1. ' RAHMAT HUSSAIN JAFFERI, J.---Brief facts giving rise to the present appeal are that on 16-6-2000 at about 10 p.m. Complainant Muhammad Uris, his brothers Sangi and Sobho were sleeping in their houses which were surrounded by a common hedge. At about 9-00 p.m. They woke up on barking of dogs. They found a person standing in their courtyard. In the moonlight he was identified to be appellant Hamzo Machi. Prosecution Witness Sangi challenged the appellant who directly fired from his pistol at him, which.Hit him and he fell down on the ground. Thereafter the appellant ran away. The complainant went to Police Station and lodged report at 9-45 p.m. Police after usual investigation challenged the appellant in the Court of law.
2. ' Learned Additional. Sessions Judge, Naushahro Feroze tried, convicted the appellant for offence punishable under section 459, P.P.C. And sentenced him to suffer R.I. For 7 years and fine of Rs,10,000 or in default thereof to suffer R.I. For six months with benefit of section 382-B, Cr.P.C. Under the impugned judgment, dated 15-12-2003.
3. ' I have heard appellant in person. A.A.-G. For the State and perused the record very carefully. The latter has not supported the impugned judgment.
4. ' After going through the evidence with the assistance of learned A.A.-G. I found that the case rests upon ocular testimony only that consists of three witnesses. P.W.1 Muhammad Uris, P.W.2 Sangi and P.W. Zahoor.
5. ' The perusal of the evidence of the complainant reveals that he gave the same details of the incident as mentioned in the earlier part of the judgment, therefore need not be repeated.
6. However, injured P.W.2 Sangi gave a different story with regard to reaching the place of incident as he stated that he was sleeping in his house when the complainant came and woke him up by telling him that dogs were barking. Thereafter he, complainant, P.W. Zahoor came to the courtyard where they found a person in the moonlight. They identified the said person to be the appellant.
7. P.W.2 challenged him and then appellant fired at him from his pistol therefore he became unconscious.
8. From the above evidence it is clear that initial story that the prosecution witnesses woke up on barking of dogs has not been fully supported and corroborated by P.W.1. Secondly, eyewitness Zahoor was not examined for the reason best known to the prosecution.
9. ' From the evidence it is clear that the P.Ws. Identified the appellant in moonlight. The complainant is silent about the distance from which he saw the appellant. The P.W.2 gave such distance as 6 to 7 feet. However his statement is not supported by the medical evidence as the injured had received in all 12 pellet injuries on various parts of his body as Injuries Nos.5 and 6 shows 6 pellets wound. Thus the nature and place of the injuries clearly shows that before hitting the body the pellets had spread and had lost their sufficient force because some of them were skin deep. This can only be possible when the fire-arm shot was fired from a longer distance of 15 to 30 feet as deposed by Medical Officer, Thus it has been established from medical evidence that the P.W.2 had received injuries from a longer distance and not from close range of 6 or 7 feet. In these circumstances the appellant was present at a longer distance of about 15 to 30 feet. Further the manner in which the incident accrued shows that the witnesses were able to see the momentary glimpse of the culprit in a confusion and fear as it is alleged that after seeing the culprit, he was challenged and then he fired and ran away. In such circumstances it is highly improbable to identify a person from a longer distance in moonlight. Thus error and mistaken identity cannot be ruled out. The Honourable Supreme Court of Pakistan in the case of Bashir v. State 1995 SCM R 276 has observed that the identification of accused at night in moonlight and on electric bulb light: chances of error in identification become greatly increased when the identification is based on glimpse in the confusion and pandemonium of the moment, testimony of sense cannot implicitly relied upon even when the veracity of witnesses cannot be challenged. As such the identification of the appellant in the circumstances of the present case is highly doubtful.
10. ' The second aspect of the case is that the incident took place inside the house. The prosecution- examined Mashir Mumtaz who deposed that he found the blood drops in the courtyard but when he was cross-examined he gave different places with regard to the presence of blood drops. At one stage he stated that the blood drops were available at the back of the house of Sobho whereas the incident took place in the courtyard of the houses. Further, he stated that there was only one entrance door and blood drops were available at a distance of seven feet away from the out door.
11. ' The defence from the very beginning took the plea that the injured did not receive the injury at the place of incident but received the injury at some other place, where he had gone to commit theft.
12. As such the defence place was that the incident did not occur inside the house. The prosecution examined Investigating Officer, who also reached at the place of incident after lodging F.I.R. He gave completely different picture with regard to the place of incident. According to him the place of incident was not inside the houses as he did not see the blood drops there but on the contrary he changed the place of incident from inside the house to outside it as he deposed that the place of incident was near the hedge outside the house. Thus the place of incident has not been established as alleged by the prosecution witnesses. This also cast on the identity of the appellant from distance.
13. ' After considering the material available on record I am of the considered view that the prosecution case is highly doubtful against the appellant, therefore, appellant is entitled to the benefit of doubt which was accordingly given to him while passing short order.
14. ' Above are the reasons of my short order, dated 1-9-2006 by which I had allowed the appeal.