' SAJJAD ALI SHAH, J.--This appeal is filed against the impugned judgment dated 15-7-1984 of learned Ilnd Additional Sessions Judge, Hyderabad, whereby appellant has been convicted for offence under section 302, P.P.C. And is sentenced to death and is further directed to pay compensation of Rs, 5,000 to the legal heirs of deceased. There is also reference before us under section 374, Cr. P.C. For confirmation of death sentence and we propose to dispose of both the appeal and reference by this single judgment. There is connected appeal filed by the same appellant against his conviction and sentence for offence under section 13-D of the Arms Ordinance, which we propose to dispose of separately as the impugned judgment therein has been written by the trial Court separately.
2. Briefly stated the relevant facts are that according to the case of the prosecution on 21-5-1980 at 5-30 p.m. Appellant Talib Rahu fired a shot from country-made pistol at Shahmir aged about 60 years in front of the shop of Hamid Lakho in town Saeedabad taluka Hala. Shahmir became injured and incident was seen by three eye-witnesses, who were in the company of Shahmir. Appellant ran away after firing the shot and injured Shahmir was taken to Rural Health Centre New Saeedabad and because his condition was serious he was sent to L.M.C. Hospital, Hyderabad. On the same day say injured succumbed to his injuries and the dead body was brought back to Rural Health Centre, Saeedabad. F.I.R. Was registered at Police Station, Saeedabad at 6-45 p.m. It is further the case of the prosecution that after registration of F.I.R. Appellant voluntarily appeared and surrendered at the Police Station and produced crime weapon and five live cartridges, which were secured and appellant was taken in custody. Scene of offence was inspected and a crime empty was recovered therefrom. Motive is stated to be the fact that about six years prior to the incident, Daim and Khan Muhammad (maternal and paternal-uncles of appellant respectively) were murdered due to dispute over the agricultural land and in that case Shahmir deceased and three eye-witnesses in the instant case were accused persons. There was a counter-cas9 also and in both the cases about ten days prior to the incident of this case, both parties were acquitted.
3. Before the trial Court prosecution examined ten witnesses in support of its case. Ocular testimony is furnished by the three eye-witnesses namely P.W.1 Hussain Bux complainant, P.W.2 Khamiso and P.W.3 Raboo. P.W.4 Khamiso son of Allah Obhayo is Tapedar who has prepared and produced sketch of scene of offence Exh.
11. P.W.5 Hafiz All Muhammad and P.W.6 Amir Bux are Mashirs who have produced Mashirnamas Exhs. 13, 14, 15, 17 to 20 P.W.7 Nihal Khan, Constable is Corpse-bearer. P.W.9 is Doctor Muhammad Saeed who has performed post-mortem examination while P.W.8 Khan Muhammad A.S.I. And P.W.10 Abdullah, S.H.O. Have investigated the case. Prosecution has produced report of Chemical Examiner Exh. 26, according to which clothes of deceased were found to be stained with human blood. Prosecution has also produced report from Forensic Science Laboratory Exh. 27, according to which crime empty was found to have been fired from the crime weapon. Appellant in his 342, Cr.P.C. Statement denied prosecution allegations and stated that he was arrested from Saeedabad and involved falsely in this case. He has not examined any witness in defence.
4. We have heard at length Mr. Muhammad Hayat Junejo, counsel for the appellant, Mr. Agha Ghulam Ali for A.-G. For State and Mr. Azizullah K. Shaikh, counsel for the complainant.
First we take up ocular testimony, which is furnished by three eye-witnesses. P.W.1 Hussain Bux, complainant is son of deceased. P.W.2 Khamiso is related to the deceased, which relationship is admitted by complainant Hussain Bux as well as Khamiso himself. P.W.3 Raboo is also stated to be related to the deceased but Raboo himself has denied the relationship and stated before the trial Court that he is cousin of appellant. Notwithstanding that P.W. Khamiso has admitted in his evidence before the trial Court that P.W. Raboo is related to him. Raboo has admitted to be the caste-fellow of complainant and deceased. One other important aspect of ocular evidence is that these three eye-witnesses in the instant case were accused persons in previous double murder case in which two uncles of appellant were murdered and the case ended with acquittal and this fact is cited by the prosecution as motive in the instant case. This fact is admitted by the eye- witnesses that they were accused persons in the previous double murder case and were acquitted about ten days prior to the incident in the instant case. Another important fact is that incident has taken place in the Bazar of Saeedabad which is 3 or 34 miles away from the village of deceased.
Complainant and deceased lived in village Haji Sujawal Rahu while the other two eye-witnesses namely Khamiso and Raboo lived in village Lutuf Rahu. Both these villages are near each other.
6. For the reasons stated above, evidence of these three eye-witnesses is to be analysed with great care and caution and we would like to be satisfied first whether these three eye-witnesses wereC really present at the spot and saw the incident as it is claimed by them. In this context complainant deposed before the trial Court that on the day of incident he, his father Shahmir deceased and P.Ws. Khamiso and Raboo had come together to Saeedabad in connection with their private works and reached Saeedabad at about 9-00 a.m. His father Shahmir from Saeedabad went away to Hyderabad in connection with his work and directed them to wait for him and he came back at 5- 00 p.m. All these three witnesses were waiting for Shahmir at Saeedabad bus-stop. At 5-00 p.m.
Shahmir came back and all of them proceeded together. It would be pertinent to point out here that in F.I.R. Complainant has stated that in evening time, he, his father and his relatives namely Khamiso and Raboo went to Saeedabad, where incident took place. No mention is made in F.I.R.
About going together to Saeedabad in the morning at 9-00 a.m. And going of deceased from Saeedabad to Hyderabad and his return in the evening. Likewise P.W.2 Khamiso also deposed before the trial Court that deceased and the eye-witnesses including him came to Saeedabad at 9-00 a.m. And then deceased Shahmir went away to Hyderabad. Deceased returned at 5-00 p.m.
And till then they were all together at Saeedabad waiting at bus-stand. In cross-examination this witness Khamiso gave a new turn to the story and stated that he and P.W. Raboo met complainant and deceased Shahmir in Aghrow Rahu Village, which was at a distance of 3-4 miles away from Saeedabad. Not only this but this witness further stated that when deceased Shahmir left for Hyderabad, complainant Hussain Bux also left them and he and P.W. Raboo were together. It is strikingly clear that other eye-witnesses have not spoken about the meeting point in village Aghrow Rahu and departure of complainant in Saeedabad leaving P.Ws. Khamiso and Raboo together. P.W. Khamiso in his cross-examination was confronted with his 161, Cr.P.C. StatementE wherein he had not stated about coming to Saeedabad in the morning and going of deceased to Hyderabad. P.W.3 Raboo has deposed before the trial Court that he, complainant, deceased and P.W. Khamiso came to Saeedabad at 9-00 a.m. On the day of incident and deceased went away to Hyderabad and they waited till 5-00 p.m. When deceased came back in the bus from Hyderabad and all of them proceeded together to Bazar where incident took place. This witness is insistent that during the absence of deceased, he and other witnesses were together and were present at bus-stand when deceased came back from Hyderabad at 5-00 p.m. This witness in his cross- examination was confronted with his 161, Cr.P.C. Statement in which he has not mentioned the fact about their coming together to Saeedabad at 9-00 a.m. And going away deceased to Hyderabad and his return to Saeedabad at 5-00 p.m. In according to F.I.R. And police statements of the eye- witnesses, ' they and deceased came together Saeedabad in the evening on the day of incident.
6. While other eye-witnesses are quite about what they did from 9-00 a.m. Till 5-00 p.m. In Saeedabad while deceased had gone away to Hyderabad, only P.W.3 Raboo has stated that he had purchased Rice, Gur and Tea besides Ghee from Saeedabad. He further stated that P.W.
Khamiso also purchased some household articles and they left their articles in the shop of one Mehrab Rind. This witness Raboo further reiterated in cross-examination in the same context stated above that he, P.W. Khamiso and complainant Hussain Bux were together till deceased Shahmir came back from Hyderabad Prosecution has not examined shopkeeper Mehrab Rind to confirm the fact whether assertion made by P.W. Raboo as stated above was true or not? Other eye- witnesses have not stated anything about such purchases and leaving of those articles in the shop of Mehrab Rind.
7. From what is stated above, it is clear that eye-witnesses have not given satisfactory account to show their presence at the spot at the relevant time. Now we go to the facts of the incident as stated by G them. All these three eye-witnesses stated in their evidence before the trial Court consistently that at 5-00 p.m. Deceased returned from Hyderabad and they met him at Saeedabad bus-stand and thereafter deceased told them to accompany him to the Bazar. On the way deceased went to offer Tipaari prayer in the mosque and when he came back eye-witnesses were drinking "Sharbat" near the store of Hamid Lakho. Deceased did not join them in taking Sharbat and he went ahead and suddenly appellant appeared from opposite direction, abused the deceased and took out pistol from the fold of his Shalwar and fired it at Shahmir who was hit on the left side of his abdomen. Shahmir after being injured put his hand on the wound and sat down.
Witnesses raised alarm on which appellant threw empty cartridge and re-loaded the pistol and threatened the witnesses not to advance. Appellant then ran away. This is consistent version of eye-witnesses in their examination-in-chief before the trial Court. In the cross-examination complainant was confronted with F.I.R. And the other eye-witnesses with their 161, Cr.P.C.
Statements in which they have not stated a word about meeting deceased at Saeedabad bus- stand, taking of Sharbat, unloading of pistol and re-loading of pistol to threaten the witnesses. On the other hand H version given in F.I.R. And in 161, Cr.P.C. Statements of witnesses is that deceased came out from the mosque after offering prayers and near the store of Hamid Lakho appellant came in front of deceased, abused him, took out pistol from the fold of his Shalwar and fired a shot which hit the deceased, who cried and fell down. Witnesses raised alarm on which appellant ran away with his pistol. There are two clear cut improvements made in the story of prosecution by the eye-witnesses in the trial Court. One is that when the Investigating Officer came to the spot, he did not find blood stains on the scene of offence. Such fact is mentioned in the Mashirnama of scene of offence. No blood was recovered from the spot. In the Mashirnama of scene of offence Exh.19 it is stated that Wardat was situated in front of general store of Hamid K Lakho in Saeedabad on the east of National Highway, which was motorable and there were no footprints visible neither blood was present on the Vardat. After discovery of this fact the eye-witnesses changed their version in the trial Court and stated that injured Shahmir after being hit in the abdomen, put his hand on the wound and sat down. Attempt was made to give indication that in this manner blood was prevented from falling on the ground. This was done to explain the non-availability of blood stains on the spot. Version given earlier in F.I.R. And 161, Cr.P.C. Statements of eye-witnesses was that Shahmir after receiving injury in the abdomen cried and fell down. It is beyond dispute that injury was soft part like abdomen, which would bleed profusely, particularly when injury is caused by the fire-arm. In this context P.W.9 Doctor Muhammad Saeed has deposed before the trial Court that he performed post-mortem examination on the dead body and deceased was wearing a white shirt which was punctured at the side of the external injury No,1 and was blackish and was blood- stained, while Banyan was in the same condition and white Shalwar which was also blood-stained.
Doctor further on external examination found the following injuries:--
(1) A lacerated punctured entry wound about 2 c.m. x 2 c.m. Over abdomen about 8 c.m. Above umblicus (Blackening around wound).
(2) Three exit wounds measuring 1 c.m. x 1/2 c.m. Over right side of abdomen.
8. In the opinion of the doctor from external and internal examination the death was due to shock and haemorrhage as a result of fire-arm injury which was sufficient in the ordinary course of nature to cause death. It is obvious from the evidence of the Doctor that deceased must have bled from the injury on the abdomen. Clothes of deceased were found to be blood-stained. Furthermore doctor has testified before the trial Court that when injured was brought to the Health Centre for the first time, he was unconscious and his pulse was not traceable and the blood pressure was unrecordable. He gave him emergency treatment and referred him to L.M.C. Hospital, Hyderabad but after a shot while patient was brought back dead as he had died on the way. Additionally there is Mashirnama of production of clothes of deceased Exh.20 on the record, which shows that clothes were blood-stained. There is report of Chemical Examiner Exh.26 on the record which shows that white shirt, white Sadri and white Shalwar, which are clothes of deceased, were found to be stained with human blood. This fact clearly shows that sufficient blood had oozed from injury by fire-arm on tender part like abdomen, in result of which clothes of deceased became soild with blood and blood must have fallen on the ground as well. In such circumstances it is surprising why blood was not found at the scene of offence. Scene of offence was hard metal road and it was possible that blood could not have been collected or scratched to be sent to the Laboratory but blood spots could be found. Investigating Officer has categorically stated that there was no blood at the spot.
Mashirnama of scene of offence Exh.19 positively states that there was no blood on the Vardat.
Complainant Hussain Bux who is an eye-witness, claims to have shown scene of offence to the Investigating Officer. He has further deposed before the trial Court that fifteen minutes after the incident Suzuki Van arrived at the spot and till that time Shahmir was sitting at the spot holding his wound on the abdomen and he did not see Shahmir bleeding from his wound. So much stress was put on this fact by the complainant and the other eye-witnesses to bring their version of incident in conformity with the fact that subsequently the Investigating Officer did not find blood on the Vardat. Certainly this is an improvement because otherwise the complainant and the eye- witnesses in F.I.R. And police statements have stated that deceased Shahmir on receipt of fire-arm injury on the abdomen cried and fell down. The fact that injured was bleeding is mentioned in F.I.R.
In the circumstances stated above inference is unavoidable that it may be that incident did not take place at the spot alleged by the eye-witnesses. Reliance is placed on the case of Nawaz Ali and another v. The State 1981 SCMR 132 with relevant portion in the last paragraph of page 134.
9 There are many other inherent infirmities in ocular evidence which support the inference that the eye-witnesses have not seen the incident. First of all P.W.1 Hussain Bux complainant who is son of deceased has openly contradicted and falsified the other two eye-witnesses by making a categorical claim in his deposition before the trial Court that after the incident injured Shahmir was conscious and in his senses and when he was brought to Saeedabad Hospital Incharge Doctor informed the police and the police arrived at the hospital and recorded statement of Shahmir.
Further Shahmir insisted that his F.I.R. Be recorded but his F.I.R. Was not recorded and instead he was given a letter by police to get him treated in L.M.C. Hospital, Hyderabad. He was taken to the hospital and on the way he died. Deposition of complainant in the trial Court clearly shows that there was dying declaration given by deceased Shahmir at the Saeedabad Hospital while he was still alive. This fact is not supported by the other two eye-witnesses and further is denied by P.W.8 Khan Muhammad, A.S.I. Who has deposed before the trial Court that alongwith Constable Nihal Khan he went to Saeedabad Hospital and saw injured Shahmir lying unconscious. He has further categorically stated that he did not record the statement of Shahmir because injured was unconscious. P.W.9 Doctor Muhammad Saeed has very clearly stated in his evidence as stated above that injured Shahmir was unconscious when he was brough to Saeedabad Hospital. It is not known why complainant made such assertion, which has caused damage to the prosecution case.
One inference available is that this is so done when the crime is not witnessed and attempt is made to ascertain facts from the injured himself.
10 If the prosecution story was true that incident was seen by these three eye-witnesses, who were examined in the trial Court, then why F.I.R. Was not lodged promptly at Police Station at Saeedabad which was only furlong away from the scene of offence. In this context eye-witness P.W.2 Khamiso has deposed before the trial Court that if one goes from stores of Hamid Lakho towards hospital police station comes first. Now if complainant who is son of deceased, was anxious to rush his injured father to the hospital after the incident to save his life, then one of the two eye-witnesses could easily have run up to the police station, or on the way while taking injured Shahmir in Suzuki Van to the hospital, one of the other two eye-witnesses could have got down to report at the police station which fell on the way at such short distance of one furlong. It is not understandable why all the three eye-witnesses should accompany injured to the hospital and none of them thought of reporting the matter to the police promptly immediately after the incident. Incident took place at 5-30 p.m. And report was lodged at Police Station Saeedabad at 6-45 p.m. After a delay of one hour and fifteen minutes when the distance between the spot and police station is hardly one furlong. Instead of giving satisfactory explanation for this delay complainant Hussain Bux stated before the trial Court that his father Shahmir was in senses in the hospital and statement of Shahmir was recorded. Not only that but injured Shahmir insisted that F.I.R. Be registered as dictated by him but this was not done. At another place in the cross-examination complainant stated before the trial Court that after the incident he sent for Suzuki which came to the spot after fifteen minutes. There is no explanation why in the meantime one of the three eye-witnesses did not run up to the police station at a distance of one furlong to have F.I.R. Registered. This was easily possible if these three eye-witnesses were really present at the spot and saw the incident as claimed by them. Complainant has not explained the delay in filing of F.I.R. On the contrary complainant has thrown doubt on the truthfulness of the prosecution story.
11. Another reason, why we feel that eye-witnesses were not likely to be present at the spot is that according to the prosecution case the motive was that two uncles of appellant were murdered sometime back in which deceased in the instant case was accused. There was a counter-case also and in both the cases about 8-10 days before the incident both parties were acquitted. In these circumstances appellant was motivated against deceased Shahmir who was acquitted in the murder case. Now if this was so then all the three eye-witnesses, who claim to be present at the spot at the time of incident were admittedly accused persons in the double murder case in which two uncles of appellant were done to death. According to the prosecution case appellant was armed with pistol and had produced at police station pistol and five live cartridges. If appellant could kill Shahmir with one shot and he had available with him live cartridges, he could have killed the three eye-witnesses also who claimed to be present at the spot. If appellant was motivated against deceased because deceased was accused in the previous murder case of his uncles and was acquitted, then the same motivation could equally apply against the eye-witnesses as well.
The fact cannot lost sight of that according to the prosecution after firing a shot at deceased Shahmir, appellant unloaded the pistol, threw empty cartridge at the spot and re-loaded the pistol to threaten the eye-witnesses. We do not see any reason which could prevent appellant from firing further shots at the eye-witnesses, against whom appellant can be said to be motivated in the same way as he was alleged to be motivated against the appellant.
12. From the evidence of three eye-witnesses recorded in the trial Court, it clearly appears that after the incident they took injured Shahmir in Suzuki Van to Saeedabad Hospital, where doctor gave a letter for admission of injured Shahmir in L.M.C. Hospital, Hyderabad. On the way injured Shahmir died. Further all the three eye-witnesses claimed to be present all alongwith the dead body. Now if the eye-witnesses were really present alongwith dead body all the times as it is claimed, then their names or name of one of them would have appeared in the inquest report Exh.15 and post- mortem report Exh.241 in the column of persons who had identified the dead body. Inquest report shows that dead body was identified by Roshan son of deceased. In the post-mortem report it is stated that dead body was identified by Muhammad Khan son of Haji Sujawal. This falsifies the claim of eye-witnesses that right from the incident they were present all along till he died and further till the burial. Complainant Hussain Bux has stated in his evidence before the trial Court that he and other eye-witnesses removed the dead body from police station after half an hour after lodging the F.I.R. And took it to hospital. He and P.Ws. Khamiso and Raboo had brought the dead body to the hospital. P.W.2 Khamiso has stated in his evidence before the trial Court that after the incident he and the other two eye-witnesses took injured in Suzuki Van to Saeedabad Hospital where doctor advised them to take away injured to L.M.C. Hospital at Hyderabad. In the meantime one Police Constable and Subedar also arrived there. On the advice of doctor this witness and P.Ws. Hussain Bux and Raboo removed Shahmir to L.M.C. Hospital at Hyderabad but on the way Shahmir died. They came back to the Saeedabad Police Station where complainant Hussain Bux lodged the F.I.R. Thereafter police sent the dead body to Saeedabad Hospital for post-mortem examination. This witness in cross-examination has not said anything further on this point. P.W.3 Raboo has stated before the trial Court that after F.I.R. Was lodged at police station and their police statements were recorded he, P.Ws. Khamiso and complainant Hussain Bux went together to the hospital alongwith dead body. From hospital they straightaway went to their villages. He did not know if police had gone to Vardat as all the three eye-witnesses had taken away the dead body to their village. If this was true and there was nobody else alongwith dead body excepting these three eye-witnesses at the time of inquest report and post-mortem report, then their names should have appeared in these reports as persons who had identified the dead body.
13. Another important aspect of the prosecution case is that incident took place in the Bazar at 5- 30 p.m. In broad daylight, still no witness from that area has been examined. It is true that independent witnesses are not inclined to come forward and depose as eye-witness in the murder case of other persons particularly when there is background of enmity between the parties but then attempt should have been made by the Investigating Officer to get hold of such evidence and if it was not available then to get hold of some such evidence, which confirms the presence of alleged eye-witnesses on the spot. Such attempt must be made and it must be reflected in the evidence. In the instant case eye-witnesses have described in great detail that deceased returned from Hyderabad and they were waiting for him in Saeedabad and then deceased went to mosque to offer prayers and the witnesses were drinking Sharbat near the store of Hamid Lakho. In this context P.W.1 Hussain Bux complainant has stated that he learnt subsequently at Vardat that the name of owner of store was Hamid Lakho. He knew the name of person from whom eye-witnesses had taken Sharbat but he did not remember that name at the time of his evidence in the trial Court. There were many shops adjoining and opposite the General Store of Hamid Lakho. Wardat was situated on the National Highway in the Bazar. Bus-stand where the witnesses were waiting for deceased Shahmir was one survey number away from the Wardat. In this connection P.W.2 Khamiso deposed before the trial Court that after the incident about 30 to 35 passersby had collected at the Vardat. They were not known to him. At the time of incident he had seen Hamid Lakho. He knew one Abdul Razak, owner of General Store. He also knew Mumtaz son of Ismail who had a cycle shop adjacent to the store of Abdul Razak. He knew Sulleman Machhi who had a shop near the store of Hamid Lakho. He knew tailoring shop of Poonhoon son of Adam which was adjacent to the shop of Hamid Lakho. This witness further stated in his deposition that all the shopkeepers whose names he had mentioned earlier were present at the police station when they reached there. P.W.3 Raboo has deposed before the trial Court that the mosque where deceased had gone to offer prayers was 80-90 feet away from the General Store of Hamid Lakho. There were Banks, Hotels and Shops adjoining and opposite mosque. Many persons had come out from the mosque when deceased Shahmir was attacked. He did not identify persons who had collected at the Wardat. Further in the evidence of P.W.4 Khamiso son of Allah Obhayo, Tapedar there is graphic description. Of all these shops mentioned by the eye-witnesses in the sketch Exh.11. What we mean to say is that if nobody was prepared to come forward as eye-witness some evidence could have been produced to confirm the presence of eye-witnesses at the spot. For example Sharbatwala or driver of Suzuki Van in which injured was carried to the hospital could have been examined just to confirm the presence of eye-witnesses at the spot at the relevant time. Hamid Lakho or some persons from the shops could have been examined who could have confirmed the presence of the eye-witnesses at the spot. P.W.10 Abdullah S.H.O., who has investigated the case has deposed before the trial Court that during the investigation on 21-5-1980 he examined P.Ws. Hamid Lakho, Abdul Rafique, Mumtaz, Muhammad Yousuf and Punno. We wonder why none of them was examined in the Court as witness. From the non-examination of such witnesses, it can be presumed that had they been examined they would have not supported the prosecution case. In this context reference can be made to the evidence of PW..7 Nihal Khan, Constable. He has deposed that on 21-5-1980 he accompanied A.S.I. Khan Muhammad to Saeedabad Hospital, after having received information for M.O. Saeedabad the arrival of injured Shahmir in the hospital.
Injured was lying unconscious and was directed to be referred to L.M.C. Hospital, Hyderabad. This witness has further deposed that they (he and A.S.I. Khan Muhammad) took the injured to L.M.C.
Hospital at Hyderabad but injured died on the way as such they brought the dead body back to Saeedabad Hospital. A.S.I. Khan Muhammad handed over the dead body to him for the purpose of post-mortem examination. After getting the post-mortem conducted he handed over the dead body to the heirs of deceased and clothes of deceased to S.H.O. At Police Station Saeedabad. In the cross-examination this witness has stated that a telephonic message was received at police station at 6-05 p.m. Hafiz Ali Muhammad and Rasool Bux had accompanied him in Suzuki Van to L.M.C. Hospital, Hyderabad. If this witness is believed then he does not speak about the presence of complainant and other eye-witnesses with injured at Saeedabad Hospital or while going to L.M.C.
Hospital alongwith injured in Suzuki Van. All these discrepancies and improbabilities mentioned above reflect badly upon the credibility of the eye-witnesses. There are material contradictions as stated above in the evidence of eye-witnesses themselves and Police Officers. Ocular account of eye-witnesses is most unsatisfactory and we are not satisfied that these eye-witnesses were really present at the spot. There is no other material available in the record to confirm their presence at the spot. We are not inclined to rely upon the evidence of these eye-witnesses.
14. Prosecution case is not clear as to when the police was informed about the incident.
Complainant Hussain Bux has deposed before the trial Court in his cross-examination that one Police Constable had reached the place of Wardat after the incident and he disclosed that he was sent by the S.H.O. This fact is not further clarified by the complainant. On the other hand it appears from the evidence of complainant as well as other eye-witnesses that injured Shahmir was first taken to Saeedabad Hospital, where A.S.I. Khan Muhammad and Constable Nihal Khan came and then injured Shahmir was sent to L.M.C. Hospital, Hyderabad as his condition was serious. Shahmir died on the way and the dead body was first brought to plice station where F.I.R. Was lodged and then sent again to Saeedabad Hospital for post-mortem examination. P.W.8 Khan Muhammad A.S.I. Has deposed before the trial Court that on the day of incident at the relevant time he was posted as A.S.I. At Police Station, Saeedabad and at about 6-00 p.m. He was told by S.H.O. About his having received a telephonic message from M.O. Saeedabad regarding arrival of an injured in the hospital. He was directed by the S.H.O. To go to the hospital. Accordingly he took Constable Nihal Khan with him and came to Saeedabad Hospital where he saw injured Shamir lying unconscious.
He prepared Mashirnama of injuries and then on the advice of doctor injured was sent to L.M.C.
Hospital as his condition was serious. This witness has further deposed that while he was still in the hospital after about twenty minutes the dead body was brought back as the injured had died on the way. This Investigating Officer has contradicted the eye-witnesses who have claimed that when on the way injured Shahmir died they took the dead body to Police Station Saeedabad where F.I.R. Was registered and then the dead body was sent to Saeedabad Hospital for post-mortem examination. This witness has further stated in his cross-examination before the trial Court that on the day of incident before he left for hospital, non F.I.R. Of this incident was lodged. Further no relative of deceased was present in the hospital at that time when he arrived there nor he made any enquiry in connection with the incident. As against this P.W.9 doctor Muhammad Saeed has deposed before the trial Court that on 21-5-1980 S.H.O. Police Station New Saeedabad referred to him injured Shahmir for examination, treatment and for certificate. He gave him emergency treatment and referred him to L.M.C. Hospital, Hyderabad for further treatment. After a short time patient was brought back as he had died on the way to L.M.C. Hospital. Dead body was handed over to him by Police Constable Nihal Khan of Police Station New Saeedabad alongwith letter for conducting the post-mortem examination. Doctor has further stated in the cross-examination that he did not remember whether any Police Officer was with the complainant party when for the first time injured was brought to the hospital. He did not remember if he had communicated any information to the police in this respect. The persons who brought the injured and the police did not disclose to him the kind of weapon used in the crime. P.W.10 Abdullah, S.H.O., has deposed before the trial Court that on 25-5-1980 he was posted as S.H.O. Police Station, Saeedabad and at 6-05 p.m. He received a message on telephone from M.O. Rural Hospital Saeedabad to the effect that he had received one injured who .Has fire-arm injuries on his person. This witness further deposed that he made such entry in the daily diary and deputed A.S.I. Khan Muhammad to go and record statement of the injured. At about 6-45 p.m. Complainant Hussain Bux came to police station and lodged the F.I.R. Against Talib Rahu. He registered the F.I.R. He then went with complainant and Mashirs to the scene of offence. He called P.Ws. Raboo and Khamiso at the Wardat and examined them. From there he went to the hospital on the same day where A.S.I. Khan Muhammad handed over to him the police papers in respect of deceased Shahmir. S.H.O. Further deposed in his cross- examination that complainant had not brought his witnesses with him at the time of lodging of F.I.R.
At another place in the cross-examination S.H.O. Explained that except telephonic message and arrival of complainant at police station he had no other source of information about the incident.
From the evidence of this witness it appears the complainant had not brought the dead body to the police station and the eye-witnesses Raboo and Khamiso had not come to the police station.
15. The case of prosecution is that appellant himself appeared at police station and surrendered.
He produced crime weapon, which is a country-made pistol and five live cartridges. Prosecution has produced Mashirnama of arrest Exh.17 which is attested by Mashirs Amir Bux son of Sahib Jurio and Bilawal son of Punhoon. Both are Rahu by caste. Bilawal is resident of Lutuf Rahu which is the village of complainant. Out of them prosecution has examined Amir Bux as P.W.6. He has produced Mashirnama of arrest Exh.17 in which there is admission of guilt by the appellant before the police officer and to that extent the Mashirnama will not be admissible in evidence. He has also produced sketch of pistol Exh.18, Mashirnama of scene of offence Exh.19 and Mashirnama of production of clothes of deceased Exh.20. Evidence of this Mashir 'does not inspire confidence. He resided at three or four miles from Saeedabad and according to his evidence he came to Saeedabad police station at 6-30 p.m. With some private work. That private work he disclosed later that he wanted to lodge a report at the police station in respect of theft of a cow. He has further admitted in his cross examination that after he informed S.H.O. As to why he had come to olice station, S.H.O. Told him that first he should sign all the documents and then his F.1.R. Would be recorded. This witness has further tated in his evidence before the trial Court that complainant Hussain Bux came to the police station after his arrival there. Appellant also came to the police station after his arrival. In such circumstances what documents this witness was asked by S.H.O. To sign is not understandable.
Investigation in this case had not begun as the complainant had not arrived at the police station and F.I.R. Was not registered. Again this witness before the trial Court said in the same breath that appellant had arrived at the police station prior to the arrival of the complainant. He has further stated that he did not see any dead body or any private person at the police station. Police had repared Mashirnama of arrest at 7-00 p.m. Complainant was accompanied by one person and that other person was Bilawal. His name was not known to him previously. Name of complainant was disclosed to this witness by writer Head Constable. He learnt the name of Bilawal from Mashirnama which was prepared by police in respect of securing pistol from the appellant. It is surprising that when according to this witness ppellant came first and surrendered crime weapon and subsequently complainant came and lodged F.I.R. Then how Mashirnama of arrest is shown to have been prepared at 7-00 p.m. And F.I.R. Is shown to have been registered at 6-45 p.m. In Mashirnama of arrest Exh.17 crime No,20/80 under section 302, P.P.C. Is given. This witness appears to be stock witness of police who readily obliged the police but subsequently seemed to have been won over by the defence because the as made several concessions in order to confuse the whole story. This witness before the trial Court stated in his examination-in-chief that once did not secure anything from the Wardat but subsequently corrected himself and stated the police had secured an empty cartridge from the Wardat. In the cross-examination he stated that sun was about to set when they reached Wardat and except Hamid Lakho the store keeper he did not find any person on his arrival at the Wardat they were at the Wardat for about 45 minutes and during this time police did not call any person nor anyone came there. This assertion falsifies I.O. Who claims that complainant pointed out and he called eye-witnesses Khamiso and Raboo at the spot and recorded their police statements. This witness has also stated in his evidence before the trial Court that before his arrival at the police station clothes of deceased were already lying at the police station. This again is a false statement because according to his own version first this witness came to the police station and then came the appellant and thereafter the complainant. Clothes of deceased could be taken out at the time of post-mortem examination. According to the post- mortem examination report Exh.24 post-mortem started at 7-00 p.m. And finished at 8-00 p.m.
Clothes of deceased were brought by Police Constable Nihal Khan. F.I.R. Was recorded at 6-45 p.m.
And Mashirnama of arrest of appellant was prepared at 7-00 p.m. How could clothes of deceased be available at police station before the arrival of this witness at the police station. This witness obviously has no sanctity or respect for the truth. In any case we doubt very much the presence of crime empty at the spot. Complainant has not mentioned it in F.I.R. And the other eye-witnesses have not mentioned it in their police statements. Mr. Muhammad Hayat Junejo argued that scene of offence was situated on the National Highway in the middle of the Bazar on which there was traffic of vehicles and rush of people. If crime empty was at the spot as alleged by the prosecution then till the arrival of police at the spot and recovery of crime empty, it could have been easily trampled over by the pedestrians under their foot or kicked away. We saw the crime empty in the case property in the Court and found that it was in the same round shape and intact. We feel inclined to agree with Mr. Hayat that if this crime empty was lying at the spot at the time of incident, it would have been damaged by being trampled over and would not have been available in the present shape. In any case it is a matter of record that the eye-witness have introduced in their evidence as an improvement that appellant unloaded the pistol, threw away crime empty at the spot and reloaded it to threaten the witnesses. Had this been true, this fact would have been mentioned by complainant in F.I.R. And other eye-witnesses in their police statements. We have already shown our disinclination in relying upon the evidence of the eye-witnesses. ''or the reasons stated above, we are not prepared to rely upon the evidence of Mashir Amir Bux. On this point we are also not prepared to put implicit reliance upon the evidence of the Investigating Officer, whose investigation does not appear to us to be above board. Consequently we feel disinclined to rely upon the report of Ballistic Expert Exh.27 on the record in which the finding is positive that crime empty has been fired from the crime weapon. The reason is already stated by us above that the evidence of the eye-witnesses is not free from doubt and the assertion of prosecution is doubtful that there was crime empty at the spot. There is lingering doubt in our minds that this piece of evidence has been padded in particularly the crime empty part of it. We cannot say how appellant came to the police station and surrendered as claimed by the prosecution but appellant in his statement under section 342, Cr.P.C. Has stated that he did not surrender at the police station but was arrested from Saeedabad and has been implicated in this case. Over-zealousness of the eye- witnesses in this case is understandable particularly in view of background of enmity and previous cases. P.W.5 Hafiz Ali Muhammad Rahu has been examined as Mashir who has attested Mashirnamas of injury Exh.13, Mashirnama of dead body Exh.14 and inquest report Exh.15. This witness came from Aghrow Rahu village at a distance of four miles from Saeedabad. He admitted that he went to hospital on his own accord. There were 15 to 20 persons of Saeedabad in the hospital. He further admitted that he signed all the papers and Mashirnamas at police station. It is admitted by P.W.2 Khamiso in his evidence before the trial Court that Hafiz All Muhammad, P.W. In this case was their defence witness in the murder case of Diam. This is a case in which appellant has been convicted for murder and has been sentenced to death. Evidence produced by the prosecution is faulty, defective and unreliable. All the pieces of evidence produced are not free from doubt. One defective piece of evidence cannot corroborate another defective piece of evidence. On such evidence as is produced in this case it can be very easily said that prosecution has failed in its duty to prove the case against the appellant beyond doubt. Mr. Agha Ghulam Ali for A.-G. For State stated before us that he did not support the impugned judgment. We therefore, give benefit of doubt to the appellant and set aside his conviction and sentence and acquit him. Appeal is allowed. Reference is rejected. Appellant be set free if not wanted in any other case.