SAJJAD ALI SHAH J.----This appeal calls in question impugned judgment dated 31-5-1982 of learned 1st Additional Sessions Judge, Khairpur, where--by appellant has been convicted for offence under section 302, P. P. C. And sentenced to death and a fine of Rs. 5,000 in default of payment whereof R. I. For two years. 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 the reference by this single judgment. After hearing the learned counsel for each side on 7-12-1982 by a short order we set aside the conviction and sentence and allowed appeal rejecting the reference for reasons to be recorded later, which follow now.
2. Briefly stated the prosecution case as set up in F. I. R. Is that appellant suspected deceased Haji to be having illicit intimacy with Mst. Morzadi who is wife of the appellant. On 17-10-1979 at about 1- 00 a. m. P. Ws. Mst. Zohra, Mst. Sharma and Illahi Bux who are sister, mother-in-law and brother-in- law of deceased respectively, woke up on cries of Haji and saw in the light of the lamp appellant sitting on the chest of Haji and inflicting injuries with knife on his throat. Witnesses raised cries and attempted to catch the appellant but he made his escape good leaving behind Haji in injured condition. Cries attracted to the spot Noor Muhammad Bugti and others who came to the spot after the departure of the appellant and were apprised of incident by the eye--witnesses. Noor Muhammad arranged for tractor with trolley in which Mst. Zohra carried injured Haji to Police Station Babar Loi at a distance of three miles, where she lodged First Information Report on the same date at 2-30 a. m. Incident took place in the house of deceased situate in Village Noor Muhammad Bugti, Deh No. 9. Taluka Khairpur. It may be mentioned here that injured Haji was then alive but was un--conscious and could not speak, hence report was lodged by his sister Mst. Zohra, which was recorded by P. W. 9 Nisar Hussain W. H. C. For offences under section 307/326, P. P. C.
After which he sent the injured to the hospital for examination and treatment. On the way to the hospital Haji succumbed to his injuries. On receipt of suc1h information offence in F. I. R. Was converted to section 302, P. P. C. And P. W. 8 A. S. I. Abdul Aziz took over the investigation. He went to the scene of offence, which was pointed out by the complainant and other witnesses. He pre-- pared such Mashirnama. A. S. I. Also recorded statements under section 161, Cr. P. C. Of witnesses and on 18-10-1979 he arrested appellant Thangai alias Abdul Ghafoor alias Rifle from Tubewell No. 10-A and took him in custody. Appellant led the police party to his house and produced blood- stained knife which he took out from the box lying in the house. Knife was put into a sealed parcel.
After competing other steps of investigation papers were handed over by this A. S. I. To S. H. O. Mian Khan who presented challan in the Court.
3. Before the trial Court prosecution has examined 10 witnesses in support of its case. Ocular testimony is furnished by P. W. 1 Mst. Zohra complainant, P. W. 2 Mst. Sharma and P. W. 3 Illahi Bux.
Additionally these three eye-witnesses have also deposed about dying declaration of Haji which was allegedly made by him to them 'as well as to P. W. Noor Muhammad at the scene of offence after the departure of appellant. P. W. .5 Noor Muhammad is corroborating witness, who came to the spot after the occurrence and was informed about the incident by the eye--witnesses as well as deceased. P. W. 5 Noor Muhammad also acted as Mashir during the investigation of the case and attested and produced Mashirnama of scene of offence Exh.
16. Mashirnama of arrest Exh. 17 and Mashirnama of recovery of blood-stained knife from appellant Exh.
18. P. W. 6 Hazoor Bux had attested the Inquest Report Exh. 21 which was prepared in the mortuary of Civil Hospital, Sukkur. P.
W. 7 Ali Akbar is Tapedar who prepared sketch of scene of offence Exh 23 on 15-12-1981 and produced the same in the Court. P. W. 8 Abdul Aziz, P. W. 7 Nasir Hussain and P. W. 10 Mian Khan are Police Officials, who have taken part in the investigation of the case as stated above. P. W. 4 is Dr. Imdad Hussain, who conducted the post-mortem examination on the dead body of Haji on 16-10- 1979 at Civil Hospital, Sukkur. According to the doctor deceased sustained two incised wounds, one on neck between adam's apple and suprasternal notch cutting muscles of neck Wind pipe and second incised wound was on right clavicle. Doctor further opined that death had resulted due to suffocation caused by blockage of wind pipe by blood. The injuries were caused by sharp cutting weapon such as knife. Before the close of the case prosecution also produced report of the Chemical Examiner Exh. 25 according to which knife was found to be stained with human blood. It maybe mentioned here that blood-stained earth was not secured and sent to the chemical Examiner for analysis.
4. Before the trial Court appellant in his statement under section 342, Cr. P. C. Has taken the defence of total denial of prosecution allega--tions and false implication. He further stated that prosecution witnesses are related inter se and are biased against him and have given evidence at the instance of Noor Muhammad, who has framed a false case to involve him. Appellant has further stated that Noor Muhammad had taken away his wife Morzadi forcibly and has removed her to Jacobabad and wants Morzadi to be married to his son. Appellant has also produced affidavit of Mst. Muradan, widow of deceased Haji which is on record as Exh.
32. It is stated in the said affidavit that another wife of deceased Haji namely Mst. Shahzadi is on illicit terms with Jaffar and they have murdered her husband Haji to get rid of him and in order to usurp his property. It is also stated in the affidavit that appellant Thangai is innocent and is falsely implicated. Before the trial Court appellant did not produce any witness in defence.
5. At the very outset it was argued before us by the learned counsel for the appellant that motive set up by prosecution in F. I. R. Was later given up during the trial proceedings in favour of another motive, which too appears to be false. As stated above the motive as given in F. I. R. Is that the appellant suspected that his wife Mst. Morzadi was having illicit relations with deceased Haji and on that account appellant caused him knife injuries. Motive is so suited in F. I. R. By complainant Mst. Zohra who is sister of deceased and also is an eye-witness to the incident. In her deposition before the trial Court she has changed the story of motive and stated that Mst. Morzadi is cousin and sali of Haji and was enticed away by appellant Thangai. Thangai compelled Haji to compro-- mise but Haji was adamant and wanted restoration of the girl to him. Consequently appellant Thangai killed Haji for that reason. This is so stated by the complainant in her examination-in-chief before the trial Court. In her cross-examination complainant stated that Mst. Morzadi after the incident was residing with her father Dilmurad, who is husband of Mst. Sharma. Mst. Sharma is mother-in-law of deceased Haji and is an eye-witness in this case. Complainant has further deposed before the trial Court that Mst. Morzadi has a two years old son from appellant Thangai.
She denied a suggestion that Malook father of appellant Thangai had given Rs. 10,000 to Dilmurad as compensation for Mst. Morzadi.
On motive another eye-witness namely Mst. Sharma, mother-in-law of deceased Haji stated before the trial Court in her examination-in-chief that about a year before the incident appellant Thangai had abducted Kist. Morzadi, who is Bali and cousin of Haji. Mst. Morzadi at the time of abduction was virgin. Haji had complained to the members of "Beradari" against Thangai. It would not be out of place to mention here that Sharma is wife of Dilmurad and Mst. Morzadi is daughter of Dilmurad and step daughter of Mst. Sharma but she does not say so and refers Mst. Morzadi as self and cousin of deceased Haji. Mst. Sharma is mother of Mst. Shahzadi who is wife of deceased Haji.
Mst. Shahzadi and Mst. Morzadi are daughters of Dilmurad from different wives and are step-sisters inter se. Before the trial Court in the cross-examination Mst. Sharma has stated that it is incorrect that Mst. Morzadi is married to appellant Thangai and further stated that she has begotten a son aged 2-3 years from Thangai in the result of illicit connections. Mst. Sharma further stated that deceased Haji had not reported the matter to the police about abduction of Mst. Morzadi and husband of this witness also did not complain against Thangai about the kidnapping. Now what-- ever worth this story is that appellant kidnapped Mst. Morzadi produced an illegitimate child from her without marriage, the persons who would be expected in the ordinary course to be more aggrieved is Dilmurad who is father of Mst. Murzadi and this witness Mst. Sharma who is stepmother of Mst. Morzadi then deceased Haji who is stated to be cousin of Mst. Morzadi. It is stated that Mst. Morzadi is Bali of Haji and that also on account of the fact that Haji was married to Mst. Shahzadi, who is daughter of Mst. Sharma and step-sister of Mst. Morzadi Mst. Sharma had denied suggestion in her cross-examination before the trial Court that appellant has been falsely implicated so that Mst. Morzadi be married to son of P. W. Noor Muhammad.
On the question of motive the evidence of third eye-witness namely P. W. 3 Illahi Bux is that he is step-son of Mst. Sharma, which means that he is real brother of Mst. Morzadi. As a real brother he is expected to be aggrieved against appellant on account of abduction of his sister Mst. Morzadi by appellant and detaining her without marriage. This witness has not stated in clear words before the trial Court that Mst. Morzadi is his real sister. However in cross-examination this witness has stated that he knew Mst. Morzadi wife of appellant Thangai and further that she was residing with them after the incident as she was restored to them by police. This way he has admitted marriage between appellant and Mst. Morzadi. At the top of deposition this witness has given the name of his father as Dilmurad and admitted that Mst. Sharma is his step-mother. He is taciturn on the question of his own relationship with Mst. Morzadi. In his evidence only at one place he has referred to Mst. Morzadi and that too as wife .Of appellant. It would be pertinent to mention here that complainant Mst. Zuhra has also admitted before the trial Court that after abduction appellant married Mst. Morzadi and has a son from her. On this point evidence of three eye-witnesses is not consistent.
6. It is quite clear from the evidence mentioned above that story of motive has been changed by the witnesses in the trial Court. In F. I. R. The motive is that appellant suspected his wife Mst. Morzadi to be on illicit terms with deceased. Before the trial Court all the three eye--witnesses have deposed about motive which is entirely different from the one stated in the F. I. R. Even in the trial Court these three eye-witnesses have not given a consistent story about the changed version of motive. P. W. 3 Illahi Bux and complainant Mst. Zuhra have admitted that appellant had married Mst. Morzadi while third eye-witness Mst. Sharma has denied the factum of marriage. The story of motive as testified in the trial Court does not inspire confidence for the reasons enter alla firstly that story of motive given in the Court is discrepant and not satisfactory and secondly that by the action of abduction by appellant, Dilmurad father of Mst. Morzadi, Mst. Sharma step-mother of Mst.
Morzadi and lllabi Bux real brother of Mst. Morzadi are the persons who are expected to be more aggrieved than deceased Haji who was a cousin of Mst. Morzadi. It is also in the evidence of P. W. 3 Illahi Bux that Mst. Morzadi after the incident has been restored to his father Dilmurad and has been living with him. In the circumstances we do not feel convinced that on account of the motive testified by eye-witnesses in the trial Court, appellant would be motivated to kill the deceased and that too in such cruel manner as alleged by the prosecution. Learned counsel for the appellant has urged before us that since the motive initially set up by prosecution in F. I. R. Has been given up and another motive has been set up in the trial Court, which too appears to be less realistic and false and since this motive is testified by the eye-witnesses, this would react on the whole prosecution case.
7. The question of motive has been dealt with by the learned trial Judge in a slipshod manner without proper appreciation of evidence on the point and having admitted that motive initially set up in F. I. R. Has been changed to another story has recorded his conclusion in the impugned judgment (page 84 of paper book) in the following words.
"Even otherwise the absence or inadequacy or improper description of the motive could not disfigure the other evidence on record."
We feel constrained to remark that there is no warrant hi .Law for such observation, which is neither consistent with evidence nor wit legal position set out in several judicial pronouncements as guidelines for evaluation of evidence on the point of motive. The guidelines are that every case is to be considered on its own peculiar facts and circumstances. In some cases it may not be necessary for the prosecution to set up a motive as it may not be possible to dig out motive which lies mysteriously hidden in the mind of the killer. For example we can suppose that a murder takes place in Karachi in broad daylight in a crowded place in which accused fires 2-3 shots from a distance at deceased, who dies instantly. There are eye-witnesses who see the incident and apprehend the accused and he is handed over to the Police or even if he is not apprehended at the spot and runs away, the eye-witnesses give his complete description in initial statements and later on accused is arrested and in the identification parade eye-witnesses correctly pick him out.
There are crime empties at the spot and weapon recovered from the accused and the crime empties are sent to the Ballistic Expert, who gives a positive report. Accused and the deceased are strangers in the city and come from up--country and the witnesses do not know about them. Now if the accused remains silent he is the only person who can divulge as to what motivated him to commit the murder. The only other person who could know about the motive was deceased, who is no more in this world. There is no way for prosecution to find out motive as both parties belong to the upcountry, and something must have happened there which must have given reason to the accused to commit murder. In such circumstances evidence available with prosecution is more than sufficient to prove the case against accused without going into the question of motive. There can be other cases also in which prosecution cannot dig out motive but can have sufficient other pieces of evidence to prove the case. For such cases it may not be necessary for the prosecution to set up motive if there is other evidence available which is sufficient to warrant conviction. But in a case in which motive is set up in F. I. R. Or in the initial statements of the witnesses then it is the bounden duty of the prosecution to establish" that motive and if the prosecution fails in its duty to establish that motive or the motive which is initially set up is given up and another motive is set up then this failure would certainly react on the prosecution case and particularly the witnesses who have deposed about such motive. Now if second motive is falsified or is not proved then this fact will react on the testimony of the witnesses who have deposed about it. Giving tip of motive initially set up or changing it to some other version subsequently in the Court clearly shows that the witnesses who have set up such motive have lied at the initial stage and if the witnesses have spoken a lie in one part then they are supposed to be prone to speak lies in the other part of their testimony also. For these reasons it lies been held that to such circumstances the Courts are to be on guard and must scrutinise the credentials of the witnesses who by their evidence direct or indirect speak about guilt of accused person on the premises of a false motive. In nut--shell the guiding principles are that keeping in view peculiar facts an circumstances of the case it may not be necessary for the prosecution to set up motive if other pieces of evidence are available to prove the case against the accused but if once motive is initially set up then it is the duty of the prosecution to go ahead and prove it and if it is not done and the motive is given up or the version of the motive is changed in the trial Court then whether the second motive is proved or not the fact will react on the prosecution case and the testimony of the witnesses on the point of motive, which would serve as a challenge to their credibility an veracity and the Courts are required to subject the evidence of sue witnesses to deeper scrutiny with great care and caution. In support o this prosecution reference can be made to the reported cases of Habibullah and others v. State (PLD 1969 SC 127), Hakim Ali and others v. State (1971 SCMR 432) and Nazir Muhammad v. State (PLD 1974 Kar. 274). In the instant case motive initially set up in F. I. R. As stated above was something else which was changed with different version in the Court by the eye-witnesses and even that version because of discrepancies in evidence of witnesses and other inherent infirmities mentioned above appears to be unsatisfactory and not clearly established.
8. Now we come to the evidence of the eye-witnesses. These three eye-witnesses are closely related to the deceased and apart from this fact they are not normal inmates of the house in the sense that they do not reside in that house with the deceased. It is the case of the prosecution that these three eye-witnesses happened to be present in the house at the time of incident as such their explanations are to be considered which they have given to account for their presence at that particular moment. P. W. I Mst. Zuhra is sister of deceased and it is explained by her that she was residing with her brother at the relevant time for the reason that her husband had expired and her step-sons had driven her out from the house and hence she took refuge with her deceased brother. Another eye-witness Mss. Sharma is mother-in-law of deceased and she has not given any explanation as to how she happened to be present in the house of her son in law at the time of incident. She has simply stated before the trial Court that on the night of incident she was sleeping in the house of her son-in-law. Likewise P. W. 3 Illahi Bux another eye-witness who is step-son of Mst. Sharma has simply stated before the trial Court that he was sleeping in the house of deceased at the time of incident. Even if it be assumed that these three witnesses produced by the prosecution were present at the time of incident but then there are so many discrepancies and inconsistencies and inherent improbabilities that we feel inclined to hold that ocular version is not satisfactory and is not free from doubt. May be that these witnesses were present but it is possible that incident has not taken place in the manner as claimed by these witnesses. The first and foremost important factor is that apart from these three eye--witnesses who are supposed to be visitors in the house of the deceased there are two wives of the deceased, whose presence at the spot at the time of incident is not disputed by these eye-witnesses but they have made a deliberate attempt to keep them out of the picture. All these three-eye--witnesses while deposing before the trial Court in their examination-in---chief most conspicuously have not mentioned this fact that Mst. Muradan and Mst. Shahzadi, two wives of deceased Haji were also sleeping near the deceased in the courtyard in the house on the night of incident but when cornered during cross- examination these three eye-witnesses per force had to admit presence of the two wives of deceased. So much so that Mst. Zuhra did not mention this fact in F. I. R. And the other two eye-- witnesses did not do so in their 164 statements. Before the trial Court Mst. Zuhra complainant during her cross-examination admitted that deceased Haji had two wives Mst. Shahzadi and Mst.
Muradan who were sleeping in the house on that night at a distance of 5 or 6 paces from Haji. She further admitted that both these wives also woke up and saw the incident but Police did not record their statements. Second eye-witness Mst. Sharma stated during her cross-examination before the trial Court that the two wives of the deceased were also sleeping in the house at the time of incident but they woke up after the departure of appellant, and she and other witnesses informed the two wives of the facts of incident. This witness further stated that Police might have recorded their statements. Third eye-witness namely Illahi Bux in the cross-examination of his deposition before the trial Court admitted presence of the two wives of the deceased and stated that they woke up after the escape of appellant and were apprised of the incident by the eye-witnesses.
These witnesses further stated specifically that Police did not record statements of the two wives of deceased. In this context it would be pertinent to state here that supporting witness Noor Muhammad who came to the spot on cries after the departure of appellant has deposed in the trial Court that Mst. Muradan and Mst. Shahzadi two wives of the deceased were present at the wardat and their cots were lying shear the cot of deceased at a distance of 1 or 2 paces. He did not inquire) from them about the incident nor did they give the name of the assailant voluntarily but he inquired from the other persons present in the house. Like other eye-witnesses Noor Muhammad made this admission in his cross-examination and did not say a word about the presence of the two wives of deceased in his examination---in-chief. On this point the evidence of Investigating Officer Abdul Aziz is that after he visited the scene of offence, he recorded statements of P. Ws, who happened to be present there and he-did not see Mst. Muradan and Mst. Shahzadi and he could not say whether they were wives of the deceased. I. U. Had also stated that he did not even ascertain if deceased had any wife and if she was sleeping with him nearby. Now these two wives can be the most natural witnesses and their presence at the spot at the time of incident is admitted by all the eye-witnesses and Noor Muhammad. It is surprising why these two witnesses have not been produced by the prosecution and why the witnesses produced by the prosecution made a deliberate attempt to shut them out from the case. The presumption is that had they been examined they would not have supported the prosecution case as it is alleged.
9. Another surprising feature of ocular testimony is that attempt has been made by the eye- witnesses to show that both the wives were sleeping away from deceased while they were sleeping close to the deceased. Mst. Zuhra has stated that wives Mst. Shahzadi and Mst. Muradan were sleep--ing at a distance of 5-6 paces away from Haji. Mst. Sharma mother-in---law of deceased has stated that both wives of deceased were sleeping 10-12 paces away from deceased while she was sleeping at a distance of 5-6 paces from the deceased and Mst. Zuhra was sleeping just near the cot of deceased. Even eye-witness Illahi Bux has claimed that he was sleeping at 5-6 paces from deceased Haji. Now this is very improbable and in the normal course wives are expected to sleep near the husband and guests or visitors in the house even if they are relatives are supposed to sleep at some respectable distance from married spouses.
Be that as it may, Mst. Sharma who is mother of Mst. Shahzadi wife of deceased and claims to be sleeping near to her son-in-law than his wives including her daughter further claims that her husband Dilmurad was also sleeping in the house on the night of incident but other eyewit--nesses do not admit his presence, nor he has been examined by the pro--secution either as eye-witness or supporting witness. So far as the actual eye account of the occurrence is concerned Mst. Zuhra has deposed that she woke up on hearing cries of her brother Haji and. Saw in the light of oil lamp appellant Thangai having climbed over Haji and giving knife blows on his chest and throat. She was confronted with the F. I. R. Wherein she has spoken about one knife blow given by appellant to the deceased on his neck. This witness has also claimed that Mst. Sharma and Illahi Bux also woke up and saw the incident. Mst. Sharma has also stated likewise but Illahi Bux has gone a step further and deposed that when he woke up on the cries of Haji tie saw appellant Thangai in the process of climbing on the chest of deceased Haji and he gave a knife bloWto Haji. Now what is not understandable is that Haji was asleep and assailant whosoever he .Was sat on his chest and then gave a knife blow on-his throat. According to the doctor this injury as well as other which was nearby resulted into cutting muscles of neck and wind pipe in consequence of which death occurred due to suffocation and blockage of windpipe by blood. Doctor has also stated that death might have been instantaneous. Now the question arises as to when deceased raised cries. In the circumstances it can on y be said that if at all deceased could raise cries he could do so at t e time when assailant sat over his chest and he felt his weight upon him. In that case how could eye-- witness Illahi Bux on hearing the cries of deceased Haji wake up to see assailant -in the process of climbing over to sit on the chest of deceased as has been stated by him.
Another point worth consideration is that it is claimed by the eyewit--nesses that they saw and identified appellant as assailant in the light of oil lamp which was burning in the courtyard. None of the eye-witnesses stated that appellant spoke to them or threatened them to facilitate recognition by voice. There are contradictions in the evidence of eye-witnesses with regard to the place where oil lamp was burning at the relevant time. Mst. Zuhra has stated that oil lamp was burning under Tali tree. She has not pinpointed the place but has simply stated that it was under Tali tree, hence it could be inferred that the lamp was lying on the ground. Further in her cross-examination she has stated that lamp was hanging towards Haji. In F. I. R. She stated that lamp was alight in the house.
Mst. Sharma has stated before the trial Court that oil lamp was kept alight under the Tali. In her cross-examination she has stated that lamp was burning just over the head of the deceased Haji.
Third eye-witness Illahi Bux stated before the trial Court in his examination-in-chief that oil lamp was kept burning under the Tali tree but in his cross-examination positively asserted that the lamp was hanging on a nail axed in the trunk of Tali tree at a distance of 5 or 6 paces from the cot of Haji. It is, therefore, clear that eye-witnesses are not unanimous on the point as to where the lamp was at the relevant time. Be that as it may, in the normal course the human conduct in rural areas is to either extinguish the light before going to sleep or lower the wick of the lamp so low that it gives very dim light in which it is hard to identify persons. Moreover the Investigating Officer did not recover the lamp during investigation as such it was not produced in the Court as part of case property to facilitate cross-examination of the eye-witnesses on this point and moreover even the trial Court was not in position to see whether the lamp was small or big. In any case as the prosecution story is narrated by the eye-witnesses and the circumstances also show as there were only two injuries on the person of the deceased, the whole incident must have taken place in matter of minutes to afford momentary glimpse to the eye-witnesses to recognise the assailant even if lamp was fully alight as claimed by the eye-witnesses which appears to be very improbable. Further-- more the witnesses claim to have awakened from sleep as such they were likely to have a very brief glimpse, that too in the haze of sleepliness as they were just aroused.
They are not expected to claim full recognition because as per prosecution case assailant ran away quickly after giving two injuries and did not speak to the witnesses. In the case of Muhammad Nasim Agha and another v. State (1978.P Cr. L J 579) on the point of identification by momentary glimpse Division Bench of this High Court has held as under :- ---In the instant case, the identification was by a single person who had but a momentary glimpse of the person concerned. According to the witnesses, he saw the culprit by means of street light.
How-- ever the Mashirnama of the scene of offence and the other evi--dence on record shows that there was no light at the scene of offence. In the circumstances we are inclined to the view that no reliance whatsoever can be placed on his evidence."
In another reported case Amanullah and others v. State (PLD 1978 Kar. 792) a Division Bench of this High Court had held that witnesses suddenly awakened from sleep are likely to have only a momentary glimpse of assailants. In that case claim was made by eye-witnesses to have identified assailants in the light of moon from a distance of 52 to 70 feet. In the judgment in the reported case references have been made to the text-books on the point of identification in the light of moon and the concluding finding is that when the witnesses had admittedly awakened from sleep, they could have only a momentary glimpse of their assailants and such evidence is unsafe for recording a conviction in a murder case. In the instant case we hold that the claim of the eye-witnesses to have seen and identified the appellant on the spot in the circumstances and for the stated above on this point is not free f from doubt.
10. Prosecution also relied upon piece of evidence relating to dying declaration. The evidence on this point is most unsatisfactory. Mst. Zuhra complainant has deposed before the trial Court that after the departure of appellant, Haji stated that he had been given blows by appel--lant Thangai with a knife. Thereafter, Haji Noor Muhammad and other witnesses came to the spot on cries and injured Haji also told them the same thing and then became unconscious. The dying declaration as stated by the complainant before the trial Court is not mentioned at all in F. I. R. Another eye- witness Mst. Sharma did not state in her deposition before the trial Court about dying declaration made by injured Haji before the eye--witnesses but she has stated that Haji did make such dying declaration before Noor Muhammad and other witnesses who came to the spot later on cries.
Third eye-witness Illahi Bux has deposed about the dying declara--tion given by injured Haji to Haji Noor Muhammad and other witnesses only who came to the spot after the departure of appellant.
He has not stated about the dying declaration made by injured Haji before the eye--witnesses as claimed by Mst. Zuhra. Now the question arises that if eye--witnesses were present and saw appellant giving knife blows to Haji then what was the use of Haji making a dying declaration to the same eyewit--nesses who saw the incident. Moreover these eye-witnesses are not unani--mous on the point whether Haji made one dying declaration or two dying declarations. Moreover Mst.
Zuhra in her deposition before the trial Court has not said anything about Qur'an and simply stated that injured Haji informed Noor Muhammad and others that appellant gave him knife blow but the other two witnesses namely Mst. Sharma and Illahi Bux have introduced Qur'an Sharif also. Mst.
Sharma has deposed before the trial Court that after the departure of appellant other witnesses namely Noor Muhammad, Din Muhammad, Jan Muhammad and others. Came to the spot when she and other eye-witnesses were holding Qur'an in their hands and Noor Muhammad took the Qur'an Sharif showed it to Haji and inquired from him as to who had injured him whereupon Haji replied that he was stabbed by appellant Thangai. Mst. Sharma further stated that she and other witnesses also narrated the same facts of the incident to Noor Muhammad on Holy Qur'an. Eye- witness Illahi Bux has deposed before the trial Court that when Noor Muhammad and other witnesses came to the spot on cries, they gave Holy Qur'an to Haji to tell the truth as to who had caused the injuries to him and Haji told them that he was injured by appel--lant Thangai who climbed on his chest and gave him injuries with knife. Now both these witnesses Mst. Sharma and Illahi Bux have not stated any--thing about Qur'an Sharif in their 164 statements which were recorded belatedly on 20th October, 1976 which was after seven months of the inci--dent as incident took place on 22nd March, 1976. P. W. 5 Noor Muhammad has exaggerated more in his deposition before the trial Court on the point of dying declaration and availability of Qur'an Sharif.
He has stated before the trial Court that when he and others on cries went to the spot he saw Mst.
Sharma mother-in-law of Haji holding Qur---an over him and Mst. Zuhra, Mst. Sharma and Illahi Bux were naming appellant Thangai to be the assailant. He took Holy Qur'an from Mst. Sharma and showed it to injured Haji and asked him on Holy Qur'an as to who was the assailant. Haji understood it kissed the Holy Qur'an and then these witnesses put Holy Qur'an on the head of Haji and asked him in the name of Allah and Holy Qur'an and urged him to speak the truth as to who was the assailant. On that Haji replied that he had been injured by Thangai son of Malook. It is apparent that the other two eye-witnesses have not narrated the story in the manner in which it is narrated by Noor Muhammad. It may be mentioned here that even this witness Noor Muhammad has not stated anything about Qur'an Sharif in his statement under section 164, Cr. P. C. Which was recorded on the same date when such statements of the other two eye-witnesses were recorded as stated above. In the circumstances we reject this evidence of dying declaration.
11. Now we deal with evidence of recovery of crime weapon from the appellant about which there is positive report from the Chemical Examiner. According to the prosecution case appellant was arrested on 24-3-1976 and he while in custody led to the recovery of bloods-tained knife from the box in his house. Mashirnama of arrest Exh. 17 and Mashirnama of recovery Exh. 18 are signed by Noor Mohammad_and Wahid Bux as Mashirs. Noor Muhammad when examined in the Court as P.
W. 5 stated that on the same day when appellant was arrested house of appellant was searched in his presence and blood-stained knife was secured from the iron box. The Mashir has not stated that after the arrest appellant while in custody led to his house and produced knife as is stated by the Investi--gating Officer Abdul Aziz. In the Mashirnama it is stated that appellant led Police and Mashirs and produced one blood-stained knife from the iron box lying on the "mangi" situated in the west southern corner of the house of the appellant. On the other hand Investigating Ofcer Abdul Aziz has improved this version and stated with exaggeration before the trial Court that appellant while in custody led to his house and produced knife from the box of iron which was locked and the lock of the box was broken by him as appellant stated that the key was missing. I.O.
Admitted that this fact is not mentioned in the Mashirnama. Apart from this it is in evidence that the house from where recovery of the knife was made is inhabited by other members of the family apart from the appellant. Another important defect in this evidence is that Mashir Noor Muhammad as well as co-Mashir Wahid Bux are related to the deceased and the com--plainant.
Mashir Noor Muhammad has admitted in his deposition before the trial Court that deceased Haji was his remote relative and co-Mashir is his nephew. Eye-witness Illabi Bux has stated before the trial Court that Noor Muhammad is distant cousin of deceased Haji. Noor Muhammad is son of Ali Bux and Raii is grandson of Gul Sher. Gul Sher and 'Ali Bux are real cousins inter se. P. Ws. Hazoor Bux and Wahid Bux that real 'Masats' of Haji. Mst. Zuhra has stated before the trial Court sea Abdul Karim is her elder son and Noor Muhammad is related to her Abdul Karim, Mst. Sharma has stated before the trial Court that Abdul Karim is cousin of Noor Muhammad and Wahid Bux is Masat of deceased Haji. Learned counsel for the appellant has criticised the evidence on this point that both Mashirs are related to the deceased as such this piece of evidence is not worth reliance.
Independent Mashirs could have been used by the prosecution when they were easily available. In support of the proposition reliance is placed by the learned counsel on the cases of Rasool Bux and another v. State (1980 SCMR 225), Lalan and 2 others v. State (1976 P Cr. L J 52) and Ahmad and another v. State (1977 P Cr. L J 662).
12. The upshot of the whole discussion is that the eye-witnesses have deposed about the motive which is different from the motive stated in F. I. R. And even the second motive is not satisfactory and then these witnesses have also deposed about dying declaration which we have rejected.
Eye-account is not free from doubt. Circumstantial evidence is also not reliable. Hence we hold that prosecution has failed in its duty to prove the case against the appellant by producing unimpeachable evidence to connect him with commission of crime. All the pieces of evidence produced by the prosecution are tainted and as such one piece of tainted evidence cannot corroborate the other piece of tainted evidence. C We give the benefit of doubt to the appellant and set aside his conviction and sentence and allow his appal. Reference for confirmation of death sentence is rejected. Appellant be set free at once if not wanted in any other case.