' RAHMAT HUSSAIN JAFFERI, J.---On 2-2-1997 at 8-30 a.m. The complainant Khilan lodged the report at Police Station, Buxapur District Jacobabad. The said report reads as under:- ' "Complaint is that I along with my brothers Bullo and Wadhan am residing near. Village Haleem Mahar and cultivate the land of Abdul Haq on HARAP. About 2 days back my uncle Niaz Ahmed son of Ali Khan resident of village Gheehalpur taluka Kashmore came to us for meeting with us therefore, he was staying there. Today in the morning at about 07-15 hours I, my brothers Bullo, Waddan and uncle Niazi Khan were sitting in kitchen of our house. When accused Imam Bux, 2.
Tillan both sons of Jaffar,
3. Ghulam Rasool,
4. Gul Hassan both sons of Sajjan,
5. Zaraq son of Dill Murad,
6. Hazaro son of Bago,
7. Jumo son of Titian all by caste Shar resident of village Geehalpur, taluka Kashmore came there to attack upon us. Out of them Ghulam Rasool and Gul Hassan were armed with guns and rest were armed with hatchets. Then accused Ghulam Rasool gave hakal to Waddan and said that he was `Karo' with Mst. Waderi wife of Dilmurad. After saying so Ghulam Rasool made direct gun shot tire upon Wadan, which hit him and he fell down. We raised cries and requested the accused not to murder our person, on that accused Gul Hassan raised gun upon us and other accused raised hatchets upon us and said not to come near them, otherwise they would murder us. As we were empty handed therefore we remained silent. Then the accused after firing in air went towards east. We then saw Waddan. He had fire-arm injury on his face blood was oozing and had died. Dead-body of deceased Waddan was left under the custody of my brother Bullo, uncle Niazi Khan and I have come to lodge complaint that above accused after levelling false allegation of `Karap' upon my brother Waddan has murdered him."
' After lodging F.I.R. The P.W.4 A.S.-I. Imdad Hussain went to the place of incident where he found the dead-body of the deceased Wadhan lying there. A.S.-I. Secured, sealed .12 bore empty cartridge and found blood lying at the place of incident. The dead-body was sent to hospital for post- mortem examination. The appellants were arrested and hatchets were secured from their possession. The police after usual investigation challaned the appellants in the Court.
' The learned find Additional Sessions Judge, Kandhkot tried the appellants, convicted and sentenced them for offence punishable under sections 302 and 149, P.P.C. To suffer imprisonment for life.
' I have heard the Advocate for the appellants, A.A.-G. For the State and perused the record of this case very carefully. The latter has not supported the impugned judgment.
' After going through the evidence with the assistance of learned Advocate for the appellants I found that the case of the prosecution rests upon ocular testimony only, which consists of two witnesses viz. P.W.2 complainant Khillan alias Tillan and P.W.I Gulo. P.W.1 gave the same details of the incident as mentioned in the F.I.R. Which facts are already mentioned above, therefore need not to be repeated. The complainant did not support the contents mentioned in the F.I.R. Or the statement made by P.W.1 as he deposed that on the day of incident he along with Nazeer Khan, Bulo and deceased were sitting in the house. Thereafter he changed his statement by stating that the deceased was sitting in his own house. At about dawn time he heard a fire-arm report coming from the house of the deceased, therefore they went to his house and saw 6/7 persons running away from the place of incident. The said persons had muffled their faces and their backs were towards them therefore they could not identify them. He then saw his brother deceased Wadhan lying dead with fire-arm injury on his eye. Thereafter he went to police station and lodged the report. In the F.I.R. He gave the name of the appellants due to suspicion because they were on inimical terms with them. He also deposed that the accused present in Court did not commit the murder of his brother.
From the evidence of complainant it is clear that he resiled from the statement made in the F.I.R.
And also not supported the statement of the P.W.1. The prosecutor did not declare the complainant hostile so as to cross-examining him and obtain true facts from him. This shows gross negligence on the part of the prosecutor. However, when the complainant was not declared hostile then it is presumed that the prosecution had accepted his evidence as given by him in the Court which was on oath. It is well settled principle of law that F.I.R. Is not a substantive piece of evidence. It can be used to contradict its maker only, therefore, the facts mentioned in the F.I.R. Cannot be taken against the C accused unless first informant is examined and supported the contents of the F.I.R.
The Honourable Supreme Court of Pakistan in the case of Tufail Masih v. The State (1985 SCM R 838) observed that F.I.R. Is not a piece of substantive evidence, it cannot be used against the accused unless put to the maker for corroboration or contradiction. In the present case the contents of the F.I.R. Were not put to the complainant to contradict him therefore the same cannot be used against the accused.
Thus we are left with the evidence of P.W.1. According to his evidence no part of causing injuries to the deceased has been assigned to the appellants as the part of challenge and causing fire-arm injuries to the deceased has been assigned to absconding accused Ghulam Rasool. His evidence further reveals that after the incident the appellants raised hatchets over the P.Ws. The said statement has neither been supported nor corroborated by the complainant whose evidence has been accepted by the prosecution to be true and correct because the same was not challenged by the prosecution. According to P.W.1 there was another eye-witness namely Niazi but the prosecution also did not examine him to corroborate the statement of P.W.1. The prosecutor did not examine him on the ground that he was also not supporting the prosecution case. In such a situation the prosecution was required to I examine P.W. Niazi and after declaring him hostile, he could have been cross-examined so that true picture could have emerged from his statement but the prosecution withheld the said piece of evidence and did not allow the trial Court to assess and evaluate the evidence in a true perspective. In such a situation is presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 can be raised that had the P.W. Niazi been examined his evidence would have been unfavourable to the prosecution. Thus the solitary statement of P.W.1, without any corroboration and in the present peculiar circumstances of the case cannot be safely replied upon in the case of involving capital punishment.
' Finding the above defects in the evidence the learned A.A.-G. Has not supported the impugned judgment.
After scrutinizing the evidence available on record, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond 'F any reasonable doubt, therefore the appellants are entitled to the benefit of doubt which was given to them at the time of passing short order dated 30-8-2006 by which I had allowed the appeal. These are the reasons of the said short order.