' AKHTAR ZAMAN MALGHANI, J.---The appellant Lal Khan has been sentenced to death by Sessions Judge, Sibi after finding him guilty under section 302/34, P.P.C. Vide judgment dated 2-7-2005. He has assailed the conviction through instant Jail Appeal. The learned Sessions Judge has also referred the proceedings to this Court under section 374, Cr.P.C. Read with section 338, P.P.C. For confirmation of death sentence.
2. Briefly stated, facts of the case are that on 30-6-2004 at about 3-00 p.m. a case under section 302/34, P.P.C. Was registered in Levies Station, Lehri on the report of Bai Khan, wherein; it was alleged that on the same day at about 10-00 a.m. Mumtaz Ali, who was sitting in Oatak of Zeerak Khan along with Noor Hassan and Sardar Khan was murdered by Abdul Latif, Sharbat Khan, Bachal Khan and Lal by means of Kalashnikov firing. After registration of case the investigation was carried out by P.W.6 Abdul Raheem Tehsildar, who prepared site-plan Exh.P./6-A; took into possession five empties of Kalashnikov and bloodstained earth, as well as; blood-stained shirt of the deceased into possession through seizure memo. Exh.P./5-A. He also brought medical officer on place of occurrence where the deceased was medically examined and thereafter the dead body was handed over to his legal heirs. On 18-7-2004 appellant was arrested, whereas; Investigating Officer could not lay hand on other nominated accused persons.
3. The appellant pleaded not guilty to the charge, whereafter; prosecution produced following witnesses:7
(i) P.W.1 Bai Khan deposed that on 30-6-2004 he was present in the house of Mumtaz and came out on hearing firing reports, where children informed him that Mumtaz Ali has been murdered by Lal Khan, Abdul Latif, Bachal and Sharbat in the Oatak of Zeerak. He further stated that he went to the place of occurrence where dead body of Mumtaz was present and thereafter at about 3-00 p.m. He submitted written report to Tehsildar Lehri. In cross-examination he stated that he was sitting in the courtyard when children informed him. He further stated that he went on Cycle for lodging report.
(ii) P.W.2 Sardar Khan deposed that on the day of occurrence he, Mumtaz and Noor Hassan were sitting in the Oatak of Zeerak Khan where at about 10-00 a.m., Lal Khan, Abdul Latif, Bachal and Sharbat armed with Kalashnikov came and murdered Mumtaz Ali by firing at him. In cross- examination he stated that they were sitting on the ground near to each other. He further stated that the accused persons made firing on deceased Mumtaz from a close distance. According to him after firing many people gathered there. He also stated in cross-examination that the dead body remained lying in the Oatak till arrival of Tehsildar.
(iii) P.W.3 Noor Hassan stated that on 30-6-2004 he along with Mutmaz and Sardar Khan was sitting in. The Oatak of Zeerak Khan when suddenly Lal Khan, Sharbat, Bachal and Latif armed with Kalashnikov came there and made firing and after murdering Mumtaz went away.
(iv) P.W.4 Dr. Aneel Kumar deposed that on 20-6-2004 (30-6-2004) on the request of Tehsildar he went to the place of occurrence and examined dead body of deceased Mumtaz and noted following injuries:--
1. Wound of entrance.
On the right mastoid process (back side of right ear) with inverted margins. Size about 1/2" in diameter.
Wound of exit.
At the angle of mandible (left side with averted margins size about 2-1/2").
Wound of Entrance.
' Two wounds of entrance on the left shoulder joint with inverted margins size about 1/2" in diameter of each.
Wound of Exit.
Back side of left shoulder joint with averted margins size about 3-1/2" (combine)."
(v) P.W.5 Khushal Khan deposed that on 30-6-2004 Tehsildar took into possession five empties and blood-stained earth from the place of occurrence, whereas; father of deceased produced blood- stained shirt, which was taken into possession in his presence.
(vi) P.W.6 Abdul Raheem investigated the case. After registration of case he went to place of occurrence where he prepared site-plan, took into possession blood-stained earth, empties and bloodstained shirt of the deceased. He also recorded statements of the witnesses and brought Dr. Aneel Kumar (P.W.4) to the place of occurrence where dead body was examined by him. In cross- examination he stated that village There (place of occurrence) is situated at a distance of eight kilometers from Tehsil Lehri.
' The appellant in his statement under section 342, Cr.P.C. Denied all the allegations and claimed innocence. He was also examined under section 340(2), Cr.P.C., wherein; he also denied to have committed murder of Mumtaz. On conclusion of trial the learned Sessions Judge found the appellant guilty under section 302/34, P.P.C. And sentenced him as mentioned above.
4. We have heard the learned counsel for the appellant as well as learned Assistant Advocate- General. The learned counsel for the appellant vehemently contended that the F.I.R. Was lodged with unexplained delay of about five hours, though the place of occurrence was situated at a distance of about eight kilometers from Tehsil Lehri; and it appears that the time was consumed by the complainant party in deliberation and hiring services of persons who could claim to have witnessed the incident. He further contended that Bai Khan is not an eyewitness, whereas; presence of other two persons namely Sardar Khan and Noor Hassan at the place of occurrence was doubtfull. He further contended that the story narrated by the witnesses claiming to have seen the occurrence is neither probable nor natural, because it is unbelievable that despite indiscriminate firing by four persons by means of Kalashnikov they would go unhurt, while according to them all of them were sitting near to each other. He further contended that the injuries sustained by deceased and recovery of empties from the place of occurrence shows that the offence was committed by one or two persons, but the complainant party attempted to involve all male members of the family, that is why; no specific role was attributed to the appellant; and keeping in view of the fact that the appellant is an old man of about 78 years old, his false involvement in the case could not be excluded, as it is not natural for him to accompany other accused persons, who could have easily accomplished the task without assistance of the appellant. He argued with great vehemence that according to challan the articles recovered from place of occurrence were sent to chemical examiner and fire-arm expert from analyzation, but no report was placed on record, as such; these articles have no corroboratory value nor can be used as a piece of evidence against the appellant. In support of his arguments the learned counsel referred to the judgments reported in 1995 SCM R 896 and 2005 SBLR 137.
' On the other hand, the learned Assistant Advocate-General supported the judgment and submitted that there was sufficient evidence on record to prove that the appellant has committed murder of Mumtaz Ali, as such; he was rightly found guilty. He placed reliance on the judgments reported in 2001 PCr.LJ 490 and 2001 SCM R 163.
5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment, as well as; evidence on record. It may be seen that deceased Mumtaz Ali was got medically examined by Investigating Officer from P.W.4 Dr. Aneel Kumar, who stated that the deceased received three bullet injuries on his person, which proves that the deceased did meet with violent death, however, the medical evidence cannot be used qua identity of an accused person, for which prosecution has to bring on record sufficient material to prove that the accused was the person who participated in the crime. In this regard, we are fortified by the judgment reported in 1997 SCM R 866, wherein; it was observed as under:-- "Primary question raised by learned counsel revolves around testimony of eye-witnesses and its effect over medical evidence. It may be seen that medical evidence is normally used for confirmation of ocular testimony as regards injuries caused to deceased or any prosecution witness. Such evidence certainly cannot constitute corroboration qua the accused person for proving his involvement. Therefore, the contention raised by learned counsel for State about ocular testimony being corroborative evidence is without substance."
6. The prosecution in order to sustain conviction mainly relies upon statements of P.W.2 and P.W.3, who claimed to have seen the occurrence, whereas; Bai Khan is admittedly not an eye-witness and his statement is based on hearsay. P.Ws. Sardar Khan and Noor Hassan deposed that on the day of occurrence they were sitting along with Mumtaz Ali in Oatak of Zeerak Khan when at about 10-00 a.m. Abdul Latif, Sharbat Khan, Bachal Khan and Lal Khan armed with Kalashnikov came and committed murder of Mumtaz. They have not deposed as to whether all the culprits were armed with Kalashnikov or all of them resorted to firing and only general role has been attributed to all the accused persons including the present appellant. According to P.W.2 Sardar Khan they including deceased were sitting close to each other, therefore, it does not appear plausible that despite firing by four persons, that too; by means of Kalashnikov they would escape unhurt; and only Mumtaz would receive injuries. According to them the accused persons made firing at Mumtaz from a close distance, but medical certificate does not indicate any blackening or tattoo marks around the injuries sustained by the deceased. It is also not probable that the deceased would receive only three injuries, one on the back of ear and two on shoulder despite firing made by four persons from a short distance and possibility cannot be ruled out in the peculiar facts of the case that the crime might have been committed by one or two persons, but complainant party enroped as many male members of accused party, as they could including seventy eight years old appellant, without whom the task could have been accomplished by others persons. Though in F.I.R. Presence of these two witnesses along with Mumtaz has been shown at the time of occurrence, but in our view mere mention of names of the witnesses.In F.I.R. Is not sufficient to make their testimony truthful, because there is unexplained delay offive hours in lodging of report despite the fact that the levies station was situated at about eight kilometers from the place of occurrence and according to P.W.1 he went for report on Bicycle. It appears that the time was consumed in deliberation, therefore, nomination of the appellant and appearance of names of witnesses in F.I.R. Would be of no consequence. We have to see whether the story narrated by the witnesses fits in probabilities and circumstances of the instant case. We may also observe here that the learned Sessions Judge relied upon the testimony of these two witnesses after observing that they have no malice towards the accused, but we are afraid that the approach of learned Judge for testing veracity of witnesses was not correct,because absence of enmity or against the accused would not be sufficient to stamp the evidence of a witness with truth, but acid test of the veracity of a witness is the inherent merit of his own statement. In the judgment reported in 1995 SCM R 1627 it was observed as under:- "Mere fact that a witness is neither related to the complainant nor inimical towards the accused does not stamp his testimony necessarily with truth. Acid test of the veracity of a witness is inherent merit of his own statement. Since the facts of the two cases seldom coincide, therefore, no hard and fast rule for the appreciation of evidence can be laid down. The general rule, however, is that the statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of ,a pious man may be rejected without second thought."
According to these two eye-witnesses occurrence took place in the Bhattak of Zeerak Khan where they were sitting along with Mumtaz, but Investigating Officer on his first visit found dead body of Mumtaz out side the Oatak as indicated by him in site-plan Exh.P/6-A. Though site plan is not a substantive piece of evidence nevertheless is also not a wastepaper, because it depicts what the Investigating Officer observed at the time of his first visit. At the place of occurrence. P.W.2 Sardar Khan stated in cross-examination that dead body of deceased remained lying in the Bhattak, till the arrival of Tehsildar, but the site-plan speaks contrary. As far as other pieces of evidence such as recovery of bloodstained earth, empties are concerned, same cannot be used in corroboration to the testimony of P.W.2 and P.W.3, because P.W.5 Khushal Khan and P.W. 6 Muhammad Raheem Investigating Officer have not clarified from where these articles were taken into possession, whether from inside Oatak or out side nor in site-plan the places have been indicated from where these articles were taken into possession. Furthermore; according to challan these articles were sent for analyzation to expert, but no report is available on record, as such; the same could not be used as corroboratory pieces of evidence against the appellant. It has also come on record that the appellant is an old man of about 78 years age and it appears improbable that he would participate in the crime when such task could be accomplished without him or his assistance, and keeping in view unfortunate tendency in general public to enrope all male members of the accused party, possibility could not be ruled out that he was falsely implicated in the case, that is why; no specific role was attributed to him. The evidence of the two eye witnesses, in light of above discussion does not appear to be confidence inspiring, therefore, no implicit reliance could be placed on their statements for sustaining death penalty.
For the foregoing reasons, we are of the considered view that the prosecution has miserably failed to prove the charge against the appellant beyond reasonable doubt, as such; the judgment dated 2-7-2005 rendered by learned Sessions Judge, Sibi is set aside and the appellant is acquitted of the charge. He be set at liberty forthwith, if not required in connection with any other case. The Murder reference is answered in negative accordingly.