1. DORAB PATEL, J.-Ahmad Bakheh, the nephew of the appellant, was murdered at about 4-30 p. m.
2. On 26th October, 1971 at Faiz Wah Bridge in Khairpur District.
3. The respondents, who are brothers, were tried with one Shamam for this murder and in support of its case, the prosecution relied on evidence of motive, the evidence of two eye-witnesses, P. Ws, Zawar Mubarik and Walidad, the evidence of a corroboratory witness P. W. Imam Bakhsh and the evidence of the recoveries of blood-stained clothes and hatchets from the respondents. The prosecution also examined the Investigation Officer, but we are constrained to observe here that there was some delay in the investigation of the case which has not been satisfactorily explained.
4. Finally, it is sufficient to state here that the prosecution also relied on the retracted judicial confession of the respondent, Bajoo.
5. All the accused denied their guilt; and, the allegations against them, and the respondent, Bajoo stated that his confession had been obtained under torture, However none of the accused produced any evidence in their defence.
6. The learned Sessions Judge, Khairpur accepted the prosecution evidence and held that it was sufficient to prove the guilt of the respondents and of Shaman. Accordingly, by his judgment dated 22nd February, 1973, he convicted the respondents` and Shamam for murder and sentenced them to death.
7. The respondents and Shamam filed an appeal against their `conviction in the Sind & Baluchistan High Court which was heard with the reference by a Division Bench of the High Court presided over by the Chief Justice of the High Court. The learned Chief Justice, who pronounced the judgment of the Court, pointed out that the evidence of motive was flimsy, and, that the eye-witnesses were chance witnesses. He also noted with regret the unexplained delay in the investigations and the discrepancies in the evidence about the recoveries from the respondents. Finally, he referred to another important circumstance, which escaped the trial Court's attention. This was the discrepancy between the medical evidence and the ocular evidence. Accord--ingly, by his judgment dated 29th November, 1973, the learned Chief Justice gave the benefit of doubt to all the appellants before , him, set aside their conviction and acquitted them.
8. The appellant, who as we pointed out, was the uncle of the deceased, filed a petition for leave against the judgment of the High Court. But, this ' Court did not grant leave against the acquittal of Shamam, because the ocular evidence and the corroboratory evidence of P. W, Imam Bakhsh against this accused was not supported by evidence of recoveries. However, as the case against the respondents was prima facie supported by the evidence of recoveries leave was granted only against the acquittal of the respondents-and we have now heard Mr. Jatoi in support of the appeal.
9. Mr. Jatoi invited us to uphold the view of the Sessions Court, because the ocular evidence was not interested evidence, therefore, we would explain here that enmity has not been proved against the two eye-witnesses, but as P. W. Walidad was an uncle of the deceased, his evidence needed to be scrutinised more carefully than was done by the Sessions Court. On the other hand, although P. W.
10. Zawar Mubarik was a disinterested witness, he was very old and the learned Chief Justice pointed out that it was difficult to believe the coincidence that both P. W. Walidad and this witness would be at the place of occurrence at the right moment. There is force in this criticism, the more so, as the medical evidence is hardly consistent with the claim of the" eye-witnesses that the three assailants had inflicted hatchet blows on the deceased. Additionally. We agree with the view of the High Court that the evidence, produced by tile prosecution about the motive for the crime, does not inspire confidence. In these circumstances, it cannot be said that there is any error of law in the finding of the High Court that the ocular evidence was not fit to be accepted without strong corroboration by reliable evidence.
11. Mr. Jatoi then referred us to the corroboratory evidence of P. W. Imam Bakhsh. This witness owned land near the place of occurrence, therefore, he was no doubt a natural witness, and he said that be had rushed to the Scene of offence on bearing the alarm and the two eye-witnesses had told him bow the deceased had been murdered by the respondents and the acquitted accused Shamam. Now although this witness claimed to be at the same distance from the place of occurrence, as the uncle of the deceased, he said that he had not seen the occurrence, therefore, even if this evidence does not cast doubt on the ocular evidence, it cannot possibly furnish sufficient corro--boration of the ocular evidence, the more so, in view of the delay in investigations.
12. Now the case against the acquitted accused was based only on the ocular evidence and the statement of P. W. Imam Bakhsh about what the eye-witnesses had told him, therefore, this Court did not grant leave against the acquittal of this accused, but according to the prosecution, the case against the respondents was supported by the evidence of recoveries, as well as by the retracted judicial confession of the respondent, Bajoo. Accordingly, we would first examine the prosecution case against this respondent.
13. Blood stained clothes and a blood-stained hatchet was secured from this respondent and all the articles were found to be blood-stained. The recoveries were proved by the evidence of P. W.
14. Ishtiaq Ahmad A. S. I. P., and by the evidence of Mashir, P. W. Maula Bakhsh. Mr. Junejo criticised P.
15. W. Maula Bakhsh's evidence on the ground of material discrepancies between the evidence of this witness and that of the Investigation Officer. However, whilst the evidence of this witness is discrepant with that of the Investigation officer, with regard to the recoveries from the other respondents, there is no discrepancy in the evidence of these two witnesses about the recoveries from the respondent, Bajoo. Additionally the learned Additional Advocate --General submitted that the prosecution case against this respondent is corroborated by his retracted judicial confession.
16. This confession was proved through P. W. Mohammad Saleh, the City Magistrate, Khairpur and, we are satisfied that the confession was genuine and voluntary. However, what the respondent said in this confession was, he was returning with goats when he saw the deceased "standing at the bridge alongwith a hatchet". The deceased then warned him not to cross the bridge, but as .He did, the deceased assaulted him with his hatchet. He further said "I missed his assault. I had also hatchet with which I assaulted and it hit his (Ahmed Bux) hands and head." Although the plea thus raised is of self-defence, there is no shred of evidence in support of this plea and on the other hand, the confes--sion supports the prosecution case to the extent that the respondent admitted his, participation in the occurrence. In these circumstances, this is another piece of evidence in support of the prosecution case against this respondent and we are satisfied that this respondent's guilt has been proved beyond reasonable doubt.
17. The prosecution also relied on the recovery of blood-stained clothes from the respondent, Alidino.
18. But the blood on the clothes, as submitted by Mr. Junejo, had been washed. However, according to the Chemical Analyser's report, the blood had not been washed out completely and was human blood. But, unfortunately for the prosecution it is very clear that, the clothes contained only one spot of blood. Next as to the recovery of the' crime weapon, P. W. Maula Bakhsh, the Mashir of the recovery, stated that, it had been recovered from the fodder room for the respondent's dwelling at the instance of the respondent. But P. W. Ishtiaq Ahmad, the Investiga--tion Officer, stated that he .Bad discovered hatchet on his own search of the house. And further, the house was the house in which both the respondents lived. The statement of the Investigation Officer is supported by the Mashir--nama, therefore, it is clear that P. W. Maula Bakhsh deliberately made a false statement in order to implicate the respondent, Alidino. In the circum--stances, we are satisfied that the recovery of the hatchet was not made at this respondent's instance, and, on the other hand, the solitary blood stains found on the clothes of this respondent is hardly an incriminating piece of evidence. Therefore, we hold that the evidence of these recoveries does not, furnish sufficient corroboration of the ocular evidence and the other evidence against the respondent, Alidino. We, therefore, give him the benefit of doubt and dismiss the appeal against him.
19. The only question which remains for consideration is, that of the sentence to be passed against the respondent, Bajoo. As both the eye-witnesses claimed to have come to the Wardat, after hearing the alarm, as submitted by Mr. Junejo, there is no evidence to show how the occurrence between this respondent and the deceased had begun. Additionally, we would repeat here that we are not impressed by the evidence of motive produced by the prosecu--tion. Accordingly in the circumstances, the prosecution has failed to prove that the occurrence was premeditated murder.
20. As the possibility of a sudden fight cannot be ruled out, we would give this respondent the benefit of the lesser penalty, And further, as the murder was committed before the Law! Reforms Ordinance, 1972, the sentence cannot be imprisonment for life, but only transportation for life.
21. Accordingly, we allow the appeal against the respondent, Bajoo, only, convict him under section 302, P. P. C. And sentence him to transpiration for life.