Z. A. CHANNA, J.-Appellant Abdullah, a farmer aged about 40 years, was tried by the learned Additional Sessions Judge, Tharparkar at Sanghar, on the charge of committing the murder of his niece Mst. Sardar Bibi, was convicted by him for the said offence and sentenced to transportation for life. He has appealed against his conviction and sentence.
2. It appears that about two years prior to the incident which is the subject-matter of the case, Lai Din got his daughter Mst. Sardar Bibi married to his relation Murad, who was then residing in Sheikhapura District in the Punjab. The marriage did not prove a happy one and about a year after the marriage Murad turned out Mst. Sardar Bibi from his house and she came and stayed with her parents at Lundo Farm in Shahdadpur Taluka. It is alleged that four days prior to the incident, appellant Abdullah, who is the real brother of Laldin, complained to the latter that he had seen Mst.
Sardar Bibi talking with one Allah Ditto Channa and he suspected that she had developed illicit relations with him. Laldin, however, dismissed these suspicions of the appellant as baseless. It is further alleged that on the night of the incident, i.e. Night intervening between 12th and 13th of September 1969, complainant Laldin, his two wives Mst. Nawab Bibi and Rasoolan, his daughter Mst.
Sardar Bibi and other children were sleeping in the courtyard of their house, when at about 3 a.m..
Laldin woke up on the cries of Mst: Sardar Bibi and saw in the light of a hurricane lantern, which was burning the appellant giving hatchet blows to Sardar Bibi, whereupon he raised an out cry at which the appellant ran away. It is said that the other inmates of the house also got awakened. They found that Sardar Bibi was dead and that she had two injuries, one on the chin and the other on the neck, both of which were bleeding profusely. On the cries of Lai Din and his family members, Jalal, Shah Muhammad and other villagers turned up, to whom Lai Din narrated what he had seen.
Leaving the dead body of Sardar Bibi in charge of the aforesaid persons, complainant Laldin hastened to Shahdadpur, Police Station, which is ten miles from the scene of offence, and lodged his F. I. R. On 13-9-1969 at 11-15 p.m.
3. The F. I. R. Was recorded by S. H. O. Shafiq Ahmad, who accom--panied the complainant to the scene of offence where, in the presence of mashirs Muhammad Sulleman and Ghulam Rasool, he secured a lantern, blood-stained earth and also a tringo, which is said to be a pointed instru-- ment normally used for threshing grain. The S. H. O. Then had the dead body of Sardar Bibi sent to the Medical Officer, Shahdadpur, for post--mortem examination. On the same day, he arrested the appellant. It is alleged that the appellant took the police party and mashirs to the sugar--cane field of his brother from where he took out and produced a blood--stained hatchet. The hatchet, Tringo and blood-stained earth were sent to the Chemical Examiner, who has opined that the hatchet and earth were stained with human blood but the blood stains on the tringo had disintegrated and hence their origin could not be determined.
4. The autopsy on the deceased was conducted by Dr. Mir Baig, Medical Officer, Shahdadpur, who has deposed to have the following injuries on the deceased :-
(1) An incised wound on left side of neck measuring 5" x 2" x 3" cutting the skin, muscle, vessels, the fifth servical spine and oesaphagus and reaching the other side of the neck, transverse in direction.
(2) Incised wound on the left side of mandible 3" x 2" x bone deep, cutting the muscles and skin and slicing the mandible.
(3) Penetrating wound on the left cheek over the maxillary bone, measur--ing --" x --" x bone deep.
(4) Penetrating wound on the right side of the neck measuring --" x --" x muscle deep.
5. The appellant has denied that he either suspected the deceased to be having illicit relations with Allah Ditto or that he had caused any injury to her. He has also denied having produced any blood- stained hatchet before the police. His case is that Shah Muhammad, brother-in-law of complainant Lal Din, had a dispute with him and he has falsely implicated him in this case. He has also alleged enmity with his brother Lal Din on account of the fact that the latter had for some time become an appostate and embraced Christianity. No defence was led by the appellant.
6. The evidence against the appellant consists of the ocular testimony of complainant Lal Din and his wife Mst. Nawab Bibi and the recovery of a blood-stained hatchet allegedly at the instance of the appellant and motive.
7. Both complainant Lal Din and P. W. Nawab Bibi, however, in their statements before the learned Sessions Judge, did not support the prosecu--petition case, and alleged that they had not seen the fatal assault on the deceased and had got up later and found the dead body, and accordingly the state--ments of these witnesses recorded by the Committal Court were brought on the record of the case by the learned Additional Sessions Judge under the provisions of section 288, Cr. P. C, The learned Additional Sessions Judge, however, did not bring the whole of the statement of Lal Din in the Committal Court on the record of the case, but had only an extract from that statement brought on the record. In adopting this course, the learned A Additional Sessions Judge appears to have overlooked the fact that section 288, Cr. P. C. Envisages the bringing on record of the entire statement of a witness in the Committal Court in order to enable the Court to see the entire context in which the statement appears, as observed in Muhammad Bux v. The Crown (PLD 1954 Sind 121).
8. An examination of the statement of the complainant in the Com--mittal Court discloses that even in that statement he had not fully supported the prosecution case, and had admitted that he bad merely seen the accused from his back side froth a distance of 20 to 25 paces while he was running away and that he had a suspicion that the person going running after causing the injuries to the deceased was the accused Abdullah.
9. No doubt P. W. Nawab Bibi, in her examination-in-chief in the Committal Court, stated that she got up on some noise and had seen appel--lant Abdullah causing hatchet blows to Mst. Sardar Bibi on her neck and cheek, but in cross-examination she admitted that the face of the accused was half-covered with cloth and only his eyes were visible. Assuming that Mst. Nawab Bibi actually saw the deceased being given hatchet blows, as alleged by her in the examination-9n-chlef in the Committal Court, she could not have identified in the flickering light of a lantern, the assailant of the deceased, if his face, as admitted by her in her cross-examination, was muted.
10. There is a further reason why the statements of the complainant and P. W. Nawab Bibi in the Committal Court against the appellant cannot be relied upon or form a valid basis for the conviction of the appellant. Before a Court relies on the statement of a witness in the Committal Court in preference to his evidence given before the trial Court, the Court should, as a rule, look for positive and material corroboration of the statement made in the Committal Court. In Sikandar Azam v. The State (PLD 1967 Kar. 243). Feroze Nana Ghulamally, J., after examining the entire law on the subject, refused to accept the statements of the witnesses recorded by the Committal Court and which had been brought on record during the trial under the provision of section 288, Cr. P. C.
In preference to their evidence before the trial Court, as he found no corroboration in the evidence or circumstances to support their statements before the Committal Court. In a very recent case, Muhammad Ahmed v. The State (PLD 1970 SC 72) the Supreme Court made the following weighty observations in regard to the weight to be given to the statements of witnesses in the Committal Court which have been brought on the record of the trial Court under the provisions of section 288, Cr. P. C.: "Once the statement of a witness recorded by the Committing Court is admitted into evidence under section 288, Cr. P. C. It becomes a piece of substantive evidence for all purposes with no difference with any other piece of substantive evidence led in the case. If the state--ment is found to be genuine and true it can form a sound basis for conclusion of guilt or innocence of an accused person. There is no rule of law and none need be imported, that while such a statement is believed to be trustworthy and honest, it must still require corro--boration to make it acceptable to be relied upon. However, as a rule of prudence, the superior Courts in this country have laid down from time to time that since a witness who makes one statement before a Committing Court and conveniently changes it at the trial stands self-condemned as a lair, his former statement transferred under section 288, Cr. P. C. Cannot be unreservedly accepted with implicit faith and hence the need for its corroboration by some independent source."
11. The only corroborative evidence led in this case is the evidence regard--ing the recovery of a blood-stained hatchet from a sugarcane field. S. H. O. Shafiq Ahmad has deposed that on the very day that the appellant was arrested, he had voluntarily taken him and the mashirs to his brother-- -s sugar--cane cultivation from where he produced a blood-stained hatchet. Mashir Muhammad Sulleman, in whose presence the hatchet is said to have been secured, has however, not corroborated the S. H. O. And has denied that any hatchet was produced by or recovered at the instance of the appellant in his presence. The second mashir of recovery has not been examined.
The learned Additional Sessions Judge therefore disbelieved the evidence that the appellant had produced a blood-stained hatchet before police. The medical evidence is also at variance with the statements of the complainant and P. W. Nawab Bibi in the Committal Court, for it indicates that the injuries on the deceased were caused with two different kinds of weapons, and therefore, clearly suggests that the attack on the deceased was not the work of one person but two persons since there is no corroboration of the statements of complainant Lal Din and Mst. Nawab Bibi in the Committal Court, which statements in any case, as already indicated do not exclude the possibility of the appellant having been implicated on mere suspicion, we are of the opinion that these statements are wholly insufficient to establish the guilt of the appellant or to form the basis of his conviction. We accordingly accept the appeal and set aside the conviction and sentence of the appellant and order that he should be set at liberty if he is not required in any other case.