1. SAJJAD ALI SHAH, J.-Above named two appellants have been convicted for offence under section 302/34, P. P. C. And Muhammad Hassain is sentenced to death, while Brohi is sentenced to life imprison--ment by learned Additional Sessions Judge, Kandhkot vide his judgment dated 31st May, 1.980. Both appellants have filed appeal against their conviction and sentences and there is also before us reference for confirmation of death sentence under section 374, Cr. P. C. And we propose to dispose of both the appeal and reference by this single judgment. Shortly stated prosecution story as per F. I. R: .Is that appellant Muhammad Hassan was married to deceased Malti sister of complainant Bakhshan and lived with her in. The house of her father. The said marriage took place three or four months before the incident. Due to quarrel between husband and wife over domestic affairs, appellant Muhammad Hassan left the house of his father-in-law ten or fifteen days prior to the incident. On the night of incident, i. e. 12th August, 1978 at about 12-45 a. m. Deceased Mst. Malti, complainant Bakhshan, Mst. Nadira sister of deceased and their father Khair Muhammad were sleeping in their house situate in Mirzanpur Mubaila in Kandbkot and the witnesses woke up on noise and saw appellant Mohammad Hassan armed with hatchet and appellant Brohi armed with wooden-peg. Muhammad Hassan declared that he would kill his wife Mst. Malti as she was kari with Qasim Suhriani while Brohi stood over other witnesses threatening them not to move.
2. Appellant Muhammad Hassan gave hatchet blows to Mst: Malti who was sleeping on the cot and thereafter both the appellants ran away with their weapons. After the departure of the appellants, the witnesses went near and found Mst. Malti lying dead with hatchet injuries on her neck: Complainant Bakhshan leaving other witnesses near the deadbody came to Police Station, Kandhkot at a distance of four furlongs and lodged F. I. R. At 1.15 a. m. On the same night. S. H, O.
3. Ghulam Abbas after registering F. I. R. Proceeded to the scene of offence but on the way met both the appellants in the street, arrested them and sent them to the Police Station in custody. He inspected wardat which was pointed out by the complainant. He recovered blood-stained earth which was sealed into a parcel. He prepared inquest report and sent the deadbody to the hospital for post--mortem examination. On the same day he recorded statement of Mst. Nadira, Bahadur and Khair Muhammad. On the same day appellant Muhammad Hassan while in custody produced his Shalwar and hatchet which were both blood-stained. Appellant Brohi while in custody led to his house and produced danda, which he took from bushes inside his house. S. H. O. Sent blood- stained articles to the Chemical Examiner. After completing other steps of the investigation he presented challan in the Court.
4. Prosecution has examined 9 witnesses in support of its case before the trial Court. Ocular evidence is furnished by three witnesses namely P. W. 2 Ba' ~shan complainant, P. W. 3 Mst. Nadira and P. W. 4 Khair Muhammad. P. W. 6 .Bahadur has been examined as mashir who has attes--ted various mashirnamas Exh. 16 to Exh.
19. P. W. 7 Waseeng Khan has attested mashirnama of arrest of appellants Exh.
21. P. W. 5 Dr. Shewa--kram conducted post-mortem examination of the deadbody and produced such report Exh.
14. According to him deceased had sustained two incised wounds; one on the front of neck and the other on left shoulder front. Injury No. 1 was sufficient to cause death in the ordinary course of nature. In the opinion of doctor death was due to shock and.
5. Haemorr--hage as a result of injuries which were caused by sharp cutting weapon. P. W.-8 Ghulam Abbas, S. H. O. Has been examined as Investigating Officer. Other witnesses are formal in nature.
6. So far ocular evidence is concerned, it may be worthwhile to point out that P. W.-2 Bakhshan is brother of deceased P. W.-3 Mst. Nadira and P. W.-4 Khair Muhammad are sister and father of deceased. They are inmates of the house as such they can be said to be natural witnesses.
7. Question that arises for consideration is that inspite of the fact they can be natural witnesses, have they seen the incident and identified the assailants and have they given truthful version of the incident ? It appears from the record that in the version of the incident given in F. I. R. As stated above there is no mention of P. W. Bahadur having come to the spot after the incident of having seen the incident. P. W.-2 complainant Bakhshan has deposed before the trial Court that after the incident he went to his cousin Bahadur and in the same breath he changed the statement and said that P. W. Bahadur also came to the spot and witnessed the incident. After the incident he and P. W. Bahadur both went together to Police Station Kandhkot where he lodged F. I. R. On this point P.
8. W. 3 Mst. Nadira has deposed before the trial Court that P. W. Bahadur also reached wardat and saw the incident thereafter complainant Bakhshan and P. W. Bahadur went together to the Police Station for lodging the report. P. W. 4 Khair Muhammad father of deceased, has deposed before the trial Court that P. W. Bahadur came to his house on commotion and they informed him about the incident. Complainant and P. W. Bahadur then went to the police station to lodge the report. In cross-examination P. W. Khair Mohammad has one again reiterated that the P. W. Bahaadur was attracted to the spot on cries but he did not witness the incident. S. H. O. Ghulam Abbas has deposed before the Mal Court that the complainant came to the Police Station and he registered F.
9. I. R. He has not deposed before the trial Court that P. W. Bahadur was also with the complainant when he came to the police station. He has positively testified before the trial Court that the complainant had come to the Police Station all alone. Another fact which is evidence from the record is that had P. W. Bahadur accompanied complainant to the Police Station, the he would have been joined by the Investigating Officer to act as mashir for arrest of the appellants, who are said to have been arrested in the street while S. H. O. Was proceeding to the spot after the registration of F. I. R. It appears that mashirnama of arrest of appellants Exh. 21 is attested by constables Waseem Khan and Muhammad Khan. It is therefore clear that had Bahadur accompanied the complainant .To the police station, he would have been called upon by the S. H.
10. O. To act as mashir for the arrest of appellants. The assertion of the eye-witnesses on the point that P. W. Bahadur came to the spot and saw the incident or came to the spot after the incident and went with complainant to the Police Station is manifestly far from truthful. On the other hand P. W. 6 Bahadur when examined in the Court as mashir deposed that he went on commotion to the house of complainant and saw Mst. Malti lying dead with hatchet injuries and the complainant did not disclose the names of the assailants to him. This witness was declared hostile and cross- examined. He also did not support recovery of incriminating articles from the appellants.
11. The other inherent defects in the evidence of the eyewitnesses are that it is not clear as to how they woke up and in what light saw, the incident and identified the assailants. All the three eye- witnesses claim that they all woke up on noise and saw the whole incident from beginning to the end. Now what that noise was which awakened all the three eye--witnesses with the exception of deceased has not been clarified by these witnesses. It is also obvious that none of the eye- witnesses say that any cries were raised because according to them they were threatened by the appellants and particularly by Brohi who stood over the complainant and asked the witnesses not to move. All the three eye-witnesses further claim that they got up and were sitting on the cots and saw the incident take place. Bakhshan, complainant has stated positively before the trial Court that he saw appellant Muhammad Hassan inflicting two hatchet injuries to Mst. Malti. He has further stated that while hatchet blows were being given to the deceased his father and sister also woke up. Mst. Nadira has deposed before the trial Court that at the time of the incident she was sleeping on cot adjacent to the cot of the deceased and on noise she woke up first. She saw the appellants coming into the house and other witnesses got up when appellant Muhammad Hassan was giving hatchet blows to the deceased. As against this witness Khair Muhammad has deposed before the trial Court that he woke up on noise and saw both the appellants having come duly armed. He saw appellant Muhammad Hassan giving hatchet blows to Mst. Malti and then both appellants ran away. In his cross-examination this witness stated that he got up first and appellant Mohammad Hassan threatened him not to interfere. This witness has further categorically asserted that within his sight appellant Muhammad Hassan gave only one hatchet blow to the deceased. As stated above according to medical evidence deceased sustained two incised wounds, one on the neck and the other on the left shoulder. Even on this point evidence of the eye-witnesses is not satisfactory. It is not clear what that noise was nor any attempt has been made by the prosecution to elaborate it and also it is not clear as to who got up first or whether all the witnesses got up simultaneously and saw the incident from beginning to the end as is claimed by them.
12. Ocular testimony is also criticised on the ground that the eye-witnesses have not stated before the trial Court as to in what light the appellant were seen and identified. The eye-Witnesses have merely not stated at all as to what was the source of light which enabled them to identify the assailants. It is the duty of the prosecution to furnish ocular evidence of such quality which is free from all possible doubts and that evidence must satisfy mind of the Court that the witnesses are speaking truth and bad seen the incident and identified the assailants particularly when the incident is stated to have been taken place at night. The trial Court having found the ocular, testimony on this particular point to be weak and doubtful has relied upon the fact that the assailants' were known to the complainant party, being related, and had also spoken hence they might have been identified by their voices. Now first of all the eye-witnesses have not categorically stated that they identified the assailants on their voices. Secondly, the evidence on this point is not consistent. Complainant Bakhshan in his examination-in-chief before the trial Court has stated that appellant Muhammad Hassan informed him at the time of the incident that he would murder his wife Mst. Malti. He has not stated that other appellant Brohi spoke at that time. Msl. Nadira deposed before the trial Court that appellant Muhammad Hassan said that he would murder h wife Mst. Malti. She did not say that appellant Brohi also spoke, P. W. Khair Muhammad deposed before the trial Court that at the time of the incident Muhammad Hassan told them that he would murder his wife Mst. Malti as they were not allowing her to go with him. In his cross-examination he stated further that he got up first and appellant Muhammad Hassan challenged them not to interfere. He also did not say that appellant Brohi also spoke. It may be pointed out that in F. I. R. It is stated that both appellants challenged eye-witnesses at the spot not to move from their cots as they had no concern and further Muhammad Hassan declared that his wife Mst. Malti was kari with Qasim Suhriani, therefore, he would murder her and appellant Brohi armed with peg stood over the witnesses. While giving evidence before the trial Court complainant stated that appellant Brohi stood over him with his peg. Mst. Nadira deposed that appellant Brohi stood over the complainant Bakhshan. Khair Muhammad has only mentioned presence of appellant Brohi on the spot with peg but did not attribute to him any other role. It clearly shows that evidence even on this point is not satisfactory. The learned counsel for the appellants has drawn our attention to the fact the night of the incident was 7th night of Ramzan and on that night at 12.45 a, m. When the incident is alleged to have taken place there was no light of moon as such it was a dark night and has further submitted that it is not the case of the prosecution that incident was seen by the eye-witnesses in any artificial light such as electric light or a light of lantern. Prosecution case is almost silent on this point. In such circumstances it can be said that the incident took place in darkness. It is further submitted by the learned counsel that according to the prosecution case only two hatchet injuries were inflicted to the deceased, which might have taken the shortest possible time and it was probable that the eye--witnesses did not see the incident and could not have identified the assail- -ants because of dark night. It is also submitted that prosecution has furnished no clear evidence with regard to claim of eye-witnesses to have awakened on the noise as to what that noise was. In such circumstances it is argued that probability cannot be ruled out that the eye-witnesses did not see the infliction of hatchet blows and have fixed the blame on the appellants on the basis of suspicion.
13. Motive as stated in F. I. R. Is that appellant Muhammad Hassan after his -marriage with the deceased resided in the house of father of deceased and left the house over domestic disputes. At the time of the incident appel--lant declared that his wife Malti was kari with Qasim Suhriani. While giving evidence in the Court complainant did not support story of motive whole heartedly and omitted name of Qasim Suhriani, with whom appellant Muhammad Hassan alleged his wife to be kari. Mst. Nadirs before the trial Court did not state about the motive. She expressed ignorance with regard to dispute which took place between the appellant and the deceased before the appellant left their house. She stated that no dispute took place between them in her presence. She stated in her evidence before the trial Court that at the time of the incident appellant Muhammad Hassan declared that he would murder his wife Mst. Malti but did not say anything further as to on what account. P. W. Khair Muhammad in his evidence before the trial Court changed the story of motive and asserted that Muhammad Hassan told them that he would murder Mst. Malti as they were allowing her to go with him. On the other hand complainant Bakhshan in his cross-examination before the trial Court has admitted that Mst. Malti was married to one Rabban Manganhar and she had issues from him. She was divorced by that husband. "He further stated that Rabban divorced Mst. Malti due to domestic disputes. He denied a suggestion that she was divorced because she was of easy virtues. He further stated that after divorce from Rabban she was married to Jaffer Buriro. He further admitted that Jaffer had declared Mst. Malti kari with one Nadir Pathan Jaffer caused hatchet injuries to her and was challaned in the Court. Complainant Bukhshan and his father were witnesses in that case which was still pending Complainant further denied a suggestion that before divorce from Rabban Mst. Malti was married to one Muhammad son of Murad from whom also she obtained divorce through civil Court. Mst. Nadirs bad admitted in her evidence before the trial Court that deceased Mst. Malti was married with Mohammad son of Murad and she obtained divorce from him through the Court. P. W. Khair Muhammad has admitted before the trial Court that appellant Mohammad Hassan was third husband of the deceased. He has denied that she was married to Muhammad son of Murad. He has admitted that her previous husband Jaffer Buriro had caused hatchet injuries to her declaring her to be kari with Nadir Pathan.
14. In view of this evidence it is argued by the learned counsel for the appellants that with such chequered background of marital life of deceased Mst. Malti, possibility cannot be ruled out that she could have been done to death by one of the previous husbands or particularly Jaffer Burriro.
15. It has also been pointed out that eye-witnesses have admitted before the trial Court that there were several other houses near the house where incident took place but still nobody was examined as an independent witness who could say at least that he came to the spot after the incident and was informed by the eye-witnesses that the appellants committed offence alleged. Complainant Bakhshan has stated in his deposition that nobody came to the spot on commotion after the incident except his cousin Bahadur. Mst. Nadirs has deposed before the trial Court on this point that except her cousin nobody else came to the wardat on hearing the commotion but subsequently other people also came there after the departure of the appellants and they narrated the facts of the incident to them. P. W. Khair Muhammad stated before the trial Court chat nobody came to the wardat after the incident. Even on this point the evidence of the eye-witnesses is discrepant and it cannot be ascertained as to which witness has spoken the truth. In such circumstances the evidence of the eye-witnesses does not inspire confidence and cannot be treated as fit to be relied upon in any case there is no other corroborative evidence available in this case to support the ocular testimony, which can connect the appellants with the commission of crime. P. W. 6 Bahadur, who has been examined as mashir of recovery of incriminating articles from the appellants has not supported the prosecution case and was declared hostile. He is related to the complainant and is his cousin. Other co--mashir Lal Bux was examined but he also did not 'support the prosecution case and was declared hostile. Report of the Chemical Examiner Exh. 28 on the record is positive in which it is stated that hatchet with handle allegedly recovered from appellant Muhammad Hassan was found to be stained with human blood. The learned counsel for the appellants has pointed out to us that the hatchet was recovered as per statement of S. H. O. On 12th August, 1978 and was sent to Chemical Examiner on 4th March, 1979 after a delay of about seven months. It appears from Exh.
16. 28 that the parcels were received in the Laboratory of Chemical Examiner on 9th September, 1979.
17. Such long delay remains unexplained and in the absence of any convincing explanation accounting for delay this piece of evidence cannot be relied upon as it is not free from doubt. Such circum stantial evidence of sending the parcels to the Laboratory with a delay of seven days without any explanation has not been believed in Rehman do Others v. State (PLD 1968 Lab. 464).
18. In the instant case the delay is very long and no explanation has been offered as to what happened to the parcels in the meantime till they were ultimately received in the laboratory after a delay of more than a year. In view of such atrocious delay which is Unexplained we are not prepared to put reliance upon this piece of evi--dence. In the absence of mashir, resort to the evidence of Investigating Officer is not permissible in the instant case for the reason that his evi-- dence is trot satisfactory and it cannot be said that he has conducted investigation honestly. S. H.
19. O. Ghulam Abbas has deposed before the trial Court that after the complainant had lodged F. I. R.
20. Be went with the complainant to wardat but on the way met both the appellants in the street and took them in the custody and sent them to the Police Station through P. E. Waseeng Khan. This witness Waseeng Khan, Constable has deposed before the trial Court that both appellants were present in their houses at the time of their arrest. Appellants tried to run away when Police reached their houses. He and P. C. Muhammad Khan brought appellants to the Police Station after their arrest. This evidence is obviously m conflict with the assertion of S. H. O. That appellants were arrested from the street. Moreover complainant Bakhshan has deposed before the trial Court that when he reached the Police Station to lodge F. I. R. Both appellants were already sitting there before their arrival. Mst. Nadira also deposed before the trial Court that appellants had voluntarily surrendered at Police Station. Exh. 21 on the record which is mashirnama of arrest mentions the fact that both appellants were arrested but it is not further clarified as to from where they were arrested. Below the column ---Place of arrest" it is mentioned that they were arrested near Police Station, Kandhkot. Even this evidence is not clear and in such circumstances reliance cannot be put on the evidence of S. H. O. For proof of recovery of incriminating, articles from the possession of appellant Muhammad Hassan. Evidence of the Investigating Officer can be relied upon by the trial Court in the absence of mashirs only when the Investigating Officer has conducted the investigation properly and honestly and no animus and motivation can be attributed to him. In the instant case for the reasons and facts mentioned above no reliance can be placed on the circumstantial evidence of the recovery of the incriminating articles from appellant Muhammad Hassan.
21. For the facts and reasons mentioned above we are of the view that, prosecution has failed to prove the case against the appellants beyon4 doubt. All the pieces of evidence produced by the prosecution in this case are tainted. One twined piece of evidence cannot corroborate another piece of tainted evidence. We, therefore, hold that evidence furnished by prosecution is unsatisfactory, inconclusive and not worthy of reliance. We, therefore, give benefit of doubt to the appellants and set -aside their conviction and sentences. In the result the appeal is allowed and reference is rejected. Appellants may be set at liberty forthwith if not wanted in any other case.