' ZAKAULLAH LODhi, J.-Appellant Piarey Mien was eke( alongwith Manzoor Hussain, Saeed Mohammad and Musarrat Ali for the murder of All Mohammad by the loaned Sessions Judge, Khairpur, who found him guilty and sentenced to death under section 302, P. P. C. And to one pear rigorous imprisonment under section 13-D of Arms Ordinance vide his judgment dated 28th July, 1975. Accused Manzoor Hussain, Saeed Mohammad and Musarrat All were however, acquitted of the charge. The appellant has assailed the judgment of the learned Sessions Judge, whereas the learned Sessions Judge has referred the case for the confirmation of death sentence. This judgment will dispose of both the appeal as well as reference.
2. The brief facts of the case are that the appellant alongwith acquitted accused Manzoor Hussain, Saeed Mohammad and Musarrat All committed the murder of the deceased in Khairpur Town near Government Press on 9th March, 1972 at $-30 a.m. By means of revolver. The first information report was lodged at 9-50 a.m. At Khairpur Police Station which is at a distance of about one mile from the vardat. The prosecution story is that on the day of incident complainant P. W. Taj Mohammad was going to the Mill to join his duty by Government Press Road alongwith deceased and P. Ws.
Mohammad Ramsan, Soho and Dur Mohammad Buriro. When these people reached near the Government Press, the appellant and acquitted accused Saeed Mohammad and Manzoor Hussain were already standing near the will of the Press. On their reaching near them the appellant fired 3/4 shots continuously at the deceased with his pistol which hit the deceased and he fell down on the ground. Explaining the motive the complainant stated in the F.
1. R. That the deceased was Senior Time-Keeper while the acquitted accused Musarrat Ali was his subordinate. The deceased had reported to the Mills authorities about some lapses on the part of accused Musarrat duo to which he was annoyed with the deceased. About 10/15 days before the incident the acquitted accused Musarrat All had threatened the deceased that he would see him; meaning thereby that he would take revenge upon him. A day before the incident at 10 a.m. The appellant had met acquitted accused Musarrat Ali and he had shown him the deceased in the Mills Office.
3. The F.
1. R. Was recorded by P. W. Karim Buz, A. S. I. P. Who pro. Ceeded to the vardat which was situated near the Government Press. He secured blood-stained earth from the vardat and sealed it in the presence of the mashtrs P. Ws. Muharram and Nazar Hussain. He prepared a mashirnama of the same which was signed by the same mashirs. He then proceeded to the Civil Hospital and prepared a mashirnama of the dead body of the deceased which was laying in the mortuary in the presence of mashirs P. Ws. Allah Wasayo and Mohammad Yousuf who signed the mashbnama. He also prepared inquest report of the dead body in the presence of the same mashies. Subsequently, he examined the witnesses, namely P. Ws. Mohammad Ramzan and Dur Mohammad and arrested the acquitted accused Manzoor Hussain in the presence of the mashirs P. Ws. Ghulam Nabl and Allandino and prepared a mashirnama of his arrest which was signed by the mashirs. The acquitted accused Manzoor Hussain produced a hockey stick from his house which was secured in the presence of the same mashirs. He also arrested acquitted accused Musarrat All under a mashirnama which was signed by the same mash!,.. Thereafter he arrested the appellant and prepared a mashirnama of his arrest which was signed by the same mashirs. On 12th March, 1972, at the pointation of the appellant he recovered a revolver from the backside of the Match Factory which was lying near a heap of bricks outside the wall of Match Factory. The revolver contained six empty cartridges which were secured and sealed under a mashirnama. The revolver and the empties were sent to the Ballistic Expert. The acquitted accused Sand Mohammad was mated on 13th August, 1972. He too produced a hockey stick from his house which was secured and sealed under a mashIrnama which was signed by the same mashirs. After completing the necessary investigations the case was challaned to the trial Court.
4. Autopsy of the dead body was conducted by Dr. Abdul Sattar who found the following injuries on the person of the deceased:- "(1) Gunshot woundX r into scalp deep on outer aspect of right eye-brow.
(2)Gunshot wound y x into skin deep on the left side of chest in the mid-auxiliary line with charring of skin around.
(3)Lacerated wound into skin deep on the back of left thumb.
(4)Profused bleeding from nose and mouth.
' The doctor opined that the cause of death was shock and haemorrhage. During the post-mortem a pellet was removed from the dead body of the deceased. He further opined that the range from which the shots were fired could be about 12 feet.
5. In his statement the appellant has denied having committed the offence and stated that he has been substituted for another Piarey Mian who was working in the said Mills and had committed the offence in all probability.
6. The prosecution has furnished ocular testimony of P. Ws. Taj Mohammad (complainant), Mohammad Raman and Dur Mohammad of which the last-mentioned witness has not supported the prosecution version and therefore he was declared hostile. As far as complainant Taj Mohammad and P. W. Muhammad Raman are concerned, they have stated that bne day before the incident the appellant had come to the Mill alongwith the acquitted accused Mussarrat Ali. The appellant was shown the deceased by the acquitted accused Musarrat Ali. On the day of incident at about 8-30 a.m. P. Ws. Taj Mohammad (complainant), Mohammad Ramzan, Dor Mohammad and the deceased were going for duty to the Mills and when they reached near the Gate of the Government Press, the appellant and acquitted accused who were already standing there hiding their appearance from the passersby immediately came before them. The appellant was armed with a revolver while the acquitted accused had sticks in their hands. The appellant fired 4/5 times at the deceased who received the injuries and fell down. Thereafter the appellant and acquitted accused made their good escape from the vardat. The testimony of these eye-witnesses was not relied upon by the learned trial Court as far as accused Mansoor Hussain, Saeed Mohammad and Musarrat Ali are concerned. Consequently, he acquitted them of the charge. Implicit reliance cannot be placed on the testimony of the eyewitnesses without any oonfirmatory evidence because they were with the deceased throughout. They were his fast friends. It has also come in the evidence that they were going with the deceased at the time of the incident also. The time of incident was such that many a person are expected to be going to join their duties while many others would be coming back after finishing their duties. It is a busy place being Mills Gate near the Government Press and in these circumstances it cannot be said that the com- mission of the offence would not have been witnessed by others also, But no independent and uninterested witness has been produced by the prosecution. The motive assigned to the appellant is also very weak. The prosecution has in all probability tried to prove that the appellant and acquitted accused except Musarrat Ali were hirelings and had been engaged to kill the deceased as the deceased who was Senior time-keeper was not favourably disposed towards the acquitted accused Musarrat. So far as the appellant and the acquitted accused Musarrat AU are concerned, none of them personally nursed any grudge against the deceased and therefore it cannot be conceived without any iota of doubt that the appellant and the other acquitted accused except Musarrat AU would court the risk of being awarded capital punishment only to please the acquitted accused Musarrat either for the sake of money by way of consideration or for friendship. For these as well as for the reason that at least one of the eye-witnesses has not supported the prosecution version, the learned trial Court has doubted the veracity of the statements of the eye-witnesses. In short, if the eye-witnesses are not trustworthy and their evidence has not been implicitly relied upon for want of confirmatory evidence against the acquitted accused, how can it be taken into consideration and relied upon and made the basis of conviction as against the appellant. The only difference between the case of the appellant and that of the acquitted accused is that a so-called confirmatory circumstance is available in the case of the appellant in the shape of discovery of revolver from a place pointed out by the appellant after the commission of the offence. In our opinion the discovery of revolver cannot be considered voluntary because it was after three days of the commission of the offence that the revolver was discovered. It is also admitted by the prosecution that for three days the appellant was interrogated and it was only then that he agreed to point out the revolver allegedly hidden by him. We are left with two options in this connection i,e, either we should believe that the appellant was a hardened criminal and therefore it took three days to the Investigating Officer to have the truth come out of him or the police used third degree methods or foisted the pistol upon the appellant in order to fabricate confirmatory evidence. In these circumstances the recovery cannot be said to be free from doubt and cannot therefore be considered as confirmatory evidence. In this conneotion our attention was drawn to Amrat Sona Kunbl v. State of Bombay (1) and Dhoom Singh v. The State (2). In these cases it has been held that the discovery should be voluntary and In case it is otherwise the same would not be admissible In evidence. To conci ude, the uncorroborated testimony of the eye-witnesses cannot be relied upon for the mason that one of them has not supported the prosecution version and has belied the testimony of other eye-witnesses too while the statements given by the other two eye-witneues have not been supported by any confirmatory evidence. The only confirmatory evidence is that of the discovery of the revolver but it seems to be involuntary because the revolver was recovered three days after the commission of the offence and it has been admitted by the investigating officer that for three days continuously be kept on interrogating the appellant. The possibility of foisting of the weapon upon the appellant and discovery by using third degree methods cannot be ruled out from consideration. It would not therefore be safe to consider this discovery as confirmatory circumstance. The case of the appellant is therefore at par with that of the acquitted accused and the ocular testimony of the eyewitnesses which has not been believed in their case is also not worthy of any credence in case of the appellant.
7. For the foregoing reasons we allow the appeal and set aside the conviction of the appellant under section 302, P. P. C. As well as under {{FOOT NOTE}}
(1) AIR 1960 Bora. 468 (2) AIR 1957 AM 197 {{FOOT NOTE}} section 13-D of the Arms Ordinance. The reference for confirmation of death sentence is not accepted. The appellant shall be set at librty forthwith unless required in connection with any other case. AGRA AL HYDER, J.-I agree.