MUHAMMAD MOOSA K. LAGHARI, J.---This criminal appeal is directed against the judgment dated 28-2-2001 passed by the learned Judge Special Court, Suppression of Terrorist Activities Mirpur Khas, in Special Case No,60 of 1998, whereby appellant No,1 Saifal Khan was convicted under section 302, P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs,10,000 (Rupees Ten Thousand only). In default, he was to suffer R.I. for six years and three months more which was to run additionally. By the said judgment appellant No,2 Maxi Mari was convicted under section 337-F(v), P.P.C. and was awarded sentence of R.I. for four (4) years. Besides, he was made liable to pay compensation of Rs,2,000 (Rupees Two Thousand only) to injured Nasir Ali. In default he was to suffer R.I. for six months more which was to run additionally. Both the appellants were, however, extended benefit of section 382-B, Cr.P.C.
2. Precisely the facts as disclosed in the F.I.R. in Crime No,107 of 1995, registered by complainant Qadir Bux at P.S. Town Mirpur Khas under sections 302, 324 and 149, P.P.C. are that While he was working on his lands, he was attracted by the commotion coming from Miro Minor Sim Nali side and when he reached there he saw accused Saifal Khan, Gul Muhammad, Haji Ismail, Khair Muhammad alias Chandio duly armed with pistols, Maxi armed with Rifle, Haji Qaiser armed with gun, who were abusing his relatives namely Ayub, Nasir, Latif, Pir Bux, and Moosa. On the instigation of Haji Ismail accused Saifal fired with his T.T. Pistol at Ayub, Maxi Mari fired with his rifle at Nasir, Haji Qaiser fired with his gun at Latif, Gul Muhammad fired with his T.T. Pistol at Pir Bux and Khair Muhammad alias Chandio fired with his T.T. Pistol at Moosa. As a result of firing all the injured fell on the ground and the accused persons fled away riding on their motorcycles while making aerial firing. Complainant found that the injured persons have fallen unconscious. All the injured persons were, accordingly taken/removed to hospital, out of whom Ayub died on the way. The report was lodged at Police Station.
3. After usual investigation all the accused persons were sent up to stand trial. It appears that some of the accused who had absconded were declared proclaimed offenders., but subsequently surrendered before the Court. Charge against all the six accused persons was framed- by the trial Court on 13-6-1996, to which all of them pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove their case examined 11 witnesses who recorded their evidence and produced relevant documents.
5. On closure of prosecution side statements of all the accused were recorded under section 342, Cr.P.C. Accused persons claimed to be innocent and took the plea that they were falsely, implicated in this case. The' accused neither opted for examining themselves on oath nor led any evidence in their defence.
6. On the basis of evidence adduced, learned trial Court arrived at the Conclusion that co-accused Haji Qaiser, Haji Ismail, Gul Muhammad and Khair Muhammad alias Chandio were innocent and accordingly acquitted them under section 245(i), Cr.P.C. However the present appellants were convicted in the terms as stated in the opening paragraph.
7. We have heard Syed Maddad Ally Shah, learned counsel for the appellants and Mr. Anwar Ansari, learned counsel for the State.
8. Learned counsel for the appellants contended that the complainant did not support the contents of F.I.R.; that there was no ocular evidence of P.W. Nasir Ali which went uncorroborated. It was next argued that ocular evidence was contrary to the medical evidence and that no recovery was effected from the appellants. It was argued that the parties were on inimical terms and that on the same set of evidence 'four co-accused were acquitted. On the above premises it was pleaded that the appellants were entitled to the benefit of doubt. Learned counsel in support of his contentions cited good number of authorities.
9. On the other hand it was contended by the learned State Counsel that on the sole testimony of an eye-witness the conviction could be maintained as held by their lordships of Honourable Supreme Court in Muhammad Mansha v. The State 2001 SCM R 199. He was, however, not able to meet the other contentions raised by the learned counsel for the appellants.
10. We have considered the contentions raised by both the learned counsel and have also benefited from the case-law relied upon by them.
11. We are in no doubt that the conviction can be awarded on the basis of testimony of single witness. However such statement must be consistent, trustworthy, confidence-inspiring and credible. Their lordships of the Honourable Supreme Court after discussing the relevant case-law laid down the following dicta in Muhammad Mansha v. The State 2001 SCM R 199, relied upon by the learned State Counsel: "A careful examination of the dictums as laid down in the above-referred authorities the consensus seems to be that of conviction can be awarded on the basis of solitary statement of a witness if it is found worthy of credence, dependable and consistent."
Similar view was endorsed by the Honourable Supreme Court in Rana Shahbaz Ahmad and 2 others v. The State 2002 SCM R 303, wherein it was held that ocular testimony must be natural, reliable, satisfactory and confidence-inspiring.
12. It is now well settled that a rule laid down in certain criminal cases cannot be applied universally as every case proceeded on its own facts and circumstances which would hardly resemble with diverse facts of the precedent case. For reference see Tariq Mehmood v. The State, 2002 SCM R 32.
13. Adverting to the facts of the present case it may observed that according to the F.I.R., besides complainant, P.Ws. Nasir, Pir Bux, Moosa and Latif were also present on the scene of occurrence and all of them including the deceased sustained injuries. The complainant in the case was declared hostile, as he resiled from the version given in the F.I.R. P.W. Pir Bux, who was also said to be present at the place of occurrence and sustained injuries, did not implicate any of the accused including the appellants. He even did not identify them in the Court. P.W. Moosa also clearly stated that he did not see the incident though he admitted that he was present at the scene of Wardat and also sustained injuries. He even did not identify the accused in Court and also denied that police had recorded his statement under section 161, Cr.P.C. The only witness who has implicated the accused persons is P.W. Nasir Ali. However, he simply spoke of injuries caused to deceased Ayub and the injuries sustained by him. He clearly stated that he did not see as to who caused the injuries to remaining injured persons. He however in his cross-examination admitted that the counter-F.I.R. was lodged by appellant Maxi Mari against the complainant party. According to the version of P.W.
Nasir Ali deceased Ayub was fired upon by appellant Saifal Mari with his. T.T.Pistol. However, T.T.Pistol was not recovered from the possession of appellant Saifal Mari but the same was recovered from co-accused Khair Muhammad alias Chandio. The recovery of gun was effected from co-accused Haji Qaiser. Though the Ballistic Expert report was in positive but there was no recovery of any crime weapon having been effected from the present appellants. The co-accused from whom the recovery of the crime weapon was effected were acquitted by the trial Court probably for the lack of other corroborative evidence. In the above circumstances we are of the view that the sole testimony of P.W. Nasir Ali, without any corroboration, could not be relied upon to maintain the conviction when he himself admitted that the parties were on inimical terms. The evidence of this witness could not be termed to be truthful and of unimpeachable character. It was not corroborated by any other piece of evidence. This rendered the prosecution case to be doubtful.
14. A single circumstance is enough to entitle the accused for grant of benefit of doubt as a matter of right, if it creates reasonable doubt in a prudent mind. Case of Tariq Parvaiz v. The State 1995 SCM R 1345, can conveniently be referred in support of the proposition.
15.As a result of above discussion we are of the considered view that the conviction is not sustainable. The same is accordingly set aside and the appeal is allowed.
The appeal was allowed by short order dated 7-11-2002 and these are the reasons for the same.