Agha Ali Hyder, J.--The appellants were convicted by the learned Sessions Judge, Jacobabad, for an offence under section 302, P. P. C. and sentenced to undergo transportation for life. Aggrieved by the judgment of conviction and sentence, they have come in appeal.
2. The prosecution story succinctly stated is that on the 10th April 1963, Sabz Ali was sitting in the house of Wali Muhammad in Deh Haji Mevo Khan, District Jacobabad, along with his daughter Mst.
Noor Khatoon and his niece Mst. Bakhtawar. The appellants and one Jamal came into the house, armed with hatchets. Sabz Ali and Noor Khatoon were cut to pieces while Mst. Bakhtawar managed to make good her escape, and took shelter in a neighbouring house. Wali Muhammad the brother of Mst. Bakhtawar had also turned up at the warclat on hearing the commotion and was done to death. The assailants then bolted away.
3. Dur Muhammad the uncle of Sabz Ali who was harvest ing his crop, after verifying the details of the tragedy proceeded to Usto Levy Police and lodged the F. I. R. which was recorded by the Thanedar. It is alleged that the appellants were arrested the same day. Kazi Ghulam Sarwar the Tehsildar, prepared the inquest report, but the dead bodies were never sent for the post-mortem examination. Subsequently Jamal who was named an accused in the F. I. R. and one Abdul Wahid also were arrested. The case was to proceed before the 'Jirga' but later on, the charge-sheet was submitted against the appellants, Jamal and Abdul Wahid, in the Court of the learned Civil Judge and F. C. M., Garhi Khairo, culminating in the trial in which Jamal and Abdul Wahid were acquitted.
4. The appellants in their statements at the Court of inquiry as well as at the trial denied the various allegations made against them, and pleaded their innocence.
5. No autopsy was held, but looking to the nature of the injuries on the persons of the deceased and also in the circum stances of the case, there can be no doubt that these three persons namely Sabz Ali, Wali Muhammad and Mst. Bakhtawar met their end as a result of the mortal attack on them on the day in question. The point is also not disputed by Mr. Azizullah Shaikh, learned c ounsel for the appellants.
6. The pieces of evidence against the appellants are :
(a) the eye-witnesses account as furnished by Mst. Bakhtawar,
(b) the corroborating evidence as furnished by Dur Muhammad, Khair Bux and Zangi Khan and (c)
Motive.
7. Mst. Bakhtawar is the wife of Jamal since acquitted, and the sister of the deceased Wali Muhammad. She has stated that on the day of the incident at about the noon time, she was sitting at the house of her brother Wali Muhammad along with Sabz Ali and Noor Khatoon. The appellants had turned up armed with hatchets and made a short work of Sabz Ali. Mst. Noor Khatoon tried to run away but was killed in a near by house, which was lying abandoned. Wali Muhammad also reached the wardat on hearing the turmoil and perished at hands of the assailants near the door of the house. She had taken shelter at the house of Hisamuddin who had turned up on the cries. Thereafter she was provided protection at the 'Kot' of Zangi Khan who had reached there. Then she had apprised Khair Bux of the happenings.
8. It is noticeable that Hisamuddin does not even remotely refer to her presence. His version is that he had heard about the incident from people near the house of Zangi Khan, after he had got down from the bus. Zangi Khan also does not support Mst. Bakhtawar because according to him when he had learnt about the murder and reached the wardat, he had found Mst. Bakhtawar, near the dead body of Wali Muhammad. It was he who had told her to go and stay at his house, lest she also be murdered. Mst. Bakhtawar on the other hand has stated, that he was in the house and had even seen the assailants. What is more, her name is not to be found in the F. I. R. lodged by Dur Muhammad who is the uncle of Sabz Ali and also closely related to her. The absence of her name in the F. I. R. which was lodged by a close relation by itself will make it impossible to hold that she was a witness of the inci dent. The omission of her name cannot be explained in any conceivable way. She is the wife of Jamal and the record clearly makes out that she had run away from his house because of the cruel treatment that was being meted out to her by her husband. Mst. Noor Khatoon the wife of Noor Muhammad was also with her, and both of them had found refuge in Larkana District. In the meantime, proceedings had been taken under section 41 of the F. C. R. by her brother Wali Muhammad and also by Sabz Ali, in respect of Mst. Noor Khatoon on the ground that they had been killed by their husbands. Mr. Hidayat Hussain the A. P. A. and A. D. M., Nasirabad got surety bonds from Noor Muhammad and Jamal and restored Mst. Bakhtawar and Mst. Noor Khatoon to their family members. If the appellants and Jamal had gone determined to wreak vengeance and wipe off'the dishonour, it is impossible to believe that Mst. Bakhtawar could manage to run away. According to her when the culprits had entered the house they had bolted the door. She states that she had been chased and was only 2 to 3 paces ahead of the culprits. If that was so, she could have hardly eluded the grip of three determined assailants.
9. Mst. Bakhtawar otherwise too, is not a witness of truth, because she was the main witness but has not a word to say against Jamal. She has also stated that she was examined by the investigating authorities after 15-16 days. According to Kazi Ghulam Sarwar, she was examined on 17-4-1963. The latter has stated that he had been examined by his predecessor Gul Muhammad earlier, but he has not chosen to mention the date and even Mst. Bakhtawar is reticent about it. The fact also remains that in the F. I. R. three persons were shown as culprits but all the witnesses kept completely silent about Jamal. It would therefore appear that right from the beginning, the prose - cution story started with a falsehood. In view of these cir cumstances, we agree with Mr. Azizullah Shaikh, learned counsel for the appellants that no reliance can be placed on her testimony.
10. Dur Muhammad at the trial deposed that while he was harvesting his crop, the appellants had passed by that side armed with hatchets. Noor Muhammad had told him that they were going away after killing his people. When he reached the vardat, he found the dead bodies of Sabz Ali, Wali Muhammad and Mst. Noor Khatoon lying there. That was not his version in the F. I. R. or at the Court of inquiry as duly brought on the record. On the other hand, he had stated at the Court of Itiijuiry, that he had been informed of the incident by a Khoso, who happened to be a passerby. He is a speak-easy witness, unworthy of any reliance. Even Zangi Khan's testimony as already mentioned, is in conflict with \Ist. Bakhtawar. It is also made out that he was never examined as a witness of the incident but featured only as a mashir. Demonstrably they are got-up witnesses and their version is at tangent witji Mst. Bakhtawar.
11. As for the motive it is true that there was an estrange ments between Noor Muhammad and his wife. There were pro ceedings pending in the Court of the A. P. A. and A. D. M., Nasirabad, between the parties near about the time of the incident. However the motive was not mentioned in the F. I. R. and Dur Muhammad was even detained by the investi gating authorities on that account. It is also true there is some conflict at the trial on that score but there can be no gainsaying the fact, that the relations between Noor Muhammad and his wife were extremely bitter. That is also true about Jamal and Mst. Bakhtawar. Any way, motive by itself in the absence of any reliable and trustworthy evidence will not be sufficient for basing a conviction.
12. In the result, xvc would set aside tiic conviction and ' sentence and allow the appeal. The appellants are in custody and would be released forthwith unless wanted in connection with some other case. .