taj Mohammad appellant. There is no report of Chemical Analyser that blood on shalwar was human blood. No question was put to the appellant in his examination with regard to recovery of blood--stained shalwar. Thus it is not proved that any blood-stained shalwar was recovered from the person of appellant. It is not proved that shalwar secured from the person of appellant was blood--stained.
12. Similarly, there is only evidence of Sub-Inspector P. W. Irtiza, that on the pointation of appellant chhuri was recovered from the roof of house of one Iqbal. He does not say it was bloodstained.
There is no evidence that chhuri recovered was bloodstained. The roof from where chhuri was recovered, was an open place. It was not in possession of appellant. It is not proved that chhuri secured was used in the commis--sion of the offence.
13. No witness has said that the appellant received any injury in the occurrence. For the first time, Sub-Inspector P. W. Muhammad Irtiza said, he had seen some injuries on the person of appellant whom he sent to the doctor for treatment and certificate. P. W. Dr. Hassan Jawed, who examined the appellant, found one injury, namely, incised wound 2" x --" x muscle deep in the web space between thumb and index finger of left hand. The injury was simple and caused within 6 hours. The doctor examined the appellant at 1-00 a. m., and, as per his evidence, this injury could have been caused at about 7.00 p. m. The incident, in this case took place at 3.30 p. m. It follows appellant had not received injury at the time of occurrence. In his statement, the appellant was not asked to explain the injury on his person. This injury on the appellant will not support the eye-witnesses that appellant took part in the occurrence.
14. On the point of motive there is evidence of P. W. Karam Ellahi brother of the deceased that Mst.
Riaz Bibi widow of the deceased left her husband's house and lived with her father, that deceased tried to bring her back home, but of no avail, and, he was threatened not to pass by the house of the appellant. There is no independent evidence to corroborate Karam Elahi. Prosecution examined Mst. Riaz Bibi P. W. 4, who does not say a word to support Karam Elahi. On the other hand, she stated that at the time of incident she was residing in the house of her husband the deceased.
15. Thus each of the circumstances to corroborate the eye-witnesses, is not proved. It is unsafe to base conviction on the uncorroborated evidence of two eye-witnesses whose testimony is doubtful.
16. In the result, conviction and sentence of the appellant is set aside. Appeal is allowed. Appellant shall be set at liberty forthwith, if he is not required in any other case.