1. SAJJAD ALI SHAH, J.----The above-named three appellants have filed this appeal against the judgment dated 26th April, 1977, passed by the learned Ist Additional Sessions Judge, Khairpur, whereby they have been convicted and sentenced to death and life imprisonment each, on two accounts, for having committed triple murder by causing gunshot injuries in furtherance of their common intention. All the three appellants have further been convicted for offence under section 13-E of the Arms Ordinance and sentenced each to R. I. For one year. There is also reference before us for confirmation of death sentences. We propose to dispose of both appeals and, the reference by this single judgment.
2. Initially nine persons, including the present three appellants were tried for offences under section 302/149, 148 and 147, P. P. C. Before the learned trial Court but others were acquitted on the ground that the case against them was found to be doubtful, hence they were given benefit of doubt.
3. Briefly stated prosecution case is that about 2 months prior to the incident one Muhammad Panah Jatoi son of acquitted accused Khair Muhammad was murdered and the accused party suspected that some Rahoojas had committed that murder, hence in revenge three persons from the complainant party were murdered. On 6-11-1974 deceased Dodo and P. W. Sono both by caste Jalbanies, residents of Village Karam Khan Jalbani, had come to the Village of deceased Muhammad Murad in order to purchase a bullock cart from him. Bargain could not be settled, hence next morning deceased Dodo and P. W. Sono were about to leave for village, when they were joined by deceased Muhammad Murad , complainant Ghulam Umar, deceased Khuda Bux and P.
4. Ws. Dhani Bux and Andal. Deceased Muhammad Murad had left his wife a day earlier in Peer Jo Goth in the clinic of Doctor Abdul Qadir Panhwar, where she was admitted for medical treatment.
5. Deceased Muhammad Murad and his other relatives wanted to go to Peer Jo Goth hence they joined Dodo and Sono who were going in the same direction. All these persons left village at about 7 a. m. And at about 7-30 a. m. When they reached at Garang Dhoro they heard a challenge and saw accused Khair Muhammad, Ganhwar, Ali Bux and Jummo. Out of them Ganhwar, Ali Bux and Jummo were armed with guns while Khair Muhammad was armed with hatchet. At the same time another party of accused came from East-North corner. That party consisted of accused Muhib Ali, Din Muhammad; Gurio. Allah Bachayo and Arbab. Out of them Muhib Ali was armed with hatchet and rest had guns. Both Muhib Ali from one party and Khair Muhammad from the other party of the accused, who were both armed with hatchets, instigated their other com--panions not to spare the complainant party. Upon this Allah Bacbayo fired from his gun which hit Muhammad Murad , Ali Bux fired a shot from his gun which hit Dodo Jalbani and Arbab fired his gun at Khuda Bux which struck him, in the result whereof Muhammad Murad , Khuda Bux and Dodo fell down injured and died. On the cries of the witnesses, Dur Muhammad, Abdul Karim and other persons came to the spot and saw the accused persons in the process of running away. Dur Muhammad and Abdul Karim and other persons were apprised about the facts of the incident and the complai--nant after leaving the other witnesses near the dead body came to the Police Station Ahmed Pur and filed report. At 11-30 a. m. On the same day. The distance between the police station and the spot was about 10-12 miles.
6. P. W. 14 Ghulam Sarwar, S. H. O. After registering F.
1. R. (Exh. 12) came to the vardat, which was pointed out by the complainant. Verdat was situate at place known as Garang Dhoro Forest. At the spot ha found three dead bodies of Murad , Dodo and Khuda Bux with fire-arm injuries. He, found four empty cartridges and two pellets at the vardat, which he seized and put into sealed parcels.
7. He secured blood-stained earth which was sealed in a parcel. He prepared mashirniama of vardat (Exh. 28). He prepared three separate inquest reports and sent the dead bodies to Peer. I Goth hospital for post-mortem examination. He examined P. Ws. Dhahi Bux, Andal, Sono, Abdul Karim and Dur Muhammad and recorded their police statements. On 14-11-1974 accused Khair Muhammad M. Ali, Allah Bachayo, Ali Bux arid Arbab appeared before him voluntarily " & arrested them. Thereafter accused Muhib Ali while in custody led to the recovery of hatchet from jai bushes behind his otak. The hatchet was seized. Appellant Allah Bachayo while in custody led to the recovery of a single barrel gun from lai bushes behind his house. Gun was made into a sealed parcel. Appellant Allah Bachayo could not produce licence for the gun. Appellant Ah Bux while in custody led to the recovery of a single barrel gun from lai bushes on the western side of his house which was seized and sealed into a parcel. Appellant Ali Bux could not produce licence for the said gun.
8. Accused Khair Muhammad while in custody led to the recovery of hatchet from `Manah' of his otak.
9. The hatchet was seized. Appellant Arbab while in custody led to the recovery of a double barrel gun from lai bushes behind the house of accused Khair Muhammad, which was secured and sealed.
10. Accused Arbab could not produce licence for the said gun. Separate cases under section 13-D of the Arms Ordinance were registered against Allah Bachayo, Ali Bux and Arbab. On 17-11-1974 S. H. O.
11. Arrested Ganhwar, Gurio, Din Muhammad and Jummo at police post Machnoon where they had appeared voluntarily. On 18-11-1974 statements under section 164, Cr. P. C. Of P. Ws. Dhani Bux, Andal and Sono were recorded before the Civil Judge and F. C. M., Khairpur. On 28-11-1974 statements under section 164, Cr. P. C. Of P. Ws. Dur Muhammad and Abdul Karim were recorded by the same Court. After completing other steps of investigation challan was presented in the Court on 30-11- 1974.
12. Prosecution has examined 14 witnesses in support of its case. P. W. 1 Ghulam Umar complainant, P.
13. W. 2 Sono, P. W. 3 Andal and P. W. 4 Dhani Bux have been examined as eye-witnesses of the occurrence. P. W. 6 Fazlul Ali Tapedar bas prepared sketch of vardat (Exh. 26). P. W. 7 Shahban mashir has attested mashirnama of vardat (Exh. 28) and inquest reports of the three dead bodies.
14. P. W. 8 Muhammad Hayat constable is the corpse-bearer. P. W. 9 Ali Nawaz has attested mashirnama of arrest (Exh. 34) of four accused persons at Police Station, Machnoon. P. W. 10 Alam mashir had attested masnirnama of arrest of five accused persons (Exh. 36), recovery of weapons from accused persons (Exh. 37). He did not support the prosecution case and was declared hostile.
15. P. W. 11 Muhammad Chattal co-mashir was examined and he also did not support the prosecution case and was declared hostile. P. W. 12 Dur Muhammad who had attested mashirnama of vardat as co-mashir was examined before the Committal Court. He was not examined before the Committal Court. P. W. 13 Dur Muhammad son of Khan Muhammad was examined to corroborate the eye-witnesses. P. W. 14 Ghulam Sarwar S. H. O. Had investigated the case. Report of Chemical Examiner (Exh. 46) is to the effect that the earth was found to be stained with human blood and report of the Ballistic Expert (Exh. 48) is to the effect that two .l2 bore crime-empties were fired from 12 bore (SBBL) shot-gun No. Nil and two 12 bore crime --empties were fired from each of the two barrels of 12 bore (DBBL) shot-gun No. C-48519.
16. P. W. 5 Doctor Muhammad Ibrahim examined the dead bodies on 7-11-1974 at Government Hospital Ahmed Pur. He started the post-mortem of deceased Khuda Bux at 7. 30 a. m. And finished at 8. 30 a. m. On 8-11-1974 and he found the following external injuries on his person.
(1) Wound of entrance
(a) One lacerated wound circular in shape 1" x in diameter 1/5--- in width make the entrance box.
(b) In to left lateral side upper chest making .a hole of 1" in diameter.
(2) Wound of exit of the above side injury
(a) Three lacerated oval-shaped wounds 1/6th in diameter each on right lateral side of chest nearby mida lower down again making their way ; and
(b) Making three oval-shaped wounds 1/6--- in diameter on inner side of right upper arm. The same three pellets were found from right upper arm outer side and three other pellets were found from lateral side of upper right chest nearby the wounds of exit on the same side.
(3) Wounds of entrance.-One lacerated wound --" in diameter on outer-upper left arm --above the injury No. 1 a compound fracture of humerous bone.
(4) The wound or exit 1-- ".-In diameter lacerated wound on inner outer-upper left arm.
(5) The wound of entrance.-Lacerated wound oval-shaped --" in diameter on lateral side of left side of chest 2" below injury No. 1(b).
(6) The wound of exit:
(a) One lacerated wound 3' x 2' on left side of neck in-between left shoulder and left neck region, with fracture of clavical bone.
(b) Oval-shaped lacerated wounds 1/5" in diameter each on back of left side of chest above.
17. All the three entrance and three exit wounds were of three fires caused by discharge of some fire- arms from the distance of about 5 to 6 feet each, and were ante-mortem in nature. The pellets six in number were secured, sealed and sent to Police Station Ahmedpur.
18. On internal examination of the dead body of Khuda Bux he found the following damage:
(1) Scalp, skull, vertebrae, membranes, brain and spinal cord were all normal and healthy.
19. Verleberae and spinal cord were not opened.
(2) Thorax.-Fracture of first, second, fourth and fifth ribs from left side of chest were echymosed and congested. Pleurea was lacerated on both sides and was echymosed and congested trachea was lacerated echymosed and congested. Both lungs were lacerate echymosed and congested.
20. Heart and blood vessels were echymosed and congested. Otherwise all the visceras were normal and healthy. Abdomen. The stomach was empty. The small and large intestines were containing some faecal matter. The under bladder was empty. Otherwise all the viscerae were normal and healthy.
21. From the external as well as internal examination of the dead body of deceased Khuda Bux, he was of the opinion that the cause of death was due to shock and haemorrhage as the result of above- mentioned injuries inflicted on the body of deceased Khuda Bux, which were due to discharge of some fire--arms. Injuries Nos. 1, 2, 5 and 6 were individually and collectively sufficient to cause death in ordinary course of nature.
22. He started the post-mortem of deceased Muhammad Murad at 8-30 a. m. And finished at 9-30 a. m. On the same day and found the following external injuries:-
(1) Wound of entrance.-One lacerated wound 2--- x 1" on inner side of left lower arm nearby wrist joint.
(2) Wound of exit.-One lacerated wound 3--- x 2" on left lower arm outer-side nearby wrist joint with fracture of ulna bone.
(3) Wound of entrance. One lacerated wound 1" x 1 /5--- in diameter on back of left lower chest inclined to some extent to lateral side fracture of 10th rib back side.
(4) Wound of Exit of above injuries:-
(a) One lacerated wound 2--" x 1----- on front of left upper chest nearby nipple fracture of 6th and 7th rib from front side.
(b) 5 lacerated oval-shaped wounds 1/6" in diameter each on front of upper mid chest and on both sides of chest. All the two entrances and 2 exit wounds were of 2 fires which were caused by discharge of some fire-arm from the distance of about 5 to 6 ft. And were ante-mortem in nature.
23. Internal examination Scalp, skull membrances and brain were normal and healthy, vertebrae and spinal cord were not opened. Thorax Pleaurae, both lungs, pericardium, and heart all were lacerated echymosed and congested, otherwise all the viscerae were normal and healthy. The fractured ribs were also echymosed and congested. Abdomen. The stomach was empty. Small and large intestines were containing some faecal matter. The bladder was empty. All the viscerae were normal and healthy.
24. From the extenal as well as internal examination of the dead body of Muhammad Murad the deceased, he was of the opinion that the cause of death has been due to shock and haemorrhage as the result of injuries inflicted on his person. Injuries Nos. 3 and 4 individually and collectively were sufficient to cause death in ordinary course of life.
25. He started post-mortem of the dead body of deceased Dodo Khan at about 9-30 a. m. And finished at about 10-30 a. m. On the same date and found the following injuries on his person.
26. External injuries
(1) Wound of entrance.-5 lacerated oval-shaped wounds 1/6" in diameter on left upper shoulder region and on front of left upper chest.
(2) Wounds of exit.--5 lacerated oval-shaped wounds 1/5" in diameter on right shoulder region with fracture of upper side of right humerous bone. Both the wounds were of one fire which were caused by discharge of some fire-arm from the distance of about 12 ft. And were ante-mortem in nature Internal examination:
(1) Scalp, skull, membrances and brain matter were normal and healthy, the vertebrae and spinal cord were not opened.
27. Thorax.-Fractured 3rd and 4th ribs on both sides of chest was echymosed and congested otherwise normal and healthy. Pleurae trachae, both lungs, pericardium and heart were all lacerated echymosed and congested otherwise all the viscerae of the' thorax were normal and healthy.
28. Abdomen.-The stomach was empty, the small and large intestines were containing little faecal matter. The urinary bladder . Was empty, otherwise all were normal and healthy.
29. From external as well as internal examination of the dead body of deceased Dodo Khan he was of the opinion that the cause of death has been due to shock and haemorrhage as the result of injuries inflicted on his person, which were due to discharge of some fire-arm. Injuries Nos. 1 and 2 were individually sufficient to cause death in ordinary course of life.
30. The defence of the accused persons before the trial Court was total denial of prosecution allegations and that of false implication due to enmity. Acquitted accused Khair Muhammad had stated in his 342, Cr. P. C. Statement that so far the murder of his son was concerned he had already filed F. I. R. Against Ata Muhammad, Sono, Arbab, Rand and Yakoob who have absolutely no connection whatsoever with the complainant party. He has further stated that the complainant party had enmity with Mirbahars as deceased Murad had enticed away Mst. Changi wife of Satabo Mirbabar and deceased Murad was instrumental in getting a suit for dissolution of marriage filed by Mst. Changi, which was decreed against her husband and then she married deceased Murad .
31. Complainant party also bad enmity with Narejas. Deceased Dodo and P. W: Sono and their other relatives were challaned in murder case of Soomar Jalbani, as such those persons were bent upon taking revenge of deceased Dodo and Sono. He produced true copy of judgment of the Sessions Court (Exh. 50) and true copy of the decree of dissolution of marriage (Exh. 51). He also produced true copy of F. I. R. Filed against Atta Muhammad and others as (Exh. 52). He further stated that he had been implicated falsely and the witnesses deposing against him were interested and partisan.
32. Other accused persons in their statements of 342, Cr. P. C. Have proclaimed innocence and false implication and have adopted further statement of Khair Muhammad. Accused persons have not produced any witness in defence.
33. We have heard the arguments of learned counsel appearing for both sides and we have also very carefully examined the whole record of the case. Prosecution case consists of ocular testimony of four eye-witnesses, corroborated by P. W. 13 Din Muhammad, who came to the spot after the incident and circumstantial evidence of recovery of incriminating articles and also evidence on the point of motive. From four eye-witnesses three, namely, P. W. 1 Ghulam Umer, P. W. 3 Andal and P. W.
34. 4 Dhani Bux are closely related inter se and also related to deceased Muhammad Murad and Khuda Bux. P. Ws. Dhani Bux and Andal are real brothers and cousins of deceased Muhammad Murad . Complainant Ghulam Umer is son of brother of deceased Muhammad Murad . Deceased Khuda Bux was son of cousin of P. Ws. Andal and Dhani Bux and nephew of deceased Muhammad Murad . Deceased Dodo was not related to the complainant party and was Jalbani by caste, while the other two deceased persons and complainant party are Rahujas by caste. P. W. 2 Sono is distant cousin of deceased Dodo. All the P. Ws. In the light of relationship described above, are closely related to the deceased persons, as such they are highly interested witnesses, hence their evidence is to be subjected to minute scrutiny with great care and caution, more so when the incident has taken place on a public way away from their houses and would be accepted when it is corroborated from independent sources.
35. It is the case of prosecution that deceased Muhammad Murad had left his wife Mst. Sadori in hospital of Dr. Abdul Kadir Panwar in Pir Jo Goth about 4 to 5 miles away from his village, where she was admitted for medical treatment. Complainant Ghulam Umer has stated that one day prior to the incident he and Muhammad Murad returned from the hospital after leaving Haji Fakir Muhammad father of Muhammad Murad to look after Mst. Sadori and came to the village in the evening where they met deceased Dodo and P. W. Sono, who had come to purchase bullock-cart from Muhammad Murad . Complainant Ghulam Umer is belied by P. W. Sono, who has deposed that on the day before the incident he and deceased Dodo had come to see Muhammad Murad , who was not at home and they were received by his father Haji Fakir Muhammad, who made them wait till Muhammad Murad arrived in the evening. So the story of complainant about leaving Haji Fakir Muhammad in the hospital at Pir Jo Goth to attend to Mst. Sadori a day before the incident stands falsified. Complainant in F. I. R. Has stated that Dodo and Sono had come to purchase a bullock-cart from Muhammad Murad but bargain could not be struck, hence in the morning when Dodo and Sono were going to their village, Muhammad Murad told them that he had to go to Pir Jo both, hence they all went together. In his evidence before the trial Court, the complainant has not only amplified this story but has given a different version. He has testified that during the talk of purchase of bullock-cart, he was present and deceased Muhammad Murad told Dodo that he had already sold away his bullock-cart and his other bullock-cart was being made in village Soomra four miles away, which was also ready so Dodo and Sono stayed with them for the night and next morning they were all going to see the bullock-cart. In this context P. W. Sono had deposed that Muhammad Murad had shown them a bullock-cart which was old and. Not approved, hence Muhammad Murad promised to show a new cart which was being made by Hussain Soomro, hence they stayed for the night and next morning all proceeded together. It is obvious that versions are different.
36. Now so far the incident is concerned, it is stated that seven persons including three deceased and P. Ws. Sono, Umer, Andal and Dhani Bux proceeded together early in the morning. Andal and Dhani Bux had joined them as they had to go to Pir Jo Goth for private work. At a call's distance from their village when they reached 'Garang Dhoro' forest they were encountered by Khair Muhammad, who was armed with hatchet and Ali Bux, Ganwar and Jurio, armed with guns, who emerged from south-west corner. At the same time from north-east corner emerged another party of accused persons namely Muhib Ali armed with hatchet, Din Muhammad, Ghurio, Allah Bachayo and Arbab armed with guns. Both Khair Muhammad and Muhib Ali, who were armed with hatchets, challenged and instigated other companions not to spare, where after Allah Bachayo fired at Muhammad Murad , Ali Bux fired at Dodo and Arbab fired at Khuda Bux, in the result of which all the three, Muhammad Murad , Dodo and Khuda Bux fell down injured and died. In F. I. R. It is stated that accused persons went away firing in the air and on cries of witnesses, came to the spot, Dur Muhammad and Abdul Karim, who also saw accused persons running away. Before the trial Court the eye-witnesses have given different versions, which are so much self contradictory that it is difficult to believe them. For example complainant himself has deposed before the trial Court that as soon as they were challenged, be, Andal, Dhani Bux and Sono ran away in the forest to save their lives and the accused had also fired at them but they were not injured. P. W. Sono, before the trial Court, has testified about the facts of incident as stated above, then said that they had witnessed the incident from inside the jungle. P. W. Andal has stated before the trial Court that the accused persons had also fired at them but none of them (witnesses) received any injuries as there were thick bushes and they had hidden themselves in bushes. They were watching the accused from bushes and had identified them. P. W. Dhani Bux, who was not examined before the committing Court, testified before the trial Court about the facts of incident as above and said that after the three deceased persons were struck down they (witnesses) raised cries and ran towards jungle. P.
37. W. Sono was confronted with his statement before the lower Court, where he had stated that he and other witnesses were lagging behind as they had gone in jungle to case themselves. P. W.
38. Andal has stated before the trial Court that on seeing accused they (witnesses) apprehended danger and ran inside jungle of bushes and lai trees of man's height and had hidden themselves.
39. He denied lagging behind on account of. Easing themselves in jungle but was confronted with his statement before the lower Court, where he had said so. P. W. Dhani Bux has admitted that they were lagging behind as they had gone inside the jungle to ease themselves.
40. It will be pertinent at this stage to describe the place of occurrence. According to mashirnama of vardat Exh. 28, place of occurrence is situate in Garang Dhoro, Deh Katohar, taluka Khairpur. It is no common bullock-cart path from north to south where there is jungle of lai of more than a man's height. Three dead bodies were lying on this path. P. W. 6 Fazlul Ali tapedar and P. W. 7 Shahan mashir have admitted that it is a thick jungle on both sides of track and nobody in jungle would be able to see a person stand--ing on the path and vice versa. Sketch of vardar Exh. 26 shows all the three dead bodies lying in a row at a short distance from each other in that thin track and it is doubtful that eye-witnesses could see the incident particularly in the light of their discrepant evidence as discussed above.
41. What really appears from this evidence is the fact that either these witnesses have not seen the incident as they were away inside the jungle easing themselves and on hearing the reports of gun- fire they did not come out due to fear, in any case they could not see the assailants as jungle was admittedly very thick or alternately they were not in the company of deceased persons at the time of incident. The fact could not be lost sight of that village of complainant was at a call's distance from the place of occurrence as admitted by complainant in his evidence before the trial Court. It is also the case of prosecution that after the incident on the reports of gun-fire so many persons from nearby habitations came to the vardat. It is admitted by P. W. 6 Fazal Ali tapedar that village of Mehesars was about 200 or 300 paces away from vardat and there was another village of Mehesars adjacent to that village" This is admitted by the eye-witnesses also. It is also admitted by the eye-witnesses that different castes like Narejes, Mir Bahars and Junejas as reside in villages near the vardat. It is also admitted by the eye-witnesses that so many persons from different castes had come to the spot after the incident, still no independent witness was examined to corroborate interested ocular testimony. Complainant has stated before the committing Court that he had informed Allah Bux Mehesar before filing that report, but he was not examined as a witness.
42. P. W. 13 Dur Muhammad, who has been examined as corroborating witness is related to the deceased as his wife is niece of Muhammad Murad . He tried to conceal his relationship, with the complainant and was rightly disbelieved by the trial Court. He also claims to have identified the accused in flight but has not been able to explain his presence near the spot satisfactorily. He has stated that he was hart of Pir Nadir Shah and was working in his land and Pir Nadir Shah has about 400 acres of land with four tube-wells in that area, which is cultivated by a score of haris of different castes but at that time only he was cultivating and no other hart was present. This witness simply is not trustworthy.
43. There is one other aspect of this case which casts doubt on the eye- account of witnesses. All the eyewitnesses have stated that one shot each was fired at deceased persons, while on the other hand medical evidence shows that deceased Khuda Bux had sustained three entry and exit wounds caused by three shots, deceased Muhammad Murad sustained wounds caused by two shots and deceased Dodo sustained two wounds caused by one shot. Medical evidence belies totally the version of eye-witnesses.
44. Direct evidence is sought to be corroborated by circumstantial evidence. It is the case of prosecution that four crime empties were recovered from the spot. Although the incident took place in broad daylight, presence of crime empties at the spot is not mentioned in F. I. R. On the other hand P. W. Sono stated before the trial Court that after firing accused persons collected some of the empty cartridges from the vardat before going away and after their departure remaining cartridges seven in number were collected by them from the vardat. This witness has admitted that he had gone to the Police Station with the complainant but denied the suggestion that he handed over the empty cartridges to the police at the Police Station. In any case P. W.1.4 Ghulam Sarwar S. H. O. Who happens to be Jalbani by caste as deceased Dodo in this case has explained that four empty cartridges and two pellets were recovered from the spot. P. W. 7 Shahan mashir of vardat did not support the recovery of crime empties from the spot and he was declared hostile. In cross-examination before the trial Court he stated that he was called to the spot by Sono and he was informed that two Rahujas and one Jalbani were murdered and when he came to the vardat no one gave him the names of accused persons. Incident took place on 7-I1-1974 and on the following day S. H. O. Raided house of appellant Arbab but could not secure anything. On 14-11-1974 accused Khair Muhammad, Mohib Ali, Allah. Bachayo, Ali Bu x and Arbab appeared before him voluntary at village Pirano Jatoi and he arrested them. Accused Muhib Ali and Khair Muhammad led to the-recovery ;of their hatchets which were not stained with blood. Allah Bachayo produced S. B. Gun from the bushes from south of his house, Ali Bux produced S. B. Gun from lai bushes in the west of his house. Arbab produced his double; barrel gun from Jai bushes behind the house of Khair Muhammad. All these. Three appellants could not produce licences. Mashirnama of recovery of gun of Allah Bachayo Exh. 38 shows that gun was recovered from cluster of Khabar trees near his house in the south and number of gun was rubbed off by use of `Rawat'. Mashirnama Exh. 39 shows that gun of Ali Bux appellant was' produced by him from the bushes near his house. The number of gun is stated to be 26674. Likewise gun of Arbab, as per mashirnama Exh. 41, double barrel '12 bore No. C-48579 was recovered from jungle behind the house of Khair Muhammad. Both mashirs Ali Bux alias Alan son of Allah Warayo and Muhammad Chattal son of Muhammad Yousif, who had attested these recoveries did not support: before the. Trial Court. P. W. 10 Allan has stated that guns were shown to him at the Police Station and he was asked to attest mashirnamas. P. W. I1 Muhammad Chattal has also said the same thing. Now both these witnesses are independent and not related to the complainant. In fact, they are from different castes. Allan is Gumro by caste white Muhammad Chattal in Kalhoro. The manner in which the guns are alleged to have been recovered as stated above leaves one in doubt about the credibility of -the assertion and in such circumstances when both mashirs who are rather independent and unrelated do not support, it would not be fair to rely upon Investigating officer to say that this evidence is proved.
45. Ballistic expert's report Exh. 48 on the record discloses that two .12 bore crime empties were fired from 12 bore shot-gun No nil. From the reaming two crime empties, one was fired from the right and the other from left barrel of D. B. B. L. Shot-gun No. 48519. It appears that No. Of double barrel gun does not tally with No. In mashirnama Exh.
41. Secondly third gun of All Bux is not stated to be used in the crime, even then hr has been convicted and sentenced to death. As we were doubtful about the unnumbered gun we summoned the Investigating Officer and examined him in the Court presence of the appellants. His statement so recorded is on the record. He has deposed that unnumbered gun was secured from Allah Bachayo. Since we view the evidence of recovery of these guns with doubt, no useful purpose would be served by dilating on the intrinsic value of this piece of evidence.
46. Lastly the evidence on motive produced by prosecution is not impressive. The appellants and acquitted accused are inter related. It is stated that about 2 months before the incident Muhammad Panah son of Khair Muhammad accused was murdered for which accused suspected one of Rahojas from complainant-party to be guilty so at random they had committed murders of three persons, one of whom accidentally was Jalbani. Acquitted accused Khair Muhammad has produced copy of F. I. R. In that case in which some persons are specifically named as accused against whom case is pending and those persons have nothing to do with the complainant party.
47. On the other hand accused Khair Muhammad has stated that deceased Muhammad Murad had abducted Mst. Changi wife of Satabo Mirbahar and she filed a suit for dissolution of her marriage and subsequently Muhammad Murad married her. Complainant and other witnesses admitted this. It was asserted by accused that complainant party had enmity with Narijas but this suggestion was denied by P. Ws. It was stated by defence that Dodo and Sono Jalbani were challaned in the murder case of Soomar Jalbani, which fact is admitted as true by Sono, who stated that they were convicted and sentenced to life imprison-ment but were acquitted in appeal by the High Court. In such circumstance possibility cannot be ruled out that assailants could be some of such aggrieved persons. We are of the considered opinion that ocular testimony in this case is interested and not free from doubt and the corroboration from independent sources is also not available, hence prosecution has failed to produce sufficient evidence of inculpatory nature to connect the appellant with commission of crime. There is plenty of rooms for doubt, benefit whereof must go to the appellants. We, therefore, give benefit of doubt to appellants and set aside their convictions and sentences. They be set at liberty if not wanted in any other case. The reference is not accepted.