The appellants have been convicted and sentenced under section 302/34, P.P.C. For life imprisonment with a fine of Rs,1,00,000 and in case of non-payment of fine amount they had to suffer R.I. For one year more. The fine if recovered was directed to be paid to the legal heirs of the deceased. Briefly the facts of the case are that on 27-3-1997 at 9-00 a.m. Complainant Haji Gul Muhammad lodged his report with Police Station Mehar stating therein that Mst. Zarina, sister of Abdul Raheem, was married to accused Sobho son of Muhammad Mureed. On 27-3-1997 complainant along with deceased Abdul Reheem and Photo and P. Ws. Shaman and Muhammad Azeem left their house to meet the Muhammad Mureed Party. At 9-00 a.m. When they reached at public street, they came across with Muhammad Mureed, being empty-handed and his four sons namely Haji Nazir, empty- handed, Sobho, Piaro, both armed with guns and Badar armed with pistol. Complainant party asked the accused party as to why they had beaten Mst. Zarina without any reason. Accused abused them and on the instigation of Muhammad Mureed, accused Sobho and Piaro from their respective guns while accused Badar fired from his pistol at Abdul Raheem and Photo which hit them at neck, and right side nose, forehead and face and they fell down due to fire-arm injuries.
Complainant party raised cries which attracted the villagers whereupon the accused made their escape good.. Abdul Raheem and Photo were found dead. Accordingly report was lodged to the above effect. After registration of F.I.R, police initiated concrete investigation and on 9-4-1997 arrested accused Muhammad Mureed, Badar, Sobho, Haji Nazir and Piaro. After usual investigation the case was challaned with competent Court of law.
Charge was framed against the present accused/appellants to which they pleaded not guilty and claimed to be tried. Prosecution in support of the case examined complainant Haji Gul Mohammad at Exh.9, who produced F.1.R at Exh. 9-A, P.W. Shaman at Exh. 10, Nasir Manzoor at Exh. 11, who is Mashir of Wardat, inquest report and arrest of accused Mureed, Badar and Sobho. He also produced relevant Mashirnamas at Exhs. 11-A to 1 1-D. Dr. Ali Akbar at Exhs. 12-A to 12-B. A.S.-I.Ghulam Mustafa at Exh. 13 who produced Mashirnama of recovery at Exh. 13-A. Mashir Mohammad Azeem at Exh. 14, S.H.O.
Allandino Exh.
15. P.C. Manzoor Ali at Exh.
17. He is corpose carrier. S.H.O. Mohammad Umar Shahani filed statement at Exh. 19, to the effect that neither the crime weapons were sent to Ballistic Expert nor chemical report could be received as these were not sent to the Expert, Ghulam Mustafa at Exh.
20. He is Tapedar who produced sketch at Exh. 20-A and S.-I.P Ali Nawaz Khaskheli at Exh.
22. D.A.
Closed the side at Exh.23 Learned trial Court framed the following points for determination:--
(1) Whether deceased Abdul Raheem and Photo died unnatural death?
(2) Whether the accused formed unlawful assembly carrying guns and pistol as alleged and committed rioting and then committed murders of Abdul Raheem and Photo by causing fire-arm injuries? In the statement under section 342, Cr. P.C., the accused pleaded not guilty to the charge and claimed to be tried on the ground that the P. Ws. Are closely related inter se and they had been falsely implicated by the complainant in this case due to their grudge against him and his sons. In support of his claim, he produced F.1.R No,142/1993 under section 324, P.P.0 and its challan in which the complainant is same i,e, Haji Gul Muhammad which speaks about hatchet and Lathi injuries to Raheem Khan at the hands of Abbas, Photo and Hazoor Bux and they can be responsible for murder of Abdul Raheem and Photo, deceased in the present case. I have perused the evidence of three eye-witnesses brought on record. In his evidence recorded before trial Court, the complainant Haji Gul Mohammad deposed that deceased Abdul Raheem and Photo were his nephews. Mst. Zarina, their niece, was married to accused Sobho. She is sister of deceased Abdul Raheem. Three years back Sobho gave beatings to Mst. Zarina which annoyed them hence he alongwith Abdul Raheem, 'Photo, Azeem and Shaman left for the house of accused Sobho. At 9-00 a.m. When they reached in the street close to the house, they came across with accused Sobho, accused Muhammad Murid, Piaro, Haji Nazir, Sobho and Badar. Accused Piaro and Sobho were armed with guns, Badar had pistol while rest of accused were empty-handed. As soon as they asked from Sobho as to why he had beaten Mst. Zarina, accused Muhammad Mureed instigated other accused on which Sobho, Piaro and Radar made straight fires at Abdul Raheem and Photo and they fell down and died at the spot. Accused Sobho caused gunshot injuries to Abdul Raheem while ,Piaro and Badar fired at Photo. When cross-examined, he further deposed that the attack lasted for 3 minutes and no one else arrived at the Wardat excepting them. In his evidence recorded before trial Court, P.W. Muhammad Azeem repeated the very same story in verbatim as stated by the complainant. While in cross-examination he deposed that deceased were attacked from the distance of 7/8 feet and none had appeared at the Wardat during the occurrence but after departure of accused party some people had come to the Wardat. Contrary to the evidence deposed by complainant and P.W. Muhammad Azeem, P.W. Shaman in his deposition, assigned specific role to the accused that on the instigation of Muhammad Mureed accused Sobho made straight fire from his gun at Abdul Raheem which hit Abdul Raheem below the left nipple. He further deposed that accused Sobho made second fire which hit Abdul Raheem on the abdomen while Piaro and Photo fired from their respective weapons at Photo upon which Abdul Raheem and Photo fell down and died at the spot. When cross-examined, he deposed that deceased were attacked with the distance of 5/8 feet and that none from the village came on the fire reports. I have heard the learned counsel for the parties and perused the material brought on record..Learned counsel for the appellants has mainly contended that the evidence adduced at the trial is not sufficient to warrant the conviction of appellants and the same is not properly appreciated according to the established rules: He submitted that the ocular testimony has been brought up from admittedly hostile, closely related and interested witnesses. He insisted that there is absence of tangible circumstances in the case, which makes the oral evidence untrustworthy. He has submitted there are material contradictions in the prosecution evidence to the extent that the complainant Haji Gul Muhammad and P.W. Muhammad Azeem clearly contradicted the version of P.W. Shaman who deposed that accused Sobho fired second shot at Abdul Raheem which hit him on the abdomen while complainant has not stated in this manner. With regard to the timing of alleged attack, there is contradiction in the statement of complainant and P.W. Shaman as the complainant stated in his evidence that the attack lasted for 5 minutes and P.W. Shaman said that within 3 minutes attack was over. He has also pointed out that there also appears contradiction between medical evidence and accused fired at the deceased from distance of 5/8 feet while the Medical Officer has given contradictory opinion that the deceased were fired at from the distance of 30 to 100 feet. P.W. Shaman has admitted in the cross-examination that he was examined by the police at Police Station on the next day of incident. Learned counsel has submitted that admittedly all the eye-witnesses are closely related inter se hence they all means and their version under such circumstances, require independent corroboration for the capital punishment which is lacking in this case. He has also pointed out the contradiction wit regard to the date of arrest of appellants and referred to Mashirnama of arrest Exh.11-D which shows that accused were arrested on 9-4- 1997, while the Investigating Officer that he had got recorded the judicial confession of accused/appellants on 22-4-1997 but neither the same is brought on record nor the learned Magistrate has been examined by the learned trial Court. He has submitted that learned trial Judge in his own judgment has not believed the motive observing in clear terms that "I any absolutely not convinced by this motive. This is weak and a meager motive and for this type of motive there should not be committed two murders". Learned counsel has further submitted that it is well settled principle of justice that if there is no motive then there is an offence hence in absence of believable motive this is a good case for acquittal. Incident is occurred in day time and both the Mashirs of recovery of guns and pistol from the possession of appellants and their arrest, are police personnel which is violation of section 103, Cr.P.C. While the fact also, remain that Mashir S.-I.P. Ali Nawaz Khaskheli did not support the above recovery. He has further submitted that it is proved from the evidence on record that the crime weapons allegedly recovered from the possession of appellants were not sent to the Ballistic Expert for the opinion in order to prove that whether these weapons were in working condition or not. In this regard he has submitted that S.H.O.
Muhammad Umar examined at Exh. 19 has stated in clear terms that neither the case property has been sent to the Ballistic Expert nor to the Chemical Expert. He insisted that such important point of not sending the alleged incriminating articles for the expert opinion has created reasonable doubt in the prosecution case. He has further pointed out that with regards to the point of recoveries of crime weapons from the possession of appellants, and not sending thereof to The Ballistic Expert or Chemical Analyzer, learned trial Judge himself after discussing the point at length has given his finding in clear terms at page 9 that "The recoveries in the circumstances are of no avail". He has submitted that learned trial Judge has failed to apply his judicial mind and passed conviction against three real brothers without any tangible evidence and independent corroboration brought on record while on the same set of evidence, co-accused Muhammad Mureed and Haji Nazir are acquitted. On all these submissions, learned counsel for the appellants has candidly prayed for acquittal of appellants. In support of the above submissions, he has referred to the following case- law:
(I) Muhammad lqbal v. The State (1984 SCMR 930). (2) Mehmood Ahmed v,. The State (1995 SCMR 127).
(3) Haji Sattar Muhammad v. Muhammad Aslam 1990 PCr.LJ 1286).
(4) Amir Bux v. The State (1990 P Cr.L J 1765).
(5) Ziaullah v. The State (1993 SCMR 155).
(6) Rab Rakhio v. The State (1992 SCMR 793).
(7) Mansha v. The State (2001 PCrLJ 1590).
(8) Habib-ur-Rehman v. The State*(PLD 1994 Pesh. 126).
(9) Mir Hassan v. The State (1999 SCMR 1418).
(10) Mehrban v. Haji Abdul Hamid Majid (PLD 1983 SC 117).
(11) Ghous Muhammad v. The State (1971 PCr.LJ 108).
(12) Mujahid Hussain v. The State (1995 SCMR 1573).
(13) Mansha v, The State (1994 PCr.L.1 935). In support of his arguments, learned counsel for the appellants has relied on various case-laws. In the case of Amir Bux v. The State 1990 PCr.LJ 1765 where it was held that it is duty of prosecution to prove the motive and where it fails, the prosecution suffer and evidence of P.Ws. Should be examined cautiously. The prosecution evidence being shaky and infirm does not inspire confidence and neither strong nor sufficient to prove offence beyond reasonable doubt. Recovery of gun was also not proved as the incriminating articles were not sent to the Ballistic Expert for examination and opinion. In the circumstances, death sentence was not confirmed and the appellants were acquitted. In the case of Mehmood Ahmed and 3 others v. The State (1995 SCMR 127), the delay of two hours in lodging the F.I.R. In particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might implicate. Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence. The accused were acquitted in the circumstances. In the case of Muhammad Iqbal v. The State (1984 SCMR 930) where the conviction resting only on tainted ocular testimony of three witnesses standing was belied in all essential respects It was held that ipsi dixit of such witnesses could nqt be accepted without independent corroboration in wake of false implication of many others already acquitted and that prosecution had failed to establish guilt of accused beyond doubt. In the circumstances appeal was accepted and the appellant was acquitted. In the case of Mehrban v. Abdul Hamid alia Majid and 8 others (PLD 1993 SC 117), it was held that when ocular testimony be not of unimpeachable character, medical evidence alone does not furnish required corroboration to connect accused with crime. Investigating Officer did not send pellets recovered from bodies of deceased to Ballistic -Expert for examination and opinion and on other hand making efforts to secure evidence of existence of weapons being combination of shot gun and rifle hence it was held that honesty of investigation being reflected upon, Court to be on guard to scrutinize ocular testimony with greater caution. Learned counsel has pointed out that in the case in hand, the incident occurred on 26-7-1997 and the appellants were arrested on 9-4-1997 and the alleged recovery was effected on 21-4-1997. On the question of recovery of crime weapon after sufficient delay from the date of the arrest of the appellants, he has relied on the case of Mujahid Hussain v. The State (1995 SCMR 1673), where Full Bench of Honourable. Supreme Court while deciding several issues observed that on the issue of recovery of incriminating articles, the appellant was shown as an absconder and he had full opportunity to get rid of articles which could incriminate him and he would not keep the articles in his house, until he was arrested. They further observed that he had ample opportunity of removing these incriminating articles. Ultimately, considering all aspects of the case, the Supreme Court held that the prosecution had failed to establish its case beyond reasonable doubt. The appeal was allowed and the appellant was set free. In the case of Mansha v. The State (1994 PCr.LJ 935), learned Single Judge came to the conclusion that eye-witnesses were related to and had made contradictory statements. There was no corroboration of the eye-witness and hence the same evidence could not be relied upon. In the case of Ghous Muhammad v. The State (1971 PCr.LJ 108), a Full Bench of Lahore High Court had observed that witnesses explaining injury had attributed a blow with Danda but no Danda was found at the spot. No satisfactory explanation for injury on the person of accused was given. The motive was not proved and there was a colossal delay in sending the hatchet for Chemical Analyser giving rise to suspicion and genuineness of investigation. Accused in such circumstances was granted benefit of doubt. In the case of Habib-ur-Rehman and another v. The State (PLD 1994 Pesh. 126), where it was held that in the mitigating circumstances, it was not possible to determine as to which of the injuries caused to the deceased proved fatal and who out of the two accused caused said injuries. In the case of Mir Hassan v. The State (1999 SCMR 1418), where it was held that the judicial notice could be taken of the tendency among the people to involve more persons related to the accused in the case and under these circumstances accused were acquitted extending benefit of doubt. Mr. Ali Azhar Tunio, learned Asstt. A.-G. Appearing on behalf of the State has supported the impugned judgment. I have carefully considered the arguments advanced by the learned counsel for the appellants and learned Asstt. A.-G. Appearing on behalf of the State and the case-law relied upon by the parties in support of their arguments. I have also gone through the impugned judgment and the material placed before me. It is case of the complainant in the F.I.R. That on the day of incident at 9-00 a.m., in the street, close to the house of accused Sobho they came across with accused Muhammad Mureed and Piaro, Haji Nazir, Sobho and Badar who were armed with guns and pistol.
As soon .As complainant made inquiry as to why Sobho had beaten Mst. Zarina, on the instigation of accused Muhammad Mureed accussed Sobho and Piaro fired from their respective guns at Abdul Raheem and Photo. Receiving the fire-arm injuries on various parts of body, both.Fell down.
The villagers came running on fire reports on which accused left the scene towards their houses.
Abdul Raheem and Photo were- found dead. Case was registered and all of five accused were arrested on 9-4-1997 and the case was challaned in .The Court of law where on the same set of evidence, accused Muhammad Mureed and Haji Nazir were acquitted and rest of three were convicted, for life imprisonment. The prosecution case suffers from various defects. From the record it appears that the F.I.R. Was lodged after delay of two hours while the fact remains that the Police Station concerned was at the distance of 4/5 k.Ms. Admittedly all the three eyewitnesses of the occurrence are interested and closely related inter se hence their version needed independent corroboration for recording major A punishment. There is contradiction with regard to the timing of occurrence and distance from which the deceased were fired at. In the evidence complainant deposed that incident lasted for five minutes while P.W. Shaman said that within three minutes the attack was over. The ocular version came from complainant, in his evidence, that the deceased were fired at from the distance of 5/8 feet while the Medical Officer has opined that deceased were fired at from the distance of 30/100 feet. I have also noted that date of arrest of the accused is disputed as the Mashirnama of arrest shows that accused were arrested on 9-4-1997 while, as per statement of. Investigating Officer Ali Nawaz at Exh.22 he arrested accused on 21-4-1997, he further stated that judicial confession of accused were recorded on 22-4-1997 but the same are not brought on record neither the learned Judicial Magistrate has been examined. In his statement, there is no mention regarding recovery of crime weapons from the accused at the time of arrest. It is admitted position that weapons allegedly recovered were not sent to Ballistic Expert for opinion hence it would not be proved that whether the crime weapons were in working condition or not. In this regard statement of S.H.O. Muhammad Umar has also come on record as Exh.19 to the, extent that neither the case property has been sent to the Ballistic Expert nor to the Chemical Analyser hence there is no Ballistic Expert Report on the record to produce. Both the Mashirs are police personnel which is violation of section 103, Cr.P.C. I have also taken careful note of evidence wherein the P.W. Shaman has C 'given contradictory statement to the other two P.Ws. Namely complainant and P.W. Muhammad Azeem. P.W. Shaman has assigned not only specific role against accused but also that accused Sobho repeated second fire. The other two P.Ws. Have not deposed specifically, they have not mentioned that anybody had repeated second fire. Even in the F.1.R. There appears only general allegations against accused Sobho and Piaro of causing firearm injuries at Abdul Raheem and Photo. 1 have also noted that the statement of P..Ws. Muhammad Azeem and Shaman were recorded on the next day of incident which is supported by statement of Police Inspector Allandino as Exh.16. I have also gone through the statement of accused where they have denied the charges and claimed that there already exists enmity of complainant party with some other persons namely Hazoor Bux, Abbas and Naban all Chandia by caste residents of same Village Banghi and F.I.R. Is also on the record vide Crime No,142 of 1993. The accused further insisted that this incident may be result of that enmity. Besides all these defects, it is very surprising to me, that the whole family is dragged into this case as accused Muhammad Mureed happens to be father of rest of accused Sobho, Piaro, Badar and Haji Nazir. On perusal of impugned judgment it appears that learned trial Judge has passed the judgment after discussing three points at length i,e,
1. Recoveries,
2. Ocular testimony and 3. Motive. Out of these three points, learned trial Judge has discarded the. Points Nos. 1 and 3. As regards the point No,1 motive is concerned, learned trial Judge has given his finding in clear terms asunder: "For motive it is said that Mst. 'Zarina was sister of deceased Abdul Raheem. She was married to accused Sobho, who had caused beating to Mst. Zarina and that the complainant party was going to accused for clarification when two murders were committed by the accused. I am absolutely not convinced by this motive. This is weak and meager motive and for this type of motive there should be no two murders." As regard's the point No, 3 i,e, recoveries is concerned learned trial Judge has discussed at length that there is recovery of gun from accused Sobho and pistol from accused Badar which were affected by S.I.P. Ali Nawaz Khaskheli and witnessed by H.C. Ghulam Mustafa and P.C. Ghulam Shabir. S.I.P. Ali Nawaz examined at Exh.22 does not state about the recovery of crime weapon and merely talks about the arrest of accused person while HC Ghulam Mustafa supported the recoveries. Learned trial Judge on this point has himself come to the conclusion as under: "Anyway S.I.P. Ali Nawaz does not talk of recovery. There is sole word of Ghulam Mustafa with regard to the recoveries. Further that the gun and pistol were not sent to the Ballistic Expert as deposed by Muhammad Umar, S.H.O., Police Station Mehar. He is examined at Exh.
19. He stated that he had come to attend the Court in lieu of letter calling upon for production of the ballistic and chemical report but the same could not be produced as not sent to Ballistic Expert by Investigating Officer and W.H.C. Of the relevant time. Recoveries in the circumstances are of rio avail...."
It appears that the conviction is based solely on the basis of ocular testimony. Admittedly the ocular testimony comes from the interested and closely related witnesses.
' In view of the above discussion and the case-laws relied upon, I am convinced that the reliance by the trial Court on the ocular testimony alone to justify conviction is against well settled principles of law. If motive and recoveries have not been adequately proved and in the absence of any corroboratory evidence the passing of such a sentence is incorrect. If indeed the prosecution has failed to place on record independent evidence then the reliance on the evidence available would not be sufficient to warrant conviction: In the present case several persons had been arrested for committing an offence and in the impugned judgment the learned trial Court has acquitted some persons and convicted others on the same set of evidence. This is unwarranted, specially in view of the fact that against the convicted persons there is no direct corroboratory evidence available. In view of the above, the prosecution has failed to prove the case beyond any reasonable doubt, I therefore, give benefit of doubt to the appellants/accused and set aside the conviction and sentence awarded to them by the impugned judgment. The accused be released forthwith unless required in any other case.