SAJJAD ALI SHAH, J.-Both appellants named above have been convicted for offence under section 302, P. P. C. And condemned to death by learned Sessions Judge, Hyderabad, vide his judgment dated 28th February, 1982 impugned in this appeal filed by them. There is also before us reference for confirmation of death sentence. Both appeal and reference are proposed to be disposed of by this single judgment.
2. Prosecution story in nutshell is that Mst. Asma was married to one Jalil stated to be related to the appellants, who are cousins inter se, She got divorce from him and about two months prior to the occurrence had married deceased Muhammad Juman. This fact was resented by the appellants, who turned against the deceased. Both parties resided in village Wangi Otho in deh Landi, Taluka Tando Allahyar, at the relevant time. On the day of occurrence i.e. 15th September, 1979, at about 3.30 p.m. Deceased Muhammad Juman, his father complainant Urner and Tayab uncle of deceased were returning from their field through the track and when they reached land of Muhammad Otho near their village, both appellants surprised them w4b their sudden appearance.
Appellant Ghulam Rasool was armed with pistol and Hussain with hatchet. They challenged Muhammad Juman and declared that he would not be spared. Appellant ho became Rasool fired a shot from his pistol at Muhammad Juman, who became injured as the shot hit him on his back and he fell Down. Appellant Hussain gave him hatchet blows. On cries of witnesses, P. W. Allan Otho rushed to the spot from a nearby field and saw appellants running away. After the departure of appellants, witnesses went near and found N4uhamxnad Juman having succumbed to his injuries.
P. Ws. Umar and Tayab apprised P. W. Allan about the details of the incident. Complainant Umar leaving other witnesses near the dead body repaired to p, S, Chamber at a distance of six miles and lodged report at 5.30 p. m. On the same day.
3. S. H. O., Manzoor Hussain after registering F.I. R. Came to the scene of offence, which was pointed out by the complainant. He found the dead body and saw the injuries. He secured the cap of the empty cartridge from near the dead body and sealed it. He secured blood-stained earth and sealed. He prepared inquest report and despatched the dead body to the hospital for autopsy. He recorded statements of witnesses. On 24th September, 1979. S. H. O. Arrested both appellants at 11.00 a.m. At Wangi Mori on Nasir Branch and prepared such mashirnama of arrest. Both appellants while in custody led to the recovery of crime weapons from the field of Muhammad Otho. Appellant Hussain dug out hatchet from cotton crop and produced which was found to be stained with blood and vas sealed. Appellant Ghulam Rasool dug out and produced pistol from uncultivated land under ---Dhoro--- at a distance of one acre from the place of the other recovery. Pistol was found to be is working order and put into a sealed parcel. On 2nd October, 1979 statements of witnesses were recorded before the Magistrate under section 164, Cr. P. C. Sealed parcels were sent to the laboratories and after completion of other steps of investigation challan was presented in the Court. It would be pertinent to mention here that F.I. R. Names of three other co-accused Suleman s/o Usman, Mallan s/o Ahmad and Jalil s/o Qasim were also mentioned and was alleged that murder was committed at their instigation, hence they were arrested during the investigation but were not tried although their lames appear in challan as accused having been released on bail under section 497, Cr. P. C.
4. Before the trial Court prosecution has examined in all 113 witnesses in support of its case. P. W. 1 Allah Jurio Mashir has attested and produced Mashirnama of scene of offence Exh. 6 and inquest report Exh. 7 P. W. 2 Moulvi Ahmad Mashir has attested and produced Mashirnamas of arrest and recovery of hatchet and pistol Exhs. 9, 10 and 11 respectively. Ocular testimony is furnished by three witnesses P. W. 3 complainant Umer, P. W. 4 Tayab and P. W. 5 Ali Muhammad. Eye-witnesses have also deposed -about motive and complainant Umer has also produced certified copies of ex parte judgment, decree and plaint Exhs. 13-A, 13-b. And 14 respectively showing that suit filed by Mst.
Asma for dissolution of marriage was decreed against Jalil ex parte on 27th March,1979. P. W. 6 is Allan, who is corroborating witness according to F. I. R. And eye--witnesses as he came to the spot on cries and saw appellants running away and was informed by the eye-witnesses, but in the trial Court Allan deposed as eye-witness. P. W. 7 Allah Bachayo Tapedar has prepared and produced sketch of Vardat Exh.
22. P. W. 8 is Dr. Mansoor Ahmad, who has conduced post-mortem examination on the dead body and produced report Exh.
24. According to doctor deceased had sustained one fire-arm injury on thorax, left back side fracturing scapula bone with blackening at the site of the injury. There were four other incised wounds. One on the right side of the nose, second on the right eye-brew, third on right shoulder joint and fourth on left shoulder joint. Cause of death was due to shock and haemorrhage having resulted from injuries No. I, 4,and 5 which were individually and collectively sufficient to cause death in the ordinary course of nature. P.W.9 is constable Muhammad Bachal, who was corpse-bearer. P.W 10 is S.H.O. Manzoor Hussain, who has investigated the case. Prosecution has also produced Ballistic Export Exh. 27/A and Chemical Examiner---s report Exh. Which are both positive.
5. Before the trial Court in their statements under section 302, Cr. P. C. Appellants denied prosecution allegations including relation--ship with Mst. Asma or Jalil and further stated that they had no reason to be annoyed with deceased Muhammad Juman on account of his marriage with Mst. Asma. Both appellants took up plea of alibi that at the time of incident they were working in Amin Jute Mills at Korti. They have further examined two witnesses in defence. D. W. I Ali Bux and D.
W. 2 Nazar Muhammad in support of their plea of alibi.
6. We have beard at length Mr. Aftab Akhund, learned counsel for the appellants and Mr. Murtaza Hussain for A.-G. For the State and in the light of their arguments we have carefully examined the record. Prosecu--tion evidence consists of ocular evidence, corroborative evidence of P. W. Allan, motive and circumstantial evidence of recovery of crime weapons with positive reports of experts.
We first take up ocular testimony which is furnished by three eye-witnesses. This evidence is vehemently criticized by the learned counsel on the grounds that witnesses are interested acid have not seen the incident and further that this evidence is belied by medical evidence. P. W. 3 Umer complainant, P. W. 4 Tayab and P. W. 5 Ali Muhammad are admittedly father, uncle and brother of deceased respectively. The incident has neither taken place in their field nor in their house but on the way from the field to their village. In the circumstances, it cannot be said that these eye-witnesses are natural witnesses. Incident is said to have taken place at 3.30 p.m. And eye witnesses claim to be returning home with deceased after finishing the in agricultural work in the field. Normally this is not the time for agriculturists to return home as they do so late in the evening no convincing explanation has been given for early return and the complainant deposed before the trial Court that on the previous day also they returned at the same time. Eye--witnesses claim that they were returning alongwith deceased, who was ahead and they were following him. It is stated in Mashirnama of Vardat Exh. 6 that Vardat was on katcha track passing through survey number. P. W, I Mashir Allah Jurio has stated in his deposition that the track, where corpse was lying was 4-5 feet wide. Complainant Umer has stated before the trial Court that the deceased was going ahead at a distance of 50-60 paces and he and other eye-witnesses were following him one after the other. This does not sound natural for the reason that in rural areas of Sind customarily elders are treated with utmost respect and in such circumstances it is normally expected that eldest in the family and particularly when he is father would be prevailed upon to go first followed by 4 younger members of the family. In the instant case deceased was the
7. While complainant Umer and P. W. Tayab have, stated before the trial Court that at the time of incident appellants suddenly emerged from garden trees, P. W. Ali Muhammad has stated that they emerged from hedge. Complainant Umer and P. W. Tayab have deposed before the trial Court that appellants threatened the witnesses at the point of their weapons not to come near or intervene. Third eye-witness Ali Muhammad does not say any thing about such threats to witness.
Not only this but complainant was confronted with F.I. R. Wherein he did not say , about :eats and Tayab was confronted with his police statement and 164 . P. C. Statement, wherein he has not stated so. While all the three witnesses deposed before the trial Court that after incident appellants carried away their arms. Complainant did not say so in F.I. R. And the other two witnesses did not say so in their police statements and further. W. Tayab did -not say so in his 164, Cr. P. C. Statement.
8. The way in which the eye-witnesses have narrated the facts of incident before the trial Court does not inspire confidence to say that they have seen the incident. Complainant has stated before the trial Court that appellant Ghulam Rasool fired a shot from pistol at Muhammad Juman, who was hit on the back and fell down and then appellant Hussain gave him four hatchet blows with sharp side. Eye-witness Tayab has given same version as stated above before the trial Court but was con--fronted with 164 Cr. P. C. Statement wherein he had not stated that appellant Ghulam Rasool had fired a shot from his pistol at Muhammad Juman but it is only stated that Hussain gave hatchet blows to deceased Muhammad Juman. What is surprising about this part of ocular testimony is that why eye-witnesses are not able to explain as to how deceased fell down after pistol shot whether face down or face-up. The witnesses do not say any thing on purpose for the reason that it is their claim that after pistol shot Juman fell down and then Hussain gave four hatchet blows to him with sharp side of the hatchet. Now if Juman was hit by pistol-shot in the back then he is very likely to fall face-down and if he was lying prostrate then hatchet blows of Hussain would be seated on the back but as against that medical evidence shows that two incised wounds were seated on nose and right eye-brew. On the other hand, if deceased after pistol shot fell down supine, which is rather unlikely when he was hit the back, then how could incised injuries on shoulder joints be accounted for. This could only be explained by eye-witnesses who claim to have seen the incident but they do not throw any light on this mystery. Secondly, as per prosecution case, first injury deceased received was from pistol shot at his back, which means that deceased after confrontation with appellant attempted to turn back and run, which was only natural when he saw pistol, then why do not eye-witnesses say so -'at deceased on seeing pistol aimed at him turned back and ran but shot hit him in the back and he fell down. Eye-witnesses are also silent on the point as to from what distance pistol shot was fired at deceased. No body has said even this much whether shot was fired from a long distance or short distance. On the other hand, medical evidence shows that shot was fired from a very short distance and there was blackening around the site of that injury. In the circumstances, it is possible to infer that eye- witnesses have not seen the incident otherwise they would have been able to explain all the circumstances without any hesitation. May be first hatchet injuries were inflicted on the face and Juman fell down supine and then instinctively turned back to hide his face from further onslaught and then two more hatchet injuries were given on the back and a pistol shot was fired by a person who was standing over and that can possibly explain shot fired at close range, blackening and pistol injury at the back. Doctor has also stated that death was due to pistol injury and incised wounds on shoulder joints, which were individually and collectively sufficient to cause death.
9. There is still one other aspect of ocular testimony which is also shrouded in mystery. During the hearing of appeal we had the case property in sealed parcels opened and saw that hatchet had handle, which was broken at the top and only part of handle of about 5 to 6 inches was struck in the ring of the blade of hatchet and remaining portion was missing Later it was found that hatchet as such with broken handle was recovered at the pointation of appellant Hussain and was put into a sealed parcel by S. H. O. Eye-witnesses are silent again on this point whether hatchet with full handle was used at the time of incident or hatchet with broken handle. Now, if the hatchet with full handle was used and the handle broke down at the time of incident, then missing part of the handle should have been at the spot or if appellant Hussain had taken away the broken part of handle then eye-witnesses could have said so. Alternatively, if appellant Hussain had used the hatchet in its present shape i.e. With broken handle of 5 or 6 inches, then it was so unusual that it would have at once caught attention of eye-witnesses and secondly as per prosecution case appellant Hussain gave hatchet injuries with sharp side to the deceased after he had fallen down with the pistol shot then Hussain had to either bow down and inflict injuries, which would have had very less impactor would have to go down on his knees or sit on his heels to be able to inflict injuries to a fallen man, then this posture would also have been very conscious and, noticeable to the eye--witnesses, who are expected not to forget to mention such unusual way and method of inflicting injuries. But eye-witnesses are again inexpli--cably silent on this aspect also. This fortifies our view that presence at the spot of these eye-witnesses at the time of incident is very much doubtful.
10. So far P. W 6 Allan is concerned according to the eye--witnesses, he is not an eye-witness but saw appellants running 19831 and came to the spot on cries and then eye-witnesses away, about the incident. In Mashirnama of Vardat Exh. 6 there is no mention about the places where eye- witnesses and this witness Allan were mention the at at time of incident but in sketch Exh. 22, P. W.
Allan is shown to be at a distance of 255 feet from-the spot. In the trial Court P. W. Allan instead of being corroborating witness as per prosecution case has examined himself as eye-witness. He has deposed that he heard pistol shot d cries and saw in that direction Hussain giving hatchet injuries to Muhammad Juman and Ghulam Rasool holding pistol threatening eye--witnesses not to come near. He has further stated that when he came to the spot both appellants came near him with their weapons and threatened him to stop there and then the appellants went away. This evidence is in conflict with evidence of eye-witnesses. Moreover, P. W. Allan was confronted with his police statement and 164, Cr. P. C. Statement in which he has not stated that he saw appellant Hussain giving hatchet blows to Juman or that eye-witnesses informed him that appellant Ghulam Rasool had fired a pistol shot at Juman and appellant Hussain gave him hatchet blows. In the circumstances, we do not propose to rely upon the evidence of this witness either as corroborating witness or as an eye-witness.
11. On the question of motive prosecution case as per F.I. R. Is that-about 6/7 years before the incident Mst. Asma was married to Jalil and about one year before the incident Jalil divorced her and then she married deceased Muhammad Juman. Due to this marriage Ghulam Rasool, Suleman, Malian, Hussain and Jalil were annoyed with deceased Muhammad Juman and used to tell him that it was not proper on his part to have married Mst. Asma. At the end of F.I. R. It is stated that appel--lants Ghulam Rasool and Hussain have committed murder of Muhammad Juman to take revenge at the instigation of Suleman, Malian and Jalil. It appears that motive as stated in F.I.
R. Is very weak for the reasons firstly, that Jalil had voluntarily divorced Mst. Asma, hence he could have no objection if she married any person again. Secondly, at all if any person could have grievance whether rightly or wrongly it could be none other than Jalil himself. Thirdly, no relationship of appellants with Jalil or Mst. Asma is mentioned in F.I. R. Then why appellants should be motivated against deceased to commit his murder. Realising weakness in the motive as stated in F.I. R. Improvement was made by complainant in his evidence in the trial Court: He deposed that Mst. Asma obtained decree of dissolution of her marriage with Jalil and then married deceased about two months before the incident. He also produced certified copies of the plaint and ex parte judgment and decree. Complainant also deposed for the first time that Jalil was distant cousin of appellants. Other eye-witnesses also came in to give helping hand on the question of motive but gave dis--crepant statements. P. W. Tayab stated before the trial Court that Jalil is not related to the appellants but Mst. Asma is sister of wife of appellant Ghulam Rasool and further she is also maternal cousin of Ghulam Rasool and 'masat' of appellant Hussain. P. W. Tayab further admitted before the trial Court that he did not state so in his police statement or 164 Cr, P. C. Statement. P. W.
Ali Muhammad another eye-witness and son of complainant stated before the trial Court that Mst.
Asma is sister of wife of Ghulam Rasool but is not related to Hussain appellant. He had not stated so in his police statement. Once the motive is set up prosecution is supposed to establish it. Far from it the eye-witnesses, who are close relatives have contradicted each other on the question of relationship, which could be inquired from Mst. Asma who remained wife of deceased for two months before the incident and may be she was with him even before the marriage. Secondly, even otherwise appellants are co-villagers of complainant and both parties are Othas by caste and in such case relationship was easily ascertainable. It was argued by Mr. Akhund that copy of the plaint on the record shows that suit for dissolution was filed by Mst. Asma on 12th December, 1978 and in para. 6 of the plaint it is stated that about two years back she was driven out froth the house by Jalil which means that she was separated from Jalil for about three years before the incident and probably she was living with or being supported by deceased even then Jalil or appellants did not take any objection when probably she was living a life of sin, then how could appellants feel motivated to kill deceased who had legally married Mst. Asma It was further argued that appellants have denied categorically relationship with Mst. Asma and Jalil, hence it is for the prosecution to prove such relation--ship and resultant motivation which prosecution has failed to do In the circumstances, we hold that no satisfactory evidence has been produced by the prosecution on motive, which appears to be rather weak. Additionally, it can be said that motive has originated from the same tainted source i.e. Eye-witnesses, who are not reliable as stated above. It is held in the case of Nazar Muhammad v. State (PLD 1974 Kar. 274) that where motive is alleged by the prosecution which was not only not proved but had been completely abandoned at the trial and which is found to be false, it be--comes all the more necessary to scrutinize the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of an accused person on the premises of a false motive. The Courts should be very much on their guard to accept the story of the prosecution of which the motive is an important constituent". In the case of Habibullah and others v. State (PLD 1969 SC 127) it is held that murders may be committed wantonly or without motive but nonetheless where motive is alleged by the prosecution and is found to be false, evidence of the witnesses on the premises of a false motive as to be scrutinized.
In the instant case, although the motive set up by the pro--secution has not been abandoned but it was improved upon by the eye--witnesses in the Court and difference is obvious in the motive stated in F.I. R. And the motive stated in the trial Court. In any case, we feel that eye-witnesses have not succeeded in giving a satisfactory story of motive and we hesitate to rely upon it to say that the appellants were motivated to commit murder of the deceased when the prosecution has failed to establish relationship of appellants with Mst. Asma or Jalil.
12. Now we take up the piece of evidence produced by the prosecu--tion with regard to the recoveries of crime weapons and positive reports of the experts. According to the prosecution case both the appellants were arrested on 24th September 1979, which is after about 8 days of the inci-- dent. Both appellants while in custody led to the recovery of weapons. Appellant Hussain dug out hatchet from a cotton crop field, which was found to be stained with blood. Appellant Ghulam Rasool similarly dug out pistol from an uncultivated land under ---Dhoro--- at an acre's distance from the place of first recovery. Pistol was found to be in working order and there was gun powder smell in its barrel as is alleged by P. W. 2 Mashir Moulvi Ahmad and stated so in Mashirnama of recovery Exh.
11. We hesitate to accept the version of prosecution that hatchet buried under we best 8 days, which was dug out and produced would still contain ground f for blood. This evidence is further criticized on several other stains s also. It is, admitted by P. W. 2 Mashir Moulvi Ahmad and P.W.10 S.H.O. Manzoor Hussain that recoveries of crime weapons were presence of both the appellants, who were hand-cuffed and were present together at the time of each recovery. In such circumstances, it cannot be said that crime weapons were recovered separately from each appellant or exclusive knowledge of crime weapons having been concealed/ app of be attributed to each appellant separately
13. Another ground on which this piece of evidence is assailed is that Mashirs who have attested Mashirnamas of arrest: recovery of crime both residents of village Pak Singher which is about weapons are admittedly 15- 16 milesfrom the place of arrest and recoveries. Mashir Moulvi Ahmad who was examined before the trial Court has stated in deposition that both appellants were hand- cuffed and were taken in the pick-up for recoveries and they halted at Wangi Village mosque. S. H.
O. Manzoor Hussain has deposed before the trial Court that after the arrest of appellants he took them in the pick-up alongwith Mashirs who were present at the time of arrest and went up to a distance of one mile to the agricultural land of Muhammad from where hatchet was produced at a distance of about 4 acres from the village. It is also admitted that pistol was recover--ed from a short distance of about one acre from the place of recovery of hatchet. It is argued that in such circumstances why Mashirs were not taken from the village which was at a such short distance and why were Mashirs used who resided 15-16 miles away. On this premise it is argued that provisions of section 103, Cr. P. C. Have not been complied with when it could have been easily done.
1.4. It was argued on behalf of the appellants that there was inordi--nate delay in sending the sealed parcels to the laboratories. According to report of Ballistic Expert Exh. 27-A, the sealed parcels with regard to pistol and crime empty were received on 5th February, 1981 when the pistol was recovered on 24th September, 1979 and allegedly sealed in presence of the Mashirs. The learned counsel for the appellants has also pointed out hat in the said report of Ballistic Expert there is last paragraph in which refer--ence is invited to the letter of the police dated 12th April, 1980, which was addressed to the Director of the laboratory accompanying the parcels. It is argued that where were the parcels from 12th April, 1980 to 5th February, 1981. It is pointed out by Mr. Akhund that in the report of Chemical Examiner Exh. 28, it appears that parcels were sent on the same date i.e. 12th April, 1980 and were received in the laboratory on 16th April 1980 but in Forensic Science Laboratory the parcels were received with inordinate delay which is not explained. On the ground of delay Mr. Murtaza Hussain, learned counsel for the State, submitted that latest view of the Supreme Court is that if delay is alleged such questions be put to the Investigating Officer in the cross-examination so that he may be able to explain the delay and further that there should be allegation that the parcels were tampered with: In support of this prosecution Mr. Murtaza Hussain cited .Decisions in the cases of Sikandar and others v . State (P L D1981 SC 477) and Khadim Hussain and others v. State (1982 SCMR 1212). Mr. Akhund admitted that questions regarding the delay in, sending the parcels have not been put to the Investigating Officer in the trial Court in his cross- examination, but in the instant case there are several other concomitant circumstances as stated above which throw doubt on this piece of evidence and the delay as alleged is to be considered alongwith other grounds on which this piece ofevidence is being assailed, which would certainly diminish intrinsic value of this evidence.
15. Evidence of recoveries is also assailed on the ground that Mashirs are not independent apart from the fact that they are residing at a distance of 15-16 miles away from the place of recoveries.
P. W. 2 Moulvi Ahmad who has been examined as Mashir is stated to be interested for the reason that he is on friendly terms with the complainant and has himself admitted that he remained as Pesh Imam in the mosque at Wangi village some times back and Wadero Usman used to provide him meals during his stay as Pesh Imam there. Wadero Usman is related to complainant Umer. This matter has also been admitted in unequivocal terms that his co-Mashir Khabar is related to complainant Umer and sister of co-Mashir Khabar is married to P. W. Tayab who is brother of complainant Umer. P. W . 2 Moulvi Ahmad has further admitted in his cross-examination before the trial Court that be had gone to Wangi village to offer condolences to complainant Umer on the murder of his son Muhammad Juman and while he was on his way back he and co-Mashir Khabar were joined in the Investigation of this case by the S. H. O. In the circumstances we hold that although Mashir Moulvi Ahmad is not directly related to the complainant but still he is interested and cannot be said to be independent. Co-Mashir chosen by S. H.
4. Is also related to the complainant. We, therefore, hold that evidence with regard to the recoveries of crime weapons and positive reports of the experts suffers from several inherent infirmities stated above and is not fit to be implicitly relied upon.
16. The last piece of evidence is the defence plea of appellants, which is that of alibi and in support of which two witnesses have been examined in defence. An observation in the impugned judgment made by the learned trial Judge (Paper Book Page 110) is reproduced as under :- ---Thus the contention that the accused were present at Jute Mills, Kotri, at the alleged time of incident is not proved by them and hence the plea of alibi having failed, the presumption may be that they were actually at the place where the offence was committed for which there is also direct and circumstantial evidence as stated above.---
17. It is submitted by Mr. Akhund, learned counsel for the appel--lants, that the learned trial Judge has appraised evidence wits approach which stands influenced by this observation stated above.
We do not agree with the learned counsel that it was so but as r matter of pre-- caution we exclude from consideration this observation for the reason that is not consistent with the general principles and rules of appraisal of evi--dence. It is the duty of the prosecution to prove the case against accused beyond shadow of any reasonable doubt and this burden does not gift to the accused even if he takes special plea. When the accused takes special plea such as alibi or private defence no doubt the burden is upon him to produce evidence and prove that plea but this does not absolve prosecution of its inherent duty to prove a case against the accused beyond doubt. If the accused takes up a plea, which he has to prove, he is required only to produce evidence which should be enough to react on the evidence of prosecution to create doubt in its credibility and if the Court is satisfied that the defence plea has raised reasonable doubt to be true it has to be accepted. The latest view of the Supreme Court on this point is reflected in the case of Aminullah v.
State (PLD 1982 SC 429), the relevant portion of which is reproduced as under: - ---Learned counsel for the appellant criticized the approach adopted by learned Judges in taking up first and separately the consideration of defence version and judging it according to the standards of proof required for the prosecution in a criminal proceeding. The submis--sion is fully borne out from the reading of the judgment of the High Court. Unfortunately, the learned Judges assessed the defence evidence with a view to determine whether the plea of alibi was established beyond reasonable doubt, which was unwarranted in view of the law already discussed. The accused was not required to prove his plea but was only required to lead evidence in order to raise plausible defence that he was not present at the scene of occurrence and having regard to the extent of the onus upon Naimatullah appellant to lead such evidence, it appears that he has succeeded to raise reasonable doubts about his participation in the commission of the crime. The reasons given by the High Court for rejecting the defence evidence of this appellant are also not tenable.---
18. Now we take up the evidence of the defence witnesses. The defence plea is that both appellants were not present at the scene of offence at the relevant time of incident and were in Amin Juto Mills at Kotri. D. W. 1, Ali Bux is a Mill worker and D. W. 2 Nazar Muhammad is operator in the said Mill.
D. W. 1 Ali Bux has stated that on 16th September, 1979, appellauts did not resume duty in the scheduled shift and it was disclosed that they have been arrested by the Police. They had attended their shift duty till the previous day regularly. Their shift for that period started at 3-30 p.m. Till 12 o'clock in the night. On 15th September, 1979, appellant Ghulam Rasool was attached to Nazar Muhammad operator and appellant Hussain was in reserve. It may be mentioned here that incident took place on 15th September, 1979 at 3-30 p.m. D. W. 2 Nazar Muhammad has stated before the trial Court that both appellant were arrested on 16th September, 1979 from the quarters of the mill. Appellant Ghulam Rasool had worked with him in the shift which started at 3-30 p.m.
And ended at 12 o'clock in the night. He remained on duty throughout the shift hours. These defence witnesses did not produce documentary evidence such as muster roll or attendance cards and neither the appellants produced any documentary evidence to show that on the day of incident and the relevant time they were in the mill, These witnesses have given lame excuses in their evidence for not producing documentary evidence and D. W. 1 Ali Bux stated that muster roll of the labourers is retained at the mills for one year and thereafter the record is shifted to the head office and it was difficult to get hold of the muster roll of those days. To prove this plea appellants could have produced evidence of documentary nature if they were really working in the shift at the relevant time on the day of incident. Apart from muster roll and atten--dance cards, the mill is expected to maintain proper record for payment of wages and marking of attendance. Such documentary evidence could have been produced but appellants have refrained from doing so.
Application could have been made to the Court for summoning the muster roll even it was in the head office and the trial Court could have ordered for production of the muster roll for the relevant period through some authorised person, some other evidence with regard to payment of wages on that day could also have been produced. Plea of alibi also appears to be an after-- thought for the reason that if it was true it would have been raised by the appellants at the earliest stage of the investigation and they would have produced such documentary evidence before the Investigating Officer that they were attending their duties at the relevant time of incident. No such efforts were made. No hue and cry was raised and complaints were made to the higher authorities of Police that appellants were wrongly arrested by the Police although they were present on duty at the time of incident and have not committed this offence. During the trial the eye-witnesses and other witnesses were not cross-examined on the lines of plea of alibi and no such suggestive questions were put to them. Even to the statements under section 342, Cr. P. C. Of appellants recorded in the trial Court no specific plea of alibi has been taken that they have not committed offence and were present at the mill on duty at the time When incident took place but only it is stated in those statements that appellants were arrested at Amin Jute Mills where they used to work. This clearly shows that plea of alibi is an afterthought and we are not going to believe it.
19. After appraisal of evidence we have come to the conclusion that eye-witnesses are not reliable and their presence at the spot at the time of incident is very much doubtful. Similarly we consider P.
W. Allan, who has been produced as corroborating witness but has deposed as eye-witness to be equally unreliable. We are further of the view that other pieces off evidence produced by the prosecution are tainted and one tainted piece of., evidence cannot corroborate another tainted piece of evidence. Even pieces of evidence with regard to motive and for recoveries of crime weapons suffer from infirmities and are not satisfactory as such they are not worthy of reliance. In short we are of the view that prosecution has failed in its duty to prove the case against the appellants beyond doubt and the benefit of doubt must go to the appellants. We, therefore, set aside conviction and sentence of the appellants and allow their appeal. They may be set at liberty at once if they are not wanted in any other case. Reference for confirmation of death sentence is rejected.