1. ABDUL HAFEEZ MEMON, J.-Appellant Ali Nawaz and Ali Murad along with co-accused Muhammad Murad were sent up to stand their trial in the Court of Ist Additional Sessions Judge, Khairpur, on the charge under section 302 read with section 34, P. P. C. For committing murder of one Mehar. The trial Court acquitted Muhammad Murad for lack of evidence, but convicted the appellants on the said charge and sentenced Ali Nawaz to death and Ali Murad to R. I. For life. They have appealed against their conviction and sentence, and the case is also before us on reference under section 374, Cr. P. C. For confirmation of the sentence of death passed on Ali Nawaz. By this judgment we propose to dispose of both the appeal as well as the reference.
2. The incident took place on 1-8-1972, at about 5 p. m. On the railway platform of Tando Masti Khan Railway Station and was reported by P. W. Kalandar Bux on the same evening at 8-20 p.m. At the Railway Police Out--post, Gambat and was entered in the Roznamcha by P. W. 13 Head Constable Muhammad Iqbal in the following words :- "The complainant stated that today, i.e. 1-8-1972 1 along with my mother Mst. Hidayat Khatoon widow of Sher Khan by caste Mari Baloch resident of Rahoja near Shikarpur District Sukkur had started journey from Shikarpur to Bhit Shah in Lunda Train. My mother was travelling in a separate 3rd Class Compartment while I and present deceased namely Mehar son of Bakhsho by caste Mari Baloch resident of Karoondital : Faiz Gunj District Khairpur who is my relative and was coming back after leaving his wife with her parents at Shikarpur and was going back to his house were travelling together by the same Lunda Train. Deceased Mehar invited me to stay with him as a guest for a day or two and then to depart for Bhitshah. Deceased further stated that he would also accompany us to Bbit Shah. When the train reached at Railway Station, Tando Masti Khan, the deceased Mehar had got down from train telling him that he was going to drink water and I was sitting in the compartment after a few minutes I heard noise and cries of murder! Murder! And where upon all the passengers got down from the train and I also, got down from the train and saw that many passengers of train had gathered at the plateform. I also went there and entered into the huge of passengers and saw that deceased Mehar son of Bakhsho by caste Mari Baloch is lying injured on the plateform and blood was oozing from his neck and he was trembling and shivering.
3. This grievous and deep wound was caused with a sharp-cutting weapon like hatchet. In the meanwhile two duty police constables had arrived there and so also train guard had also arrived there. So many passengers had also gathered there whom I informed that present injured is my colleague there was a boy by name Muhammad Akram aged about 10-11 years who informed that he was sitting in the hotel outside Railway Station way where a young man was also sitting with a hatchet in his hand and that before Lunda train arrived, the said young man came at the platform and I also followed him and reached at down platform. The said young man was wearing a white bunyan and loin-cloth (dhoti). The Lunda train reached and stopped at Railway Station, Tando Masti Khan where many passengers got down from the train and many passengers entered into the train. This present deceased also got down from the train and the said young man armed with a hatchet followed him and thereafter he gave a hatchet blow on the neck of deceased from his backside and ran away. Deceased fell down whereupon I and other passengers raised a noise and cries over it. The aforesaid statement of boy Muhammad Akram has been conveyed to Railway Guard by policeman. The injured was unconscious at a time when we were taking him to Gambat for medical aid but he expired before train reached at Gambat. Police Constable Ahmed Husain Shah brought me before incharge outpost railway Gambat. I do not know who was murderer of deceased nor I know his enmity with deceased. Parents of deceased are residing in village Karroondi. Deceased had married from our village. I lodge this report that legal action be taken."
4. In the meantime, the Head Constable Muhammad Iqbal had already received intimation from the Station Master Gambat that the injured was being brought to Gambat in the' train, and reached the Railway Station. He found deceased Mebar lying dead inside .a second class compartment with a hatchet injury on his back side near the neck. Lie prepared the inquest report under a Mashirnama and sent the dead body to the hospital at Gambat for postmortem examination which was conducted by Dr. Ahmed Ali who found the following injury on the body of the deceased:--- "1. Injury No. 1 an incised wound, on back of neck 8--- x 3--- x ----- deep into 2" apart no two and three cervical vertebraes cut and spinal cord was also cut at level of 2nd and 3rd cervical vertebrae."
5. The Head Constable Muhammad Iqbal thereafter sent copy of the entry in the Roznamcha to the Railway Police Station at Padidan, as the Out--post fall within its jurisdiction. P. W. Foredil, S. H. O.
6. Padidan Railway Police Station, thereafter took up the investigation and proceeded to the scene of offence and there prepared Mashirnama of vardat and secured blood from the vardat and sealed it in presence of the Mashirs. He then examined witnesses P. C. Shafique Rehman, Amjad Husain Shah and Muhammad Akram and started search of the accused. He, however, could not arrest the accused and came to Gambat where he recorded further statement of first informant Kalandar Bux and thereafter, on 3-8-1972, went to the village of the deceased where he examined P. Ws. Mst.
7. Shahar Bano and Muhammad Bux, mother and father of the deceased, and then returned to Paddidan Police Station where Inspector Muhammad Moosa, who was already present there, also joined in the investigation and verified the statements of the witnesses recorded by S. H. O. Foredil and, on 4-8-1972, examined P. W. Mst. Waziran, wife of the deceased Mehar, Dhani Bux and Amin.
8. Thereafter, he along with S. H. O. Foredil, arrested accused Ali Nawaz from near the Tea Stall of Bhiria Road Railway Station on 13-8-1972, and finding blood-stains on his under shirt vest and loin- cloth, he secured the clothes in presence of Mashirs Dilawar and Ghulam Husain and sealed them under a Mashirnama Exh. 25 and handed them over to S. H. O. Foredil. He then received message for V. I. P. Duties and handed over the investigation back to S. H. O. Foredil who examined P. W. Gul Muhammad on 4-8-1972 and arrested accused Muhammad Murad from Padidan Railway Station on 13-8-1972 under Mashirnama Exh. 23 and, on the same day, also arrested accused Ali Murad from Khairpur under Mashirnama Exh.
34. Nothing incriminating was, however, recovered from them. He then handed over the case papers back to Inspector Muhammad Moosa for further investigation. On 13-8-1972, accused Ali Nawaz led the police towards the eastern side of the Railway Station and produced blood-stained hatchet from the 'Lal' bushes which was secured by H.
9. C. Muhammad Iqbal under Mashirnama Exh.
31. Both, the clothes as well as the hatchet, were sent to the Chemical Analyser whose report was in the positive. After the investigation was completed, all the three accused were challaned in the Court of Additional Deputy Commissioner and F. C. M., Khairpur from where they were committed to the Court of Ist Additional Sessions Judge to stand their trial.
10. At the trial the prosecution in order to prove its case, relied upon the testimony of complainant Kalandar Bux and his wife Mst. Hidayat Khatoon, who were travelling with the deceased in the same train, P. W. Muhammad Akram, who was said to have witnessed the deceased being injured, Mst.
11. Shahar Bano, mother of the deceased, who is said to have been travelling in the same train with the deceased and sitting in the same compartment with P. W. Mst. Hidayat Khatoon and seen the appellant Ali Nawaz giving hatchet blow to the deceased at the instigation of appellant Ali Murad , and the testimony of P. Ws. Muhammad Bux, husband of P. W. Mst. Shahar Bano, Gul Muhammad and Mst. Waziran, wife of the deceased, to whom P. W. Mst. Shahar Bano is said to have informed about the incident. The prosecution further relied upon the securing of the blood, stained clothes from appellant Ali Nawaz and recovery of the blood--stained hatchet from him, and the motive, which was that deceased Mehar was suspected as `Kayo' with Mst. Husna wife of Ghulam Ali who was son of Dhani Bukhsh, brother of P. W. Mst. Shahar Bano, and on that account, the appellants, out of vkhom appellant Muhammad Murad was brother of Mst. Husna, had killed the deceased.
12. The defence of the appellants at the trial was one of denial and false implication. Accused Ali Nawaz stated in his statement that he had been involved in the crime at the instance of father-in- law of Mehar who had detained wife of his relative Ghaus Bux at Shikarpur and his brother Arbab had gone there and forced him to return the wife of Ghaus Bux whereupon father-in-law of Mehar had got him involved in this case. Accused Ali Murad pleaded in his statement that he was cousin of Muhammad Murad and brother of Mst. Husna and he had been falsely involved in this case.
13. Accused Muhammad Murad stated in his statement that the case against him was false and in support produced a certified copy of the order of the Additional District Magistrate, Khairpur passed in a direct compLaint filed by Mst. Shahar Bano, mother of the deceased, with regard to the same incident in which his father Dhani Bux and his brother Ghulam Ali were shown as accused with them. He further stated that he had a dispute with Muhammad Bux and Mst. Shahar Bano and insisted for a partition wall between their houses because their relations from Shikarpur were visiting them and they wanted to observe pardah from them.
14. In their evidence at the trial, complainant Kalandar Bux and his wife P. W. Mst. Hidayat Khatoon did not implicate the appellants and also denied P. W. Mst. Shahar Bano being on the same train along with the deceased Mehar. So also, P. W. Muhammad Akram denied to have seen the deceased being injured by any person and stated that he was threatened by the police to become a witness, and his statement before the committal Court was also to the same effect. The trial Court, however, chose to rely on the evidence of Mst. Shahar Bano, treating her as an eye-witness, and the aforesaid corroborating witnesses Muhammad Bux, Gul Muhammad and Mst. Waziran, and the circumstantial evidence of securing of the blood--stained clothes and recovery of blood-stained hatchet from appellant Ali Nawaz and proceeded to convict the appellants and sentenced them as stated above, but acquitted co-accused Muhammad Murad for lack of evidence against him.
15. The question for consideration is whether the appellants have been rightly convicted.
16. Mr. Murtaza Husain, learned counsel for the State, stated at the out set that the evidence of sole eye-witness Mst. Shahar Bano was highly doubtful and on the verge of being false, and so was the other evidence of the corroborating witnesses and the recoveries and, therefore, he did not support the conviction.
17. As the conviction of the appellants is based mainly on the ocular testimony of P. W. Mst. Shahar Bano, mother of the deceased, it needs to be examined carefully and accepted with caution. In her evidence, P. W. Mst. Shahar Bano first mentioned about the dispute between her and her brother Dhani Bux and cousin Hamid over erection of `Lorha' partition between their adjacent houses and the threat given by Dhani Bux and Hamid that they would kill her son Mehar within three days and thereafter stated that during the dispute they received information that the mother-in--law of her son Mehar had been bitten by snake at Shikarpur whereupon she along with her husband P. W.
18. Muhammad Bux and Mehar left for Shikarpur. Her husband Muhammad Bux left them at Padidan Railway Station while they proceeded to Shikarpur where they stayed for one day and returned on the next day in the `Lunda' train in which P. W. Kalandar Buksh and his mother P. W. Mst. Hidayat, who were known to her, were also there. Her son Mehar and Kalandar Bux sat in the male compartment while she and Mst. Hidayat Khatoon sat in the ladies compartment. When they reached Tando Masti Khan Railway Station at about 7 p.m. She saw her son getting down and also saw accused Ali Nawaz with a hatchet and Ali Murad without having anything in his hand. She then heard Ali Murad telling Ali Nawaz not to spare Mehar whereupon Ali Nawaz gave a hatchet blow to Mehar on the back side of his neck and he fell down. Seeing her son falling down, she went unconscious. The lady passengers tried to treat her and she gained her senses at Bhiria Road Railway Station. Where she told them that her son had been murdered by two accused. She then got down at Padidan Railway Station and narrated the incident to her husband P. W. Muhammad Bux and thereafter left for their village on the next day in the morning and on reaching the village, they found the dead body of their son lying there. She then left for filing report at Pacca Chang Police Station where police informed her that it was a case of Railway Police and directed her to go to Padidan. After burying her son she and her husband left for Padidan Railway Station where she gave her statement to the police. In her cross-examination, however, she stated that Kalandar . Bux and MA Hidayat Khatoon bad already boarded the train at Shikarpur before them and that her son Mehar had informed her that P. W. Kalandar Bux and Mst. Hidayat Khatoon were also in the train, but she did not see Hidayat Khatoon due to heavy rush. She was, however, confronted with her statement in the lower Court wherein she had admitted that she had seen Mst. Hidayat Khatoon in the same compartment-It may be stated here that the extract of her such statement before the lower Court was not brought on the record by the trial Court of which grievance was made by the defence counsel in the trial Court itself and was also repeated before us by Mr. Muhammad Hayat Junejo. The grievance appears to be quite justified as the very making of the answer suggests that it was made in reply to her being confronted with her lower Court statement which is further confirmed by the fact that the relevant part of her statement before the lower Court is underlined by the committing Magistrate. It was only proper, therefore, that the extract ought to have been brought on his record by the learned trial Judge-She further stated in her cross-examination that she had not informed any one in the Railway Compartment at Padidan Railway Station about the incident and from Padidan she went on a bus to inform her husband who was residing with Gul Muhammad in his village near Padidan and denied the suggestion that she had not gone to Shikarpur at all and that she was deposing falsely as there was no eye-witness of the incident.
19. Now, the above evidence of P. W. Mst. Shahar Bano would appear to show that she was travelling in the same train with her deceased son Mehar, and that she had seen the appellant Ali Nawaz giving hatchet injury to Mehar at the instigation of Ali Murad . When, however, her evidence is scrutinized carefully in juxtaposition with the evidence of complainant Kalandar Bux and P. W. Mst. Hidayat Khatoon, who were admittedly related to her and were travelling in the same train with the deceased Mehar who was sitting with complainant Kalandar Bux in the same compartment, and the other surrounding circumstances appearing in the case, it would clearly show that she is a false witness and had been set up by the prosecution. She claimed in her evidence that she was travelling in the same train with her son deceased Mehar and was sitting in the same ladies compartment with P. W. Mst. Hidayat Khatoon while her son Mehar was sitting in the male compartment with P. W. Kalandar Bux. The F. I. R. Lodged by P. W. Kalandar Bux, who was related to her and the deceased but was not related to the appellants, however, makes no mention of her being on the train at all, and since the F. I. R. Was lodged by P. W. Kalandar Bux after the entire incident was over, it is also difficult to believe that if she was really on the train and was sitting in the same compartment with Mst. Hidayat Khatoon, P. W. Kalandar Bux could have possibly omitted to mention about it in the F. I. R. Further, the F. I. R. Was lodged without any delay. It cannot be also said, therefore, that Kalandar Bux could have intentionally omitted to mention her presence on the train with some ulterior motive, apart from the fact that nothing was brought on record to show that Kalandar Bux had any motive to do so. This, however, is not the only circumstance. There is also positive evidence which completely belies her evidence. Complainant Kalandar Bux was undisputedly on the same train. He stated in his evidence, in examina--tion-in-chief, that on the relevant day he and his mother Mst. Hidayat Khatoon were going to Bhit Shah in Lunda train and the deceased Mehar was also travelling with them and sitting in the same compartment with him and he had nobody with him. He further stated that when train stopped at Tando Masti Khan Railway Station, deceased Mehar got down telling him that he was going to drink water. Thereafter he heard cries of murder, murder and all the people in the train got down and he also went running and found Mehar lying injured and struggling for life. He further stated in his examination-in-chief that no body informed him as to who had attacked Mehar and caused him the injuries. In his cross-examination by 'the defence counsel, he categorically stated that he knew Mst. Shahar Bano, mother of .The deceased, but she was not travelling in the same train with them and that the deceased Mehar had boarded the train at Shikarpur alone and no body else was with him at that time. Admittedly, P. W. Kalandar Bux was related to the deceased Mebar in that, deceased's father- in-law Imam Bux was brother of Sher Khan Mari who was husband of Mst. Hidayat mother of Kalandar Bux. It is also an admitted position, as deposed to by P. W. Muhammad Bux father of the deceased, that Kalandar Bux was in no way related to the appellants. That being so, there is no earthly reason, and indeed none has been brought on the record by the prosecution, to show why Kalandar Bux would depose falsely against the prosecution and in favour of the appellants. His evidence would show that be was a truthful witness which is further borne out by the fact that he was also not declared hostile by the prosecution. His evidence, therefore, completely falsifies the evidence of P. W. Mst. Shahar Bano from start to finish. Evidence of P. W. Mst. Shahar Bano is further belied by P. W. Mst. Hidayat Khatoon. She stated in her evidence that on the day of the incident she boarded the Lunda train at Shikarpur along with her son Kalandar Bux and saw deceased Mehar also travelling in the same train. She sat in the ladies compartment while her son sat with the deceased in the male compartment and nobody from deceased Mehar's family was sitting with her in the ladies compartment. She further stated that when the train had reached Tando Masti Khan, she heard cries that murder had been committed and saw her son getting down whereupon she also got down and learnt that Mehar had been killed on the platform. Thereafter the police took the dead body to Gambat Railway Station where she and her son also got down and she told Lemo and Eido Marries to inform Noor Muhammad and Yar Muhammad, relations of the deceased, about the murder. The police then took the dead body to Gambat town from where the relations of the deceased took his dead body to the village on the next morning. She further stated in her examination-in-chief that she did not hear as to how the deceased was murdered and by whom.
20. In her cross--examination she, stated that she - knew P. W. Mst. Shahar Bano who was related to her, but she did not see her with her deceased son Mehar at Shikarpur Railway Station nor was she (Mst. Shahar Bano) travelling with her in the same train. Now, Mst. Hidayat Khatoon is admittedly related to the deceased in that, father-in-law of the deceased was her brother-in-law, whereas she was in no way related or connected with the appellants and her being on the train is not disputed even by the prosecution. ; That being so, there is no reason why she should be deposing falsely. On the contrary, the sequence, the manner and the naturalness with which the facts, of the incident were narrated by her would show that she bad given true account of the incident and was a natural and truthful witness. She was, however, declared hostile although one fails to understand the reason for it, as she had stated to the same effect even in the lower Court. And then, she was allowed to be cross-examined with regard to the statement made by her to the police under section 161, Cr. P. C. Bare perusal of section 162, Cr. P. C. Would, however, show that her statement under section 161, Cr. P. C. Could not be used by the prosecution for contradicting her. The learned trial Judge ought not to have, therefore, allowed her cross-examination by the A. P. P. On the basis of her statement under section 161, Cr. P. C.
21. Besides above, evidence of Mst. Shahar Bano also stands contradicted on other important details.
22. She claimed that after getting down at Padidan Railway Station she went on bus to Gul Muhammad's village, called Umman, to inform her husband who was staying with Gul Muhammad.
23. Gul Muhammad, however, categorically denied in his evidence that Mst. Shahar Bano had gone to his house in his village and stated that her husband was not staying with -him and had not come to his house. She bad also stated in her evidence that after she, her husband Muhammad Bux and the deceased had left their village for Shykarpur, her husband Muhammad Bux left them at Padidan Railway Station while she and the deceased proceeded to Shikarpur. P. W. Muhammad Bux, however, stated before the Committal Court that he had not accompanied his wife and the son to the Railway Station when they left for Shikarpur. Muhammad Bux, of course, tried to deny having made such a statement before the lower Court but he was duly confronted with it. She further claimed in her evidence that she saw and heard appellant Ali Murad instigating Ali Nawaz who gave a hatchet blow to her deceased son. Now, the incident is said to have taken place on the railway platform where number of persons would be present on the arrival of the train and there would be lot of noise. In this situation, it is difficult to accept that she could see and even hear the talk between the appellants from the window of her compartment, as if she was just waiting to witness the murder. It would thus be seen that her evidence that she was also on the train and seen the incident taking place stood completely belied by the positive truthful evidence of P. Ws.
24. Kalandar Bux, Mst. Hidayat Khatoon and the circumstances pointed out above apart from the fact that her evidence also appears to be inherently false.
25. Judgment of the trial Court would, however, show that the learned trial Judge has, given no consideration to the evidence of such independent and important witnesses as the complainant Kalandar Bux and hlst. Hidayat Khatoon, and has, instead, chosen to rely on evidence of Mst.
26. Waziran, wife of the deceased, to find that Mst. Shahar Bano had gone to Shikarpur and was on the same train with the deceased on the day of the incident. Her evidence is, however, not worthy of belief as, when cross-examined whether she had stated to the police in her statement under section 161, Cr. P. C. About Mst. Shahar Bano having come to Shikarpur and boarded the train, on the next day back for her village, she firmly replied in the affirmative. She was, however, belied in this respect through the Inspector Moosa Khan who admitted that Mst. Waziran had not stated in her 161, Cr. P. C. Statement that her mother-in-law Mst. Shahar Bano had come to Shikarpur with the deceased Mehar or that she went back in the same train along with the deceased, or that when she returned to the village of the deceased she was informed by her mother-in-law Shahar Bano that her son had been murdered by Nayazo alias Ali Nawaz, Muhammad Murad and Ali Murad , or that Mst. Shahar Bano had informed her that Ali Nawaz had given hatchet blow to Mehar at the instigation of Ali Murad . The learned trial Judge has, however, treated this as an insignificant omission, but we do not agree with him in view of the fact that the deceased having been murdered on the same day of his leaving Shikarpur, she could not have possibly omitted to mention about her mother-in-law Mst. Shahar Bano also leaving with the deceased, if it was really so, and she was also not examined in the committal Court. Besides, evidence of complainant Kalandar Bux and Mst. Hidayat Khatoon completely falsified her evidence. Perusal of her evidence would further show that she, being the wife of the deceased, had fallen in line with the evidence of her mother-in-law Mst. Shahar Bano, to bolster the prosecution case.
27. As to the learned trial Judge relying on the corroborating witnesses Muhammad Bux, Gul Muhammad and Mst. Waziran who stated that Mst. Shahar Bano had informed them about the incident, Mr. Muhammad Hayat Junejo, learned counsel for the appellants, contended that the evidence of Gul Muhammad and Mst. Waziran was inadmissible on the point, inasmuch as, Mst.
28. Shahar Bano herself had not stated in her evidence that she had informed P. W. Gul Muhammad or Mst. Waziran that the appellants had killed .The deceased. With regard to P. W. Muhammad Bux, the learned counsel contended that even he could not be treated as corroborative witness in view of the delay in informing him, and in support relied upon PLD 1969 SC 127.
29. The contention raised by the learned counsel is not without substance. Perusal of the evidence of Mst. Shahar Bano would, indeed, show that she has nowhere stated about her informing Gul Muhammad or Mst. Waziran about the incident. That being so, their evidence was inadmissible and they could not be treated as corroborating witnesses, apart from the fact that Mst. Waziran had come to the village much after the incident. Similarly, P. W. Muhammad Bux also could not be treated as corroborating witness in view of the delay involved as held in PLD 1969 SC 127. In any case, Mst. Shahar Bano having been shown to be a false witness, evidentiary value of her evidence was zero, and zero multiplied by three would still remain zero.
30. The next piece of evidence relied upon by the trial Court for convicting the appellants is the securing of blood-stained under-shirt vest and loin--cloth from the person of appellant Ali Nawaz and the recovery of blood--stained hatchet from him. Appellant Ali Nawaz is said to have been arrested by Inspector Moosa Khan on 13-8-1972 from a tea stall of Bhiria Road Railway Station, twelve days after the incident on 1-8-1972, under a Mashirnama Exh. 25-A. P. W. Moosa Khan stated in - his evidence that on 13-8-72, he along with S. H. O. Foredil arrested appellant Ali Nawaz from the tea stall of Bhiria Road Railway Station. S. H. O. Foredil, however, stated in his evidence that Ali Nawaz was not arrested in his presence. Be that as it may, the Mashir relied upon with regard to the arrest of appellant Ali Nawaz and securing of blood-stained clothes and recovery of hatchet is P. W.
31. Dilawar Husain. He was not examined at the trial but his statement before the Committal Court was brought on the record as evidence at the trial under section 33 of the Evidence Act, and the reason assigned by the learned A. P. P. In his application for the said purpose was simply this that according to Process Server Dilawar Husain had shifted to Karachi. Mr. Muhammad Hayat Junejo contended that the statement of Dilawar Husain could not be read as evidence at the trial as, before it could be permitted to be so read, it had to be strictly proved that in spite of diligent search the witness could not be found, whereas in the instant case no evidence, even of the Process Server, was brought on the record to show that any search, much less diligent search, had been made to find the witness, and in support relied upon PLD 1958 SC (Pak.) 392.
32. The contention is not without merit. Indeed, before the statement of a witness in the Committal Court is allowed to be read as evidence at the trial under section 33 of the Evidence Act, it has to be strictly proved that in spite of diligent search the witness cannot be found. In the instant case, the record would, however, show that even the process server who is alleged to have made the endorsement, was not examined at the trial. That being so, statement of Mashir Dilawar Husain before the Committal Court could not have been allowed to be brought on the record of the trial Court to be read as evidence with the facility with which it was done by the trial Court, as the prerequisites of the section were not complied with. Further, even before the Committal Court the Mashie Dilawar Husain has stated that he would not be able to identify appellant Niazo. Besides above, appellant Ali Nawaz was, admittedly, arrested 12 days after the incident:. That being so, it is hard to believe that having committed the offence he would be still wearing the same blood- stained clothes like a Banyan and loin cloth to provide ready made,- evidence against himself, and the same would also apply to the recovery of hatchet from him. Moreover, the occular evidence of the only witness Mst. Shabar Bano having, been found to be false, mere recovery of the hatchet and securing of the blood-stained clothes from appellant Ali Nawaz would not be, by itself, sufficient for convicting the appellants, out of whom nothing was either secured or recovered from appellant Ali Murad .
33. As to motive, the evidence would show that Mst. Shahar Bano had dispute with her brother Dhani Bux and her cousin Hamid over 'Lorha' partition between their houses and her son had been declared `Kayo' with Mst. Husna who was wife of Ghulam Ali and daughter-in-law of Dhani Bux, and according to P. W. Shahar Bano it were her brother Dhani Bux and her cousin Hamid who had given her the threat that they would kill Mehar within 2-3 days. That being so, it has not been satis-- factorily explained as to why the appellants, out of whom exact relationship of Ali Nawaz with Dhani Bux and Hamid was not even established, had to take it on themselves to commit the crime instead of the parties that had threatened and were directly concerned in the dispute.
34. Having thus reviewed the prosecution evidence in its entirety and in the background of the various circumstances appearing in the case, we are satisfied that the prosecution has failed to prove its case against the, appellants and they are entitled to acquittal, We accordingly allow this appeal, set aside the conviction and sentences of the appellants and order that they be released forthwith unless required in any other case, and we do not accept the reference.