1. ABDUL HAYEE KURESHI, ACTG. C. J.-Appellants Abdul Hakeem and Amin, respectively Uncle and Nephew, were tried on a charge under section 302/34, P. P. C. By the First Additional Sessions Judge, Sukkur, who, by a judgment dated 20th. March, 1979, found them guilty of the said offence and sentenced each one of them to death, and also directed payment of compensation of Rs. 3,000.00 to the heirs of the deceased Yaseen, in default of which payment they were to suffer R. I. For six months each. Aggrieved by the judgment, the appellants have filed an appeal through Mr. Muhammad Hayat Junejo. The Additional Sessions Judge has also made a reference under section 374, Cr. P. C. For confirmation of the sentence of death imposed on the appellants. We have heard both the criminal appeal as well as the confirmation case together. Upon hearing Mr. Muhammad Hayat Junejo for the appellants and Mr. Shaukat Zubaidi for the State, we had, by a short order dated 17-9-1980, allowed the appeal and declined to confirm the sentence of death. The reasons for such short order will presently follow.
2. Deceased Yaseen and appellant Abdul Hakeem are cousins inter se. It is stated that they had some dispute over ancestral property, as appellant Abdul Hakeem was not prepared to transfer the share of deceased Yaseen to him. It seems that, for such reason appellant Abdul Hakeem had threat--ened deceased Yaseen that if he insisted on getting him share, he might be harmed.
3. Deceased Yaseen, therefore, left Gulan village, where to parties lived together, and first migrated to Mirpur Mathelo and thereafter settled at village Ruk at a distance of two, or three miles from Ghotki.
4. The case of the prosecution is that either one or ten days before the date of incident viz. 18-6-1977, complainant Mir. Hassan, a step brother of the deceased, and Mst. Rani, sister of the deceased, had come .To visit deceased Yaseen and his wife Mst. Panah Kbatoon. On the morning of the incident, at about 7-30 a. m. The deceased together with complainant Mir Hassan. Mst. Pannah Khatoon and Mst. Rani started for vegetable market at Ghotki to sell some vegetables. The vegetables were brought to the shop of a Hindu, and there--after the deceased and his companions were moving about, when, at the spot in the market, the two appellants were found standing and were then armed with pistols. Abdul Hakeem is stated to have fired the first shot, which hit the deceased on the neck (although the doctor states chest), whereupon the deceased fell down when appellant Azim fired the second shot at the back of the deceased. The deceased died instantaneously.
5. Complainant 'Mir Hassan proceeded to Ghotki Police Station at a distance of two furlongs, and, within twenty minutes viz. At 7-50 a. m. He lodged a report, which was recorded by A. S. I. Lal Bux.
6. A. S. I. Lal Bux started investigation, and visited the scene of occurrence, where he found the dead body. The Mashirnama of the scene was prepared, and an enmpty cartridge was secured from the scene. The dead body was sent for post-mortem examination to Dr. Ghulam Sarwar, who found the following two injuries on the person of the deceased
(1) A lacerated fire-arm wound 1 -- in diameter x chest cavity deep on left clavised region with clavised and second rib of left side fructured.
(2) A lacerated fire-arm wound 1' in diameter x chest cavity deep on the back of chest left side in the mid with 7th, and 9th, ribs of left side fractured.
7. Three pellets and two card wads were also found from the body of the deceased, and the same were handed over by Dr. Ghulam Sarwar to constable Muhammad Ayoob, who was the corpse bearer. The two appellants were arrested on 21-6-1977 from a bus stop of village Yaro Lund. The crime weapon could not be secured by the Police Officer until 28-6-1977, but, on that date, the two appellants were produced along with P. Ws. Mst. Pannah Khatoon and Mst. Rani before Mr. Faiz Muhammad, First Class Magistrate, Ghotki for recording of the statement of the two witnesses under section 164, Cr. P. C. In accordance with the provisions of section 265-1 of the Code of Criminal Procedure. The prosecution story further unfolded is that after such statements were recorded, each one of the two appellants produced a country-made pistol, and such pistols were secured by the Police. The two pistols and the crime empty were subsequently sent to the Ballistic Expert, who has, vide Exh. 30, given an opinion that the crime empty was fired from that pistol, which had been marked as `A'. There appears to be some confusion on the record as to which one of the two pistols had been marked as `A'. On completion of investigation, the case was sent up, which has resulted in the conviction and sentence of the appellants, as stated above.
8. At the trial, the prosecution examined the three eye-witnesses, namely, Mir Hassan, Mst. Pannah Kbatoon and Mst. Rani. Of these witnesses, Mir Hassan and Mst. Pannah Khatoon did not support the prosecution case, and they were declared hostile witnesses and permitted to be cross- examined. Mst. Rani, however, supported the case of the prosecution. The section 164, Cr. P. C.
9. Statement of Mst. Pannah Khatoon and Mst. Pannah Khatoon stated that she had not made any statement under section 164, Cr. P. C. Mst. Rani substantially supported the said statement, and claimed to have made such statement. In these circumstances, the prosecution also examined Mr: Faiz Muhammad, the Magistrate, who had recorded the statements under section 164, Cr. P. C. The said Magistrate was unable to identify the two appellants as the persons who had been produced before him at the time of recording their statements. The prosecution, however, did not produce Mst. Pannah Khatoon and Mst. Rani before the Magistrate in Court for the purposes of having them identified as the deponents of the said statement. The prosecution also examined Rustom and Muhammad Hashim, who were both the Mashirs of the scene of occurrence and the recovery of pistol from appellant Abdul Hakeem. Both these Mashirs did not support the prosecu--tion either on the point of recovery of empty cartridge, or, pistol from appellant Abdul Hakeem. Mashir Wazir was examined to prove the recovery of pistol from appellant Amin, but he also did not support the prosecution. The twin Mashir Khuda Bux also did not support the prosecution on that point. On the point of recovery of empty at the `Wardat' and the two pistols from the two appellants, the . Only evidence of the prosecution came from A. S. I. Lal Bux, the Investigating Officer. The last plank of the prosecution case was motive arising out of a dispute over ancestral property between the appellant Abdul Hakeem and deceased Yaseen. The only other relevant evidence is of Tapedar Gohar Ali, who had visited the scene of occurrence and drawn a sketch. According to this witness, the incident took place in open ground of Sabzi Market of Ghotki Town, where there were about forty, or, fifty shops, as also a hand pump, which had been installed for the purpose of supply of water to the residents of the locality.
10. The two appellants in their statements under section 342, Cr. P. C. Have denied the prosecution case. Appellant Abdul Hakeem alleged enmity against Mst. Rani, and he also preduced some certified copies of judicial documents to show that one Khadim Hussain Mehar had filed a case of murder against the deceased, and such Mehars may be having the motive of committing the murder of deceased Yaseen. He also produced some other certified copies to show that there was enmity between the husband of Mst. Rani with him. Appellant Amin also denied the prosecution case, and stated he had been falsely involved, because he was related to appellant Abdul Hakeem.
11. The appellants also examined one Khamiso as a witness in their defence, who stated that he was present when deceased Yaseen was murdered, and the person responsible for causing his death could not be identified by him, but, in any case, that person was not any one out of the two appellants. He further stated that he had not seen complainant Mir Hassan of Mst. Pannah Khatoon at the scene of occurrence. He was, however, not asked either by the prosecution or by the defence if Mst. Rani was present at the scene.
12. We first propose to deal with the three alleged eye-witnesses. A stated, Mir Hassan and Mst.
13. Pannah Khatoon, respectively the step brother and the wife of the deceased, have not supported the prosecution. The version given by Mir Hassan was that, on the day of incident, he was in his own village, viz. Gullan illage, when One Wazir Kulachi came and informed him that the deceased had been killed by some unknown person in 'the Sahzi Market at Ghotki, whereupon he came to the scene and hound the deceased lying dead. He was confronted with his First Information Report,.
14. And he went on to state that he had not stated in his report that the incident occurred in his presence. Mst. Pannah Khatoon also stated that she was present in her house in Gullan village, when one person came and informed her about the death of the deceased in Sahzi Market at Ghotki, whereupon she, along with Mst. Rani, went to the scane and saw the dead body. The statement under section 164, Cr. P. C. of Mst. Pannah Khatoon was brought on the record. Tinder section 265-J of the Code of Criminal Procedure, such statement, if it is recorded in the presence of the accused and after notice to the accused and an opportunity of cross-examination, could, in the discretion of the Court, be produced, and treated as evidence in the case, subject to the provisions of she Evidence Act. In the cross-examination by the Assistant Public Prosecutor, Mst.
15. Pannah Khatoon clearly stated that she was not produced before any Civil Judge, or, Magistrate, nor were the appellants so produced. She denied the thumb impression, which appeared on her statement. She also denied the contents of the statement. Placed in these circumstances, the prosecution examined Mr. Faiz Muhammad the Civil Judge and First Class Magistrate, Ghotki to prove the statement. The Magistrate has stated that he had recorded the statements of two women folk, namely, Mst. Pannah Khatoon and Mst. Rani, but the said witnesses were not shown to the Magistrate for the purpose of identifying these witnesses. He was asked whether he had made any mention about any marks of identification of the witnesses on the depositions, but he stated that he had not made any such mention about the mark of identification, as, according to him, it was not necessary. The Magistrate was also asked to identify the appellants if they had actually been produced before him, and even in that regard, the Magistrate could not identify the accused persons. He further stated that he did not know if the accused persons produced before him had been brought from jail custody, or, from Police lock-up. It was additionally pointed out in the course of arguments before us that in the application made to the Magistrate (Exh. 27), requesting him to record the statements of the two female witnesses, not mentioned, had been made that the accused persons were present, or, had been produced. Investigating Officer A. S. 1. Lal Bux was subjected to some searching cross- examination on the point of production of the accused persons before the Magistrate for the purpose of providing them an opportunity to cross-examine the witnesses. The trial Court asked a question from the Magistrate, whether he informed the accused that they were being produced before a Magistrate for the purposes of recording statements of the two female witnesses under section 164, Cr. P. C. To which he replied that he had orally informed them in regard to the purpose of their production before the Magistrate, and he further admitted that be did not make a mention of such information having been given to the accused in the Police diary. The learned State Counsel has also made a reference to the Mashirnama relating to the arrest of appellant Amin and recovery of pistol from him (Exh. 21), and, in the said Mashirnama, it is mentioned at the places that appellant Amin was arrested on 30-6-1977 at 10-30 a. m. The statement of Mst. Pannah Katoon under section 164, Cr. P. C. Does not bear any date, but the evidence of the Investigating Officer and the Magistrate discloses that both Mst. Pannah Kbatoon and Mst. Rani were produced on the same day, and, since the statement of Mst. Rani bears the date 28th June, 1977, the statement of Mst.
16. Pannah Khatoon should also in that case be considered to have been recorded on the same date.
17. The Mashirnama of arrest of appellant Amin, therefore, assumes significance, because the said document. Shows his arrest on 30-6-1977, viz. After the recording of the statement of these female witnesses.
18. Section 265-J of the Code of Criminal Procedure is a glaring departure tom the normal rule of the recording of evidence, because it permits reception ofthe statement under section 164, Cr. P. C. As substantive evidence. The said section reads as follows :- "265-J. Statement under section 164 admissible.-The statement of a witness duly recorded under section 164, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined be treated as evidence in the case for all purposes subject to the provisions of the Province Act, 1872 (11 of 1872)."
19. A reading of this section makes it plain that the statement should be recorded in the presence of the accused, the accused should have; notice of the recording of such statement, and he should also be given an opportunity of cross-examining the witness. On the fulfilment of these conditions, the statement could be brought on record, within the discretion. Of the Court. Such discretion should be exercised if in the process of recording such statement sanctity attaches to it, as normally such statements are recorded only in cases involving capital sentences. The mere fact of a Police: Officer stating that he had put the accused on notice would not be sufficient. Such notice should, be in writing, and should also state that he has a right to cross-examine the witness.
20. Normally in these circumstances, an accused knowing the peril in the process would attempt to engage an advocate and ask for copies of the Police statements in advance, so as to effectively cross--examine the witness. Non-compliance with the spirit underlying section 265-J exposes the statement to serious criticism. After all, if an accused is suddenly marched of to the Court and asked to cross-examine a witness, be. Cannot effectively exercise his right under the law. It is also a cardinal principle of law enshrined even in the Constitution that every person has a right to be defended by an advocate of the choice. In these circumstances, if no proper notice is given, failure of justice might inevitably result, and the Court has to be on caution. Applying these tests to the instant case, we find that no notice in writing was given to the appellants before recording the statements under section 164, Cr. P. C. And there is absence of mention even in the Police diary, as, according to the Investigating Officer, he did not even mention this fact in the Police diary.
21. Admittedly, the accused were not represented, and therefore the right of cross-examination had not been effectively exercised. The learned Additional Sessions Judge has admitted the statement under section 164, Cr. P. C. Without adverting to this aspect of the case.
22. We now turn to the statement under section 164, Cr. P. C. Of Mst. Pannah Khatoon itself. She has stated that Mst. Rani had come to stay in the house of the deceased about ten days before the date of recording of her statement, and similarly complainant Mir Hassan. She has given no reason whatsoever about the purpose of the visit. Nor has she given any reason for having accompanied the deceased to Ghotki on the day of the incident. The time when they had started from their village for Ghotki must be very early morning, when woman folk normally get engaged in house-- hold work. In regard to meeting the appellants, she has stated in her section 164, Cr. P. C. Statement that they were standing in the market having pistols with themselves. We have evidence on record that about 400, or, 500 persons were present in the market, and it is, therefore, very doubtful that the two appellants would keep standing with pistols in their hands for the purpose of committing this murder In regard to the injuries, she stated that appellant Abdul Hakeem fired on the neck, but the deceased had no injury on the neck. She ascribed the second shot to appellant Amin after the deceased had fallen having received the first shot. On this point again, the evidence of Mst. Rani is to the contrary. The First Information Report again gives a third version, in which it is stated that- the second shot hit the leg of the deceased. There is no injury on the leg. We have given our serious consideration to the statement of Mst. Pannah Khatoon under sec--tion 164, Cr. P. C. And we do not find it safe to rely on that statement.
23. We now turn to the evidence of Mst. Rani, who is the solitary witness that has supported the prosecution case. This witness is the real sister of the deceased. First of all, there was hardly any reason for Mst. Rani and complainant Mir Hassan to visit deceased Yaseen on the day prior to the incident. No explanation is available on the record. Secondly, there was no good reason for Mst.
24. Rani to accompany the deceased to Ghotki at such an early hour in the morning. In regard to motive alleged, we have been poorly impressed. According to Mst. Rani the dispute between appellant Abdul Hakeem and deceased Yaseen was over ancestral property, which was being with held by appellant Abdul Hakeem in spite of deceased Yaseen demanding his share. This dispute, according to Mst. Rani, has emanated when she became a major. At the time of her examination in Court, she was aged thirty years, which would mean that this dispute remained sub--sisting for a very long period, but throughout that long period, no untoward incident occurred. According to this, witness, the deceased migrated from Gullan village three months before the incident on account of fear, and, even in that context, Mst. Rani has not disclosed any immediate cause for migration of the deceased. Even in regard to shooting, Mst. Rani has stated that the deceased was shot at from a distance of eight, or, ten paces, which would roughly be about twenty-five feet. From such a long distance, the shots pierced in the body of the deceased could not carry the card wads. Which were found in the body of, the deceased. It is common knowledge that card wads would be found when shots are fired from a point blank range. She has further stated that the first shot was fired on the front side near the neck of the deceased. There is no injury on the neck of the deceased. There is also a background of enmity between appellant Abdul Hakeem and Mst. Rani and her husband.
25. She has stated that the appellant had stolen a bullock belonging to the husband of Mst. Rani and had misappropriated. The sale price on account of which, her husband and appellant Abdul Hakeem were not on talking terms. She has also stated that, on account of a dispute between her husband and appellant Abdul Hakeem, one Rustam Khan Leghari, perhaps the Nekmard, had decided that her husband should pay Its. 700.00 as compensation to appellant Abdul Hakeem for having caused injuries to him.. She has also admitted that appellant Abdul Hakeem had filed a case of firing by one Yousuf, who is related to her husband. In fact, the trial Court was conscious of this background of enmity, but, in that context, proceeded to state as follows :- "The enmity suggested by the Defence Counsel is not of a such nature to prompt these two ladies to ret up a false story against their own relatives. However the enmity if any was between the male members of Mst. Rani who could have come forward to give false evidence against the accused persons if they really intended to falsely implicate these accused."
26. The above passage from the Judgment of the trial Court would clearly indicate that there was a background of enmity between Mst. Rani and her husband on one side and appellant Abdul Hakeem on the other. Whether that enmity was sufficient to prompt Mst. Rani to give evidence against the appellants is not a matter which can be gauged with mathematical exactness. A person may have a very strong grudge, or, grievance against another and still will not perjure himself to implicate such other man, and there may be persons having hardly the semblance of enmity, but, on account of reason to take vengeance, would go to perjure themselves. In these circumstances, the superior Courts of the country have always been guided by rule of caution that interested testimony would require corroboration from independent source. The rule is more prominently attracted to the present case, when the real wife and step brother of the deceased have not implicated the appellants. It is quite possible that M o. Rani has been under the influence of her husband and has tendered evidence against the appellants. Even her evidence has inherent weaknesses and improbabilities. Her presence at the scene is also doubtful not only for the reasons that have been stated in an earlier part of this paragraph but also for the reason that the Mashirs in whose presence the Mashirnama of the scene of occurrence and the inquest report were prepared, were not even asked a question by the prosecutor about the presence of Mst. Rani, and as a matter of that, the other witnesses. The prosecution was alive to the situation that two of the three eye-witnesses had not supported the prosecution. It was, therefore, a bounden duty of the prosecution to have brought evidence on record to assure the Court that Mst. Rani, or, the other witnesses were available at the spot.
27. The next circumstance that has persuaded us to disbelieve the prosecution version is the absence of any independent witness. The incident has occurred in broad day light in vegetable market. The Investigating Officer, and even Mst. Rani, have stated that numerous persons were available in the market at that time. The two appellants are residents of the locality. The Investiga--ting Officer did not examine even a single person from among those who were available at the scene and he contended himself to rely on the evidence of these witnesses about whom he was himself not sure whether they would support the prosecution. We are conscious of the fact that strangers are) reluctant to give evidence in cases involving other persons, but surely that 1 cannot be a rule, and each case will have to be determined on its own facts. In this case, we have evidence that the vegetables brought by deceased Yaseen had been left at the shop of a Hindu shop-keeper, and even such shop-keeper has not been examined at least for the purpose of showing that the deceased was accompanied by the witnesses. Suffice it to say that the only evidence in this case is of Mst. Rani, which suffers from some inherent improbabilities, and, in any case, is an inimical witness. Exh. 30 is yet another document produced by appellants. This is the copy of a report lodged by appellant Abdul Hakeem regarding commission of an offence under section 459, P. P. C.
28. By Fatoo and Yousuf, two persons closely related to the husband of Mst. Rani. This is a further proof of enmity of Mst. Rani of her husband.
29. We may also refer to the evidence of defence witness Khamiso. He is no doubt a caste fellow of the appellants, but, in that case, he is also a caste fellow of the deceased and the witnesses. Khamiso is a shop keeper, and he had reached the Sahzi Mandi in the early hours of the day, when he heard two gun shot reports, which hit deceased Yaseen. He states that he saw one person running away after firing but he could not identify that person. He; however, distinctly stated that he knew both the appellants and none of these appellants was seen by him at the scene of occurrence. Nor had he seen the witnesses at that time. He, has been cross-examined and nothing has been brought on the record to show that his evidence is false. This further leads strength to the case of the appellants.
30. The other piece of evidence against the appellants is that of recovery of the empty cartridge at the Wardat, and one pistol from each one of the two appellants. Four Mashirs were examined on the point and none of them has supported the prosecution on any of the two aspects of the case. We have the solitary word of the Investigating Officer on that point. It is not safe to rely on such evidence alone. Moreover, the weapons were recovered after twelve days of the incident, and nine days of the arrest of the appellants. We state nine days on the basis of the evidence of Investigating Officer, although the Mashirnama in respect of appellant Amin shows that he was arrested on 30th, June, 1977. The evidence about these recoveries it unconvincing. Even the two weapons are not distinctly identified, so that one, has no means of knowing as to who handled the weapon from which the crime empty found at the wardat was fired. This is clear on a reading of the evidence of A. S. I. Lal Bux in the concocted case relating to recovery of unlicensed arms: A copy of such deposition was produced by appellants as Exh. 36.
31. The other piece of evidence is motive which, as stated, is weak. The appellants had produced a copy of the complaint filed by one Khadim Hussain Mehar, alleging the commission of an offence of murder by deceased Yaseen. This person may also have a motive to commit this crime, and, in fact, there is suggestive cross-examination on that point.
32. For the above reasons, we are of the view that the guilt of the two appellants has not been satisfactorily established. They are entitled to the F benefit of reasonable doubt which we extend to them, and hold that they] are not guilty of the offence with which they were charged. They are acquitted and shall be released forthwith, unless required in any other case. The reference for confirmation of the sentence of death is not accepted.