ALI NAWAZ BUDHANI, J.-This is an appeal against the judgment and sentence of Ex-Officio Additional Sessions Judge, Khairpur recorded on 5th March, 1981 whereby he imposed death sentence under section 302 read with section 34, P. P. C. To three appellants namely Rab Rakhio son of Bhai Khan, Saleh son of Jumo and Attoo alias Atta Muhammad son of Gulab Khan. He also imposed Rs, 3,000 each as fine and ordered under section 544-A, Cs. P. C. That if the fine is collected the same be paid as compensation to the heirs of the deceased. The appellant Rab Rakhio was further convicted to undergo R. I. For one year. The trial Court further sentenced the three appellants under section 449, P. P. C. To R. I. For four years and fine of Rs, 1,000 each and in default R. I. For six months. The trial Court has also made reference for confirmation of death sentence.
2. By the same judgment the learned trial Court acquitted seven persons Piroo, Moula Bux, Saleh, Sadik Shahan, Sono and Imam Bux. The State has filed an acquittal appeal in respect of the acquittal of these seven persons. We propose to dispose of both the appeals and the reference made by the trial Court for confirmation of death sentence by this single judgment.
3. One Nasim Kharal, an influential Zamindar was murdered on 14th July, 1978 at about 2-00 a. m.
(night) in his Otaq while he was asleep. The F. I. R. Was filed at 4-00 a. m. At Gambat Police Station which was about 9 or 10 miles from the wardat. The F. I. R. Was filed by one Buxan the Jeep Driver of the deceased. The contents of F. I. R. Are as under :- "The complaint is that I am driver of Naseem Ahmed Kharal since about 15 years and always used to reside with him. My Master Naseem Khan had come to deh Saidi Bala to look after his lands and also to settle some community disputes and I was also with him. Last night Naseem Khan was sleeping in the courtyard of his Otak. There is small wall of Pacca bricks around the courtyard having an open door towards its west. There in the courtyard, I, Munshi Gul Muhammad Shaikh and Ayoob Abro a servant of Otak were also sleeping on other cots. A bulb was burning in the courtyard.
At about 2 a. m. I woke up on the rustling and my eyes were opened and on light I saw one person Rab Rakhio son of Bhai Khan Narejo with pistol on the head side of the bed of Naseem Khan, and other Saleh son of Jumo Narejo standing with hatchet and A ttoo son of Gulab Narejo standing with hatchet at the door of courtyard and there was sufficient light of electricity at the door of courtyard and in front of it upto open space (Maidan). Meanwhile Rab Rakhio Narejo fired with pistol after keeping the same on the left cheek of Naseem Khan. The above-stated witnesses woke up on the voice of fire and on my cries who also saw the above accused. The accused asked us that if we got down from the cot we will not be spared. Saying this the accused ran away. Thereafter we got up and saw that blood was oozing profusely from the cheek of Nasim Khan and he was dead.
Meanwhile Kamdar Taj Muhammad Narejo and other haris came on the noise of fire and we narrated above facts to them and saw that there was one empty cartridge lying near the wall of "warra" cattle pen towards the north of wardat. Then I, leaving above witnesses on the dead body, have come for report and complaint that the above accused have murdered my master Naseem Khan with country-made pistol because during last December month one Abdul Razak Kharal a relative of Naseem Khan had filed a complaint of dacoity at P. S. Gambat against accused Rab Rakhio and Saleh Narejo and their other relatives which case was tried in the Military Court and about four months back accused were acquitted. Naseem Khan used to pursue that case on which accused have grudge against that he had falsely implicated them in case. Accused Attu is also related to the above accused. I am complainant. Investigation be made."
4. The above F. I. R. Was registered by S. D. P. O. (Sub-Divisional Police Officer), by name Rasool Bux Rahoo bearing a footnote that "As there is no S.H.O. Or other responsible subordinate person at the Police Station, I myself am investigating the crime." It seems that Mr. Rasool Bux Rahoo initially took up the investigation after registering the F. I. R. He proceeded to scene of offence and prepared mashirnama in presence of mashirs Muhammad Saleh and Ibrahim. The scene of occurrence was the courtyard of the Otaq of Nasim Kharal the deceased, in Deh Saidi in taluka Gambat. The deceased bore injury on the left cheek with the firearm. The mashirnama of wardat Exh. 39 was prepared. The blood was secured from the ground and was sealed. Blood-stained articles such as bed-sheet, pillow, Ajrak and rubber chappal were also secured. One empty 12 bore cartridge was secured at the door of cattle pen and was duly sealed. One bulb which was in the courtyard was secured. The footprints of three persons were seen at a distance of one acre from the Otak. The Inquest Report Exh. 40 was prepared before the mashirs. The Medical Officer, Gambat was called at the wardat who performed the post-mortem of the deceased at the wardat because it was feared that law and order situation would occur where the Government dispensary was situated.
Thereafter he recorded the statements of Ayoob Abro, Gul Muhammad, Taj Muhammad, Ramzan, Khuda Bux, Nihal, H. C. Ramzan Amir Bux and P. C. Ali Bux. On 15th July, 1978 he recorded the statements of P. W. Pir Bux Narejo. Then the S. H.O. Aslam Soomro arrived at the vandal and the entire case papers were given to him for further investigation.
5. Mr. Aslam Soomro took up the investigation on 15th July, 1978 and on 16th July, 1978 he produced P. Ws. Gul Muhammad, Ayooh. Taj Muhammad, Nihal, Ramzan and Piral for their statements under section 164, Cr. P. C. Before the Mukhtiarkhar & F. C. M., Gambat. The Mukhtiarkar however declined to record the statements with a note that the witnesses be produced after the arrest of the accused persons. On 24th July, 1978 the Investigating Officer wrote a letter to S. D. O. WAPDA Electricity for getting information whether there was electric power from 13th July, 1978 to 14th July, 1978 working at the place of occurrence. The WAPDA authorities replied in positive on the same day.
On 25th July, 1978 he arrested the accused Rab Rakhio and Saleh from the village Mitho Khuro.
Mashirnama Exh. 44 was prepared in presence of mashirs Photo and Nooral. The accused Rab Rakhio led the police to his house situated in Deh Kurya and produced a country-made pistol from under the thatched roof of the Landhi. The accused had no licence for the same. Mashirnama Exh.
45 was prepared. Thereafter on the next day viz. 26th July, 1978 accused Saleh produced one hatchet which was not blood-stained. Mashirnama Exh. 46 was prepared. The Investigating Officer repaired to the Police Station and registered a case under section 14-E against the accused Rab Rakhio. The accused who were arrested namely Rab Rakhio and Saleh were put to their footprint test through the Pagi Allah Bux and Rajperi Amir Bux in presence of the Head Munshi on 26th July, 1978. Thereafter they were produced before the Mukhairkhar & F. C. M., Gambat for giving their confessional statements. On 27th July, 1978 he arrested the third accused Attoo alias Atta Muhammad from his house at village Kharriri in presence of mashirs Kadir Dad and Yar Muhammad. Accused Attoo produced a hatchet which was not blood-stained. On 28th July, 1978 he arrested the accused Piral Narejo from his village Khawand Dino Narejo, vide mashirnama Exh.
66. On 29th July, 1978 he produced accused Atta Mohomed and Piral before the Head Munsbi and Second Class Magistrate, Gambat for holding their footprint test through Rajperi Amir Bux and P. C.
Allah Bux. Thereafter they were produced for their confessional statements before the Mukhtiarkar & F. C. M., Gambat. On 30th July, 1978 the statements under section 164, Cr. P. C. Of P. Ws. Gul Muhammad, Ayoob, Taj Muhammad, Nihal, Ramzan and Piral were recorded by the Mukhtiarkar & F.
C. M., Gambat. On 8th August, 1978 the accused Muhammad Saleh son of Bachal was arrested, vide mashirnama Exh.
47. On the same day accused Moula Bux son of Abu Bakar was arrested, vide mashirnama Exh.
48. These both accused persons were produced for their confessional statements before the Mukhtiarkar & F. C. M. On 10th August, 1978 he submitted the interim challan before the Civil Judge and F. C. M., Gambat against these accused persons who were arrested. On 14th August, 1978 accused Muhammad Sadiq was arrested. The accused Sono and Imam Bux were arrested on the next day viz. 15th August, 1978. On 30th August, 1978 he produced the final challan before the Civil Judge and F. C. M., Gambat. He sent the blood-stained earth only to the Chemical Examiner the report of which is in negative and is at Exh. 68-A.
6. In their statements under section 342, Cr. P. C. The appellants/ accused persons have denied all the allegations made by the prosecution and they state that they are innocent. The appellant Rab Rakhio has further stated that at the relevant time he was at Hyderabad as he was a ,student of M.
A. In the University. He produces the certificate of University Exh. 89-A. He has produced true copies of the challan showing that Pir Bux was a witness against his brothers Sadich Jan Muhammad and others, vide Exh. 89-8. He has further submitted so many documents showing the interests of P. Ws.
And their enmity. P. W. Ayoob was challaned in many cases and the copy of challan is at Exh. 89/C.
He has also produced a judgment showing that he was acquitted in a case filed by the haris of Nasim Kharal deceased as Exh. 89/D. The true copies of further documents ranging from Exh. 89/E to 89/J have also been produced by him showing the enmity and the interests of the witnesses and enmity of Nasim Kharal also. He has further stated that the entire case is concocted and that the confessional statements are not true and were recorded due to maltreatment. The two other appellants have similarly denied the allegations and they have stated that they are innocent.
7. The learned counsel Mr. Azizullah Shaikh and Mr. Aftab Akhund appeared and made submissions for the appellants. Mr. Kazi Akhtar Advocate appeared on behalf of the complainant while Mr. Mustafa appeared for the State.
8. Both the learned counsel for the appellants submitted that this is an unwitnessed crime occurred at 2-00 a. m. In the darkness of the night. They have extensively criticized the prosecution case as it is made up by the police at different stages. The learned counsel for the State Mr. Mustafa does not press the acquittal appeal in respect of seven other accused persons who were acquitted by the trial Court. He is in agreement with the findings of the trial Court in respect of acquittal of these accused persons. Mr. Kazi, Akhtar Advocate for the complainant argued the case of the prosecution.
9. Before we proceed to analyse and assess the probative value of the evidence on record, we would rather advert to the scene of offence, which is significant specially When one considers that it was the month of July at mid-night when the crime took place. The mash/mama of wardat produced at Exh. 39 is to be understood. The Otak of the deceased is in the Katcha area river side where only six or seven houses are situated. These houses mainly belong to the ham is of Naseem Kharal the deceased. The Otak is a Pacca built construction and it faces east having its back wall on the western side. It consists of one room, one verandah and one courtyard which go in series from the western side to the eastern side. In other words the room is on the western side and then comes the verandah to the east of the room and then comes the courtyard to the east side of the verandah. According to the Mashirnama Exh. 39 the room has tWo ventilators on the western side wall and one ventilator on the northern wall. One door which is without shutters is situated on the northern corner of the western wall. One window without shutters is situated on the southern corner. The doors which are without shutters and the window which is also without shutters in the room of the Otak indicate that any intruder can make use of the doors or the window of the room of the Otak. The courtyard has on the southern side one wall which is three feet high and on the northern side one wall which is four feet high with open entrance. The mashirnama further shows that there is a cattle pen on the northern side of the courtyard and the door of the cattle pen is on the eastern side. In front of the courtyard there is an open `maidan'. At a distance of one acre on the northern side- of the wardat there is a cotton cultivation. Only one cot at the eastern side was found on which, it is alleged, P. W. Ayoob Abro was sleeping.
10. The mashirnama which was prepared at about 6-30 a. m. Clearly shows that there is one extra cot only besides the cot of the deceased, in the courtyard and no other cot are shown either inside the room or in the verandah or anywhere else The assailants in view of the situation shown in the mashirnama either could safely come through the door without shutters of the room or the window which is also without shutters and then cross the verandah and then come to the courtyard.
Having understood the situation mentioned in the mashirnama we shall now proceed to examine the evidence on record of these three eye-witnesses specially Buxan who was allegedly present at the time of offence, and who had seen the actual mode of killing.
11. Complainant Buxan was the driver of the deceased for 15 years and had always accompanied his master. He states that for seven days Naseem Ahmed Khan the deceased stayed at his Otak with regard to zamindari work. On the night of the incident, according to Buxan, he, Munshi Gul Muhammad Shaikh and Ayoob Abro servant of the deceased were sleeping in the same courtyard.
There was electric light of a bulb burning in the courtyard. Buxan was sleeping on the northern side of the deceased while Munshi Gul Muhammad was sleeping on the southern side and Ayoob Abro was sleeping on the eastern side near the feet of the deceased. The witnesses, Munshi Gul Muhammad, the complainant Buxan and Ayoob Abro were sleeping on different cots lying near the cot of the deceased. After mid-night there was some sound on which Buxan woke up. He found appellant Rab Rakhio, Saleh and Attoo, all Narejos by caste, standing there. Attoo Narejo armed with a hatchet was standing on the entrance of the courtyard while Rab Rakhio armed with pistol and Saleh armed with hatchet were standing on the head side of the deceased Nasim Ahmed Khan. As soon as he woke up the accused Rab Rakhio placed barrel of the pistol on the left cheek of the deceased and fired. He raised cries. On the explosion of the pistol other witnesses Ayoob Abro and Munshi Gul Muhammad also got up. They also saw all the accused persons, but accused threatened them that if they got up they would meet with the same fate. Saying so the accused ran away towards the northern side. In the meantime Taj Mohomed Kamdar, Khuda Bux and other hat is arrived at the scene of offence. They saw that the deceased was lying murdered, liuxan further deposes that he narrated the incident to them and gave the names of the accused persons.
12. The evidence of the main witness. Buxan is criticized by the learned counsel for the appellants on the ground that his evidence is unnatural. Buxan woke up on some sound. On the bulb light he saw the total view of the three assailants and having identified them also saw that Rab Rakhio armed with a country-made pistol, placed the barrel of the pistol on the left cheek of the deceased and fired. The other assailants were seen having the hatchet with them. The two assailants Rab Rakhio and Saleh were standing at the head side of the deceased Nasim Kharal. Buxan was a quiet spectator of the entire view and he did not react into raising an alarm or challenging the assailants which was natural and compelling under the circumstances. Buxan being the true servant of the deceased, should have jumped at the entry of the assailants and should have thwarted their attempt to kill his master. This is the only natural impulse even in a case of coward, His inaction at the time when he is required to save his master is criticized vehemently by the learned counsel Mr. Azizullah Shaikh and be points out that the witness has either not seen the assailants or he was not sleeping at the vardat. Even the reflex movement of Buzan would come into play and he would grapple the assailants, no matter what the consequences be. Other witnesses Munshi Gul Muhammad and Ayoob Abro were also victims of the same lethargy and inaction while counter- acting the assailants in order to catch them. There were three strong witnesses sleeping around the deceased and they could not do anything to save their master. The criticism of the learned counsel on the evidence of this witness has a particular weight and its weight cannot be disregarded. When one witness has awakened on some sound the similar sound of the movements of the assailants must have also awakened, the two other witnesses but it is alleged that they woke up on the explosion of the pistol shot. The conduct of the witnesses even after the explosion of the pistol shot is unnatural and they would have at once pounced upon one or the other assailants and specially the main assailant Rab Rakhio who had fired only one shot from country-made pistol and he would take time to reload the other shot. He should have been caught easily if the witnesses have mustered courage. The evidence of Buxan who is an eyewitness may also be read with other circumstances. The mashirnama of vardat which is prepared as early as 6-30 a. m. Does not show that any of the cots, belonging to Buxan or Munshi Gul Mohomed were found lying at vardat, and there was only one cot at the vardat which presumably belonged to Ayoob if at all Ayoob Abro did sleep on the night of the incident at the vardat. The counsel of the appellants have further criticized and argued that even if Buxan was at the vardat anz' he did see the culprits, he would not have identified the assailants and he has seen only silhouette of the assailants. The bulb was burning on the western wall of the courtyard and those who were standing on the bead side of the deceased their features would not be clear by virtue of their own shadows and it is too much to believe that Buxan had seen the culprits and identified them. Even the appellant Attoo who was standing on the southern door will not be so easily identifiable. The learned counsel have argued firstly that these witnesses were not there and secondly even if these witnesses were there they have not identified the assailants.
13. The other two witnesses who were present at the vardat at the time of incident were Gul Muhammad the clerk of Munshi of the deceased and Ayoob Abro the private servant of the deceased. They both deposed that they were awakened by the explosion of the pistol shot and saw the present appellants. The present appellants threatened them not to get up or else they would not be spared, and soon they ran away. The witnesses Gul Mohomed admits that there was a dispute between the appellants and the deceased in connection with the land situated in Deh Baharo, There were number of cases in-between the parties and that the witness himself was a complainant in number of such cases filed from the side of the deceased against the appellants, He denies the suggestion made by the defence counsel in cross-examination that the incident took place on a rainy night. Suffice it to say that witness Gul Mohomed being a Munshi of the deceased had involved himself in number of criminal cases against the appellants at the instance of Naseem Kharal, the deceased, and hence his evidence may be considered to the extent that he is, in fact an interested witness. Other eye-witness Ayoob Abro though denies the fact that he is a previous convict and a person who is run in under section 110 of the Cr. P. C. And was involved in theft cases, yet in the documents produced by the appellant Rab Rakhio at Exh. 89/D Ayoob is shown. As a witness in a case against two of the present appellants and others in a case of injuries decided by the Assistant Sessions Judge, Gambat on 24th February, 1980. In this case the following reference is very significant :- "All the above facts lead to the only irresistible conclusion that entire case has been prepared and cooked up at the bungalow of Mr. Naseem Kharal due to enmity between the parties and the witnesses being haris of late Naseem Kharal were set up by him."
The judgment of the learned Judge deciding that matter proves that there was not only enmity of the deceased Nasim Kharai with present appellants but P. W. Ayoob Abro is a witness in number of cases filed at the enstance of the deceased Nasim Kharal. It is so much clear that both Munshi Gul Muhammad and Ayoob Abro are very much interested and inimical to the appellants. Against their evidence same criticism is levelled by the learned counsel appearing for the appellants. From the s documents produced by the appellant Rab Rakhio it is amply clear that there is a long persisting enmity on lands between the deceased and the appellants and their relatives who are Narejos by caste and there were series of cases between the parties. The learned counsel for the appellants have pointed out while arguing the case that both Munshi Gul Muhammad and Ayoob Abro are not reliable witnesses as- such- their evidence would be taken with due care and caution. As the situation is in the present case the evidence of Buxan, Gul Muhammad and Ayoob Abro is of doubtful character and we are not able to persuade ourselves to rely on them P. W. Taj Muhammad and Khuda Bux have arrived after the incident and they learnt the story from Buxan, They are Kamdar and haris of deceased, respectively and are as such interested.
14. Even otherwise, apart from what is discussed above, two P. Ws. Gul Muhammad and Ayoob, are unreliable witnesses inasmuch as they appeared in criminal cases filed by the deceased or his haris. Unfortunately the trial Court has not dealt on this aspect of the case. The learned trial Court has omitted to consider as what the appellants have stated in their defence and the documents that they have produced were not read by the trial Court. In order to assess the evidence of the eye-witnesses RIB was necessary to keep the case of the defence side by side, the evidence of the main eye-witnesses.
15. Furthermore the investigation conducted by the police is not a straightforward investigation., The date of arrest of the appellants from their houses is 25th July, 1978 namely eleven days after the incident. The village of the appellants is about 10-12 miles from the vardat and it is not shown that the police made any effort to arrest the accused immediately after the incident particularly when their names.Do appear in the F. I. R what was police doing for eleven days is not explained.
The learned counsel have attacked this aspect of the police investigation stating that the appellant Rab Rakhio was at Hyderabad as stated in his statement under section 342, Cr. P. C. And his arrest after eleven days from his village as shown is probably not correct. This lapse on the part of the investigating agency creates doubt and the learned counsel for the appellants have argued that the F. I. R. Was drawn much later as is evident from the fact that the F. I R. Was not sent immediately after registering it under section 157 to the relevant Court, The Court received it on 16th July, 1978 i. e.
Two days after the incident. Be that as it may, the fact , that the appellants are arrested after a lapse of 10-11 days indicates that they were not available near about or the police was still investigating to lay hands on the real culprits. In the meantime the investigating agency had stumbled upon a new piece of evidence that of conspiracy hatched by the three appellants to murder the deceased. Witness Pir Bux son of Haji Elahi Bux has deposed that he was attending the Khairat' on the event of death of one Sultan Narejo. In the landhi where he was sitting appellant Rab Kakhio, Saleh son of Jumo, Peroo, Atta Muhammad Saleh son of Bachal, Imambux, Sono. Moula Bux and Sadiq were also sitting and they asked him to go out of the landhi as they were having a secret talk. This witness Pir Bux came out and stood near the sar bushes and heard them saying that Naseem Karal had troubled them by filing cases and therefore he should be murdered. After hearing this he went away to his village. He did not disclose this secret till at a tube-well in his land heard that Naseem Kharal was murdered. He told the entire story to Allah Wasayo Bhugti. Allah Wasayo told him that earlier one Peero had confessed before him that he, Raboo, Saleh and Attoo had committed the murder of Naseem Kharal. Thereafter he and Allah Wassayo went to the condolence at Khairpur where he disclosed the secret and his statement under section 164, Cr. P. C.
Was recorded. His statement was recorded 14 or 15 days after the incident. The conspiracy of murdering deceased was revealed by Pir Bux only and Pic Bux was not believed by the trial Court and his entire evidence was rejected to be false. The scope of the investigation now winded become very extensive to rope in seven other persons and this aspect of investigation itself is so strange as to react adversely on the other earlier parts of the investigation conducted by the police.
16. There is yet another piece of evidence. One P. W. Nihal son of Sono Khan was examined by the trial Court and he deposed that on the night of the incident he and Raman were crossing a lake near Lank village at mid-night when they found three persons crossing the lake whom they identified in torch light to be Rab Rakhio, Peroo and Saleh. Rab Rakhio was carrying one country- made pistol and Saleh and Peroo were armed with hatchet and a lathi, respectively. The evidence of P. W. Nihal or P. W. Ramzan on this point is disbelieved by the trial Court, therefore we need not discuss it except that the police has still widened the scope of investigation and the investigation itself is fitfull and jittery.
17. In a case Mst. Humida Bano v. Ashiq Hussain and others his Lordship Justice Cornelius made a pertinent remark as under :- "The consequence of such a widening of the sphere of accusation on allegations which are comparatively limited in scopes ordinary is to create doubt in the mind of the Court as to the truth of the entire prosecution case."
The investigation in this case has widened its scope almost to a conspiracy held some time before the incident of murder. This entire evidence D is not believed by the trial Court, hence it would react on the entire prosecution case and a reasonable doubt is spelt out.
18. It is brought out clearly that the ocular testimony is interested, unnatural and biased because the witness were used by the deceased earlier in other criminal cases excepting the eye-witness Buxan The evidence of Buxan in itself does not inspire confidence or carry with itself the necessary elements which must be accepted. To accept or not to accept the evidence of a single witness depends upon the other circumstances which furnish the surer guideline. If the other circumstances render the evidence of a jingle witness such as Buxan in the present case improbable or at least doubtful then it would be unsafe to accept his evidence as gospel truth in such a capital charge. The mash/mama of vardat is fully discussed and it is the earlier document prepared by the police in its investigation. There was a solitary spare cot lying at the feet of the deceased allegedly belonged to Ayoob and no other cot was available at the vardat. The conclusion is obvious that the witness Buxan and Gul Muhammad have not slept there at vardat and to accept their evidence would be against the safe dispensation of justice. The evidence of Buxan is not free from a reasonable doubt and it must be held doubtful.
19. The corroboratory piece of evidence is that of mashir Photo in whose presence it is said that the accused have produced incriminating weapons such as country-made pistol and hatchet. The1 evidence of Photo is that he was a mashir of the arrest of the accused Rab Rakhio and Saleh son of Jumo from the village Mitho in taluka Ratodero. Both of the accused volunteered to produce their weapons. Therefore they crossed the river to the house of Rab Rakhio and from the land/ii he produced a country-made pistol which police secured and sealed. It was concealed in the roof of his house. Similarly a hatchet was produced by the accused Saleh which was not blood-stained.
The evidence of Photo is criticized and assailed by the learned counsel for the appellants and it is stated that Photo who is Kalhoro by caste was the Hari of Nasim Kharal, the deceased. The accused Rab Rakhio was arrested from the village Mitho situated in taluka Ratodero which is across the river. The accused would not keep the weapon with him at taluka Ratodero. The police was told that weapon was hidden in his house and that they all again crossed the river to his village and such a recovery was effected. It is unnatural that the culprit or the assailant would keep the weapon at his house across the river and not with himself where he was arrested. r The evidence of Photo and for that matter the evidence of the Investigatin Officer is itself doubtful. The weapon is secured on 25th July, 1978. However the main criticism of the securing of weapon is levelled by the learned counsel for the appellants on the evidence of Ballistic Expert to whom both the cartridges and the weapon were sent on a particular day together. It is contended by the learned counsel that the empty which was secured on the day of the incident should have been sent immediately to the Ballistic Expert and should not have been kept for waiting for the recovery of the weapon of offence. In this respect number of authorities are cited. The reference is made to PLD 1968 Lah.
869. We may reproduce the following observation from the said authority :- "The recovery of the crime empty was effected on the 4th of July, 1965 and was delivered at the office of the Forensic Science Laboratory on 13th July, 1963. During this period the gun was recovered from one accused, the crime empty thus recovered was not submitted to the Expert conformably to the instructions, which enjoin that crime empty should invariably be sent to the Expert immediately after recovery so that chances of concocting the empties after the recovery of firearms alleged to have been used in the commission of the crime are minimised to the extreme.
No value to the recovery of crime empties, can be attached in the circumstances."
In this respect we are also referred to 1981 P Cr. L J 285 in a case Sher Muhammad v. State . The principle evolved in respect of sending crime weapon immediately after its recovery is to minimise the chances of manipulation and concoction. The forensic experts rely in this respect on the principle that a particular weapon when fired leaves the traces, the lines and corrugation in the similar pattern when the same weapon is again fired to discharge another cartridge. The principle is that the force exercised at the trigger, the pin thereof produces the same pattern. This becomes the surer test the crime empty was fired from a particular weapon. The ballistic expert is cross- examined at length. The main objection in respect of the evidence of Ballistic Expect is that the crime empty was kept by the police for a longer time and it was not sent immediately to him. The corroboratory piece of evidence and the evidence of the Ballistic Expert may not safe support the already doubtful ocular testimony. PLD 1970 Kar. 399 is referred to enunciate the principle of the cridebility of a witness or truth or falsity of the statement of a witness. We may quote the following passage from the said authority : "The truth of falsity of the statement of the witness largely depends upon the circumstances which provide the guideline. To accept the evidence without considering the circumstances would be totally inconsistent with the safe dispensation of justice. It is only on the scrutiny of the evidence with the assistance of the circumstances, it is possible to say with certainty that the evidence is immune from all taints and is worthy of belief. Although the learned Additional Sessions Judge observed that the evidence was supported by the circumstances, yet no such circumstances was exposed by him. On the contrary we have considered the circumstances found in the reasons for2 their presence at the scene of offence and their conduct subsequent to the murderous assault and it has been found that their evidence is incredible."
It needs be emphasised that the evidence which is incredible neither can lend support to the other evidence nor can receive any support to turn it into worthy of belief.
20. The motive as brought out in the F. I. R. Relates to a case of robbery against the same three appellants and they were honourably acquitted by a Military Court. The deceased was pursuing the case and unfortunately he could not succeed in getting the conviction of the same three appellants and hence according to the prosecution this was the motive for committing the murder.
The case of robbery filed at the instance of the deceased and which is said to be the motive of' the present crime has its own significance. This motive could be read not against the appellants but rather in their favour as these appellants are the same persons who faced a robbery case and were acquitted by a Military 'Court. Military Court was an independent Court and it had no concern with either of the parties. The same three appellants are made accused persons in the present crime significantly indicates that appellants are not to be left and must be roped in the murder of Nasim Kharal the deceased. All along the process of investigation, it is clear that these appellants were being roped in not only in the F. I. R. But they were seen by the P. Ws. Nihal and Ramzan on the night of the incident crossing the lake and not only this, they were present in the conspiracy hatched by seven other persons all Narejos by caste. These pieces of evidence though rejected by the trial Court yet the significant fact is that the police endeavoured to rope in the present appellant Rab Rakhio who is a M. A. Student aged 22 years be even not there after the acquitted from the Military Court to save himself from further repercussion. The motive as shown by the prosecution is weak and untenable.
21. We may now sum up discussion. The ocular testimony is not free from doubt looking to the circumstances of the case. The three eyewitnesses are closely connected with the deceased and some of them were witnesses in other cases filed by the deceased against Narejos. It was a dark night and even if the bulb was burning the chances of identity of culprits are every scanty. The arguments of the learned counsel for the appellants carry more weight when they state that in all probability these witnesses did not sleep in the formation as shown in the F. I .R. The accused in conspiracy case were acquitted by the trial Court disbelieving the witness Pir Bux would react on the whole entire prosecution case. Recovery of weapons and Bailisttic Expert's opinion is not free doubt. Motive is weak. There are more circumstances of a reasonable doubt in this particular case and as such the benefit of doubt must necessarily be given to the appellants. The appellants accordingly are hereby given the benefit of doubt and are acquitted.
22. For the same reasons and discussions the above acquittal appeal is hereby dismissed which is not supported by the learned counsel for the State. The appeal against the sentence under section 13-D of the Arms Act is allowed. The reference for confirmation of death sentence is rejected. PLD 1963 SC 109 PLD 1982 SC 292