1. The appeal in is respect of murder of Muhammad All which took place on 19-3-1998 at 8 p.m. on Katcha Road going towards Railway Station, Reti near village Moula Bux Mazari situation in Deh Moroowala, Taluka Daharki, District Ghotki.
2. It is alleged that on the above date at about 8 p.m. a snake bit P.W. Ashique Hussain in his village Chak No, 218 Taluka Sadiqabad, District Rahimyar Khan. Therefore, the complainant Jam Fakir, his sons Ashiq Hussain, deceased Ahmed Ali and P.W. Muhammad Nawaz on one motorcycle left their above-mentioned village to go to Daharki Hospital. At about 8 p.m. they reached at the place of incident, on the motorcycle light they saw four persons standing On the Katcha Road. Out of them one was armed with Lathi, the remaining three were holding rifles. They stopped the motorcycle.
2. The culprits wanted to snatch the motorcycle, therefore a scuffle took place between them. One of the culprits who was armed with rifle fired at the deceased which hit him on his throat. Another culprit fired from the rifle which hit on the stomach of the deceased. The complainant party raised cries on which the culprits ran away and did not take away the motorcycle.
3. All the four persons again sat on the motorcycle and went to Police Post, Reti where the complainant Jam Fakir lodged the' F.I.R. against four unknown persons at 8-50 p.m.
4. 3.The A.S.-I. after recording the F.I.R. in Station Diary of the police post, prepared the Mashirnama of injuries on the person of injured and then referred the injured to Daharki Hospital for examination, treatment and certificate. The A.S.-I. went to the place of incident where he secured bloodstained earth and three empty bullets of rifle. The said articles were sealed. The copy of Station Diary was dent to Police Station, Daharki where the facts were incorporated in 154, Cr.P.C. Book at 9-50 p.m.
5. On the next day, the police received information that injured Ahmed Ali died in the hospital therefore, the Mashirnama of dead body and inquest report were prepared at Daharki Hospital, therefore, the Mashirnama of dead body and inquest report were prepared at Daharki Hospital.
6. Thereafter, the deceased was referred to Medical Officer for post-mortem examination. On 19-10- 1998 the police arrested the appellants. On 20-10-1998 the appellants were produced before the Judicial Magistrate for holding identification parade through complainant Jam Fakir, P.Ws. Ashiq and Muhammad Nawaz. In the identification test the P.Ws. identified the appellants to be the culprits of the crime. On 30-10-1998 the appellant Ahmed Ali produced a rifle which was secured by the police. After six years the blood-stained earth, crime-empties and rifle were sent for examination and report. The reports were positive. After completing the investigation, the police challenged the appellants in the Court.
7. 4.The learned Vth Additional Sessions Judge tried the appellants. The prosecution examined nine witnesses. The appellants in their 'statements recorded under Section 342, Cr.P.C. denied all allegations of the prosecution and claimed to be innocent. They examined Syed Kemal Shah in their defence but they did not examine themselves on oath. The learned trial Judge after considering the evidence and hearing the parties, counsel convicted the appellants under Section 302, P.P.C. and sentenced each of them to suffer imprisonment for life.
8. 5.I have heard the Advocate for the appellants, Additional Advocate-General for the State and perused the record of this case very carefully.
9. 6.The learned counsel for appellants has stated that the ocular testimony is highly doubtful that the identification test was not properly held; that no role has been assigned to the appellants by the P.Ws. Muhammad Nawaz and P.W. Ashiq in the identification test; that there is conflict between medical and oral evidence; that the prosecution did not collect the medical evidence of the injuries on the person of Ahmed Ali when he was referred to hospital; that all the witnesses belong to Sadiqabad, Punjab Province and no witness of the locality has been examined to prove that case; that the witnesses could not be available at the scene of incident or just after the incident to be the witnesses and Mashirs in the case; that the property has been foisted upon the appellants; that the Ballistic Expert report has been obtained after six years of the incident as such the same is unreliable; that the P.Ws. were not able to see the faces of culprits at the time of incident; therefore, they were not able to identify them in the identification test and the appellants have been involved in the case falsely. He has further argued that the case of the appellants is not free from doubt; therefore, they may be acquitted.
10. 7.Conversely, the learned Additional Advocate-General has stated that the complainant is dead, therefore, he has not been examined; that the two eye-witnesses have supported the prosecution case and implicated the appellants; that the identification test was properly held; that the witnesses were able to see the culprits at the time of incident; however, he admitted that there is no medical certificate in respect of injuries on the person of deceased when he was referred to hospital for initial treatment in injured condition. He has further stated that the prosecution has collected the circumstantial evidence of recovery of rifle from the possession of Ahmed Din three crime-empties from the scene of incident which match the rifle as per Ballistic Expert report.
11. However, he has admitted that there is no explanation of sending the properties after six years of their recovery. He has supported the impugned judgment.
12. 8.I have given due consideration to the arguments, gone through the material available on record and found that the prosecution case rests upon: (1) ocular testimony, (2) identification test, and (3) recovery of rifle from the possession of appellant Ahmed Din, crime-empties from the place of incident and matching report of Forensic Science Laboratory (F.S.L.).
13. 9.First of all I will take up the ocular testimony which consists of two witnesses viz. Muhammad Nawaz and Ashiq. They gave the same details of the incident as mentioned in the earlier part of the judgment. They specifically stated that they alongwith deceased and complainant Jam Fakir on one motorcycle reached the place of incident where they saw four unknown persons on motorcycle lights. Out of them one was armed with Lathi, the remaining three were armed with rifles. They tried to snatch the motorcycle which was resisted and then one of them fired at the deceased which hit him on the stomach and then the. culprits ran away. From the evidence it is clear that an attempt to commit robbery of motorcycle was made by four persons and during that process' the deceased had received two fire-arm shots on his person.
14. 10.The case of the prosecution further goes on that the deceased Ahmed Ali in injured condition was first taken to the Police Post Reti and from there he was referred to Daharki Hospital for examination, treatment and certificate. It is surprising to note that neither the Mashirnama of injuries on the person of Ahmed Ali nor medical certificate issued by the doctor concerning the injuries on the person of deceased has been produced. It is also to be noted that even the prosecution did not produce the letter of police by which the deceased Ahmed Ali in injured condition was referred to Daharki Hospital. On the above aspect of the case there is no documentary evidence to show that the deceased in injured condition was referred to Hospital at Daharki though there is oral evidence but it is neither supported A nor corroborated by any documentary evidence though it was alleged that such documents were prepared. Thus, a doubt has arisen about such aspect of the case.
15. 11.This aspect of the case gains importance because the learned counsel for appellant challenged that the incident as alleged by the prosecution had not taken place in view of the statement of the Medical Officer and the corpse bearer. In view of above arguments coupled with the absence of above-mentioned documents, I have examined the case.
16. 12.According to Medical Officer Dr. Jawahar Lal of Daharki Hospital, on 20-3-1998 at 9 a.m. he received the dead body of deceased Ahmed Ali from Daharki Police Station which was brought by P.C. Muhammad Yousaf for post-mortem examination. On examination, he found the following injuries:- (1)Lacerated punctured wound 1 c.m. x 1 c.m. into through and through overthe front side of neck.
17. (2)Lacerated wound 1-1/2 c.m. x 1 c.m. into through and through, left side back of neck.
18. (3)Lacerated punctured wound 1-1/2 c.m. x 1 c.m. into through and through over the left lower chest between 10th and 11th ribs.
19. (4)Lacerated wound 5 c.m. x 5 c.m. into through and through over the left lumber region.
20. The doctor further opined that the injuries were caused by fire-arm weapon. The probable trine between death and injuries was 4 to 6 hours and between death and post-mortem was 3 to 4 hours. Thus, according to doctor the deceased had died on 20-3-1998 at about 6 a.m. If the deceased in injured condition would have been sent to the hospital then the injuries on the person of the deceased would have been dressed or some medical signs could have been found on the injuries but the doctor did not find any such signs which suggest that the injured before the post mortem was not treated in the hospital or some medical aid was not provided to him. Even otherwise if the deceased in injured condition would have been sent to Daharki Hospital, then there would have been recorded and case file of injured as it is alleged that the deceased had (lied in the hospital on the next day after his referring him to the hospital In such a situation, the P.W. Dr. Jawahar Lal, who was also working in the same hospital and the post-mortem was conducted in the same hospital, must have referred to such record or would have referred to something which could have suggested that the deceased had died in the hospital. Thus, a doubt has been created with regard to the oral evidence that the deceased in injured condition was first sent to Daharki Hospital for examination, treatment and certificate where he died. It is worth to note that in all the Mashirnamas date and time of their preparation are mentioned but it is surprising to note that no time has been mentioned in Mashirnama of dead body or inquest report of their, preparation.
21. When asked from the Additional Advocate-General to explain the above circumstances to which he was unable to furnish any explanation and could not controvert the documentary evidence and the medical evidence therefore, a doubt hid beer created in respect of oral version on the above point.
22. 13.It is the case of the prosecution that the deceased had received the injuries on 19-3-1998 at 8 p.m. but there is no medical evidence on the point which can suggest that the above-mentioned four injuries on the person of deceased were caused on the above-mentioned date and time as the prosecution had failed to produce the initial medical certificate or examined the Medical Officer who attended the deceased in injured condition to give the age of injuries. However, on the contrary the medical evidence clearly shows that the deceased had died at about 6-00 a.m. on 20-3-1998. This aspect of the case has completely belied the prosecution story. It appears that the incident as alleged by the prosecution did not take place and the deceased had not received the injuries on the alleged date and time.
23. 14.It is the case of the prosecution that the doctor had received the dead body from P.C.
24. Muhammad Yousif. The prosecution examined P.C. Muhammad Yousif but his evidence does not correspond with the story of prosecution. According to the case of prosecution the deceased had died in Daharki Hospital after he was admitted one day before his death, therefore, in natural course the dead body should have been lying in the hospital and from there it would have been sent to the Medical Officer for conducting post-mortem examination. However, the corpse bearer categorically stated that he had taken the dead body of deceased Ahmed Ali to hospital and he received the dead body at 9 p.m. from Police Post Reti and reached the hospital at about 10 p.m.
25. His evidence further reveals that he received back the dead body after post-mortem examination in between 1 or 2 a.m. in the night and then he handed over the dead body to. Jam Fakir and obtained receipt from him. The timings given by the corpse bearer are not tallying with the prosecution story and timings given by the witnesses and Medical Officer. Thus, on this point also the case of the prosecution has become doubtful. However, in order to ascertain the correct position, I have examined the receipt which was signed by complainant as a token of receipt of dead body on 20-3-1998 but even in this receipt no time has been mentioned. Thus, it is clear that in Mashirnama of dead body, inquest report and receipt of dead body the timings have not been mentioned by the Investigating Officer. This clearly shows the guilty conscious on the part of the Investigating Officer who had suppressed the material facts from the Court though in all the Mashirnamas not only the date is mentioned but the time of their preparation has also been mentioned. This had also-created doubt about the veracity of these documents and adversely reflect upon the prosecution story.
26. 15.It is pertinent to point out that due to injuries, the doctor opined that spherical cord, 3rd cervical vertebara, trachea, abdomen wall, abdomen peritoneum, spinal cord and left kidney were damaged. From the above internal severe damages the deceased in such condition could not have been able to sit on motorcycle with three other persons one of them was already sick as a case of snake bite or could have travelled in such a position on the motorcycle to reach at the police station particularly when his trachea and spinal cord were damaged. A person breathes through trachea. If the trachea is damaged then it is difficult to breathe with damaged trachea.
27. Thus, the story of the prosecution that the deceased in injured condition was taken to the police station in the manner appears to be highly doubtful. It appears that in order to show the presence of witnesses of Sadiqabad at the place of incident, this story has been introduced.
28. 16.Both the eye-witnesses are unanimous on the point that there were only two fire-arm shots fired at the deceased by two different culprits. The Mashirnama of place of incident was allegedly prepared at 9-30 p.m. on the night of incident in presence of Mashirs who were resident of Sadiqabad, District Rahimyar Khan. There is no explanation as to how these Mashirs reached at the place of incident at the time of preparation of such Mashirnama from Sadiqabad. The A.S.-I. and the Mashirs are unanimous that they secured three empty bullets of rifle from the scene of incident.
29. From this circumstantial evidence it appears that at least three fire-arm shots were fired by the culprits at the scene of incident. This circumstantial evidence is belying the oral version of the eye- witnesses that there were only two fire-arm shots at the scene of incident. Furthermore, these three crime-empties secured from the scene of incident were sent to Ballistic Expert alongwith rifle allegedly secured from the possession of appellant Ahmed Din. The Ballistic Expert report Exh.18-D shows that all the three bullets were from one and same rifle which was allegedly produced by appellant Ahmed Din. Thus, this piece of evidence is also belying the ocular version that two fire- arm shots were made from two different rifles which were held by two different accused persons.
30. Thus, this aspect of the case has also given dent to the prosecution, story.
31. 17.The learned Additional Advocate-General could not controvert the inherent defects in the prosecution story which is available on record. As such, the case of prosecution has become very doubtful and the ocular testimony is not reliable and trustworthy. As such, it is very unsafe to rely upon such type of testimony to convict the appellant for heinous crime.
32. 18.The prosecution has tried to involve the appellants through the identification test. According to Magistrate both the appellants were put to identification test where both the P.Ws. had picked out the appellants to be the culprits of the crime. During the identification test the witnesses did not assign the role of any of the appellants which they played at the time of incident. Same is the case during the course of evidence with regard to the evidence of P.W. Ashiq. Nevertheless P.W.
33. Muhammad Nawaz assigned the role to appellant Ahmed Din of causing fire-arm injury on the throat of the deceased and to appellant Qasim of causing fire-arm injury on the stomach of deceased. Thus, the evidence of Muhammad Nawaz about the role assigned to each appellant has not been supported or corroborated by P.W. Ashiq as he is silent about the role played by the appellants at the time of incident. According to him the appellants were identified in the identification test who were present in the Court. Thus, it appears that both the appellants were amongst the culprits who tried to snatch the motorcycle from the possession of appellants. The common intention of all the culprits was to rob the motorcycle and not to cause the murder of the deceased. However, at the spur of the moment when resistance was shown by the P.Ws. two culprits allegedly fired at the deceased. Thus, there was no common intention between all the culprits to commit the murder of the deceased. Even otherwise, the evidence of P.W; Muhammad Nawaz about the role of the appellants has not been corroborated by the P.W. Ashiq.
34. 19.According to P.W. Muhammad Nawaz both the appellants had fired at the deceased from their respective rifles but if we look at the Ballistic Expert report then the evidence of Muhammad Nawaz is falsified by such report where, it has been clearly opined that all the three empties secured from the place of incident were fired from a single rifle. On this count also .the evidence of D.W.
35. Muhammad Nawaz is not supported or corroborated.
36. 20.I have already observed that the oral evidence is not worthy of credence therefore, it cannot be safely relied upon. If oral evidence is discarded then no conviction can be based on corroborative piece of evidence. The evidence of identification test is not a substantive piece of evidence but it has a corroborative value which can corroborate the ocular testimony. In the absence of ocular testimony merely on corroborative piece of, evidence no conviction can be awarded.
37. 21.As regards the circumstantial evidence of recovery of three crime-empties from the place of incident, recovery of rifle from the ion of appellant Ahmed Din matching report of Ballistic Expert report Exh.16-D, suffice it to say that the crime-empties were allegedly secured on 19-3-1998, the recovery of gun was made on 30-10-1998 but it is surprising to note that after six years on 14-6- 2004 the gun and crime-empties were sent to Ballistic Expert. for report and he gave positive report on 21-6-2004. Same is the case of sending blood-stained earth to Chemical Analyzer. There is no explanation from the side of prosecution as to why these articles were sent after such a long period of six years. The learned Additional Advocate-General could not explain any circumstances which can justify sending the properties after such a long delay. As such inordinate and unexplained delay in sending the I articles to the Ballistic Expert and Chemical Analyzer destroys the evidentiary value of their reports. As such, the same cannot be safely relied upon.
38. 22.After-considering the. material available on record, t am of the considered view that the case of the prosecution is highly doubtful against the appellants, therefore, they are entitled to the benefit of doubt which was accordingly given to them at the time of passing short order.
39. 23.Above are the reasons of my short order dated 20-7-2005 by which I had allowed the appeal.