1. SAJJAD ALI SHAH, J.-------On 3-12-1978, after hearing the arguments, by a short order we had allowed the appeal and rejected the reference made under section 374, Cr. P. C. For confirmation of death sentence, for reasons to be recorded later. The reasons follow now.
2. Appellants named above are brothers inter se and are sons of Miro Khan Khoso, Zamindar of Deh Zangipur, Taluka Thul, District Jacotabad. They are convicted under section 302/34, P. P. C. By the learned Sessions Judge, Jacobabad vide his judgment dated 12-7-1978 and sentenced to death, each and fine of Rs. 2,000 each and in default of the payment whereof each has been further sentenced for R. I. For one year. Appellants were also convicted for offence under section 13-D of the Arms Ordinance and each of them was sentenced to R. I. For one year. The trial Court further directed that sentences under section 13-D of the Arms Ordinance and that in default of the payment of fine would come into effect if death sentence was not confirmed or if it was altered by the High Court. It was further directed that substantive sentence under section 13-D of the Arms Ordinance would run concurrently with any sentence passed by the High Court under section 302/34, P. P. C. And sentence in default of payment of fine would run consecutively. It was further directed that fine if paid should be given to the sons of the deceased in equal shares as compensation under sec--tion 544-A, Cr. P. C. This judgment was appealed against and there was a reference before us for confirmation of death sentence and we had disposed of both, as stated above.
3. Shortly stated prosecution story is that deceased Muhammad Ramzan was Mangi (barber by caste and lived in village Zangipur, of which Miro Khan, father of the appellants, is a big Zamindar.
4. Faqir Muhammad son of Muhammad Ramzan deceased owned a general provision shop in Zangipur from which the appellants used to make purchases on credit basis. Deceased Ramzan and P. W. Abdul Aziz also used to work in that shop and assist Faqir Muhammad, they used to maintain account book foe credit to customers. It is stated' that an amount of Rs. 2,000 or 3,000, was due from both the appellants to Faqir Muhammad on the day of incident, i.e. 30-8-75 at `bipahri' time deceased Ramzan accompanied by his son P. W: Abdul Aziz went to see the appellants in a garden near the tube-well to demand their dues. Both appellants were armed with guns. Ramzan approached them and demanded dues but they replied that they had no money at that time. Ramzan told them that they needed the money badly as they intended to shift from their village. Appellants abused Ramzan, upon which Ramzan also returned abuse. Upon this appellants got infuriated and said that how could a Mangi abuse them. Appellant Darya Khan fired from his gun at Ramzan, who became injured and appellant Mushtaq also fired a gun--shot at Ramzan, in the result whereof Ramzan fell down injured and died. On the reports of gunfire and cries of P. W.
5. Abdul Aziz, Jan Muhammad and Faqir Muhammad came to the spot and they also saw the appellants at the vardat. Appellants then ran away. These three witnesses carried the dead body of Ramzan to his house, which was at a distance of 50-60 paces from the place of occurrence.
6. There are two versions available on the record as to how F. I. R. Was lodged and the investigation was conducted. According to the statement of P. W. 8 Abdul Aziz, recorded before the trial Court, after he and P. Ws. Jan Muhammad and Faqir Muhammad brought the dead body to their house the appellants with some other persons came and surrounded their house and threatened them not to go for lodging the report, hence none could move out of the house because of surveillance of the appellant and ultimately at dawn time on the following day P. W. Abdul Aziz secretly managed to slip away from his house and went to Karim Bux Police Station where S. H. O. Was not available and he was informed that S. H. O. Had gone to Zangipur Village for investigation in a murder case. Abdul Aziz came back to the village, found the S. H. O. And approached him for taking his report but he was ignored by the S. H. O. Abdul Aziz then went to the Superintendent of Police, Jacobabad and narrated the facts to him. Superintendent of Police gave a letter to Abdul Aziz addressed to D. S. P. Kandhkot for taking over the investigation. The letter Exh. .24 on the record is reproduced hereunder:- No. RV/1503 of 1975 Office of the S. P., Jacobabad Dated 1-9-1975 Subject-Case F. I. R. No. 35/75 under section 302/34, P. P. C. & 13-D, A. A. Of P. S. Karim Box.
7. Applicant Abdul Aziz son of Ramzan today appeared before me and stated that on 30-8-1975 his father deceased Ramzan was murdered. He went to Police Station Karim Bux for lodging his complaint, but S. H. O. Karim Bux refuses to take his complaint.
8. On enquiry it was fount: that a murder case was registered at Karim Bux on 31-8-1975 instead of 30-8-75 on 'the complaint of Din Muhammad Khoso son of Bahadar Khan Khoso whereas the deceased Ramzan is father of the applicant Abdul Aziz. But I was astonished to find that the complainant in this case is a person who is neither the deceased person's relative nor has any connection with him in any way.
9. I strongly suspect that the F. I. R. Has been registered incorrectly for some ulterior motive.
10. You are therefore directed to take the case papers of the above case from S. H. O. Karim Bux and personally investigate this case and submit compliance report.
11. Please treat this as most urgent.
12. (Sd.)
13. (Iftikhar Ali Isani), Superintendent of Police, Jacobabad.
14. Mr. Mazhar Hassan Khan, S. D. P. O., Kandhkot.
15. The other version of the case is that one Din Muhammad, who is kamdar of Miro Khan Khoso, father of the appellants, claims to have seen the incident, went and filed report at P. S. Karim Bux on 31-8- 75 at 7.30 a. m. (on the following day of incident) which was recorded by Noor Hussain S.H.O. It would be pertinent to reproduce the contents of F. I. R. Which are as under:--- "Sir, complaint is that I am `Kamdar' of Miro Khan Khoso and I, reside in Zangipur village. Yesterday at about 'Bipahri' time I was standing in the garden when Ramzan son of Khan Hajam was taking water from a nearby water pump. At that time two unidentified persons armed with guns emerged out from the curve of nearby watercourse and they started firing at Ramzan son of Khan Hajam.
16. Ramzan felt down. On gun reports Guloo son of Abdul Rehman Separto, Saleem son of Buxan Jat and other villagers came there and we chased the culprits but culprits threatened us by aiming their guns, and expressed that they had taken their revenge and we should have no concern. We stood there due to fear. Accused ran away towards South. We went and saw that Ramzan had gunshot injuries on abdomen and neck. He was dead and blood was oozing out. Then I left Saleem and Gulloo there and I went to Jacobabad to inform Wadero Sardar Khan whom I narrated the fact of the incident who directed me to report the matter to the police. Then I came on foot and lodged the report that two unidentified persons had killed Ramzan by gunshot injuries. Previously deceased Ramzan was confined in Jail at Shikarpur in a murder case of Hajams. Justice be done."
17. Noor Hussain S. H. O. After recording the F. I. R. Came to the vardat which was 8 miles away from the Police Station. He inspected vardat in presence of mashirs Illahi Bux and Jan Muhammad and secured blood-stained earth which he sealed into a parcel. Then he went to the house of deceased Ramzan where his dead body was lying on a cot. In presence of the same mashirs he prepared inquest report and found that the dead body had gunshot wounds. He despatched the dead body to the hospital for post-mortem examination. He then recorded statements of Illahi Bux, Fuqir Muhammad and Jan Muhammad. The case papers were taken away from him on 2-9-75 by D. S. P. Under the orders of the Superintendent of Police.
18. P. W. 11 Mazhar Hussain, D. S. P., Kandhkot after taking over investiga--tion came to the vardat and recorded statements of Ghulam Nabi and Sardar Khan. On 3-9-75 he recorded statements of Abdul Aziz, Illahi Bux, Jan Muhammad, and Faqir Muhammad. On 4-9-75 he received post-mortem report from the Medical Officer. On the same day P. W. Faqir Muhammad produced before him two account books which he secured in presence of mashirs Jan Muhammad and Illahi Bux vide mashirnama Exh. 15-A. On 10-9-75 he recorded statement of Saleem. On 15-9-75 he was transferred and handed over the papers to Abdul Fahim S. H. O. Karim Bux Police Station, who in turn handed over the papers to Mulazim Hussain Shah, who presented the challan in the Court on 21-2-1976. Mulazim Hussain Shah died before his evidence could be recorded.
19. It would be appropriate at this stage to point out that the perusal of the order sheet of the learned trial Court indicates that trial had commenced on 20-11-77, when two witnesses were examined and it was put off to 5-1-78. On that day other two witnesses were examined and then P. W. Faqir Muhammad, who bad produced account books before D. S. P. Mazhar Hussain, was in the box, his further examination was reserved and the case was adjourned on account of non-production of account books. A show---cause notice was also issued to S. H. O. Karim Bux Police Station as to why he had failed to produce the account books. Thereafter the case had been adjourned for five times for production of account books and every time a date was taken for that purpose and particularly D. S. P. Mazhar Hussain kept on assuring the Court that he was-tracing the said account books and finally on 24-5-1978 he informed the trial Court in writing that the account books were missing and could not be traced out by the Police. Consequently the case proceeded in the absence of account books and evidence of P. W. Faqir Muhammad which was halted, was ultimately concluded.
20. Prosecution examined 11 witnesses in support of its case. P. W. Nasrullah Tapedar had prepared sketch of vardat Exh. 6 on 24-11-1976 and produced it in the Court. P. W. 2 Nizamuddin constable, deposed as corpse-- bearer. P. W. 3 Din Muhammad complainant has been examined as eye-- witness. He has supported his version given in F.I.R. And claimed not to have identified the two assailants as their faces were muffled. P. W. 4 Faqir Muhammad, who is son of deceased Ramzan, has deposed that on the day of incident he heard reports of gunfire and rushed to the spot to find his father lying dead with gunshot injuries and the two appellants armed with guns present there.
21. He was given further facts of the incident by P. Ws. Abdul Aziz and Jan Muhammad, who were also present there. He also testified that the appellants used to purchase provisions from his shop on credit and an amount of Rs. 2,000, or 2,500 was due from them. He had produced account books showing amount of dues against appellants before the D. S. P. P. W. 5 is Doctor Muhammad Alain. P.
22. W. 6 Illahi Bux mashir had attested mashirnama of vardat and inquest report and mashirnama of production of account books before D. S. P. P. W. 7 Abdul Fahim retired S. H. O. Had partly investigated the case. P. W. 8 Abdul Aziz son of deceased Ramzan has deposed as eye-witness of the incident as narrated by him, which is not consistent with the version of incident given in F. I. R. P.
23. W. Jan Muhammad is brother of deceased Ramzan. He has deposed that he was in mosque when he heard reports of gun fire, came to the vardat and found Muhammad Ranizan lying dead with gunshot injuries and the appellants present there armed with guns. He was informed about the details of the occurrence by P. W. Abdul Aziz who was also present there. P. W. 10 Noor Hussain S. H.
24. O. And P. W. 11 Mazhar Hussain D. S. P. Had conducted investigation of the case.
25. Medical: evidence is produced by Doctor Muhammad Alam, who performed post-mortem examination or the dead body of deceased Muhammad Ramzan on 31-8-75. On external examination he found the following injuries:-
(1) Oval punctured lacerated wound of entrance 1 C. M. In diameter on the middle front of the neck.
26. Charring present.
(2) One oval punctured lacerated wound of exit 1 C. M. In diameter or the left side of the neck, on the back.
(3) One oval punctured lacerated wound of entrance 1 C. M. In diameter on the anterior aspect of the left shoulder, Charring present.
(4) One oval punctured lacerated wound of entrance 1--- in diameter Charring present on the right side upper 1/3-rd front abdomen.
(5) One oval punctured lacerated wound of entrance 1/3" in diameter on the right side abdomen, just close and below injury No. 4.
(6) One oval punctured lacerated wound of exit 1----- in diameter on the left side lateral aspect on upper 1/3rd abdomen.
(7) One oval punctured lacerated wound of exit 1/3 in diameter just close and below injury No. 6.
(8) Four oval punctured lacerated wounds of entrance. Charring present each half inch in diameter, one on the thumb two on the index finger and one on the middle finger with fracture of the bone charring present on the left hand.
27. On the internal examination he found the following injuries.
28. 11th and 12th ribs on right side were pressured, larynx and trachea were full of blood, right lung was punctured, brain, left lung and heart were normal. Pharynx and oesophogus were full of blood.
29. Stomach was pictured and was full of blood. No food was seen. Intestines were punctured. Liver was punctured.
30. From the external as well as internal examination of the dead body, he was of the opinion that the cause of the death was due to gunshot injuries by discharge of fire-arms such as gun. All injuries were ante-mortem in nature. The death took place more than three hours after the last meals. The time between injuries and death was about an hour. The time between death and post-mortem was about 24 hours. One wad was recovered and was handed over to the constable. Injury Nos. 1, 4 and 5 were individually and all injuries collectively were sufficient to cause death in the ordinary course of nature. The injuries could be the result of two or three shots and the assailants must be within 12 feet from the victim.
31. The defence of the appellants before the trial Court, in their statements under section 342, Cr. P. C.
32. Was total denial of prosecution allegations. It is further stated that deceased Ramzan was challaned in the case of murder of Kadan at Shikarpur. Father of appellants had got him arrested in that case and due to that enmity, appellants claimed, that they had been falsely implicated.
33. In the light of arguments of the learned counsel appearing for each side, we have examined the record of this case very carefully. It is indisputable that Muhammad Ramzan died in the result of gunshot injuries, which he came to have sustained. The paramount question is that who is/are responsible for this murder and what is the evidence produced by the prosecution to prove such allegation.
34. There are two versions of the incident and much can be said about the manner in which the investigation was conducted. One version is given by complainant Din Muhammad in F. I. R. Which he has testified in the Court as P. W.
3. He is kamdar of Miro Khan, who is father of both these appellants. He claims to have seen the assailants with muffled faces to have fired at Ramzan who fell down injured and died. According to him Saleem and Gulloo also witnessed this crime and the unidentified assailants made good their escape. The complainant has further deposed that after the incident he did not inform the relations of the deceased who resided in the same village but went to Jacobabad, where he informed Sardar Khan and Darya Khan, who advised him to lodge the report. Then he went to Karim Bux Police Station where he registered F.I. R. On the following day, i. e. 31-8-75 at 7.30 a. m. The incident is alleged to have taken place on. 30-8-75 at `bipahri time.
35. The distance between Karim Bux Police Station and the at p place of occurrence is 8 miles. The reason for delayed registration of F. I. R. Ex lamed by the complainant in F. I. R. As stated above. The complainant is p has also voluntarily stated in F. I. R. That previously deceased Ramzan was confined in Jail at Shikarpur in a murder case of Hajams, giving a clue that assailants could be from the party of Hajari who was murdered at Shikarpur. In the cross-examination complainant has admitted that P. Ws Abdul Aziz. Faqir Muhammad and Jan Muhammad are close relations of Abdul ceased. Deceased Ramzan used to run a shop in the same village. Deceased was involved in a murder case and was acquitted in that case has claimed that Miro Khan had got the deceased arrested in Complainant case. He has further explained in his cross-examination before the trial that court that after he informed Sardar Khan and Darya Khan at Jacobabad and advised him to lodge the report, he returned to his village and asked the they report or he should sons of the deceased whether they would go to police for rep or that purpose, and the sons of the deceased, according to him permitted 'm to o and lodge the report with Police. We do not propose to rely on the of this witness as it is apparent that he has concealed the true facts deposition the obvious reasons. The manner in which he has conducted himself for rise to two inferences. One is that he has seen the incident and gives identified the assailants, in which case Would be consistent with natural not conduct that he would rush to the relatives of the deceased and inform them the incident, who might be able to tell him about the persons who about could be motivated to kill the deceased on account of enmity. The second co inference is that he has seen the incident and identified the assailants but wanted to conceal the true facts hence he purpose did not inform the relatives of the deceased in order to gain time to fabricate some plausible story. The second inference appears to be believable in the circumstances of this case. The complainant went to Jacobabad to inform Sardar Khan and Darya Khan and after consulting them has lodged this report without informing the relatives of the deceased. The contents of F. I. R. Are obviously favourable to the appellants because the identity of the assailants is not disclosed. It is also borne out from. The record that the investigation as conducted deliberately by the police, in line with the version contained w in F. I. R. And the relatives of the deceased were prevented from approaching he police. It is also obvious that police was taken in confidence and the investigation was deliberately diverted to follow the version as-was contained in F. I. R. And no attempt was made by police to find out the true facts this inference is not true, then at the time of recording F. I. R. The Police If officer would have demanded of the complainant to give description of the O assailants, as the incident took place in broad daylight. Complainant has not stated in F. I. R. That the faces of the two assailants were muffled but on the contrary he has stated that two unidentified persons armed with guns fired at Ramzan: In that case the description could have been given by the complainant F. I. R. And the Police officer who recorded the F. I. R. Could have demanded it. These lapses indicate that the police was taken into confidence and the course of the investigation was intentionally diverted. Further proof is available in the fact that at the trial none of t he two eye- witnesses Gulloo son of Abdul Rehman and Saleem son of Bakhshan named in F. I. R. Was examin-- ed to support the so-called- person of the complainant. It is admitted by P. W. 10 Noor Hussain S. H.
36. O. Who recorded the F. I. R. That he inspected the vardat and then recorded statements of Illahi Bux, Faqir Muhammad and Jan Muhammad then the case papers were taken away from him by D. S. P under the orders of the Superintendent of Police. The letter of Superintendent of Police addressed to D. S. P. Which is Exh. 24 on the record, has been reproduced above and is explicit on this point that investigation was bungled. This also proves the contention of Abdul Aziz son of deceased Ramzan that first he was prevented by the appellants and the ether persons, who encircled his house duly armed and threatened not to go to report to the police and secondly that the police did not record his F. I. R. In these circumstances it is not surprising that no crime-empty was found at the spot and the guns were also not recovered from the appellants. After the investigation was taken over by D.
37. S. P. Then too, no wholehearted attempts were made to collect the incriminating evidence against the appellants and on the contrary the account books which were produced by P. W. Faqir Muhammad before D. S. P. Under a mashirnarna were lost at the Police Station, may be for the reason that those account books could have proved entries of dues outstanding against appellants. What is more surprising is the fact that the sketch of vardat was prepared by Tapedar Nasrullah on 24-11-76, when the incident took place on 30-8-75 and according to the deposition of this tapedar, vardat was pointed out by P. Ws. Ghulam Nabi, Saleem and complainant Din Muhammad. This shows that police persisted in supporting the false version of complainant as provided by him in F. I. R. And the relatives of the deceased who claimed to be eye-witnesses were not joined in the investigation. In the light of these handicaps and limitations, the evidence of other witnesses, who support the version of Abdul Aziz son of deceased is to be considered.
38. Order of Superintendent of Police transferring investigation to D. S. P., Kandhkot, which is reproduced above is self-explanatory. Admission of Noor Hussain S. H. O. That he had to hand over the investigation to D. S. P., Kandhkot and he was transferred to police lines proves the fact that investigation was conducted improperly and F. I. R. Of Abdul Aziz was not recorded though he made several attempts and approaches in spite of the fact that the appellant's party prevented him and his other relatives to go to. The police station. P. W. 8 Abdul Aziz is son of deceased Ramzan and W. Faqir Muhammad is his brother while P. W. Jan Muhammad is his uncle. P. W. Abdul Aziz has deposed before the trial Court that he accompanied his father, on the day of incident when his father demanded dues from the appellants. After his father was shot down, first Jan Muhammad arrived at the spot and then came Faqir Muhammad. Abdul Aziz further claims that both these witnesses saw the appellants who were still present at the. Spot. In this version Abdul Aziz is supported by P. W. 9 Jan Muhammad and P. W. 4 Faqir Muhammad. The evidence of these witnesses is strongly criticised by Mr. Azizullah K. Shaikh, the learned Advocate for the appellants on the ground inter alia that this testimony of interested witnesses is not corroborated by independent sources. Legally speaking it is very much so in spite of unfortunate concomitant circumstances mentioned above. P. W. 8 Abdul Aziz has stated- before the trial Court that after they brought the dead body to the house the appellants came there along with 2-3 other persons and surrounded the house and told them that if any one went for report he would be killed. Other persons with the appellants had muffled their faces. P. W. 4 Faqir Muhammad on this point had stated before the trial Court that after the incident both appellants along with their supporter came to their house and warned them not to go to the police. They had encircled the house. This witness obviously does not talk about the faces of the supporters of appellants being muffled. P. W. 9 Jan Muhammad has deposed that the appellants along with other persons encircled the house so that they should not go to the police for report. In the cross-examination before the trial Court this witness also has asserted that there were four or five other persons with the appellants who had surrounded their house. Those other persons had muffled their faces hence he could not identify them. This story about the faces of supporters being muffled appears to tie doubtful. If the faces of the appellants, who had committed alleged murder of Ramzan, were not muffled then why should the supporters who were allegedly there with the appellants only for the purpose of not allowing the relatives of the deceased to go to the police station, should muffle their faces. After all the supporters were also from the same village and if they were there the witnesses appear to be afraid to disclose their identity. Moreover P. W. 8 Abdul Aziz in his statement under section 164, Cr. P.
39. C. Has not spoken about the supporters of the appellants or the surrounding of the house by the appellants. He has only stated that after the incident, Mushtak and Darya Khan returned to their house and threatened them not to lodge the F. I. R. Likewise P. W. 9 Jan Muhammad had stated, in his 164, Cr. P. C. Statement that after the incident at the spot Mushtak and Darya Khan threatened them not to lodge the F.I.R. Otherwise they would be killed. Then they brought the dead body to the house and sat there. It is obvious that this witness does not say any thing about the surrounding of the house or the coming of appellants there. The threat was extended by the appellants at the spot. P. W. 4 Faqir Muhammad in his statement under section 164, Cr. P. C. Has stated that at about 3 or 3-30 p. m. They brought the dead body to their house. They were not allowed to lodge the report and they were threatened that if they lodged the report they would be killed. Then they remained quiet and at `Asar' time, his brother Abdul Aziz went to Karim Bux Police Station. It is not clear from the above narration as to who threatened and where. There is also no mention about the surrounding of the house. This story appears to be doubtful and it is possible that out of fear the witnesses could not go out to lodge the report as the appellants were powerful and influential persons.
40. It was contended that motive is not proved because account books were not produced hence it was not established whether the appellants owed any money to the deceased by way of credit. It is in the evidence of these witnesses that a register used to be maintained for entering the credit to the customers. It is not clear as to who used to maintain this register. Admittedly the register was not produced for what ever reasons may be. P. W. 4 Faqir Muhammad says that amount of Rs.
41. 2,000, 2,500 was due from the appellants. P. W. 8 Abdul Aziz has stated before the trial Court that an amount of Rs. 2,000, to 3,000, was due. Both these witnesses have not mentioned any specific amount in their 164, Cr. P. C. Statements. P. W. Faqir Muhammad produced account books before D.
42. S. P. Mazhar Hussain. He has admitted this in his deposition before the trial Court. The account book was secured vide mashinama Exh. 15-A which is attested by, mashirs Illahi Bux and Jan Muhammad P. W. 6 mashir. Illahi Bux has produced this mashinana which is dated 4-9-75.
43. Unfortunately no relevant details of the entries-on the 19 mount due from appellants are mentioned in this mashirnama It barely mentions that one account register was secured and it contains 96 pages. In these circumstances even this mashirnama is of no help. It even does not mention that there were entries in the names of the appellants.
44. Dead body of the deceased Ramzan was removed from the spot to the house of the deceased.
45. Mashirnama of vardat does not mention that there was any trail of blood from the spot to the house of the deceased.
46. The eye-witnesses claimed that only two shots ware fired at the deceased one by each appellant.
47. Medical evidence shows that 8 injuries were sustained by the deceased and the doctor has opined that these injuries could be the result of 2 or 3 shots.
48. P. W. Abdul Aziz is the only eye-witness who is supported by P. Ws. Faqir Muhammad and Jan Muhammad, who came to the spot, did not see the actual firing but saw the dead body of Muhammad Ramzan and both appellants present there with guns. They were further informed by P.W. Abdul Aziz about the details of the incident. Both these witnesses Faqir Muhammad and Jan Muhammad are related to the deceased as well as Abdul Aziz. Jan Muhammad also is brother of deceased Ramzan. Even this corroboration does not come from independent source. P. W. 6 Illahi Bux who is a mashir, is also related to the deceased. He has admitted that P. W. Faqir Muhammad is husband of his daughter and deceased Muhammad Ramzan was father of wife of his son. This witness claims to be Nekmard of his community. He has further stated that after hearing about the death of Muhammad Ramzan he came to the house of deceased. He heard about the incident in Thul that one `Hajam' was murdered in Zangipur so he hired a taxi and came to `Zangipur. By that time dead body was brought to the house of the deceased. According to this witness all the inmates of the house including P: W. Faqir Muhammad were mourning. He did not inquire from them about the incident nor he was informed by any body as to how Ramzan was murdered. He has further stated that Faqir Muhammad and Jan Muhammad were also present in the house and Abdul Aziz came subsequently. Police also arrived at the house of Faqir Muhammad and heaccompanied the S. H. O. To the vardat. Faqir Muhammad told them subsequently that one old man by caste Khoso had informed him that Ramzan was murdered at that vardat. He did not tell him as to who murdered Ramzan. Two or three days after the incident Faqir Muhammad told him that sons of Miro Khan had murdered Ramzan. Faqir Muhammad however did not give him the names of the assailants. He has attested mashirnama of vardat, inquest report and mashirnama of recovery of account-books. In the cross-examination before the trial Court he has stated that at the vardat Faqir Muhammad and Jan Muhammad were present while Abdul Aziz was not available.
49. Police recorded statement of Faqir Muhammad in his presence. Faqir Muhammad and Jan Muhammad were telling the S. H. O. That he was very much unfair to them as he had not recorded their report. He has further admitted that S. H. O. Was indifferent to them and he did not tell him to take report from Faqir Muhammad or Abdul Aziz.
50. It is clear that evidence of this witness who is related to the deceased is contradictory and damaging to the version of P. W. Abdul Aziz. He has not supported the version of Abdul Aziz regarding the details of the incident. He was not declared no stile. This is all the evidence which has been adduced by the prosecution before the trial Court in support of the version of P. W. Abdul Aziz It is based on exclusive oral statements of a few witnesses who are closely related to the deceased and as such they are interested witnesses. In view of the discrepancies mentioned above this evidence does not appear to be wholesome. It essentially requires independent corrobora--tion.
51. Circumstantial evidence. Is not available. Crime empties were no recovered. Crime-weapons wee not recovered. Motive is not established The way in which investigation was conducted is highly deplorable. I appears to be one of those cases in which influential party in, collusion with police have succeeded by way of manipulation to get away from the- clutches of law. The investigating agency is solely responsible for deliberate failure to collect incriminating evidence in this case.
52. However, considering whatever evidence has been brought on the record, we feel that this evidence is grossly insufficient to connect the appellants with the commission of crime. Prosecu-- tion has failed in its primary duty to prove the case beyond doubt against the appellants. We give benefit of doubt to the appellants and set aside their conviction and sentence. Appeal is allowed and reference for confirmation of death sentence is rejected. The appellants may, be set at liberty if not wanted in any other case. A copy of this judgment may be sent to the Home Secretary, Government of Sind, for whatever action he deems fit to take against the erring Police Officers who participated on the conduct of investigations of this case.