1. Abdul Kadir Shaikh, J.--The appellant Kalander Bux, his father Walidad and his two uncles, Malikdino and Ali Murad were found guilty by the Sessions Judge, Sukkur, under section 302/34, P. P. C. for the murder of Mst. Hidayat Begum wife of Shall Muhammad Mahar, and whereas Kalander Bux was sentenced to death, his companions were awarded transportation for life each. The case has come up before us for the confirmation of the death sentence as well as on a joint appeal filed by the convicts. The prosecution version may be briefly stated as under.
2. The first informant, Shaft Muhammad Mahar, the husband of the deceased Mst. Hidayat Begum resided in Dodo Mahar village in Taluka Sukkur at a distance of about 5 miles from Bagerji Police Station. He had seven children out of whom the eldest daughter Mst. Hooran was married and had 5/6 sons, and another daughter Mst. Sadori was married about 10 months before the occurrence in this case. About a month or two before this marriage, the four appellants along with Ibrahim and Ali Mahar had abducted Mst. Sadori in which connection Shafi Mohammad lodged report with Bagerji Police Station under F. I. R., Exh. 42, on 30th March 1969. Consequently the appellants were challaned, and the case was pending on the date of the incident of the present case. It is further said that the first informant Shafi Muhammad had filed yet another report with the police on the 28th of August 1969 against the four appellants and one Ghulam Kadir under section 323/324/147/148, P. P. C.
3. On the 3rd of October 1969, Shafi Muhammad left his village to attend Khairat of Mehrab Mahar in the adjacent village, Abad and while he was returning with his wife a little time before sunset, the four appellants are said to have emerged from the bushes nearby the road armed with weapons, Kalander Bux appellant had a gun, while his companions a hatchet each. Kalander Bux firstly fired at Mst., Hidayat as a result of which she fell down, after which the other three dealt hatchet blows on the fallen woman. On the cries raised by her husband, P. Ws. Bahar Chandio and Ahmed Mahar, who were near about the scene, rushed to the spot sufficiently in time to notice the occurrence, and thereafter Jan Muhammad Mahar and Shamsud- din son-in-law of Shaft Muhammad also came, but by this time the culprits ran away. Leaving these persons to look after the dead body of his wife, Shaft Muhammad went to the Bagerji Police Station and lodged the First Information Report, Exh. 8, at 7- 30 p.m.
4. Muhammad Ayub, A. S. I., after recording the report of the crime, went to the vardat and kept guard over the body of the deceased, and recorded the statements of Shamsuddin and Jan Muhammad, who were sitting over the dead body. No further steps in the investigation could be undertaken due to night time. The next morning he prepared Mashirnama of the vardat Exh. 26 in the presence of Ali Nawaz and Sajan mashirs whereunder he secured blood-stained earth and a spent cartridge.
5. The dead body was sent through F. C. Muhammad Anwar to the District Headquarters Hospital, Sukkur, for post-mortem examination. There Dr. Nural Huda noticed the following external injuries on the person of the deceased:
(1) Incised wound 4|" x l*x j* on the left scapular region.
(2) Incised wound x 1" x in front of neck.
(3) Incised wound 3" x x just below injury No. 2.
(4) Incised wound 3J" x J" x in front of left shoulder cutting the head of humerus.
(5) Incised wound 3" x x f" on the upper part of left hand.
(6) Incised wound 2|" x "x on the lateral side and middle of left arm. There was fracture of left humerus.
(7) 13 gunshot wounds over the outer side of left arm aud left side spleen.
6. The first six injuries in the opinion of the doctor were caused by a hatchet and the last by a firearm such as the gun. Each of Nos. 2, 3 and 7 in the opinion of the doctor was individually sufficient in the ordinary course of nature to cause death. Four pellets removed from the body were handed over to the police in a sealed parcel.
7. Appellant Kalander Bux was arrested on the 5th of October 1969, and as the shirt and loin-cloth on his person were noticed to be blood-stained, these were secured under mushirnama Exb. 29 in the presence of mashirs Ali Nawaz, P. W. 5 and Sajan. He volunteered to produce the weapon of offence and led the police party and the mashirs to his house wherefrom he took out S. B. gun No. 1428, two cartridges and the licence of the gun in his name. These articles were also secured in the presence of the same mashirs under mushirnama Exh.
28. It may be mentioned here that the gun and the crime empty secured from the vardat were subsequently sent to the Ballistic Expert for examination and report, and according to the statement of Mukhtiar Ahmed, the Firearm Expert, P. W. 8., the crime empty was fired from the aforesaid gun.
8. Appellant Malikdino was also arrested the same day and he also volunteered to produce the weapon of offence used by him in the crime a'd accordingly took the police party as well as the mashirs to a room adjoining his house and produced a blood-stained hatchet which was secured under Exh. 31 in the presence of the same mashirs.
9. Appellant Walidad was arrested on the 7th of October 1970 and he also volunteered to produce hatchet which was however not blood-stained, and nothing need be said about it. Appellant A1 i Murad was arrested on the next day, the 8th of February 1970.
10. The clothes secured from the person of Kalander Bux and the hatchet produced by Malikdino were sent to the Chemical Analyser for the examination of the blood on them, His report, Exh. 35, revealed that both the articles were stained with human blood.
11. At the trial, the prosecution sought to prove the case from the ocular testimony of Shall Muhammad, P. W. 2, the husband of the deceased, and Ahmed Mahar, P. W. 3 a neighbour as supported by Jan Muhammad, P. W. 4, who reached the spot soon after the appellants made good their escape. As against Kalander Bux, there was additional circumstantial evidence as to the recoveries of the blood-sta;ned shirt and the loin cloth from his person as well as the licensed gun which was connected with the cirme empty secured from the vardat according to the Ballistic Expert, Mukhtiar Ahmed.
12. As against Malikdino appellant, the corroborative circumstance sought to be relied upon was the recovery of weapon of offence used by him in the crime, namely the blood-stained hatchet secured at his own instance in the presence of the same mashirs under mashirnama Exh. 31.
13. Giving the narration of the events leading to the death of his wife. P. W. Shaft Muhammad slated that he had gone with his wife and daughter Mst. Zarina at breakfast time to attend Khairat of Mehrab Mahar at a distance of two miles from his own village. After partaking the meal, he left his daughter Zarina with his another daughter in village Abad, and was returning to his village a little before sunset and while he was on the bank of the Chatti canal having practically covered half the distance, the four appellants suddenly emerged from behind swr-bushes. Appellant Kalander Bux had a gun while his three companions were armed with hatchets. Kalander Bux was the first to open the attack by firing the gun at his wife who was ahead of him by 10 paces, and after she fell down the other 3 appellants dealt hatchet blows on her. Her cries attracted Ahmed and Bahar who were on the other side of the canal, and they rushed to the scene sufficiently in time to witness the crime.
14. After the assailants left, his son-in-law Shaman and h's brother Jan Muhammad, P. W. 4 also reached the scene, and he thereafter went to the Bagerji Police Station to lodge the report. He admitted in cross-examination that his eye-sight is weak due to receipt of a blow on his head, and for this reason he cannot recognise a person at a distance of 10-11 paces. He had admitted before the committal Court that the faces of the assailants were muffled, and that he had first seen them at a distance of a furlong, and that Ahmed had come 10/15 minutes after the firing, and he had given him the names of the accused. He had further admitted that Bahar came half an hour after the firing.
15. In regard to the invitation to the Khairat, he had stated that his three brothers Gulzar, Ghulam and Idan also were invited. All these statements he denied when questioned in cross- examination, but were proved by production of the relevant extracts as Exhs. 9 to 14.
16. To a Court question, he admitted; "We have patched up. I have received Rs. 3,000."
17. P. W. Ahmed explained his presence near about the scene by saying that he had gone to Dodo Village to purchase a buffalo, and was returning at the relevant time along with one Bahar Chandio, and it was after he covered a call's distance that he saw Mst. Hidayat with her husband coming from the opposite side of the canal. When he was about 200 paces away, he heard a gun- shot report and saw the appellants, out of whom Kalander Bux was armed with a gun, while the rest had hatchets. He went on to say that Kalander Bux shot at Mst. Hidayat as a result of which she fell down, and the rest of the accused then dealt hatchet blows on her. He affirmed that Bahar had also witnessed the occurrence, and the cries raised by them attracted Jan Muhammad and Shaman P. Ws. to the scene, but by this time the culprits took to their heels and disappeared from the scene. In cross-examination he stated that he was also invited to the Khairat of Mehtab Mahar, and had partaken in meal there. He denied having stated before the Committal Court that he reached Dodo village when the sun was about to set; that it was dark when he reached the vardat, and further that the accused had gone away before he reached the spot. These admissions were, however, proved by the production of the relevant extracts Exhs. I6 to 18 in the Sessions Court. In his earlier statements he had also stated that there were no bushes or trees near the vardat, that the deceased Mst. Hidayat had made compromise with the accused on Holy Quran after she had given her daughter Mst. Sadori in marriage. These statements also were denied by him, but were proved by the production of extracts Exhs. 20 and 21.
18. The witness who was examined to corroborate the eyewitnesses was Jan Muhammad, cousin of Shamsuddin and the son-in-law of the deceased Mst. Hidayat. He stated that on hearing gunshot reports, while he was working in his land, he went running to the spot about two furlongs away, and found Mst. Hidayat lying dead. According to him, P. W. Shaft Muhammad was already at the place of occurrence, but P.
19. W. Ahmed was standing on the other side of the canal, and Bahar came afterwards. He disowned his statement in the lower Court that it was dark when the incident occurred, but he admitted that he was a witness in the abduction case filed by Mst. Hidayat against the appellant. In this connection, he further stated: "We have patched up at the instance of Ghous Bux. Shaft Muhammad had told me that his wife had patched up with the accused on Holy Quran. After this settlement, Mst. Hidayat and the accused continued to live in Dodo village."
20. He further admitted that he had also attended the charitable meal that day likewise the deceased, and several other persons, and that he had come that day from Dodo village.
21. The learned counsel for the appellant, vehemently contended that the prosecution witnesses Shaft Muhammad and Ahmed are unreliable persons for the glaring admissions made by them during the committal Inquiry, which are fatal to the prosecution case. He pointed out that Shaft Muhammad to a Court question had admitted that he had patched up on receiving Rs. 3,000, and in the lower Court he had admitted that the faces of the assailants were muffled, which statement he falsely denied at the trial in the Sessions Court. Shaft Muhammad had also admitted in the statement during the committal inquiry that Ahmed came 10-15 minutes after the firing, and that it was he who had given the names of the culpi its to him, and that Bahar came half an hour after the firing. He also admitted that his eye-sight is weak and he cannot recognise a person from 10-15 paces, and the accused were a furlong away, and his wife was 10 paces ahead of him. The learned counsel for the appellants further urged that it also cannot be said with certainty as claimed by Shaft Muhammad that he was in the company of his wife on return from the Khairat of Mehrab Mahar, as on his own admission his three brothers were also invited to the Khairat, and it may well be that his wife was returning with one of his brothers.
22. P. W. Shaft Muhammad is the type of person who admittedly patched up with the accused whom he had implicated on a serious charge of murder, on the receipt of Rs. 3,000, and he gave a go-bye to the version of the incident given by him in the First Information Repot. He is, therefore, a totally worthless witness on whose testimony the guilt of a serious charge of murder, cannot be founded, lt is quite apparent that he has no sanctity of the oath he took before he gave his statement during the committal proceedings and/or at the trial. It cannot be said with certainty whether his earlier statement is true or the latter one. The same is true also of Ahmed, P. W. 3, who according to his own version in the committal Court, came to the vardat after the accused had gone away, and be reached the vardat when it was dark. At the trial, he disowned these statements and claimed to have witnessed the occurrence. He is, therefore, not a person on whom reliance can be placed for upholding the serious charge of murder.
23. This being the state of the ocular testimony, what remains of the prosecution case are the circumstantial pieces of evidence led against Kalander Bux and Malikdino. In the case of the latter, the only thing said is the recovery of the blood-stained hatchet at his pointation after his arrest.
24. This circumstance by itself would not be sufficient for the guilt to be founded, but apart from that it is very unreliable as the mashir Ali Nawaz, P. W. 5, during the committal Inquiry admitted the blood- stained earth and the empty cartridge were sealed at the Police Station, and not at the vardat.
25. According to him, he had seen these articles in the hands of the Subedar.
26. Another aspect of the case which would go to minimise the authenticity of the circumstantial evidence is that no explanation has comefrom the prosecutionas to the delay in the despatch of the articlesfrom the Police Station to the Examiner of Fire-arms. No attempt was made to explain what happened to the sealed parcel containing the incriminating articles from 5th October to 15th October 1969, the day when these were despatched to the Chemical Analyser. According to the record the articles were sent by the Superintendent of Police to the Fire-arm Expert under letter No. 6503-4 dated 15th October 1969, but these were not received by the Expert until the 9th of February 1970, while the reply letter sent by him on the 20th of November 1970, was received by the Superintendent of Police on the 23rd November 1970. We may usefully refer to the case of Allahando v. The State (1), in which their Lorships of the Supreme Court observed at page 720: "The only other circumstantial evidence said to be corroborating the evidence of the eye- witnesses is the report of the Ballistic Expert. The police sent to the Ballistic Expert the appellant's D.
27. B. Gun and the 6 empty cartridges secured from the place of occurrence. These were sent to the Ballistic Expert in two separate sealed parcels. After test, the Ballistic Expert found that one of the crime empties matched with the appellant's gun. The evidence of the Ballistic Expert (P. W. 11) was taken by both the trial Court and the High Court to be a circumstantial evidence strong enough to prove the guilt of the appellant for the murder of Qutubuddin deceased. The empty cartridges were secured and sealed in a parcel on the 19th January 1966. The appellant's gun was seized and sealed in other parcel on the 28th January 1966. These two parcels, according to the evidence of the Ballistic Expert, were received by him as late as the 12th May 1966. No explanation was coming from the side of the prosecution as to why these parcels were sent about four months after the empty cartridges had been secured from the place of occurrence. Nor is there any explanation as to the place where and the manner in which those two parcels were kept during this long period. In these
(1) L969 SCMR 714 [VoL. V circumstances, the evidence of the Ballistic Expert that one of the empties matched with the appellant's gun, cannot be taken to be so strong a piece of evidence as to warrant the conviction of the appellant. When the evidence of the eye-witnesses were rightly discarded by the trial Court on cogent reasons and when there is no explanation rfs to why the parcels were detained for such a long period, it would be unsafe to base the conviction only on the evidence of the Ballistic Expert.
28. We, therefore, think that the charge of murder against the appellant has not been established in this case."
29. In the present case, the empty cartridges were allegedly secured and sealed on the 4th October 1969, and the gun was secured on the next date, but the prosecution has not stated what transpired thereafter until the Expert received the articles on the 9th February 1970.
30. For these reasons, we cannot uphold the guilt of the appellants on the type of evidence produced by the prosecution. We, therefore, set aside the convictions and sentences imposed upon them, and allow this appeal. The appellants shall be set at liberty forthwith unless required in any other case. .