P L D 1988 Karachi 350 (PLP)

SAJJAD ALI SHAH, J.‑‑ Appellant Sattaro has filed this appeal against judgment dated 10-10-‑I98? of learned and Additional Sessions Judge, Sukkur, whereby he has lasers convicted for offence under section 302, P.P.C. and sentenced to death. He is further ordered to pay compensation of Rs.I5,000 to the heirs of deceased Cul Hasan and in default to suffer R.I. for six months. There is also before us Reference for confirmation of death sentence. We propose to dispose of both the appeal and Reference together by this single judgment. It would be pertinent to point out at this stage that apart from the present appellant, there were two other co‑accused, who were put on trial and out of them co‑accused Ghulamoon was murdered during the pendency of the trial and the other co‑accused Mohammed Pannah has been acquired by the sane judgment impugned in this appeal. Fourth co‑accused namely Abdul Ghani remained absconder during the trial proceedings and was never arrested. Briefly stated the prosecution case is that on 7‑5‑1975 at 6‑30 a. m. appellant Sattaro, co‑accused Abdul Ghani and hulaaroon armed with guns and Mohammed Pannah armed with hatchet shouted caution to Gul Hasan on the top of Nara between R. D. 72 and ?

3. Appellant and the other two accused fired from their guns at Gul Hasan who became injured and died. At the time of incident complainant Mehar son of Taj Mohammed was in the company of Gul Hassan and he raised cries. He and two other witnesses namely Allah Wadhayo and Jam who crossed the path on Motorcycle at that moment saw the incident and identified the assailants. Assailants made good their escape after murdering Gul Hasan. Complainant left behind other two eye‑witnesses near the dead‑body and went to Police Post Salehpat where entry was made in daily diary at 10 am. in Crime No.43/'t

5. Subsequently formal F.I.R. was incorporated in 159, Cr.P.C. register at P.S. Dubar. Both Police Post and Police Station are situated in Taluita Rohri, District Sukur. A.S.I., Sahib khan, lncharge P.P Salehpat after making the entry in tine Station Diary sent a Constable for formal registration of F.I.R. to Police Station and himself visited scene of offence which was pointed out by the complainant. He prepared mashirnama of warder and recovered blood‑stained earth and pellets. He recorded statements of witnesses Jam and Allah Wadhayo and also prepared Inquest Report. He sent the dead‑body for post‑mortem examination and on the following day he arrested Ghulamoon and recovered one licensed gun from him. On 3‑f>‑l9'l5 he arrested appellant attract and secured from him one gun and two cartridges. Sattaro had no licence for the gun as such a separate case eras registered against him under the Arms Ordinance. Pannah was arrested subsequently and no recovery was made from him. Abdul Ghani remained absconder. Two guns were recovered and one crime empty was sent to Ballistic Expert in sealed parcels and earth was sent to the Chemical Examiner. Report of Chemical Examiner is positive in respect of earth and report of Ballistic Expert is positive in respect of gun of appellant Setters. Prosecution in the trial Court had examined nine witnesses in support of its case. P.IY.I Meltar complainant, P.IY.2 Allah Ntadhaya and P.W.S ,lam have been examined as eye‑witnesses. P.W.3 Mir Ahmed is tapedar who has prepared sketch of warder lsxh.l

3. P.W.9 is Mashir ahar son of Mohammed Achar who has attested and produced mashirnama of wardat 1"kx.15, Inquest Report hxh.16 and mashirnama of arrests of Ghulamoon and Sahara and recovery of guns from them Exhs.17 and 18 respectively, He did not support the prosecution case and was declared hostile, P.W.6 is Ghulam Mustafa, who is mistakenly typed in Paper Book as P.W.S, he has performed post‑mortem examination on the dead‑body and found nine lacerated wounds. He recovered three pellets from the body. In his opinion death was due to shock and hemorrhage. After doctor trim court has examined Head Constable Mohammed Hussain, process server as Court witness who has deposed that he went to P.S. Khanpur Mahar and obtained copy of F.I.R. in Crime No.39I1381 for offence ups 302, P.P.C. in which Ghulamoon (co‑accused in this case) has been shown as person murdered. He produced attested copy of that F.I.12, as Rxh.27, P. W.7 is Karim Box son of Nabi Box, who is co‑mashir. He has testified about mashirnama of warder 13xh.15 and Inquest Report Exh.l

6. P.W.B is Ghulam Akbar, Constable who is corpse‑bearer. P.W.J is A.S.I. Sahib Khan who has investigated the case. Prosecution has produced Chemical Examiner report as Exh.33 and Ballistic Report as Exh.J

9. In the trial court appellant Sattaro in his statement under section 392, Cr.P.C. denied prosecution allegations and claimed false implication due to the enmity between Pitafis on one side and Mahar Sardars and Syed on the outer. He claimed that eye‑witness Allah Wadayo has appeared against him as witness in a murder case and on the day of incident co‑accused hulaoon was present in the Court of Mukhtiarkar and F.C.1., Rohri. a declined to a examined on oath. Otherwise Muhammad Pannah also denied allegations of prosecution in his statement under section 342, Cr.P.C. and claimed false implication on account of dispute between Sardars. He also declined to be examined on oath. In proof of enmity documents Exh.7, 3, 39 and 44) have been produced. o witnesses were produced in defence. We have heard at length Mr. Mohammed Hayat Junejo, Advocate far the appellant and Mr. Rasheed 'fariq Khan far A.. Sind far State. n behalf of appellant it has been submitted at the very outset that in this case vide the same impugned judgment, co‑accused Mohammed Pannah has been acquitted and the State has net filed any acquittal appeal against acquittal of Muhammad Pannah from which an inference can be drawn that no exception has been taken to the judgment to that extent as if it has tern done so rightly. It is held by the Trial Court that Muhammad Pannah was . in the company of remaining accused persons at tire tune of incident and he was armed with hatchet. During the post‑mortem examination, no incised wounds were found on the dead body which could a the result of hatchet blows. Telegram Fxh.37 showing filing of false cases between Pir Ali Shall and Ahmad All Pitafl and Exhs. 39 and 40 showing dead co‑accused Chulamoon to lee present in the office of Mukhtiarkar and F.C.M. on the clay of incident have also been considered and co‑accused Mohammed Pannatt has been given benefit of doubt, in the seas of Ghulam Sikandar arid another v. 'Mamaraz Khan and others P L D 1985 S C

11. It is held by the Supreme Court of Pakistan that in a ease if a witness has falsely implicated one accused ordinarily he would net be relied upon with regard to other accused in the same transaction but if testimony of such witness was corroborated by very strong end independent circumstances regarding each one of other accused, reliance might then be pieced on such witness for convicting other accused. it is held in the carne judgment of the reported case that if witness is interested and inimical and is thus, likely to falsely implicate one or other accused, it becomes essential to seek independent corroboration regarding each one of .ether accused. In the light of what is stated above lay the Supreme Court of Pakistan in the case referred, we proceed to appraise the evidence in the instant case making note of the tact that the 'trial Court has, acquitted one of the accused persons by the same judgment. In this case prosecution has produced three eye‑witnesses, out of whom P.W.1 Mehar complainant claims to have accompanied the deceased and to be present at the time of incident. Complainant Mehar is cousin of deceased Gut Hasan. In his deposition he has explained the background of enmity between accused person and deceased Gut Hasan. According to him deceased Gul Hasan owned agricultural lands at R.D.No,

70. Appellant Sattaro and other co‑accused dismantled water‑course in the land of deceased. Jindal Shah had leased out about 200 acres of land to Gut Hasan which vas also claimed by Sattaro and other co‑accused, who were very much annoyed with Gut Hasan. According to the complainant he ;eras cultivating lands of Gut Hasan and on the day of incident he and Gul Hassan after morning prayers left their houses to go to their fields and on the way in between R.D. Nos,72 and 7tis incident took palace. Assailants were sitting at the foot of bond. Sattaro, Abdul Ghani and Gulamoon armed with guts and Muhammad Pannalt was armed with hatchet. Sattaro gave hakal and fired his gun at Gut Hasan which hit blip. Thereafter, Abdul Ghani and Ghulamcxan both fired from their guns at Gut Hasan which hit him. Complainant raised cries which attracted to the spot. P. Ws. Allah Wadayo and Jam who also saw the incident. Accused persons then ran away. After the departure of accused persons, witnesses went near and found Gut Hasan lying dead. H e had sustained gun injuries on the chest and other parts of the body and was bleeding. Complainant left behind P.Ws. Jam and Allah Wadayo and went to police outpost Salehpat, where he lodged the complaint xh.10. In cross‑examination, Complainant has denied suggestion that Allah Wadayo is cousin of deceased but admitted that he as caste fellow of deceased. Likewise, he has denied that P.W. Jam is his near relative but has admitted that he is his cast fellow. Complainant has admitted that P.W. Allah Wadayo was cultivating lands of Arab All Shah during the time when incident took place. Complainant has denied that Sardar Ahmad All Khan Pitai was attacked 2years before the incident. Complainant has admitted that Arbab Ali Shah, his son Nurul Shah, deceased Gut Hasan and one I3agco were accused in a criminal case filed by Ahmad Ali Pitafi. Complainant has denied the suggestion that appellant Sattaro and co‑accused Ghulamoon were cultivating lands of Aharad All Pitafi. Complainant has admitted that about 3 or 4 years prior to the incident, dispute had arisen between Lands and mahars and in that connection Lunds. Gaols and Pitafis were on one side and lahars were on the other side. Criminal case filed by Ahmad All Pitafi against ArbabaAli Shah, Nurul Shah, I3agoo and deceased Gut Hasan is still pending. Complainant has denied that one Ahmad All Pitaf't had purchased about 200 jirabs of lands from one Piral Shah about 21 years before the incident. He has admitted that Piral Shah in the first instance sold 220 jirabs to AhmhAli Pitafi but afterwards Piral Shah sold the same land to Haji Bagoo latter who is husband of sister of father of deceased Gul Hasan. Appellant attaro and co‑accused Pannah and Ghani were cultivators of this land when it was sold out to Haji Baoo, who was compelling them to vacate his lands but they were persistently refusing to do so. Complainant has admitted that Karim Box brother of appellant eras murdered about three years before the incident and in that case Piral Shah, deceased Gut Hasan, Haji Bagoo and Suleman were accused persons. This case was pending at the time of incident when Gul Hasan was murdered. Complainant further deposed that Gut Hasan has purchased the land from Jindal Shah but had not taken the possession of that land which was situated near R. D. 70 deh Larho. Complainant denied having stated in the report that accused persons were demanding lands from Gut Hasan as their own. This is the checkered history of background of animosity between lA the parties. No doubt relations between them were very strained. Now the question arises whether complainant was present at the spot at the time of incident and saw the incident as is claimed by him. According to the complainant at the relevant time he was cultivating land of deceased Gut Hasan, who was zamindar. there is no explanation in the evidence of complainant as to why at 6‑30 a.m. in the morning deceased zamindar was accompanying complainant hari to his field. No reason is given. In the report it is mentioned by the complainant that Abdul Ghani, Ghulamoon and Sattaro abused and fired their guns at Gut Hasan who became injured. This shows that action of firing was joint and all the three accused fired simultaneously. Complainant has changed this version when he testified before the trial Court and stated that appellant Sattaro gave hakal and fired his gun at Gut Hasan which hit him. Thereafter, accused Ghani and Ghulamoon both fired from their guns at Gut Hasan who fell down after being hit. In the report, complainant has stated that on cries, P.Ws:‑ Jam and Allah Wadayo were attracted and they saw the incident. There is no mention in the report that P.Ws Jam and Allah Wadayo came to the spot on motorcycle. While on the other hand, both these witnesses claim that they came on a Motorcycle. If the story about the motorcycle was correct then after the incident complainant could have gone to the Police Station on this motorcycle with one of the two eye ‑witnesses to order to have the report registered promptly without any loss of time. There is absolutely no point in leaving behind both Jam and Allah Wadayo and their motorcycle near the dead body and the complainant to go alone perhaps on foot to the Police Post for registration of report and not using the motorcycle. P.W, 10 A.S.I. Sahib Khan has testified before the trial Court that complainant Mehar cache to the Police Post where his report was entered in station diary as Exh.10. Tine of report is shown as 7‑0 s. m. when the incident is stated to have taken place at 6‑30 a.m. A.S.I. after recording the report went to the scene of offence where dead body was lying and.mashirnama of vardat_Exh 15 was prepared. inquest report Exh.16 was also prepared. In Mashirnama of vardat Exh.l5 pair of bullocks of complainant standing at a distance of 211 pace from the vardat is mentioned but there is no mention about motorcycle of P.W. Jam and Allah Wadavo. In Inquest Report Exh 16 at the end , there is summary of case situation, in which the facts as stated in F.I.R. are repeated but in it also there is no mention of the fact that P.Ws. Jam and Allah Wadayo came on motorcycle. . Sahib Khan has further stated in his evidence that when lie reached the vardat he recorded the statements of witnesses Jam and Allah Wadayo. Now when these eye‑witnesses were present when A.S.1. came to the spot alongwith complainant then where did their motorcycle disappear. If the motorcycle was there, it should have found mention in F.I.R. mashirnama of vardat and Inquest Report particularly when pair of bullocks belonging to the. complainant could be mentioned. Complainant in his evidence before the trial Court in his cross‑examination stated that after the incident he remained at the vardat for S/10 minutes then left for lodging the report. He denied the suggestion that incident took place one day prior to the lodging of report at night time. He denied the suggestion that Gul Hasan had not returned at night time to his house and, therefore, on the next day in the morning complainant and others went out looking for him. Complainant denied the suggestion that he and P.Ws. Jam and Allah Wadayo had not witnessed the incident. So far the remaining two eye‑witnesses are concerned, P.W.2 Allah Wadayo denied relationship with deceased Gul Hasan but admits that he is his caste fellow. According to him P.W. Jam lived near Monhon Pattan village about half a mile away from his village which is near village Bagoo Mahar. He wanted to purchase cloth from Rohr! so he accompanied P.W. Jam on his motorcycle at 6 a.m. He did not know as to why Jam was going to Rohri. They were going to Rohri from the top of Nara canal and when they reached near R.D. Nos.72 and 73 they heard cries and saw Sattaro, Ghani and Pannah and there was fourth accused also who was not identified. Sattaro, Ghani and unidentified accused were armed with guns while Pannah was armed with hatchet. Accused persons armed with guns fired their guns at Gul Hasan who fell down. Parrnah threatened them not to came near. Accused persons ran away. After the departure of accused persons they went near and found eat Hasan lying dead, Mehar went to lodge the report. In cross‑examination, this witness stated that he and Jam aid not go to ledge the report on motorcycle but Mehar went for that purpose. Mehar did not ask .Tam to take him on motorcycle to the Police Station far lodging the report. This witness further stated that he himself does not know how to drive motorcycle and Mehar knows haw to drive it. This witness has admitted that after the incident he did not go to Rohri far purchase of cloth but remained at the vardat. While narrating tile facts of the incident this witness has contradicted complainant on several points, He has stated that fourth accused was not identified while complainant identified fourth. accused and named him in F.1.R. as Ghulamoon. In the examination‑in-chief, this witness stated that all three accused named by him to be armed with guns fired simultaneously at Gul Hasan who fell dawn injured. While complainant stated that Sattaro gave hakal and fired at Gul Hasan and thereafter Ghani and Ghulamoon also fired their gurus at him. In cross‑examination he 'attempted to reconcile his statement with that of complainant and stated that first Sahara fired at Gul Hasan and, thereafter other accused with guns also fired immediately. He was confronted with his statement under section

164. Cr.P.C. in which he had stated that Ghulamaan fired first from his gun at Gul Hasan and thereafter Ghani and Sattaro fired their guns. This witness stated that he was cultivating lands of Arbab Ali Shah and complainant was cultivating lands of Arbab Ali Shah and Gul Hasad at the time of incident. He also knew that Gui Hasan purchased lands of Jindal Shah. He admitted that there was village of Deedar Ali Shah about 150 paces away from vardat and there was also village Boohar about 100 paces away on the northern side. After incident 10/15 persons came to the spot from nearby villages. Deader All Shah also arrived at vardat after tire incident. Nabban Shah and All Gul Shah were present among the persons mho came to the spot, This witness further stated that he and P.W Jam informed these persons about the facts of the incident and disclosed the names of assailants. These persons were there before the departure of complainant to the Police Station but complainant did not disclose names of assailants to them. This witness further stated that about 3/4 years before the incident, Karim brother of appellant Sattaro and his maternal uncle Ghulam were murdered and in that case Ghulam Qadir brother of this witness is one of the accused persons. Likewise P.W.S Jam, eye‑witness of the incident, has stated in his deposition before the trial Court that on the day of incident he was coming from his village Sheroja to Rohri town for purchase of goods of his shop and P.W. Allah Wadayo was with him on motorcycle. When they reached between R . D . Nos. 72 and 73 they heard cries of Mehar and saw four accused persons. Pannah was armed with hatchet and he threatened them not to come near. Sattaro fired from his gun at Gul Hasan who became injured. Ghani was present armed with gun. There was another accused who could not be identified because his face was muffled. Other accused persons were calling that accused with muffled face as Ghulamoon. Ghani and Ghulamoon also fired from their guns at Gul Hasan. After the departure of accused persons Mehar informed them that he was going with deceased Gul Hasan to their land when the attack was made by accused persons. Mehar left to lodge the report. This witness was confronted with his statement under section 164, Cr.P. C. in which he had not stated that he was going to Rohri for purchasing goods for his shop. He had not stated in that statement that face of third accused was muffled. In his deposition, this witness has stated that at the spot complainant disclosed name of accused with muffled face as Ghulamoon. He was confronted with his police statement as well as statement under section 164, Cr.P C. , wherein he has not stated so. This witness stated in is evidence before the trial Court that P.W. Allah Wadayo lived in a separate village one mile away from his village and he met him Pattan where he was already present on the other side of Nara Canal as he had crossed it before arrival of this witness before the incident. This statement is in direct conflict with the statement in the Court of P. W. Allah Wadaya who stated in his examination‑in‑chief that he was coming with P,W. Jam on motorcycle towards Rohri from the top of Nara canal. Allah ,Wadayo further stated specifically in his evidence that he and Jam crossed Pattari together but had' not seen complainant Mehar and ' Gul Hasan who had crossed Pattan earlier than them. P.W. Jam denied in his evidence having stated in his statement 'under section 154, ~ Cr.P. C. that on the day of incident he and Allah Wadayo had crossed Sheruja Pattan and had reached Western bank of Nara Canal. P. W. Jam made a very surprising disclosure in his evidence before the trial Court when he stated brazen‑facedly that Allah Wadayo had met him far the first time on the day of incident when he asked him for a lift on motorcycle and before that Allah Wadayo was not known to him. P.W. Jam also categorically stated in his evidence before the trial Court that he did not take complainant on motorcycle to Rahri for lodging the FA. R. but remained at the vardat till the arrival of police. He also claimed that motorcycle was present at the vardat std deceased Gul Hasan was not known to him before the incident. This witness also stated that he. did not k now if there was any dispute between Gul Hasan and accused persons. He also claimed that he wok unaware as to why Gul Hasan was murdergd by accused persons He was confronted with his police statement in which he had stated that deceased Gul Hasan had a dispute with accused over the land and their cases were pending. This witness denied suggestion in cross‑examination that his brother Pandhi was hari of Arbab Ali Shah and he was deposing falsely at the instance of Arbab Ali Shah. Evidence of these eye‑witnesses namely P.Ws. Allah Wadayo and Jam does not inspire confidence. Both of them have contradicted each other on material points stated above and have also contradicted complainant. Both these eye‑witnesses have introduced a new angle in the case by stating that face of one accused was muffled who B could not . be identified and later they came to know that he was Ghulamoon. Their arrival at the spot on motorcycle and their claim to have seen the incident is not convincing for the reason that if they really came on motorcycle, P.W. Jam would have taken complainant on his motorcycle to the police post for lodging F.I.R. There is no mention of motorcycle in F.I.R. or in any other document which was prepared by A.S. I. at the spot. Both these eye‑witnesses Allah Wadayo and Jam have made concession in favour of Ghulamoon by stating that he had his face muffled at the time of incident as such they have compromised their integrity and their veracity is damaged. If they are capable of making a false statement in favour of one party, they are equally capable of making false statement for others as well. Reference can be made to the case of Habibullah and others v. State P L D 1969 S C

127. Another factor which throws doubt on the truthfulness of claim of eye‑witnesses to have seen the incident is post‑mortem examination. If the claim of the eye‑witnesses is correct then incident took place on 7‑5‑1975 at 6‑30 a.m., report was lodged at Police Post Salehpat on the same day at 7‑30 a.m. A.S.I. Sahib Khan made entry in the station diary of the report and then accompanied complainant to the scene of offence where he prepared other documents in connection with the investigation of this case. According to A.S.I. he came to the spot in Jeep alongwith complainant. This should take shortest possible time. Distance between the Police Post and the spot is not mentioned by any witness but the assertion is made by the complainant that after the incident he stayed at the spot for about 10 minutes and then went to the Police Post. He does not speak about motorcycle so it is presumed that he went on foot. He has taken about 40 minutes to reach Police Post from which it can be presumed that he might have covered a distance of about two and half miles. A.S.I. claims to have rushed to the spot after report in Jeep so it must be within 10/15 minutes after the registration of report. A.S.I. also claims that he sent dead body for post‑mortem examination to Medical Officer, Rohri through P.C. Ghulam Akbar. Now this is where the cantrovewsy arises. P.W.B Ghulam Akbar, Constable has stated in his evidence, before the trial Court that on the day of incident he accompanied A.S.I. Sahib Khan to the vardat of this case for investigation. Deadbody of Gul Hasan was lying at the vardat and A.S. I. gave him a letter address to the Medical Officer, Rohri directing him to call the Medical Officer to the vardat for conducting post‑mortem examination as the dead body had become highly decomposed. He went to the Medical Officer, Rohri and brought him to the vardat where post‑mortem was conducted. This witness was not declared hostile which shows that his veracity was not questioned. It would I be pertinent at this stage to mention that in mashirnama of vardat Exh 15, it is categorically mentioned that at vardat it was seen that fresh dead body of deceased Gul Hasan was lying. Further in Ex. 16, which is Inquest report, this fact is not mentioned flat dead body had because decomposed. P W 5.Dr. Ghulam Mustafa has deposed before the trial Court that on 7‑5‑1975 he started post‑mortem examination of deceased Gul Hasan at 12 noon and finished at 1 p. m. He found nine lacerated wounds and recovered three pellets from the body. He opined that cause of death was due to shock and hemorrhage and injuries were ante‑mortem caused by discharge from fire‑arm like gun. He further stated that probable time that elapsed between injuries and death was within a few minutes and between death and post‑mortem examination was within 24 hours. In cross‑examination Doctor stated that marginal error would be about six hours between death and post‑mortem. Doctor has not stated specifically in his deposition as to where post‑mortem took place. Doctor has produced post‑mortem report as Exh.24 in which this fact is mentioned that post‑mortem was performed at the spot i.e. on Naro Path 72 R.D. He was not E further cross‑examined by the defence. Doctor has upset the whole prosecution case by stating that post‑mortem was performed at the spot and death had taken place about 24 hours before post‑mortem. No attempt was made on behalf of prosecution for re‑examination on this point. Mr. Junejo has contended flat medical evidence belies claim of the eye‑witnesses of seeing the incident and further that crime unwitnessed and took place about 213 hears before the post‑mortem examination and not at the time as claimed by the prosecution. Learned trial Judge has observed in the judgment that in the present case medical evidence is span to doubt and is subject to criticism hence the safest course would be to believe the ocular evidence. We do not feel inclined to agree with floe observation of the trial Court on this paint for the reason that it was the duty of tie prosecution is have brought about the clarification in the evidence of the Doctor. As stated above if any conclusion heel arisen questions could lave lien peat by the prosecution to the Doctor in re‑examination and even trial Court itself could have asked questions far the purpose of F clarification This was not dare not only during the evidence cat the Doctor but also during the evidence cat corpse‑‑bearer who deposed flat he bough Doctor to the spot for post‑mortem examination because dead body had become highly decomposed. It is certainly not the duty of the accused to seek clarification ors such matters in the crass‑examination because accused would be intent if there is anything ire the evidence of witness which is favorable to defence plea. It is G the unchangeable duty of the prosecution to prove the ease against accused beyond any shadow of reasonable doubt, tan dais mint Supreme Court has held in the case of Bagh Ali v. Muhammad Anwar and another 1992 S C M R 1292 3295 portion marked '131 flat if there was an apparent contradiction in doctors s saying that lie found only one injury and the scalar testimony stating three injuries, then it was the obligation of the prosecution to clarify and not of the accused. If there is conflict between medical evidence arid scalar evidence then it becomes the duty of the Court to deckle which H evidence is to be believed because the facts and circumstances of each case are different from the other. The tours, has to just a ‑pose both conflicting pieces of evidence in order to arrive at conclusion as to which one of them is to be chosen for reliance as trustworthy', and convincing. Possibility cannot be ruled out that eye‑witnesses and for that matter some times even injured eye‑witnesses lie on! motivation in the back ground of enmity. It also depends as to on what point tire conflict is between medical evidence and ocular evidence. I It carp vary in each case. Some times conflict is on a point on which medical evidence cannot be challenged and some times the conflict is, on a point on which eye‑witnesses can be believed because they have no reason to lie and the point is also such that there could be room for bona fide mistake in the medical evidence. In case of a conflict l between medical and ocular evidence, eye‑witnesses are to be believed only when they are truthful and utterly reliable and evidence of those eye‑witnesses is free from legal infirmities and h capable of standing on its own, feet. In tire instant case as stated above, the evidence of eye‑witnesses does not inspire confidence and is self contradictory and full of infirmities. Such evidence cannot stand on its own and needs support, hence cannot preferred to medical evidence which standi unchallenged by the prosecution. In support of the proposition reliance is placed upon case of State v . Abdul Sattar and others 19'73 S C M R 312 and Gagh Ali v. State P L D 1973 S C

321. We era even otherwise skeptical about ocular testimony for the reason that even trial Court by the same impugned judgment has acquitted one co‑accused. Eye‑witnesses have not explained l dragging marks at the spot at a distance of 'T or E feet from the I dead body stated in mashirnama of vardat Exh.15. It is confronted that the claim of the eye‑witnesses who have seen Ghulamaon at the spot participating in crime is doubtful for the reason that defence plea is that he was present in the Court of SDM Sukkur on that day attending hearing of the case under section 107, Cr.P. C. and in t proof, copy of complaint Exh.39 with names of accused persons including that of Ghulamoon and copy of case diary from that case showing his presence in the Court on that day Exh.40 have been produced. Perhaps eye‑witnesses came to know about the defence plea proposed to be taken on behalf of Ghulamoon as such in the Court P. Ws. Jam and Allah Wadayo put muffle on their faces in their depositions. Evidence of such witnesses replete with doubts does not inspire confidence. Reference can be made to the case of Sher Khan v . Jamb and 3 others 1987 S C M R 912, . . So ' far the recoveries are concerned, it is the case of the prosecution that Ghulamoon was arrested on the same day and he produced his gun S. S alongwith 5 cartridges and one empty cartridge. which was sealed. This is so stated in mashirnama Exh.l

7. Appellant Sattaro was arrested on 3‑6‑1975 at i p. m. about 26 days after the incident which took piece on 7‑5‑1975. In Exh.18 on the record which is mashirnama of arrest of Sattaro and recovery of gun, it is stated L that the gun was opened and a cartridge was lying in its chamber and the second cartridge was in the pocket of shirt of appellant. Gun was unlicensed and the same was sealed. Prosecution has not produced any evidence to show as to when Pannah was arrested and no recovery is made from him. Recovery of weapon from Pannah is immaterial because it is alleged that ire was armed with hatchet and no injury was caused by hatchet Exh .34 which is report of Ballistic Expert shows that crime empty marked 'C‑1' was fired from shot gun No.4318 which was allegedly recovered from appellant Sattaro. Mashirnama of vardat Exh.15 is attested by Mashirs Karim Bux and Bahar. Mashir Bahar is examined as witness No.4 and he did not support the prosecution case and was declared hostile because he was not supporting the recovery of gun from appellant Sattaro. This mashir denied recovery of empty from vardat. Prosecution examined co‑mashir Karim Bux as witness No.7, who stated that one or two empty cartridges were secured from the spot and sealed. In cross examination this witness admitted that he lived twenty miles away from P.S. Dubar and was on his way to do the business when he was called by Police to act as Mashir. Strangely enough prosecution has not examined any Mashir who witnessed arrest of appellant Sattaro and recovery of his gun. Mashirnama of arrest of appellant Sattaro and recovery of his gun is Exh.18 which is attested by mashirs Karam s/o Ahmad Mangsi resident of Salehpat and Bahadur s/o Khamiso resident of Salehpat. None of them has been examined. It appears', that originally mashir Bahar was examined wad attested mashirnamal of vardat Exh.15 and Inquest Report Exh.16. It was wrongly thought that he had attested mashirnama at arrest of appellant Sattaro and recovery of gun from him. tie was examined in respect of Exh.lB as well and when he did not support the contents of that document he was declared hostile. After doing so co‑mashir Karim Bux son of Nabi Box ShalKir was GAamlned as witness No.9 who had attested mashirnama ut vardat and inquest Report Exhs. 15 and 16 respectively only. Consequently ease of prosecution in respect of arrest of appellant Saitaro and recovery of gun from him, goes by default because none of the two mashirs named in Exh.17 as Karam s/o Ahmad Mangsi and Bahadur son of Khamiso has been examined. In the circumstances stated above, we are not inclined to rely upon evidence of 1.0. in respect of recovery of gun from appellant Sattaro in the absence of evidence of mashirs for the reason firstly that no plausible explanation is furnished by the prosecution for non‑examination of mashirs on this point and secondly evidence of 1.0. is not free from infirmities. it, his whole deposition, 1.0. has not stated anywhere that he sealed crime empty which was recovered from the spot. He has admitted in his evidence that after completing investigation he submitted papers before S.H.O. who challaned the accused and that S.H.O. hay: not been examined. Sahib Khan has not stated it his evidence that he sent sealed parcels to the Ballistic Expert. In the cross‑examination of this witness at the end, attention of this witness was drawn to the report of Ballistic Expert Exh.34 with specific reference that articles were received by the Expert on I3‑10‑1975 but he did not come out with any explanation M perhaps for the reason that sealed parcels were not sent by him. Exh.34 clearly, shows that parcel were received in the laboratory on 13‑10‑1975 which was after a delay of 5 months. Trial Court has also not relied upon this evidence and we also rule it out of consideration. After doing the! we do not find any evidence of incriminating nature produced by prosecution to connect appellant Sattaro with commission of crime Recorded enmity between the parties is double‑edged weapon which could be used by both sides. Prosecution produced in this case different pieces of evidence which are tainted and defective. One tainted and defective piece of evidence cannot support the other of like nature. Prosecution must prove the case against accused beyond shadow of any reasonable doubt. We, therefore, give benefit of doubt to appellant and acquit him. Impugned judgment' is set aside. In the result the appeal is allowed and Reference for confirmation of death sentence is rejected. Appellant be set free if ~ not wanted in any other case. M.Y. H. /5‑168/ K Appeal allowed.