'MUHAMMAD MOOSA K. LEGHARI, J.--- This appeal is directed against the judgment, dated 27-5- 2003, passed by learned 1st Additional Sessions Judge, Larkana in Sessions Case No,231 of 2001, whereby the appellant Laldino son of Hamzo Khan was convicted under section 302(b), P.P.C. And sentenced to suffer imprisonment for life and to pay fine of Rs,1,00,000 (Rupees one lac only) as compensation to the heirs of the deceased. It was ordered that in case the amount of compensation could not be realized as arrears of land revenue, the accused shall undergo further imprisonment for a term of six months. The appellant/accused was given benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as disclosed in the F.I.R. Dated 3-5-2001 lodged by complainant Altaf Hussain at Police Station Market Larkana, are that on 3rd May, 2001 while the complainant, his brother deceased Aijaz Ali and a friend Ashique Ali were sitting at the shop of P.W. Naveed Anjum in Bazar at Larkana, at about 11-20 a.m. The appellant who was a police constable suddenly emerged there duly armed with official weapon i,e, klashnikov. He challenged Aijaz Ali who was sitting inside the shop. Uttering that the deceased had tarnished his image in the eyes of the Mohalla people, the appellant fired a shot from his klashnikov at Aijaz All which hit him in his face as a result of which he fell down. The appellant then entered the shop and again fired shots hitting Aijaz Ali. On raising cries by the complainant and the witnesses, the appellant ran away. Aijaz Ali succumbed to the injuries. The motive for the said offence is alleged to be annoyance of the appellant with deceased Aijaz Ali who allegedly earlier told the appellant that visit of people of questionable character to the appellant's house, had brought a bad name to the whole Mohallah where the deceased and his relations were living with their families. The deceased allegedly asked the appellant to desist from such activities, however, the appellant persisted in his activities, as such ultimately the complainant and the deceased Aijaz All shifted to their original village namely Bungul Dero. The appellant allegedly became annoyed on account of this shifting and he used to threaten the deceased that he will take revenge from him.
3. Subsequent to registration of F.I.R. The matter came to be investigated, and the appellant/accused was arrested. He was sent up to stand trial for murder of deceased Aijaz Ali.
4. A formal charge was framed by the trial Court to which the accused/appellant pleaded not guilty and claimed to be tried.
5. The prosecution examined P.W.1, Tapedar Sher Muhammad (Exh.4), P.W.2 complainant Altaf Hussain(Exh.5) who produced copy of F.I.R. As Exh.5/A, P.W.3 Ashique Ali (Exh.6) who produced his statement recorded under section 164, Cr.P.C. By the IV-Judicial Magistrate, Larkana, P.W.4 Naveed Anjum (Exh.7) who produced his statement recorded under section 164, Cr.P.C. As Exh.7/A, P.W.5 Dr. Imdad Ali, Medical Officer (Exh.8) who conducted post-mortem on the dead body of the deceased and produced post-mortem notes as Exh.8/A, P.W.6 P.C. Azizullah, corpse bearer (Exh.9) who produced copy of receipt regarding delivery of dead body as Exh.9/A, P.W.7 Mashir Dhani Bux (Exh.10) who produced Mashirnamas of places of Vardat arrest and recovery as Exhs.10/A to 10/C, P.W.8 Abdul Rasheed Mangi, Investigating Officer of the case (Exh.11) who produced inquest report, Entry in the Roznamcha, Reports of the Chemical Examiner and Ballistic Expert as Exhs.11/A to 11/D.
Thereafter, prosecution closed its side vide statement Exh.12.
6. In his statement recorded under section 342, Cr.P.C., the accused/appellant denied the allegations of the prosecution. He stated that deceased Aijaz Ali did never reside in his Mohalla. In fact, on the day of incident there was general strike in Larkana and the appellant being a police constable was detailed kept at Market Police Station in reserve, where he received information of the murder of Aijaz Ali. According to him Aijaz Ali was killed by strikers, however as 2/3 years prior to the incident he had some altercation with the deceased, the complainant involved him in the case due to suspicion and as he could not fulfil the demand of the S.H.O. Concerned to pay Rs,50,000 as bribe, he was falsely involved in the case. The appellant, however, neither examined himself on oath, nor produced any witness in defence.
7. On the basis of evidence brought on record, the appellant was found guilty for the alleged offence and was accordingly convicted and sentenced as stated above, hence this criminal appeal.
8. Arguments of learned counsel for the appellant and the State Counsel were heard.
9. Learned counsel for the appellant argued that the appellant has been implicated in the ease due to suspicion as there were some altercations between the appellant and the deceased about two years prior to the incident, that ocular testimony being in conflict with other pieces of evidence is not worthy of credence. It was argued that the medical evidence and evidence regarding recovery of weapon and empties; and the report of Ballistic Expert do not corroborate the ocular testimony, that the medical evidence was inconsistent with and contradictory to ocular evidence, that no substantial evidence was adduced to prove the motive, hence it was disbelieved by the trial Court itself; that there is inordinate delay in effecting the recovery of crime weapon as the incident took place on 3-5-2001 whereas recovery was made on 10-5-2001 that there was strike in Larkana on the day of incident as such presence of the witnesses is doubtful as there is sufficient distance between the residences of the witnesses and the place of incident.
10. The learned counsel appearing for the State supported the impugned judgment contending that the eye-witnesses have fully implicated the appellant in the commission of the offence, that no enmity is alleged by the accused with the deceased or the complainant, that the medical evidence and the report of the Chemical Examiner also support the prosecution case. It was contended that failure on the part of prosecution to prove motive would, in all cases, not be fatal to the case of prosecution.
11. The arguments advanced at the bar have been given anxious thought and the evidence adduced during the trial has been scrutinized.
12. According to the trial Court, it has based the conviction of the appellant on ocular evidence, circumstantial evidence and medical evidence. The trial Court, however, disbelieved the motive set up by the prosecution observing that the prosecution has failed to prove the motive against the accused.
13. As a well-settled principle of law, though prosecution was not called upon to establish motive in every case yet once it has set up a motive but failed to establish it, the prosecution must suffer consequence and not the defence. Reference may be made to the case of Hakim Ali and 4 others v. The State and another 1971 SCM R 432.
14. The Honourable Supreme Court in the case of Ahmed Nisar reported in 1977 SCM R 175 observed that the absence of motive or failure of the prosecution to prove it does not adversely affect the testimony of the witnesses if they are otherwise reliable.
15. Nevertheless, as observed by the apex Court in the case lc Habibullah and others v. The State reported in PLD 1969 SC 127, where motive alleged by the prosecution is found to be false, evidence of such witnesses is to be accepted with great caution.
16. Thus, it will be seen that the gist of the law settled by the apex Court is that it was not necessary for the prosecution to prove the motive in all the cases but once it has been set up by the prosecution, yet could not be proved, then ocular evidence is to be examined very carefully and in a cautious manner, and has to be relied upon only if it was found to be credible, having been adduced by the witnesses of unimpeachable character. In the present case since the motive was disbelieved by trial Court itself, therefore, the ocular evidence was required to have been scrutinized in a strict manner.
17. However, before dilating upon the ocular testimony, it may be observed that the circumstantial evidence more particularly the recovery of the crime weapon to connect the appellant with the commission of the offence is also doubtful. Admittedly six empties were secured from the place of Wardat on the day of incident but those were not sent to the Ballistic Expert and were kept at the police station for which no explanation is forthcoming. A klashnikov was recovered from the possession of the appellant after he was arrested on 10-5-2001. Both, the klashnikov which was alleged to be the crime weapon and the empties secured from Wardat, were sent to the Ballistic Expert simultaneously, thus rendering the report of Ballistic Expert of no value. Besides that, according to the report of Ballistic Expert, out of six empties received by him four were not fired from the klashnikov which was sent to him for examination. The eye-witnesses have stated that the deceased sustained as many as five injuries. The post-mortem report states that there were five entry and five exit wounds on the body of the deceased. However, according to the report of the Ballistic Expert, four empties received by him were not fired from the said klashnikov. Quite amazingly the learned trial Judge observed that if out of six, four empties were not fired from the said klashnikov, then it would mean that remaining two were fired from the same. Obviously enough, this was conjectural and presumptive observation. The learned trial Judge has further observed that though there was delay in the dispatch of the empties and the weapons but the delay might have been caused because of seeking approval of the District Police Officer. Again the observation is imaginary and capricious. It is not understandable as to how the approval of the higher police official was required for instant and immediate dispatch of the empties which were collected from the place of Wardat.
' Besides, the admitted fact that the Mashirs of recovery also did not belong to Larkana Town but they belonged to the native village of the complainant/deceased could not be kept out of view, and this adds to the doubts.
18. Regarding medical evidence, suffice it to say that it does not support the ocular evidence. The description of the weapon allegedly used in the commission of crime was admittedly not mentioned in the post-mortem report. The doctor who conducted the post-mortem stated in H the cross-examination that in all probability the injuries on the person of the deceased were the result of three fire-arm shots in which cartridges have been used. He further stated that the injuries found on the dead body of the deceased suggest that these were caused from four different sides.
19. Adverting to the ocular testimony, it must be stated that the two eye-witnesses namely, complainant Altaf Hussain and Ashiq Ali admittedly belonged to village Bungul Dero and were present at the scene of offence as chance witnesses. According to the complainant he had come to Larkana Town from Bungul Dero to make purchase for his shop and he reached the shop of Naveed Anjum where incident took place where P.W. Ashiq Ali also arrived. P.W. Ashiq explaining his presence at the place of incident stated that he too belongs to Bungul Dero Village but was working with a Hakeem at Larkana Town and therefore, had arrived at the scene of offence just as chance. The fact that above two witnesses being closely related to the deceased, were obviously interested witnesses needs no emphasis, yet it demands still stringent scrutiny of their evidence.
P.W. Naveed Anjum is the shopkeeper at whose shop the alleged incident is said to have taken place.
' The story which has been given by complainant Altaf Hussain has not been supported either by the circumstances or the medical evidence. He could not even substantiate his stay at Larkana as he was enable to give proper reply with regard to his house which was occupied by them in Larkana In his cross-examination he admitted that he did not know as to when the house at Hyderi Mohalla Larkana where they were residing was purchased by their parents, that he did not remember about the said house, he also showed his ignorance as to when the said house was sold. He also admitted that the appellant never threatened the deceased in his presence, that they did not inform the police or higher authorities about the threats being given to the deceased by the appellant. In the F.I.R. The complainant stated that P.W. Ashique Ali was their friend whereas in his cross-examination he made improvement by saying that P.W. Ashique was not his friend but he was only residing in Bungul Dero. As stated above, in his examination-in-chief he stated that the appellant/accused fired a shot from klashnikov at the deceased Aijaz which hit his right cheek, thereafter, the accused entered the shop and again fired five shots all of which hit Aijaz Ali, However, the report of the Ballistic Expert is contrary to such assertion which reveals that only two shots were fired from the klashnikov recovered from the possession of the appellant.
20. P.W. Ashique Ali in his evidence deposed that the appellant/ accused initially fired one shot at the face of the deceased and then he came forward and fired more shots at the deceased which fact, as stated above, is in contravention of the findings of the Ballistic Expert. In his cross- examination he stated that he was having no friendship with the complainant or the deceased, however, he admitted that in his 164 and 161, Cr.P.C. Statements he had stated that he was friend of the complainant and the deceased.
21. P.W. Naveed Anjum stated in his cross-examination that he had been knowing the deceased for the last 2/3 years. According to him, after the dead body of the deceased was taken away, he went to the police station on a rickshaw. However, such statement is contrary to the statement made by P.W. Ashique Ali who stated in his cross-examination that he and P.W. Naveed Anjum had gone to police station on foot. Likewise there is also contradiction in the statements of these two witnesses inasmuch as P.W. Naveed Anjum stated that nobody came to his shop after the incident whereas P.W. Ashique Ali stated that people had been coming and going after the incident but he knew none of them. Though Naveed Anjum denied to have any friendship with the complainant or the deceased but his evidence also cannot be termed as independent. Undoubtedly P.W. Naveed Anjum is a shopkeeper. Keeping the shop open by him on a day when there was general strike in the town is something hard to comprehend:
22. Two of the eye-witnesses admittedly belonged to village Bungul Dero, one of them was real brother of deceased, while the other one Ashiq Ali, as in the case of P.W. Naveed Anjum, was friend of the deceased. Their presence at the scene of occurrence does not inspire confidence, as their version was belied by the circumstances as discussed in the preceding paragraphs.
' The only logical conclusion which could be arrived at, was that the ocular evidence was far from being reliably believable. Much was required to make it unimpeachable to be trusted with truth.
23. Testing the evidence brought on record on the touchstone of the settled principles of law, it could not be said with certainty that what the eye-witnesses had deposed was all truth. The deficiencies in the ocular evidence coupled with the lack of proof of motive and recovery, contradictory circumstantial and medical evidence, make the case of the prosecution doubtful against the appellant. Thus, in the given circumstances it would not be safe to maintain the conviction and the sentence awarded to the appellant. The appellant deserves to be extended benefit of doubt.
24. For the foregoing reasons, the appeal is allowed. The appellant is acquitted. He shall be released forthwith if not required in any other case. Above are the reasons for short order passed on 27-4-2006.