1. ' Appellants namely Faiz Muhammad son of Mitho and Imam All son of Haji Muhammad have filed this appeal against impugned judgment dated 23-9-1984 of learned First Additional Sessions Judge, Nawabshah, whereby they have been convicted for offence under section 302/34, P.P.C. And sentenced each to life imprisonment and fine of Rs,500 or in default to suffer R.I. For six months.
2. They have been further ordered to pay each Rs,10,000 as compensation to the heirs of deceased or in default to suffer R.I. For one year more. By the same impugned judgment trial Court has acquitted four co-accused namely Ghafoor son of Muhammad Ismail, Ilyas son of Muhammad Bust, Sarwar son of Alam Khan and Ghulam Nabi son of Daboo Khan. Seventh co-accused namely Muhammad All son of Murad All died before the charge was framed in the trial Court. Originally appellants and co-accused named above faced trial for offences under sections 302, 307, 149 and 148, P.P.C. For committing murder of Ismail and causing injuries to complainant Ishaque in furtherance of their common object while they were armed with deadly weapons.
3. ' Briefly stated the prosecution case as per F.I.R. Is that about two months prior to the incident appellant Faiz Muhammad and deceased Ismail had exchanged harsh words in presence of complainant Ishaque at 68 Mori, where complainant and his maternal-uncle deceased Ismail had gone for their work. Other persons intervened and no quarrel took place. Appellant Faiz Muhammad threatened that he would take revenge. On the day of incident i.e, 11-1-1978 at 8-30 in the morning complainant Ishaque and deceased Ismail were returning together to their village from Shahpur Chakar and when they reached the land of Firdous Khan Pathan in Deh 34 Nusrat, appellant and five other co-accused persons named above came out and confronted complainant and deceased. Appellant Imam Ali was armed with a gun while appellant Faiz Muhammad and remaining five co-accused had hatchets. Appellant Faiz Muhammad instigated that enemies were not to be spared, upon which appellant Imam Ali fired a shot from his gun at Ismail who was hit on his left leg. Faiz Muhammad, Muhammad All and Ghafoor gave sharp-sided hatchet blows to Ismail. Ilyas, Sarwar and Ghulam Nabi gave blunt-sided hatchet blows to complainant. On the cries Hassan All and Qadir Bux came running to the spot and saw the incident.
4. Witnesses gave warnings to the assailants, who fled away with their weapons. After departure of assailants it was found that Ismail had succumbed to his injuries. Leaving witnesses Ali Hassan and Kadir Bux near the dead body, complainant Ishaque, who was himself injured, first went and informed his nekmard, Jan Muhammad Brohi in his village and then accompanied by him went to Police Station Nawabshah Taluka and lodged F.I.R. At 4-00 p.m. Distance between the Police Station and the scene of offence is about 15/16 miles. It would not be out of place to mention here that complainant, deceased, witnesses who were attracted to the spot and all the assailants are Brohi by caste. S.H.O. Abdul Qudoos registered F.I.R., noted the injuries of complainant in presence of Mashirs Jan Muhammad and Fateh Muhammad and sent him to hospital. He went to the scene of offence alongwith Mashirs. Witness Kadir Bux pointed out the Vardat. S.H.O. Saw the dead body with fire-arm and hatchet injuries. He recovered blood-stained earth and one crime empty from the spot and put them into sealed parcels. He prepared inquest report and sent the dead body to the hospital for post-mortem examination. On 13-1-1978 he arrested Faiz Muhammad, Muhammad Ilyas and Abdul Ghafoor. Faiz Muhammad, while in custody, led to the recovery of blood-stained hatchet from the roof of his house. It was secured and sealed. Muhammad Ali led to the recovery of blood-stained hatchet from his house which was hanging on the northern side of Landhi. The same was secured and sealed. Abdul Ghafoor led to the recovery of hatchet from the roof of his house but this hatchet was not stained with blood. On the same day the S.H.O. Arrested Sarwar. At this stage S.H.O. Was transferred and A.S.I. Sadiq Hussain Shah took over the investigation and arrested Imam Ali on 16-1-1978, from the Bus Stop of Gupchani. Imam Ali, while in custody led to the recovery of his double barrel gun from his house from the bedding lying inside the room. The gun was opened and it smelled of fresh fire. The gun was sealed. Appellant Imam Ali was brought to the police station and a separate case was registered against him under Martial Law Order No,8 as he could not produce licence for the said gun. Parcels were sent to the laboratories and after completion of other steps of investigation, challan was presented in the Court.
5. ' In support of its case prosecution has examined in all nine witnesses before the trial Court. P.W.1 Ishaque, P.W.2 Ali Hassan and P.W.4 Kadir Bux have been examined as eye-witnesses. P.W.3 Jan Muhammad has been examined as corroborative witness as he was apprised about the incident by complainant he also joined the investigation as Mashir and was examined as such. P.W.5 Sultan Mahmood, Head Constable is corpse-bearer. P.W.6 Ghulam Mustafa, Tapedar prepared and produced sketch of Vardat. P.W.7 is Doctor Islamuddin Qureshi, who performed the post-mortem examination on the dead body of Ismail and also examined injuries of complainant Ishaque. P.W.8 Abdul Qudoos S.H.O. And P.W.9 Sadiq Hussain Shah, A.S.I. Investigated the case as stated above.
6. Prosecution has produced report of Ballistic Expert Exh.42 which is positive. Prosecution has also produced report of Chemical Examiner Exh.43 which is positive in respect of two hatchets and earth contained in three sealed parcels.
7. ' Appellants and acquitted co-accused in their statements under section 342, Cr.P.C. Before the trial Court took up the defence of denial simplicitor of prosecution allegations and proclaimed innocence and false implication due to enmity. No witness was examined in defence.
8. I have heard Mr. Muhammad Hayat Junejo, Advocate for the appellants and Mr. Ghulam Ali Agha for A.-G. For State. At the very outset, it would be pertinent to point out that the trial Court has in the same case acquitted nur co-accused namely Ghafoor, Ilyas, Sarwar and Ghulam Nabi and convicted and sentenced the present two appellants as stated above. Since the same evidence has been assessed in such a manner that from six assailants four have been acquitted and only two have been convicted, the evidence therefore has to be evaluated with great care and caution.
9. Record shows that there are three eye-witnesses and out of them trial Court has disbelieved two namely Ali Hassan and Kadir Bux. The case of the prosecution is that these witnesses All Hassan and Kadir Bux came to the spot on cries and saw the incident. After appraisement of evidence the trial Court came to the conclusion that presence of these two witnesses at the spot at the time of incident was doubtful. Excluding these two eye-witnesses, now remains complainant Muhammad Ishaque in the field who is injured eye-witness. Story of motive also emanated from complainant.
10. Learned trial Judge has disbelieved complainant on the point of motive. The learned trial Judge further disbelieved complainant in respect of acquitted co-accused and observed in the impugned judgment, "I have real suspicion in my mind about the possibility that these injuries to the complainant might be the work of two persons. Therefore, it will be unsafe to rely on his word against remaining accused in the absence of any positive confirmatory evidence". It may be mentioned here that State has not filed any acquittal appeal. In any case I shall make my own assessm ent of evidence produced by the prosecution before the trial Court.
11. ' P.W.7 Doctor Islamuddin Qureshi conducted post-mortem examination on the dead body of Ismail and found two incised wounds on the head and two fire-arm injuries on the left knee joint with entry and exit wounds. According to the doctor incised wounds were collectively and individually sufficient to cause death. The same doctor examined complainant Muhammad Ishaque and found two swellings on the left forearm and right palm with fractures of ulna-bone and mecartal bone underneath respectively. Two abrasions were also found on the right side of neck and left shoulder.
12. It was declared by the doctor that the injuries were caused by hard and blunt substance.
13. Presence of injuries on the person of complainant Ishaque shows' that he was present at the scene of offence at the relevant time but this does not necessarily mean that his evidence will not be subjected to scrutiny to find out whether he has spoken the truth or not. Such need becomes stronger and more pronounced when the complainant has been disbelieved by the trial Court in respect of four other co-accused persons, who have been acquitted. Complainant has also been disbelieved on the point of motive as stated above. There is delay in filing of F.I.R. Incident took place at 8-30 a.m. And the report was lodged at Police Station Nawabshah Taluka at 4-00 p.m.
14. Complainant has tried to explain the delay by stating in the F.I.R. That he first went to his respectable person Jan Muhammad to his village and narrated the facts to him. Jan Muhammad accompanied him to the police station, where he lodged F.I.R. Before the trial Court in the cross- examination complainant admitted that there was police post in Jam Sahib Village at four miles from the place of incident. At three miles from the spot was village of complainant known as village of Major Yar Muhammad. That village was two furlongs away from Pacca road connecting Nawabshah and Jam Sahib village. Complainant further stated in cross-examination before the trial Court that village of Rais Ismail Khan Brohi was adjacent to his village and there was only one minor in between. Complainant further explained that on both sides of the minor in Tact there were two parts of the same village with about 500 houses. Rais Ismail Khan was a big Zamindar owning more agricultural land than Jan Muhammad Brohi. Complainant admitted that Rais Ismail was nekmard of all Brohis. He and others were on good terms with Rais Ismail Khan and also had remained as his Haris. Complainant was at pains to explain why he did not inform Rais Ismail Khan, who was at a shorter distance. The only reason complainant gave for informing Jan Muhammad was that Jan Muhammad was his uncle. In order to inform Jan Muhammad, complainant went all the way to the village of Jan Muhammad covering a distance of about seventeen miles. I do not feel satisfied with the explanation of complainant about the delay in filing of F.I.R. If the complainant is to be trusted on his word that he saw assailants giving injuries to deceased and he was himself injured at the time of incident and two other eye-witnesses were attracted to the spot on commotion and they also saw the incident, then what was the need of going seventeen miles away to inform Jan Muhammad. Complainant himself could have gone to the nearest police post to file F.I.R. If it was very necessary for the complainant to inform some nekmard he could have easily informed Rais Ismail Khan, who is admittedly nekmard of the whole Brohi community and further complainant was some time back his hari also.
15. ' While still explaining the delay complainant stated in cross-examination before the trial Court that from the spot he went by pacca road and had seen vehicles on the road but did not try to get lift because his body and clothes were blood-stained and he had no money in his pocket. Assertion of complainant about his body and clothes being blood-stained is falsified by medical evidence of doctor who found only swellings and abrasions as stated above. On this point complainant is falsified by P.W.3 Jan Muhammad, who has deposed before the trial Court that when complainant came to him to apprise him of the incident, he had seen the injuries on the person of complainant but there was no blood on his body or clothes. He accompanied complainant Ishaque to Taluka Police Station Nawabshah where report was lodged.
16. ' There are several other inherent defects in the occular testimony of complainant. About motive complainant stated that two months prior to the incident he was in the company of deceased Ismail, when there was exchange of harsh words between deceased and appellant Faiz Muhammad at Mori 68 which was 4-5 miles away from his village. When pressed further about this story of motive in the cross-examination, complainant stated that exchange of harsh words took place at about 12-00 noon and at that time he was sitting a little away from deceased and appellant Faiz Muhammad as such he could not hear as to what was the cause of that altercation.
17. Later on also he had not enquired from deceased about the cause of that dispute. After the altercation he and deceased Ismail came back together to their village. Till the date of this incident complainant did not enquire from deceased Ismail as to what was the dispute that took place between him and appellant Faiz Muhammad. Deceased also did not inform complainant in that respect. Deceased Ismail did not take any precaution or make report to Authorities about threat extended by Faiz Muhammad. Complainant further admitted that in between altercation and incident appellant Faiz Muhammad had seen the deceased several times outside their village. This sort of evidence clearly shows that complainant does not know anything about the cause of conflict between appellant Faiz Muhammad and deceased. In this way prosecution has failed to prove motive.
18. ' About the actual infliction of injuries complainant stated in his F.I.R. That Imam All had double barrel gun and the remaining accused had hatchets in their hands. Imam Ali fired at Ismail which hit him on his left leg and he fell down then appellant Faiz Muhammad and co-accused Muhammad Ali and Ghafoor gave him sharp-sided hatchet blows. Co-accused Ilyas, Ghulam Nabi and Sarwar gave complainant blunt-sided hatchet injuries on his head and other parts of body. On the cries came to the spot P.Ws. Ali Hassan and Kadir Bux who saw the incident and warned assailants. Complainant apprised P.W.3 Jan Muhammad about the details of incident as to who caused injury to whom. Complainant is belied by P.W.3 Jan Muhammad who deposed that complainant informed him that Imam Ali had fired at Ismail and Faiz Muhammad and Muhammad All gave him hatchet blows. Whereas Ghulam Nabi, Sarwar and Ilyas gave hatchet blows to the complainant with blunt side. It is obvious that P.W.3 Jan Muhammad did not take name of co- accused Ghafoor having joined assault by Faiz Muhammad and Muhammad Ali with hatchet blows to Ismail.
19. ' Complainant further stated in the trial Court that deceased had taken the last meal with him in the house of Haji Raza Muhammad. He gave the time of last meal at 9-00 p.m. And further stated that he and deceased left village of Haji Raza Muhammad before rising of sun. Now incident took place at 8-30 a.m. Deceased Ismail died at the spot due to injuries. Doctor stated in the post- mortem report that there was semi-digested food in the stomach of deceased. On this premise it is argued on behalf of appellants that if last meal was taken at 9-00 p.m. And food was semi- digested in the stomach of deceased at the time of incident, then the incident could have taken place at about or a little after mid-night.
20. ' Complainant mentioned in F.I.R names of two persons who came to the spot and saw the incident.
21. They are P.W.2 All Hassan and P.W.4 Kadir Bux. These two witnesses turned out to be relatives of complainant and deceased. Ali Hassan is brother of wife of deceased while Kadir Bux is cousin of complainant. These relationships are admitted by complainant in his cross-examination. Both these witnesses are chance witnesses and they claimed to be present near the spot and were attracted on cries and saw the incident. According to the complainant first shot was fired and then hatchet blows were given so he and deceased raised cries which attracted Ali Hassan and Kadir Bux who came running to the spot and saw the incident. P.W.2 All Hassan while deposing in the trial Court claimed that appellant Faiz Muhammad was his Puphat and other co-accused were related to Faiz Muhammad. One day prior to the incident he went to the village of Rais Ismail Khan and stayed for night there. In the morning he went to the house of P.W. Kadir Bux and from ,there both started together for Gupchani village where this witness had to puchase a bullock. When they reached the land of Firdous Khan Pathan they heard commotion, ran towards the Vardat and saw the incident. This witness narrated the full facts of the incident giving impression that he saw the whole incident and even the firing of shot at Ismail by Imam Ali. After narrating all the facts in detail as to who caused injuries to whom this witness also stated at the end of his examination-in-chief that after the departure of accused persons, complainant Ishaque narrated the facts to him and Kadir Bux. Now if he and Kadir Bux saw all the happenings from the beginning to the end, then what was the need for complainant to narrate the facts to these witnesses. P.W. Ali Hassan lied in the Court by stating that Kadir Bux was not related to him. This witness had not stated in his police statement that he had to purchase the bullock.
22. ' He further stated in his police statement that shot had already been fired and after hearing report of gunshot he and other witnesses were attracted to the spot. He further gave the distance of half Jirieb from where shot was fired by Imam Ali at Ismail. On the other hand according to the doctor there was blackening and charring at the places of fire-arm injuries. This witness also refused to give relationship between Kadir Bux and Jan Muhammad.
23. ' P.W.4 Kadir Bux at the very outset of his evidence completely falsified P.W.2 Ali Hassan stating that All Hassan wanted to purchase a bullock, came to his village and stayed night with him. In the morning both of them were going together to the village of Gupchani. Ali Hassan denied having stayed night with Kadir Bux. This witness Kadir Bux further claims to have heard cries and rushed to the spot and saw firing and other details of incident. According to him Imam Ali fired at Ismail and then Muhammad Ali and Faiz Muhammad gave hatchet blows to Ismail. Complainant Ishaque tried to intervene and was given back side hatchet blows by Ghulam Nabi and Ilyas, on these details he has contradicted Ali Hassan. Like Ali Hassan he also stated that after departure of accused persons complainant narrated all the facts to them. This witness Kadir Bux denied that he was nephew of deceased. He was confronted with his police statement where he had stated so. He had admitted being related to,complainant Ishaque. This witness further denied a suggestion in his cross-examination before the trial Court that there was a shorter route going from his village to Gupchani village than the route on which the incident took place. P.W.6 Ghulam Mustafa, Tapedar has admitted in the cross-examination that while going from village of All Hassan to Gupchani village there was a shorter route than the one adopted by P.Ws. Ali Hassan and Kadir Bux. There are sufficient grounds to doubt the presence of these two witnesses at the spot at the time of incident particularly in view of the fact that there was a delay of about seven and half hours in filing of F.I.R.
24. Secondly that these witnesses claim to be chance witnesses to show their presence near the spot at the relevant time. What appears from the evidence of these witnesses is the fact that complainant was present at the spot and no exception can be taken to his presence at the spot for the reason that he had sustained injuries during the incident. What needs consideration is whether this witness has spoken the whole truth or indulged in delay to enable him to manipulate contents of F.I.R. For the purpose of increasing the number of assailants. In this context evidence of P.W.3 Jan Muhammad, who was apprised about the incident and who also acted as Mashir is also not above-board.
25. ' P.W.3 Jan Muhammad is uncle of complainant. He is interested witness. He has spoken lies and stated that complainant was not related to him. He further deposed that on the day of incident complainant came and informed him about the details of incident and he went with him to police station where report was lodged. He was joined in the investigation as Mashir and appellants and other co-accused were arrested in his presence and recoveries were made in his presence. In fact he became Omni Bus Mashir and remained available to the police whenever required.
26. Complainant Ishaque has admitted in his evidence before the trial Court that Jan Muhammad Brohi is his uncle. This witness Jan Muhammad has further stated before the trial Court that Rais Ismail Khan is Nekmard of all Brohis and "Faislas" of his level were made by him while "Faislas" of smaller level were made by this witness. He admitted that Rais Ismail Khan was bigger Zamindar than him and was nearer to the complainant. He further admitted that co-Mashir with him was Fateh Khan, who is brother-in-law of complainant. Fateh Khan resided in the same village with this witness. While he and complainant were going together to the place of incident, incidently Fateh Khan met them at Gupchani Bus Stop. This witness further categorically stated, "We joined Fateh Khan with us and took him to the place of Vardat". Thereafter both these Mashirs were conveniently available to the police on each stage of investigation for arrests of all accused persons at different times and recovery of weapons made from them at different times and different places. This witness Jan Muhammad has admitted in his evidence that from police station they had gone in Jeep to the place of Vardat. When police arrived at Vardat several persons had collected at the scene of offence. This witness admitted that village of Firdous Khan Pathan was at a distance of half a mile from the place of incident. Village of Haji Azeem was at a distance of two blocks from the place of incident. At the top of deposition of this witness his age is shown 75 years. If the incident took place couple of years before the recording of evidence, then also this witness was more than seventy years and was sufficiently old. In spite of that fact quick mobility and over active conduct of this witness are surprising.
27. ' On the first day when incident Wok place complainant informed this witness Jan Muhammad in his village and he went with complainant to police station after covering a distance of seventeen miles. At police station F.I.R was lodged by complainant and injuries of complainant were noted in Mashirnama Exh.22 which is signed by Mashirs Jan Muhammad and Fateh Muhammad. Addresses of both these Mashirs are given as Village Damrah Taluka Shandadpur. Surprisingly timings are given in the Mashirnamas. In Mashirnama Exh.22 time given is 4-10 p.m. Exh.22 was prepared at police station and after that both these Mashirs went with police to the scene of offence.
28. Mashirnama of scene of offence Exh.23 on the record shows that it was prepared at the Vardat at 4-45 p.m. Distance between police station and spot according to the F.I.R is 15/16 miles. It is claimed by the prosecution that police party arrived at the spot in a Jeep. Inquest report Exh.24 is shown to have been prepared at the spot at 5-20 p.m. It would be pertinent to mention at this stage that in the Inquest Report Exh.24 brief statement of complainant is reproduced against column No,7 in which it is stated that complainant and his maternal-uncle were attacked by accused persons, who fired shot and gave him hatchet injuries and thereby murdered him. They also gave him (Complainant) blunt-sided hatchet blows and injured him. Accused had enmity with deceased. It is note-worthy that names of assailants are not given and names of eye-witnesses Ali Hassan and Kadir Bux are also not given. It is not mentioned that who was armed with gun and who fired.
29. Injuries are not specifically attributed to the accused. Another important fact worth mentioning is that in the inquest report, there is no mention about finding of crime empty at the spot. Above- mentioned documents were prepared on the first day of incident.
30. ' According to the evidence of Jan Muhammad there was perhaps no progress on the second day of incident and on the third day police arrested Faiz Muhammad, Muhammad Ali, Abdul Ghafoor and Ilyas in presence of the same two Mashirs. Mashirnama of arrest is Exh .25 in which date given is 13-1-1978 and time is 8-00 a.m. Place of arrest mentioned is village Haji Azeem Muhammad Brohi, deh 33 Nusrat, Taluka Nawabshah. It is not clear from the contents of Exh.25 whether accused persons mentioned therein were arrested from one place or from different places. Mashir Jan Muhammad in his evidence before the trial Court has tried to explain by saying that on the first day of investigation police could not go to the village of accused persons because the sun had set while they were still at the scene of offence. Police had not asked Mashir Jan Muhammad to keep contact with them but he and the co-Mashir themselves were eager to remain in touch with police in order to ascertain progress of investigation. On the second day of incident both Mashirs came to Nawabshah to enquire about progress of investigation and stayed for the night in Nawabshah. On the third day sub-Inspector went to the village of accused and took both Mashirs, who were conveniently available. Mashir Jan Muhammad has deposed before the trial Court that accused Faiz Muhammad and the other three were arrested from Otak of Azeem, who was present at that time. Such fact is not mentioned in Mashirnama Exh.25. Azeem was not used by police as Mashir.
31. Azeem has not been examined by the prosecution. P.W.8 Abdul Qadoos, 1.0. Has deposed before the trial Court that he arrested Faiz Muhammad, Muhammad Ali, Ilyas and Abdul Ghafoor on 13-L- 1978 and prepared Mashirnama Exh.28. He has not stated in his deposition that he arrested them from Otak of Azeem as claimed by Jan Muhammad.
32. 1.0. Abdul Qudoos has further deposed that Faiz Muhammad resided in the village of Azeem Brohi while Muhammad Ali and Abdul Ghafoor were residing in the village of Shahbaz Khan and Firdous Khan Pathan. Mashir Jan Muhammad further stated in his deposition before the trial Court that after four accused named-above were arrested, police first made recovery of hatchet--from Faiz Muhammad and thereafter weapons were recovered from other accused persons. Exh.26 is Mashirnama of recovery of hatchet from Faiz Muhammad. It is stated in this Mashirnama that Faiz Muhammad led to the recovery of hatchet from his house and the hatchet was blood-stained.
33. Time mentioned in Exh.26 about recovery of hatchet is 8-15 a.m. On the same day immediately thereafter second recovery was made from Muhammad Ali in Deh 34 Nusrat Taluka Nawabshah.
34. Time mentioned in Exh.27 is 9-00 a.m. Mashir Jan Muhammad deposed before the trial Court that after recovery Faiz Muhammad was left behind in the Otak of Azeem Khan under police guard.
35. Thereafter Muhammad All led police party to his house from where he produced hatchet. Distance between village of Azeem Khan and village Firdous Khan where accused Muhammad Ali resided was 31/4 miles. Mashir Jan Muhammad further deposed that he and the police party went to the village of Muhammad All on foot. Time mentioned in Exh.27 is 9-00 a.m. This means that distance of 31/4 miles was covered by foot in 45 minutes.
36. 1.0. Abdul Qudoos has not stated anything in his evidence about going on foot to the village of Firdous Khan Pathan. There are other recoveries mentioned in other Mashirnamas but I would like to mention the arrest of Imam All who was arrested vide Mashirnama Exh.30 on 16-1-1978 from Bus Stop Gupchani Bus Stop Gupchani at 11-00 a.m. This arrest appears to be sudden and unplanned but even on this occasion both Mashirs Jan Muhammad and Fateh Muhammad were easily available. In this context Mashir Jan Muhammad has deposed before the trial Court that on the day of arrest of Imam Ali, he and the other co-Mashir had themselves come to the police station and were taken by the police and they saw Imam Ali available at Gupchani Bus Stop. Imam Ali was arrested by police. Village of Imam Ali was two miles away from Gupchani Bus Stop. Imam Ali while in custody led to his house and produced his gun which was lying under the bedding on a cot. The gun was put into a sealed parcel. Gun was recovered vide Exh.31 and time is shown in it as 1-00 p.m.
37. Which is after two hours of arrest which was made at 11-00 a.m. Imam Ali was arrested by another police official namely Sadiq Hussain Shah who was examined as P.W.9. He has testified before the trial Court that he had arrested Imam Ali and recovered his gun in presence of Mashirs Jan Muhammad and Fateh Muhammad. He brought Imam Ali at police station where a separate case was filed against him for keeping unlicensed gun. P.W.9 Sadiq Hussain Shah, A.S.I. Has falsified Mashir Jan Muhammad and contradicted him by stating that both Mashirs had met him at Gupchani Bus Stop. Mashir Jan Muhammad had deposed before the trial Court that he and co- Mashir Fateh Muhammad had come to the police station and from there they were taken by I.O. For arrest of Imam Ali, who was suddenly spotted at Bus Stop Gupchani. Furthermore A.S.I. Sadiq Hussain Shah deposed before the trial Court in this context that he had spy information about presence of Imam Ali and he went to the Bus Stop where he found him and both Mashirs were also available near Imam Ali and he arrested him. It is obvious that Mashir Jan Muhammad has lied with impunity and is closely related to the complainant and deceased and is very much partisan.
38. Implicit reliance cannot be placed on his testimony. Co-Mashir Fateh Muhammad is also admittedly related to the complainant. He is brother-in-law of complainant. It is admitted by both the Investigating Officers named above that other persons were available at the time of arrest and recovery of weapons from the accused persons, then why prosecution had to join both relatives as Mashirs. This practice of using close relatives of complainant party as Mashir has been disapproved by the Supreme Court in the case of Rasool Bux and another v. The State 1980 SCMR 225 at 229.
39. ' It was argued by Mr. Hayat Junejo that gun recovered from appellant Imam Ali was double barrel gun allegedly used in the crime. It is the case of the prosecution that only one shot was fired by Imam Ali and no further attempt was made by him to fire another shot or even he threaten witnesses that he would fire another shot at them. In such circumstances there was no necessity to eject crime empty from Double Barrel Gun particularly when second shot was not to be fired. This argument appears to have weight. Mr. Hayat Junejo further submitted that there are other inherent defects in the recovery of gun and crime empty. Both Mashirs are related to the deceased and are interested. No attempt was made to take up Mashir from the locality in accordance with the provision of section 103, Cr.P.C. Furthermore crime empty after recovery was not sent promptly to the laboratory. Reference can be made to the evidence of P.W.9 Sadiq Hussain Shah, 1.0., who has deposed before the trial Court that he sent the gun and the crime empty to the Ballistic Expert. He did not remember the date of despatch of gun and cartridge to the Expert. In report of Ballistic Expert Exh.42 the fact is mentioned that on 27-2-1978 parcel was received from S.P. Nawabshah.
40. Now incident took place on 11-1-1978 and crime empty was recovered on the same day as confirmed by Mashirnama of scene of offence Exh.23. Imam Ali was arrested on 16-1-1978 and his gun was also recovered on the same day. This shows that after recovery of gun, there was delay of one month and eleven days in sending parcels to the Ballistic Expert. In this context I.O. Sadiq Hussain Shah stated before the trial Court that he had deposited sealed parcels containing gun and crime empty with Writer Head Constable and further he did not know why delay occurred and he also could not say as to on what date the gun was despatched to the Expert by W.H.C. In such circumstances unexplained delay is not free from doubt. Furthermore it was submitted by Mr. Hayat Junejo that conviction of appellant Imam Ali by Martial Law Court in a separate case for recovery of gun without licence, may show that gun was recovered from appellant Imam All but does not show that the same was used in the commission of crime which is subject-matter of this appeal. For the evidence of recovery of gun and crime empty with delay and other inherent defects have been discussed above in detail. The upshot of whole discussion is that evidence produced by the prosecution is not of such quality and is not fit to warrant recording finding of conviction. All pieces of evidence produced by prosecution are defective and tainted. One tainted piece of evidence cannot corroborate another tainted piece of evidence. Four other accused have already been acquitted by the trial Court on the same evidence. Learned counsel for A.-G. For State appearing in this case also has not supported the impugned judgment and has conceded that it is a fit case for acquittal.
41. ' For the facts and reasons stated above, I hold that prosecution has failed in its duty to prove the case against appellants beyond doubt as such I set aside the conviction and sentence of appellants and allow their appeal. They be set at liberty if not wanted in any other case.
42. ' Appeal allowed.