' FAIZ MUHAMMAD QURESHI, J.---Present appellant has called in question the impugned judgment, dated 25-4-2000 passed by the Special Judge (S.T.A.), Larkana in Special Case No,101 of 1997, whereby he has been convicted under sections 302, 114, P.P.C. And sentenced to death subject to confirmation of the said sentence by the High Court of Sindh alongwith absconding accused Mashoque Malano and Dur Muhammad alias Duroo Bhand. They are be hanged by neck till they are dead. They are further directed to pay Rs,50,000 each as compensation under section 544-A, Cr.P.C. And the same be given to the legal heirs of the deceased in equal shares, if recovered. In case of default of the same, it shall be recovered as arrears of land revenue. The case against other accused namely Shahan, Pandhi and Ghulam Shabir is not proved beyond reasonable doubt and they are, therefore, acquitted. The case even against the remaining accused viz. Niaz Ali, Dilmurad, Mehmdo and Ghulam Ali is also not proved, hence they are also acquitted in their absentia, hence this criminal appeal by the present appellant Sher alias Sheroo. There is also a reference for confirmation of death before us.
2. We propose the dispose of both by common judgment.
3. The brief facts of the prosecution case are that on 9-12-1993 at about 8-15 p.m. Complainant Aligohar Shah, resident of village Usman Kalhoro came at Police Station which was situated at a distance of about 23 K. Ms. From the village of the complainant, and lodged report alleging therein that he was head constable in Police Department and at that time he was posted in Reader Branch of S.S.P., Dadu. According to him, he used to go to his village after attending his duty and on that day as usual after attending his duty at evening time he returned to his house and was waiting at the morning mat of his maternal uncle who had died some days before. His son Zaman Shah and his cousin Sikandar Ali Shah alongwith Puphat Ali Anwar Shah, Aandal Shah and some other village people were also present there. It was sunset time when, according to the complainant, his son Zaman Shah went to offer "Qaza Magrib" prayer in a mosque situated at 50 paces distance from the otaq. The electricity bulbs were flashing in the mosque and streets. Suddenly they heard the cries of Zaman Shah and complainant, his cousin Sikandar Ali Shah and other people immediately carried their weapons went on upstairs in the pickets, where from they saw absconding accused Mashoque Malano, resident of village Malaita, Taluka Dokri, accused Sheroo Bhand and let off accused Duro Bhand, resident of village Mir Muhammad Bhand, Taluka Mehar, District Dadu, who were duly armed with Klashnikovs and were dragging Zaman Shah from the mosque and kidnapping him towards Nari. It was about 6-20 p.m. When they reached near watercourse, Zaman Shah resisted his abduction on that all the three above named culprits fired upon him. He fell down.
Suddenly from the other side of the watercourse, the firing also started. According to the complainant, they had seen Niaz Ali son of Muhammad Moosa, Dilbar alias Diloo, Shahan all Bhand by Caste, resident of Mir Muhammad Bhand, Taluka Mehar, duly armed with guns while Mahmdoo and two unknown persons having Klashnikovs were firing from their respective weapons at the village. It is also stated that villagers in their defence also fired upon the accused and after half an hour continuation of firing, the culprits went away. Thereafter, the complainant and the witnesses came at the place where Zaman Shah was lying and found him dead having injuries at his chest, iliac regions and other parts of the body who had died due to bleeding. The complainant left the witnesses to guard over the dead body and himself came at Police Station and lodged the report alleging that since the deceased had resisted his objection, therefore, he was killed by the culprits by taking the revenge of murder of Bhand Community.
3-A. A.S.-I. Ghulam Sarwar had recorded F.I.R. Exh. 9/A for offence punishable under sections 302, 148, 149, P.P.C. And conducted investigation. He proceeded to the place of the incident and visited the place of incident in presence of mashirs Ramzan Shah and Saifullah Shah. He found the dead body of the deceased lying on the ground with firearm injuries and prepared inquest report of the same and further secured blood-stained earth. He had also taken empties of the Klashnikovs and 7 M.M. Rifle from the place of incident and prepared such mashirnama Exh. I6/A. The inquest report is produced as Exh.l6/B. He sent the dead body for mortuary to Government Hospital, Badeh through P.C. Talib Hussain and further secured empties of 12 cartridges from the other bank of the canal.
The blood-stained earth and empties were sealed by him at the spot. He also recorded statements of the witnesses Sikandar Shah and Anwar Shah at the place of the incident and while he was at the place of incident. Inspector Niaz Hussain Tunio, the S.H.O. Of Police Station, Badeh reached there and took over the further investigation.
4. During investigation S.H.O. Badeh arrested accused Sheroo on 21-9-1994, who was admitted in CMCH, Larkana in injured condition. He was arrested therefrom and such mashirnama Exh. 16/C was prepared. Police also arrested accused Niaz Ali, Dilmurad alias Diloo, Dur Muhammad, Shahan, Ghulam Ali and Ghulam Shabir during the investigation but they were found innocent and were let off, therefore, their names were placed in Column No,2. However, subsequently on the application of the complainant, the Court ordered that they should be joined as accused and issued process against them. Accused Mashoque Malano and Mehmdoo were absconders and such position was shown in the challan.
5. After usual investigation police challaned the case in the Court S.T.A., Larkana.
6. At that Court, accused Mashoque, Mehmdood Niaz Ali, Dil Murad, Dur Muhammad and Ghulam Ali were declared absconders as according to witness Iftikhar Ahmed, A.S.-I., those persons were notorious dacoits and there was no apprehension of their arrest in near future, hence they were declared absconders. Such proclamation was also issued and the publication order under sections 5(A), 4(a) of S.T.A. Act, 1975 was passed on 1-2-1995 and it was ordered that the names of accused alongwith Advocate be published in two daily newspapers and in Sindhi and the other in Urdu. Mr. Ghtrlam Akbar, Advocate was appointed to defend the rights of absconders on Court expenses.
Subsequently accused Shahan and Ghulam Shabir Bhand also Appeared in the Court and they were allowed bail and continued the participation in the proceedings.
7. In that Court a charge was framed, read over and explained to the accused, to which they pleaded not guilty.
8. At trial in that Court, prosecution examined complainant Aligohar Shah Exh.9, P.W. Sikandar Ali Shah Exh. 10, Dr. Qamaruddin Exh.11, Mashir Ali Anwar Shah Exh.12. Subsequently the case was transferred to this Court. The prosecution gave up P.W. Talib Hussain vide statement Exh.13. The prosecution also gave up P.W. Mr. Muhammad Rafique Soomro, learned Judicial Magistrate vide statement Exh.15. I.O. Ghulam Sarwar Abro examined as Exh. 16, who produced the mashirnama of vardat and inquest report and thereafter the prosecution closed its side vide statement Exh.17.
9. Accused Shero, Pandhi, Shahan and Ghulam Shabir in their respective statements recorded under section 342, Cr.P.C. Denied the case of the prosecution and pleaded that they were innocent and know nothing about the incident. They stated that the witnesses were interested, inimical and hostile. None of them examined himself on Oath nor produced any defence witness.
10. The learned trial Court formulated the following points for determination.
(1) Whether on 9-12-1993 at 6-30 p.m deceased Zaman Shah died at village Usman Kalhoro, Taluka Dokri by fire-arm injuries?
(2) Whether the accused with common object with the absconding accused, formed unlawful assembly and killed deceased Zaman Shah and committed Qalt-e-Amd?
(3) What offence, if any, is made out?
11. The learned trial Court after having gone through the evidence adduced by the prosecution and have been gone through the other material available on the record passed the judgment in terms as stated above.
12. We have heard the learned counsel for the Taffies at length and with their assistance, we have also gone to the evidence adduced by the prosecution.
13. Learned counsel for the appellant Sheroo has contended that the prosecution is relying on the ocular evidence being furnished by complainant Aligohar Shah, P.Ws. Sikandar Ali Shah and Anwar Ali Shah who are very closely related to deceased Muhammad Zaman Shah and independent evidence is lacking in the present case. He has further contended that there is no recovery at all from the possessipn of the present appellant. No motive is assigned. He has further contended that the mashirs of arrest vardat and inquest report have not been examined. He has further contended that Tapedar has not been examined. Finally, he has argued that the co-accused were alleged to have fired on the deceased and yet they have been acquitted by the trial Court on the same set of evidence. He has further drawn our attention on the charge and has pleaded that there is joint plea of charge which is not warranted under the law. In support of his contention, he has placed reliance on a case of Sheral alias Sher Muhammad v. The State reported in 1999 SCMR 697, 1030 and 1220.
14. On the other hand learned counsel for Additional Advocate-General for the State Mr. Gul Hassan Solangi has also contended that the independent evidence is lacking in the case, although the independent witnesses were available, but the same have not been associated by Investigating Officer. He has further submitted that there is no recovery at all and mashirs of vardat, arrest and inquest report have not been examined. Mr. Solangi has further contended that the co-accused are alleged to have fired on the deceased and yet they have been acquitted by the trial Court on the same set of evidence. He has also contended that the ocular account is being furnished by the interested witnesses and one of them namely Anwar Ali Shah has not supported the case of the prosecution who has caused dent to the version of the prosecution. He has not supported the impugned judgment.
15. Prosecution is relying on the ocular evidence being furnished by complainant Aligohar Shah who is father of the deceased Muhammad Zaman Shah while Sikandar Ali Shah and Anwar Ali Shah are closely related (puphat) to the deceased Muhammad Zaman Shah. Although the complainant Aligohar Shah and Sikandar Ali Shah have stated before the Trial Court that "it was time of Maghrib and his (complainant's) son Zaman Shah went to offer prayer in mosque and after few minutes of his (Zaman Shah's) departure he heard cries coming from mosque. He alongwith others rushed to houses and went to the roofs of the houses and noticed that three persons were dragging his son Zaman Shah from the mosque, who all were armed with K.Ks. And he identified them as Mashoque Malano, Sheroo Bhand and Duroo Bhand. They took his son towards village watercourse (Nara Canal) at a distance of 15 paces from the mosque. His son resisted, on which all the three dacoits fired K.K. Bursts on his son. Meanwhile some other culprits tired on complainant party from other directions and the complainant also started tiring in their defence. Complainant has further deposed before the trial Court that the encounter continued for about half an hour and after departure of the dacoits he alongwith others went to the watercourse and found his son lying dead, in 'Iaee bushes'. He narrated Sikandar Ali and Anwar Ali Shah and leaving them over the dead body went to Police Station for lodging the report." P.W. Sikandar Ali Shah has deposed before the trial Court that he had gone to mosque for offering Maghrib prayer in a nearby mosque. After few minutes of his departure he heard cries coming from mosque and he and others rushed to the houses situated adjacent to otaque and went on the roof and on the electric light, which was available in the house as well as in the mosque, he and others took their licensed weapons and noticed that three culprits were dragging Zarnan Shah from mosque and they were identified to be Mashoque, Sheroo and Duroo. All accused were armed with K.Ks. Zaman resisted his abduction, on which all the three culprits fired at him near watercourse and from other side of watercourse few other culprits fired on complainant party, whom he identified as Niaz Ali, Dilmurad, Shahoo, Mehmadoo and Pandhi. They were armed with K.Ks. And shotguns. He has further stated before the trial Court that the accused fired on the complainant party and they also countered the firing in their defence and there was exchange of firing which continued for about half an hour. After departure of the accused both Sikandar Ali Shah and Anwar Ali Shah checked Muhammad Zaman Shah, who was lying dead in a pool of blood. He and Anwar Shah remained at dead body while Aligohar went to Police Station for lodging the report. P.W. Anwar Shah has stated before the trial Court that at the dinner time when he was present at his house, he heard burst of K.K. And shotguns from 'Nara Canal' adjacent to village and he rushed towards the otaque of the complainant Aligohar Shah and Sikandar Shah where Muhammad Zaman son of Aligohar Shah was lying dead due to burst of K.Ks. Army and Police were present there. He has further deposed before the trial Court that police removed the dead body for postmortem to hospital. He was not examined by the police. He was not produced before any Magistrate for recording his statement under section 164, Cr.P.C. This eye-witness Anwar Shah was declared hostile and has been subjected to cross-examination by the counsel for the State but nothing has been extracted from his mouth favourable to the prosecution.
16. We have very carefully examined the evidence of the aforenamed witnesses before the trial Court. As far as P.W. Sikandar Ali Shah, who claims to have seen the incident, has married with the complainant on the factum of incident but the complainant before the trial Court has not stated that at the time of incident the accused were seen by Sikandar Ali Shah and whether Sikandar Ali Shah was available at the time of wardat or not, is not being narrated by the complainant Aligohar Shah in his deposition. P.W. Sikandar Ali Shah has stated before the trial Court that no police men were available after the incident near dead body. This is not being stated by the complainant in his statement before the trial Court. As far as P.W. Anwar Ali Shah is concerned, he has not supported the case of the prosecution and no where he has stated before the trial Court that at the time of incident he had seen the culprits dragging the dead body of Muhammad Zaman Shah or he identified the culprits and he has not supported the version of the complainant and P.W. Sikandar Ali Shah and has made their presence as doubtful at the place of wardat. If the evidence of the aforenamed witnesses is taken into consideration with sane yardstick, it is quite clear that the complainant and the P.W. Sikandar Ali Shah, who claim to be eye-witnesses, are not furnishing the clear episode of the incident. They have not deposed before the trial Court that they saw the dead body faced up or faced down. On the other hand, another eye-witness being cited by the prosecution. Namely, Anwar Ali Shah has not supported the case of the prosecution and nowhere he has shown the presence of the complainant and P.W. Sikandar Ali Shah at the wardat, even he has not stated before the trial Court that he had identified the accused or he had seen them dragging the deceased, namely, Muhammad Zaman Shah. From the evidence of Anwar Ali Shah when it is claim of the prosecution that he is one of the eyewitnesses, it is evident that he has shattered the case of the prosecution and has removed the presence of the complainant and P.W.
Sikandar Ali Shah from the place of wardat and two inferences can be drawn; (1) either the complainant and P.W. Sikandar Ali Shah were not present at the place of wardat, or (2) the incident has not taken place in the manner as being furnished by the complainant and P.W. Sikandar Ali Shah. In these circumstances, the complainant and P.W. Sikandar Ali Shah are not only interested witnesses but at the same time they appear to be dishonest witnesses. Reliance can be placed on a case Muhammad Sadiq v. Muhammad Sarwar and 2 others reported in 1979 SCMR 214, 215, wherein the Honourable Supreme Court has held that "the basic principle before the trial Court to see whether the witness is honest or dishonest and it is not before the trial Court. Is to see whether the witness is interested or disinterested or hostile". So, the witnesses, who claim to have seen the occurrence, have not married to each other on the factum of incident and it renders doubts on the evidence of the three witnesses who have deposed before the trial Court. Reliance can be placed on a case of Shamir v. Muhammad Afzal and others reported in 1989 SCMR 720.
17. During the examination of P.W. Anwar Ali Shah his 164, Cr.P.C. Statement has not be placed before the trial Court and it is claim of the prosecution that his statement under section 164, Cr.P.C.
Was recorded but his witness has not supported the case of the prosecution on this factum that he was examined by any Magistrate for recording his statement under section 164, Cr.P.C.
18. We have also noticed that the complainant and the witnesses are the residents of Village Usman Kalhoro, Taluka Dokri, whereas the present appellant is the resident of different village Noopur, Taluka Dokri, which is at the distance of 20 miles from the place of wardat. We have also examined very carefully the contents of the F.I.R. That nowhere the complainant has stated in the F.I.R. That the present appellant and two other accused, who were dragging his son Muhammad Zaman Shah, were previously known to him. Ultimately, the source of identification of three accused is lacking in the case. The important portion of the F.I.R. Is reproduced as under:--- "On 7-12-1993 my maternal uncle Mehar Ali Shah had expired and 1, my son Muhammad Zaman Shah, aged about 17 years and cousin Sikandar Ali Shah son of Khana Shah, 'Puphat' Anwar Ali Shah son of Andal Shah and other villagers were sitting in the otaque and had gathered there for mourning-mat. My son Muhammad Zaman Shah went to offer expired sunset prayer in the mosque from the otaque. The electric bulbs of street and mosque were lightening. In the meanwhile we heard cries of my son Muhammad Zaman Shah coming from the mosque. I, Sikandar Ali Shah, Anwar Ali Shah went towards our houses and after taking weapons, took shelter and saw that each Mashooque son of unknown Malano, resident of Village Malaria, Taluka Dokri, 2.
Sheroo son of Hasoo Bhand,
3. Duroo son of Janoo Bhand, both residents of village Mir Muhammad Bhand, Taluka Mehar, armed with Klashnikovs. They were taking away my son Zaman Shah from mosque towards 'Nari' while dragging him. At about 1820 hours they reached near bund of 'Nari' where my son Zaman Shah refused to proceed ahead and resisted. All the three accused fired upon him and felled him down. In the meanwhile from other side of 'Nari' from the garden there was firing and we saw that each Niaz Ali son of Mooso,
2. Dildar alias Diloo son of Muhammad Ali and 3 Shahan son of unknown, Bhand by Caste, resident of village Mir Muhammad Bhand, taluka Mehar were armed with guns, Mehmadoo son of Zawar by Caste Bhand, resident of Mir Wah, taluka Mehar was armed , with Klashnikov and two unidentified persons were armed with guns."
19. From the aforementioned portion of the F.I.R. It is very clear that nowhere the complainant has stated that the accused were previously known to him nor he has deposed before the trial Court that he knew the accused previously and source of identification of the accused at the time of incident is lacking which has also caused shadow of doubt on the version of the prosecution's case. Another important portion is also very clear that the complainant while deposing before the trial Court has backed out from the contents of the F.I.R. And has given different version before the trial Court and there is no consistency between the contents of the F.I.R. being narrated by the complainant before the police and the evidence being narrated before the trial Court and thus, he has rendered himself as dishonest witnesses. Reliance can be placed on a case of Sheral alias Sher Muhammad v. The State reported in 1999 SCMR 697. We have also noticed that the complainant before the trial Court has not spoken with regard to motive, but in F.I.R. He has stated that Zaman Shah has been murdered to avenge the murder of Bago Bhand. Even the other P.Ws. Have not supported the complainant on the point of motive being given by complainant in the F.I.R. And we are constrained to reach to the conclusion that this is a case without motive. It is also startling to note that on the point of motive Investigating Officer in cross-examination has admitted that there was an old enmity between the complainant party and the accused party". On the other hand this has not been narrated by the complainant who has denied the enmity with the accused before the trial Court while the enmity between the complainant party and the accused party is being admitted by the Investigating Officer arid the conduct of the Investigation Officer shows that he is delinquent Police Officer and he has gone so deep that he has spoken before the trial Court with regard to the old enmity between the complainant party and the accused party. Another amazing aspect of the case is that no independent witness has been examined by the Investigation Officer from the place of vardat as the alleged incident is said to have taken place at 6-20 p.m. And the place of vardat is thickly populated area and the incident has taken place near mosque at Maghrib time when the other people of the locality were returning from mosque after their Maghrib prayers, but no person from the place of vardat has been associated by the I.O. Except these three witnesses namely and respectively Aligohar Shah, Sikandar Ali Shah and Anwar Ali Shah who has not supported the case of prosecution. It has been admitted by the Investigating Officer that in cross-examination that he had recorded the statements of only two witnesses namely Sikandar Ali Shah and Answa r Ali Shah. He has further admitted that neither he remembers of those other persons nor he had noted their names in the diary. It was big village consisting on about two or three hundred houses belonging to different Castes. He has further admitted in the cross- examination on the backside of the houses belonging to different Castes. Mashirs Saifullah Shah and Ramzan Shah were nominated and arranged by complainant. From the evidence of Investigating Officer and his cross-examination it is quite obvious that the place of vardat is surrounded by several houses. Mosque is there and other people from different castes were available but he has not examined any of them except Sikandar Ali Shah and Anwar Ali Shah who are closely related to the deceased (as they are puphat of the deceased). It is very strange to note that a murder has taken place in thickly populated area and such serious offence has taken place but Investigating Officer has not associated any independent witness from the locality in order to establish a good prima facie case of the prosecution and on the contrary Investigating Officer has admitted with regard to the old enmity between the complainant party and the accused party, thus, his conduct also be comes not only dubious but so also he has rendered himself to be involved in the case and has destroyed the case of the prosecution by not examining the witness from the locality. It has been held by superior Courts that when the capital punishment is in store for accused the evidence must come forward from the side of unimpeachable character. Reliance can be placed in a case of Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others reported in 1998 SCMR 25, which is reproduced as under:--- "----S. 302/34---Appreciation of evidence---Interested witness---Court in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstances in the case."
20. We have also examined the entire material and the evidence of the witnesses who have also stated before the trial Court that there were other co-accused and they fired on complainant party and in defence complainant party also fired on accused party and yet the co-accused have been acquitted by the trial Court on the same set of evidence which shows that the learned trial Court has not taken the entire evidence into consideration and has committed errors while delivering the judgment and the judgment is not based on sound reasons. It is also evident from the impugned judgment that the learned trial Judge has not taken into consideration the other aspect of the case. Admittedly it is a case of no recovery when the prosecution claims that Klashnikovs, guns, shot guns and other deadly weapons were used during the commission of offence and the firing continued for about 13 minutes from both sides and yet only 12 empties were recovered from the place of Vardat and the same empties were not sent to ballistic expert apart from the recovery of the weapons from possession of the accused as no recovery has been shown from the possession of the appellant and other accused and not a single word has been uttered in I.O's deposition before the trial Court that he recovered any weapon from the appellant and other accused. Since the empties were recovered from the place of Vardat as being narrated by the Investigating Officer in examination-in-chief. It was his duty to send the empties to the ballistic expert even without waiting for recovery of weapons in order to minimise chances of manipulation. Reliance can be placed on a case of Yousif v. The State reported in PLD 1988 Karachi 521-523, wherein the Division Bench of this Court has held that as far as the recovery of empties is concerned, on this subject legal requirement is that if empty is recovered before recovery of weapon, then the same should be sealed at once and sent to ballistic expert even without waiting for weapon because this would be best precaution to minimise chances of manipulation. In the present case the Investigating Officer has deposed before the trial Court that he secured empties of K.K. And 7 MM Ritle from place of vardat but nowhere he has stated that the said empties were sealed at the spot and were sent to the ballistic expert. He has also stated before the trial Court that he also secured empties of 12 bore from the bank of the canal and nowhere he has stated that these empties of 12 bore were also sealed at the spot and the same were sent to ballistic expert. Admittedly it is a case of no recovery and the mazing part of the case is that no efforts have been made by the Investigating Officer to recover the crime weapons from the possession of the accused and this has also caused dent in the version of the complainant party, in that event evidence of the witnesses namely and respectively Ali Gohar Shah (complainant) P.W. Sikandar Ali Shah pales into insignificance when they say that they have seen the accused with K.K., shot guns and other deadly weapons. It is baffling enigma to note that after all why the weapons have not been recovered by the Investigating Officer and why such efforts were not made by Investigating Officer in order to establish the case of the prosecution at the best. Admittedly the motive is not being established by the prosecution and there is no word from the side of the complainant and other witnesses before the trial Court. Admittedly the evidence of the complainant Ali Gohar Shah and Sikandar Ali Shah is tainted goes uncorroborated by independent evidence. P.W. Anwar Ali Shah one of the eye- witnesses has not supported the case of the prosecution and has belied the version of the complainant Ail Gohar Shah and Sikandar Ali Shah on the factum of incident. The case of the prosecution is riddled with material contradictions. We have also examined the statement of the accused under section 342, Cr.P.C. And we have also examined the original record and nowhere we are able to see the LTI of the accused on the first page of the statement under section 342, Cr.P.C.
And on the second page we have seen thumb-impression but nowhere the name of the accused is written below the thumb impression and the certificate is typed one. We have also seen the statement of the other accused under section 342, Cr.P.C. And we have found only thumb- impression on each and every statement of accused under section 342, Cr.P.C. On the second page of the statement without any name written below thumb-impression and thus, another illegality has been committed by the trial Court which is not curable under section 537, Cr.P.C. And there is flagrant violation of the mandatory provisions of section 364(2), Cr.P.C. There is a benefit of doubt for the appellant for giving doubt to the accused. It is not necessary that there should be many circumstances creating doubts. If a single circumstance creates reasonable doubt in prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace but as a matter of right. In the instant case there are so many material contradictions and circumstances which have created reasonable doubt in a prudent mind.
Reliance can be placed on a case of Tariq Pervez v. State reported in 1995 SCMR 1345.
21. Upshot of the whole discussion of the evidence produced in this case is that prosecution has failed miserably to prove case against appellant beyond doubt. There is no evidence of recovery and the evidence being furnished by the witnesses afore-named suffers from inherent deficiencies and one defective piece of evidence cannot corroborate another defective piece of evidence. The Investigating Officer has remained all along dishonest police officer and has not followed the proper procedure while investigating the case. We, therefore, give benefit of doubt to the appellant and set aside his conviction and sentence. In the result appellant is acquitted and appeal is allowed. Reference for confirmation of death sentence is rejected: If not wanted in any other case appellant be released at once.
22. Above are the reasons for our short order, dated 17-5-2001.