MUHAMMAD MOOSA K. LAGHARI, J. - Having been involved in crime No.245/1990 registered at Police Station Dadu, the appellant along with co-accused Sakina was sent up to stand trial in Sessions Case No. 565/1990 before the learned IIIrd Additional Sessions Judge, Dadu.
2. Precisely, the allegations levelled in the FIR lodged on the report of complainant Qurban Ali on 8.11.1990 are that on 7.11.1990 he was informed by his maternal uncle Gullan that on the date of occurrence said Gullan and Iqbal Ah were sleeping in their house, Haji Muhammad Khan was also sleeping in other room in their house situated in Sonara Mohalla Dadu Town. There was a fire report at 11:00 p.m., due to which they woke up. Mst. Sakina, wife of the deceased Haji Muhammad also got up. On the light of bulb they saw three persons coming out from the room duly armed with Revolver. The P.Ws, kept quiet due to Muhammad Khan, and saw the latter lying dead having sustained revolver shots on the left side of his head. On hearing this story, the complainant accompanied by P.W. Gullan came over the scene of the occurrence, and subsequently, lodged such report.
3. After usual investigation challan of the case was submitted against the appellant and co- accused Sakina. The accused persons were charged under Section 302/34/120-B, PPC, to they pleaded not guilty.
4. Ln order to prove their case, prosecution examined as many as 14 witnesses including the complainant, P.W Iqbal, Nisar Ahmed, Mashir Gul Muhammad, Magistrate Gul Muhammad Girhano, Investigating Officer Rasool Bux Siyal, Medical Officer and Tapedar.
5. On conclusion of trial both accused were examined under Section 342,. Cr.P.C, in which they pleaded their innocence The appellant claimed to have been falsely implicated and that the Revolver was foisted upon him. He also denied to have confessed the guilt before the Magistrate.
He, however, did not lead any defence.
6. On conclusion of the trial, Learned Trial Court found co-accused Sakina to be innocent and accordingly acquitted her. However, according to the impugned judgment the guilt against the present appellant was proved, as such, he was convicted under Section 302(b), P.P.C, and was sentenced to suffer imprisonment for life. He was also directed to pay compensation of Rs.
25,000/- to the legal heirs of the deceased and in default of the payment thereof to undergo further imprisonment for two years. The appellant was. However, granted benefit under Section 382-B, Cr.P.C.
7. Being aggrieved of the above conviction and sentence, the appellant filed this appeal through jail.
8. The arguments advanced by the learned counsel for the pauper appellant and learned counsel for the State has been heard.
9. Learned State counsel supported the conviction. He was, however, unable to cope up with the infirmities in the identification test, confession, recovery and ocular evidence.
6. The F.I.R in the present case was lodged by complainant Qurban Ali, who was not an eye-witness.
The case of the prosecution is based on the ocular evidence of P.W Gullan and Iqbal, recovery of crime weapon, identification test, the confession of the appellant and the ballistic report.
7. P.W. Gullan who, according to the prosecution, claimed to have seen the accused persons while coming out from the house of deceased Haji Muhammad Khan and is claimed to have identified the present appellant in the identification test, admitted in the cross-examination that the accused was shown to him at the police station before the identification test. Besides that, Magistrate did not utter a single word in his deposition before the Trial Court with regard to conducting the identification test. The above- mentioned infirmities in the identification test have rendered the identification of the appellant to be of no consequence. Thus could not be considered to be a valid piece of evidence.
8. P.W. Nisar, who was mashir of the recovery, was declared hostile by prosecution as he did not support the recovery of the crime weapon. There is no ballistic report in respect of the Revolver allegedly recovered from the possession of the appellant. Nevertheless, the crime weapon was not shown to the appellant at the time of recording his statement under Section 342, Cr.P.C. These circumstances are enough to disbelieve the recovery.
9. So far as the confession allegedly recorded by the appellant is concerned, that was not believed before learned Trial Court. The incident took place on 7.11.1990. Lt was admitted by P.W. Iqbal that the present appellant was arrested after 2/3 days of the incident; however, the police had shown the arrest of the appellant on 24.11.1990. Learned Trial Court unjustifiably observed that this was an erroneous admission. If there were two versions with regard to the arrest of the appellant, it was incumbent upon the Trial Court to had asked a specific question from the accused as to on what date he was arrested in order to clarify the date of his arrest. Admittedly, this was not done.
Learned Trial Court erroneously believed the identification of the present appellant on the basis of evidence of P.W. Iqbal admitted in his cross-examination that police had arrested Sakina and the appellant after 2-3 days of the incident, lt is not understandable as to how the identification by the investigating Officer could be relied upon and made the basis for convicting the appellant.
10. Lt is an admitted position that it was an unwitnessed incident. The F.I.R, was lodged by complainant Qurban Ali on the basis of story narrated to him by P.W. Gullan and Iqbal, ln the F.I.R, it was clearly mentioned that they saw three persons coming out from the room occupied by deceased Haji Muhammad Khan, however, the police challaned only the present appellant along with co-accused Sakina, who was wife of deceased, however, her guilt could not be proved.
11. Both the accused in the case were charged of hatching criminal conspiracy to commit murder of deceased Haji Muhammad Khan. The case of the prosecution regarding conspiracy was shattered into pieces. The motive as set up by prosecution was that after causing the murder of deceased, both the accused wanted to marry with each other, but nothing was proved to that effect. Co-accused Sakina was acquitted having been declared innocent. The appellant was 'implicated by co-accused Sakina in her confessional statement, but the same was disbelieved by learned Trial Court in toto, being illegal. Thus the case against the appellant was rendered dubious.
P.W. Iqbal did not ordinarily reside in the house of deceased. Admittedly he went to the Court of R.M.
Dadu for identification alongwith P.W. Gullan, who had already seen the appellant at Police Station.
The fact that the appellant was arrested after 2-3 days of the occurrence was admitted by P.W.
Iqbal himself. There is every possibility that the appellant might have been seen by P.W. Iqbal or had been pointed out by P.W. Gullan.
12. The case of the prosecution being shrouded by doubts, the conviction could hardly be maintained.
17. Honourable Supreme Court in the case of TAR IQ PERVEZ v. STATE (1995 SCM R 1345) was pleased to hold that if a single circumstances creates a doubt in the prudent mind; the benefit of doubt is to be granted as a matter of right.
The above discussion, leads to the conclusion that there are enough circumstance to extend benefit of doubt to the appellant.
For the foregoing reasons, the appeal of the appellant was allowed and conviction and sentence was set aside vide short order dated 23.12.2002. Consequently the appellant was ordered to be released if not required in any other case.