1. ZAFFAR HUSSAIN MIRZA, J.-This appeal by special leave, arises out of the judgment and order, dated 20-9-1980, passed by a Division Bench of the Sind High Court, whereby the sentences of death and fine awarded to the appellants under section 302 read with 34, P. P. C. For the murder of one Hotu were confirmed and their appeal dismissed. '
2. The appellants were tried and convicted by the II Additional Sessions Judge, Sukkur, for the aforesaid offence and were awarded sentence of death each and were further directed to pay a fine of Rs. 1,000 each, which if realized, Rs. 1,500 out of it were ordered to be paid to the heirs of the deceased, as compensation. Appellant Ghazi was further convicted under section 13(E) of the Arms Ordnance and sentenced to suffer R. I. For one year---s. The occurrence in this case took place on 22-3-1975, at about sunrise time on the road from Pano Aqil to Baiji near village Gagul. The case of the prosecution is that about two years before the occurrence, one Pinjio Kato was murdered and Faqir Muhammad and deceased Hotu, both brothers, were accused in that case, which was pending inquiry in the Court of Sub-Judge, Ghotki.
3. During the pendency of these proceedings, the deceased and Faqir Muhammad were released on bail. It is alleged that appellant Ghazi used to issue threats that he would avenge the murder of Pinjio Kato. On the date of the occurrence, as the hearing of the aforesaid case was fixed in Court, at about sunrise time, deceased Hotu accompanied by his brother Faqir Muhammad left for Ghotki, and as they apprehended harm at the hands of the aforesaid appellant, they were accompanied by their relatives P. Ws. Shamsuddin and Bahawal, who were their cousins. When the party reached the place, opposite Gagul village, deceased Hotu happened to be ahead of the rest of them, when all of a sudden the present appellants namely, Ghazi, Wahid Bakhsh and Ali Murad came out of the ambush from the wheat cultivation and challenged them. Appellant Ghazi is said to have been armed with a gun, while the other two appellants had hatchets in their hands. Appellant Ghazi first fired from his gun and the shot hit the deceased, who raised cries and fell down. The witnesses ran back out of fear. From a short distance, upon looking back, they saw appellant Wahid Bakhsh and Ali Murad causing hatchet injuries to the deceased while he lay on the ground. After killing the deceased, all the appellants went away. The witnesses then went and saw that the deceased had breathed his last and had gunshot and hatchet injuries on his person. Then Faqir Muhammad went to inform Bhai Khan, their Nekmard, at Pano Aqil, leaving others at the corpse and upon advice by the latter, he lodged his report at 7-15 a.m. At Police Station, Pano Aqil, District Sukkur.
4. At the trial, the prosecution relied upon the ocular testimony of comp--lainant Faqir Muhammad, and P. Ws. Shamsuddin and Bahawal. Support was sought from the circumstantial evidence of motive, recovery of empty cartridge from the scene of occurrence, recovery of hatchet and clothes, both blood-stained, from appellant Ali Murad, a hatchet and clothes also blood--stained from Wahid Bakhsh and recovery of single barrel gun of '12-bore at the instance of appellant Ghazi from his house from under the bed lying on a cot. The crime empty and the gun were sent on 22-4-1975, to the Forensic Science Laboratory at Karachi, as well as other articles said to be stained with blood were sent to Government Chemical Examiner on the same day. According to the reports received from the Experts, the crime empty was found to have been fired from the gun secured from appellant Ghazi and the articles secured from the other two appellant were also found to be stained with human blood, The plea of the appellants in their defence was of total denial of the prosecution allegations. They alleged that the prosecution witnesses were related inter se and were, therefore, falsely deposing against them. Further appellant Wahid Bakhsh stated that the deceased was declared Karo by two or three persons and was also a man of bad character. Appellant ---Ghazi---, additionally stated that the prosecution witnesses were deposing against him as he is complainant in a murder case against deceased Hotu and complainant Faqir Muhammad.
5. The learned trial Court accepted the ocular testimony as reliable and trustworthy and as corroborated by the aforesaid circumstantial evidence. In the High Court, the learned Judges of the Division Bench agreed with the findings of the learned trial Court and maintained the convictions and sentences recorded against the appellants as already stated.
6. Leave was granted by this Court by order, dated 7-1-1981, to consider the contention of the appellants "that the circumstantial evidence of the incrimina--ting recoveries is wholly unreliable, not only for the reason. That the only person other than the Police Officer examined in this behalf was Saleh Muhammad, brother-in-law of the deceased, who later on got married to the widow of the deceased, but there was also unexplained delay of nearly three years in the despatch of the articles to the Chemical Analyser". If, therefore, the said circumstantial evidence is ruled out of consideration, the question was whether the guilt of the appellants could be sustained on the basis of interested and inimical witnesses.
7. It may at the very outset be stated that admittedly, there exists strong enmity between the parties, which is being pressed as motive for the present crime. About two years before the occurrence in this case, one Pinjio Kato was murdered for which deceased Hotu and complainant Faqir Muhammad were facing trial in the Court of Sub-Judge and F. C. M., Ghotki. In that case appellant Ghazi Kato was complainant. It is also clear that all the, three alleged eye-witnesses are very close relations of the deceased. Faqir Muhammad was his brother, P. W. Shamsuddin his paternal cousin, and P. W. Bahawal ,his maternal cousin. Indeed even the witness of the alleged recoveries of incriminating articles from the, appellants, Shah Bakhsh is the brother-in-law of the complainant and has admittedly married the widow of the deceased after the incident. ' In view of the aforesaid, as has been consistently held by this Court, the ocular testimony could be relied upon only if corroboration was available. As already pointed out corroboration is being sought by the prosecution from three pieces of circumstantial evidence, namely, motive, recovery of blood- stained-hatchets and clothes from appellants Ali Murad and Khuda Bakhsh 'and the recovery of the crime empty matching with the gun produced by appellant Ghazi.
8. The reason assigned by the prosecution for the presence of P. Ws. Shamsuddin and Bahawal was that the deceased apprehended danger to his life at the hands of appellant Ghazi; who used to threaten him and, therefore, these close relations were accompanying the deceased and the complainant on their way to Pano Aqil. However, it is strange that despite such serious apprehensions. None from the complainant party was armed with any weapons. The appellants also challenged the presence of complainant Faqir Muhammad on account of the improbabilities pointed out in his evidence. In this connection, it may be mentioned that the Medical Officer found gunshot and sharp-cutting injuries on the dead body of the deceased. But there was also a blunt weapon injury found by him. However, the account of the incident disclosed by the eye-witnesses does not attribute any blunt weapon injury to the appellants. Learned Judges of the High Court have expressed the view that, "in the circumstances of this case, it was not possible for the witnesses to have seen the deceased being hit by the blunt object, which the Doctor alone had the advantage of examining, and giving his opinion." This conclusion was arrived at, after noticing the circumstances in the evidence, which were that the eye-witnesses at the time of occurrence were at some distance behind, when the deceased fell down, after receiving the gunshot injury. If the witnesses were unable to see with what weapons an4 in what manner- the deceased received the injuries at the hands of the assailants, their veracity as regards the complicity and the identity of the appellants becomes doubtful. In other words reasonable doubt may arise about their very presence at the time of the occurrence.
9. Another important circumstance to which no importance was attached, by the learned Judges of the High Court, was the fact that at the time of his arrest, appellant Ali Murad was found to have a gunshot injury and it was argued on his behalf, that this proves his alibi, militating against the probability of his participation in the crime. The prosecution has not explained this injury and it was merely sought to be explained away on hypothetical basis that it may have been caused by a stray pellet from the same gunshot fired by appellant Ghazi at the deceased. However, the eye-- witness account clearly shows that according to the prosecution, the assailants had accosted the party of the deceased from the front. From this the physical possibility of one of the co-accused being injured by the same shot, is clearly, ruled, out and there are no circumstances on record which could explain the) injury, in the manner sought by the prosecution.
10. So far as the evidence produced in corroboration of the ocular testimony is concerned, taking up the evidence of motive, it was argued that if the present crime was the result of the motive alleged, namely, retaliation for the 'murder of the relation of the appellants, then both complainant Faqir Muhammad and deceased should have been made the target of the attack. According to the evidence of the alleged eye-witnesses, complainant Faqir Muhammad and the two eye-witnesses had retreated and saw the incident from a distance of about 10/12 feet, while the deceased was being given hatchet injuries. It is also in the evidence of these witnesses that appellant Ghazi was pointing his gun at them while they stood there' without taking cover. From these admissions it should not have been difficult for appellant Ghazi to have fired at complainant Faqir Muhammad.
11. This circumstance makes the motive attributed to the appellants very weak and unreliable. There is also nothing on record as to how appellants Wahid Bakhsh and Ali Murad were related to appellant Ghazi, so that it could be said that they were equally harbouring the same grudge as the latter. As far as Ghazi is concerned, the fact that he was the complainant in a murder case against complainant Faqir Muhammad and deceased, shows that the com--plainant had serious enmity with him, which does not rule out his false implication.
12. As regards the evidence of the Ballistic Expert and Chemical Analyser, it may be stated that, it was pointed out to the learned Judges of the Division Bench in the High Court by the counsel for the appellants that the incriminat--ing articles (gun, hatchet and clothes) were despatched to the Chemical Ex--aminer in April, 1975, but the articles were received by him in September, 1977, and the opinion, by him, was given on 27-3-1978. Likewise, the gun wad despatched to the Ballistic Expert, first on 22-4-1975, then on 29-5-1975, and the parcel containing. The same was received by the Expert on 27-2-1978. While the opinion was given by him on 14-5-1978. In view of the apparent delay in despatching these articles and in returning the opinion by the Experts, the learned Judges thought it fit to examine the concerned Experts and the S. H. O. Accordingly, they examined Mr. Abdul Majid, S. H. O., Police Station, Patio Aqil at the relevant time, Doctor Abdul Wadood, Chemical Examiner, Karachi, and Mr. Ghulam Abbas Jafri, Director, Forensic Science Laboratory, Sind Karachi, in order to examine the reasons for the delay. According to S. H. O. Abdul Majid, he found the crime empty at the scene of offence on 22-3-1975 and secured the same. Similarly, he had arrested appellant Ali Murad on the same day and secured from him the hatchet and his clothes. Appellant Ghazi was arrested on 4-4-1975 and produced a '12-bore single barrel gun which was secured. All the articles recovered and seized were deposited at the Police Station, Pano Aqil. He received the letter permitting him to send the articles to the Expert by the S. P., Sukkur, on 22-4-1975. He sent these articles on 28-4-1975 to the respective Experts, but the Ballistic Expert returned the articles sent to him, for making correction in the letter accompanying the parcel, which incorrectly described the year of the crime number. However, he was not able to say when the articles were sent back to the Ballistic Expert, although they were received under an endorsement, dated 27-2- 1978. The S. H. O. Has clearly stated, that he cannot say in what condition the articles were sent to the two Experts, as he had been transferred in the meantime. The articles sent to the Chemical Analyser were also returned with the endorsement that the Laboratory was being shifted from its old premises to new one. Doctor Abdul Wadood, who was Chemical Examiner at Karachi in 1975, has testified that he was approached by a Police Constable from Police Station Pano Aqil on 31-5- 1975 with five sealed parcels but they were returned for the reason already stated. According to him, the Laboratory had remained closed, for about six weeks and the Police Constable was directed to inquire after about 15 days, if the parcels could be examined. The parcels were brought back to him on 5-9-1977 by another Constable, which were then received and cuttings etc. From the articles were sent to Government Serologist Laboratory at Islamabad on 4-10-1977, from where the report was received on 16-2-1978. The final report was despatched by him on 4-4-1978. Mr. Ghulam Abbas Jafri stated that the gun and the crime empty in this case were received in his office first on 30-5-1975, but were returned due to the mistake already pointed out. The articles were again received by his Office on 27-2-1978, and after examining them he had given his report, dated 14-5-1978. It will, therefore, be seen that even from the additional evidence recorded by the High Court, it is not clear why the articles when returned were sent so fat and where they were lying in the meantime. In such circumstances, as held in Allahando v. The State (1969 SCMR 714) it will be highly unsafe to rely on the evidence of the Ballistic Expert and on the same principle, on the evidence of the Chemical Examiner. In spite of a fresh opportunity being provided to the prosecution, no plausible explanation is forthcoming on the record, why the -prosecution agencies committed such gross negligence and re-despatched the articles with such inordinate delay. No conviction on the basis of such evidence in a capital charge can be sustained, in consonance with the principles of safe administration of criminal justice, as laid down by this Court. I the evidence of the recoveries is thus ruled out of consideration, the prosecution evidence left to support their case consists only of interested and inimical ocular testimony, which cannot serve as a safe foundation for sustaining the guilt of the appellants.
13. For the foregoing reasons, this appeal is allowed and the convictions and sentences awarded to the appellants under section 302/34, P. P. C. Are set aside. The appellants shall be set at liberty forthwith if not required in any other case.
14. This appeal was disposed of by a short order, dated 12-9-1981, and foregoing are reasons for the decision.