This appeal is directed against the judgment dated 24-2-2001 passed by the learned Additional Sessions Judge Kotri, in S.C. No,96 of 1994, whereby the appellant was convicted under section 302(b), P.P.C. And sentenced to suffer imprisonment for life as Ta'zir.
2. Precisely the contents as recorded in the F.I.R. Of Crime No,20/1994 registered on 29-08-1994 at Police Station Manjhand under sections 302, 504, 109 and 34, P.P.C. By complainant Ameer Bux are that the accused persons were indebted to his brother Hamzo. On demand of money, they had refused to pay and also threatened the deceased. On the fateful day i,e, on 29-8-1994 while he, his brother deceased Hamzo, nephew Ghulam Akbar and Phuphat Photo were returning from the water pond, and when they reached near their house accused Ghulam Shabbir duly armed with country made pistol, co-accused Rahim armed with gun, Ghulam Hussain and Ghulam Sarwar armed with Lathis emerged. Accused Ghulam Shabbir fired a shot from his pistol at deceased Hamzo which hit him on his occipital region (back side of his neck) who fell down. Accused Rahim also fired from his gun and thereafter all the four accused ran away to their houses. Hamzo died instantaneously due to fire-arm injury. On hearing fire-arm reports several people of the village gathered around the dead body. Complainant Ameer Bux leaving Photo and Ghulam Qadir over the dead body went to Police Station and lodged such report.
3. After usual investigation appellant/accused Ghulam Shabbir along with co-accused Ghulam Hussain, Rahim and Ghulam Sarwar was sent up to stand trial before the learned Additional Sessions Judge Kotri.
4. A charge was framed against the accused persons to which they pleaded not guilty. The trial thus commenced.
5. In order to prove their case, prosecution examined the complainant Ameer Bux, P.Ws Photo, Imam Bux and Ghulam Akbar, .Along with the Medical Officer, the Magistrate, the Tapedar Investigating Officer etc.
6. On conclusion of prosecution evidence statements of the accused were recorded under section 342, Cr.P.C. The accused denied the allegations, and claimed to be innocent. They however, chose not to lead any defence and declined to examine themselves on oath.
7. Learned trial Court on the basis of the evidence so adduced, came to the conclusion that the co- accused Ghulam Hussain, Muhammad Rahim and Ghulam Haider were innocent and accordingly acquitted them. However, appellant Ghulam Shabbir was found guilty of the charges and was convicted in the terms as stated herein above.
8. It was contended by learned counsel for the appellant that the case of the prosecution rests upon the ocular evidence, recovery, confessional statement and medical evidence. He vehemently argued that the recovery against the appellant was not proved and that he was not confronted with the confessional statement notwithstanding the fact that it suffered from infirmities, having been recorded after an inordinate and unexplained delay and that it could not be termed to be voluntary. Regarding ocular evidence it was contended that P.W. Photo who according to the prosecution, was an eye-witness was given up in the first instance on the statement of the complainant with a specific allegation that he was won over. However, at a later stage he was recalled on an application moved by prosecution. Thus the testimony of P.W. Photo was not worth consideration. It was contended that the ocular testimony of P.W. Ameer Bux also required to be looked into with due care and caution as he had been changing his versions and that his evidence was inconsistent. It was argued that the medical evidence was not consistent with the ocular testimony. On the strength of above arguments, it was urged with vehemence that there were enough circumstances to conclude that the prosecution had not succeeded in bringing home the guilt of the accused beyond reasonable doubt to convict him. In support of his contentions learned counsel relied upon numerous authorities on the point of recovery, motive, confession etc.
9. On the other hand learned State counsel found himself in a fix to lend support to the judgment passed by the trial Court, as he was unable to controvert the contentions raised by learned counsel for the appellant. He, however, faint-heartedly argued that even if all the evidence was to be kept out of consideration, the conviction could be maintained on the evidence of a single witness. To support his view, learned State counsel placed reliance upon 2001 SCM R 199.
10. The contentions raised by learned counsel for the parties have been carefully considered and the case law relied upon by them has been examined in light of the facts and circumstances of the case in hand.
11. In the present case the case of the prosecution is based on the medical evidence, recovery of crime weapon, confessional statement of the accused persons, motive and ocular evidence.
12. Admittedly the recovery of the crime weapon was not proved as neither any body was examined, nor Mashirnama of recovery was exhibited. Even neither the pistol was produced in the Court, nor the appellant was confronted with the same at the time of recording his statement.
There was no any explanation forthcoming from the prosecution side to show as to where the crime weapon had gone. Neither the same was sent to ballistic expert nor there is any report on the record. Obviously this piece of evidence has to be excluded.
13. The confessional statement of the appellant could not be considered as it was recorded at a belated stage after the delay of 10 days. The appellant was arrested on 26-9-1994 and was produced for recording his confession on 4-10-1994 before a Magistrate at Thano Bola Khan instead of getting his confession recorded by any nearest Magistrate. In the cross-examination Magistrate failed to give any explanation for not sending the accused/appellant to judicial custody. Admittedly, there was no Judicial Lock-up at Thano Bola Khan with the result that after recording his confessional statement the accused had again to be handed over to the police. The confession so recorded by the appellant was undeniably not consistent with the evidence. Last but not the least the appellant was not confronted with the said confession in his examination under section 342, Cr.P.C. In such circumstances the confessional statement recorded by the appellant was of little consequence for the purpose of corroboration. Resultantly this piece of evidence could not be used against the appellant.
14. Regarding medical evidence suffice to say that the Medical Officer in his post-mortem report has stated that the deceased sustained injuries on the forehead as well. This is not borne out from Mashirnama of injuries. Since there is no evidence with regard to recovery of crime empties, it could not be ascertained as to how many shots were fired.
15. So far as the ocular testimony is concerned prosecution examined P.Ws. Ameer Bux and Photo.
Besides, that the examination in chief of P.W. Ghulam Akbar was also recorded but he was not tendered for cross-examination, without any reason. Accordingly he shall be deemed to have been given up.
It is a fact borne out from the record that P.W. Photo who was an eye-witness was given up by the prosecution in the first instance with a specific allegation that he was won over as per statement of the complainant Ameer Bux and such order was passed by the trial Court on 23-2-1997. However, quite astonishingly at a later stage he was, recalled on 7-8-1999 without bringing the fact to the notice of the Court that at a previous stage he was given up by the prosecution. In such circumstances evidence of P.W. Photo could not be given credence and had to be discarded.
16. P.W. Ghulam Akbar who was also an eye-witness, disappeared after recording his examination- in-chief and was not produced by the prosecution for cross-examination, thus the said P.W. Shall be deemed to have been given up.
17. In the above circumstances only the evidence of P.W. Ameer Bux is left to be considered. Ameer Bux who is first informant in the present case stated in the FIR that a sum of Rs,10,000 lent by the deceased to one of the accused persons was outstanding which he demanded. Such demand irritated the accused persons and resulted in,the death of deceased Hamzo. However, in the concluding paragraph of the F.I.R. It was alleged that the accused persons committed the said offence on the instigation of Muhammad Yousuf and Palyo. Nevertheless above named persons were not tried. Surprisingly enough in his examinationin chief the complainant did not utter a single word about the motive. However, in the cross-examination he stated that there was a case in which Hamzo was accused and the same was filed by one of the co-accused namely Ghulam Hussain. In cross-examination complainant Ameer Bux admitted that deceased Hamzo was residing with him and that deceased had no source of livelihood but was being maintained by P.W.
Ameer Bux. He voluntarily deposed that deceased was blind. But at a subsequent stage stated that he could visualize to some extent. In further cross-examination he admitted that he viz. Complainant used to give credit to the people but simultaneously admitted that he did `not lend any amount to anybody else excepting the accused persons. In reply to furthef questions P.W.
Ameer Bux deposed that deceased used to carry huge amounts with him and used to advance money on credit to the people of locality. In his cross-examination it also came from his mouth that his brother was declared Karo with Mst. Hawa wife of accused.
18. Honourable Supreme Court in Muhammad Mansha v. The State 2001 SCM R 199 had laid down the following rule: "Conviction can be awarded on the basis of solitary statement of witness if it is found worthy of credence, dependable and consistent." Similar view was endorsed by the Supreme Court in Rana Shahbaz Ahmed and 2 others v. The State 2002 SCM R 203 wherein it was held that ocular testimony must be natural, reliable, satisfactory and confidence inspiring. (Emphasis laid by me ).
Tested on the touchstone of above rule, the ocular testimony of P.W Ameer Bux could not be deemed to be worthy of credence, dependable and confidence inspiring because of his inconsistent versions. This P.W. Implicated four accused persons in the case, out of whom three were acquitted, as the prosecution evidence in respect of them was .Not believed. This fact could not be lost sight of. The cumulative effect would be that the evidence of above named P.W. Could not be trusted with truth to award/maintain conviction.
19. According to the principle laid down in Tariq Pervaiz v. The State 1995 SCM R. 1345 if a single circumstance creates a reasonable doubt in the prudent mind it will be sufficient to grant benefit of doubt to the accused as a matter of right. In the case in hand more than one circumstances are available to create a reasonable doubt with regard to the guilt of the accused. The judgment of conviction passed by the learned trial Court is marred by infirmities and is not sustainable in law.
20. As a result of above discussion the appeal is allowed, and the judgment of conviction and sentence is set aside. The appellant is acquitted. He shall be released forthwith if not required in any other case.
21. These are the detailed reasons for the short order dated 26-12-2002.