1. ' RAHMAT HUSSAIN JAFFERI, J.--- Brief facts giving rise to the present appeal are that on 18-8-1998 at 9-00 a.m. The complainant heard the cries of his son Loung when he (deceased) reached the house of the appellant. He went there and saw the appellant causing hatchet injuries to deceased Loung. Co-accused Rajho and Gullan were standing there. After causing the injuries the appellant ran away by disclosing that he had seen the deceased with his wife therefore he was `Karo' and further told the complainant that he was going to murder his wife Hakimzadi. On the advice of Allandad Bugti the complainant went to Police Station to lodge the report. The police after usual investigation arrested the appellant and challaned him in the, Court. Learned Illrd Additional Sessions udge, Khairpur tried the appellant, convicted him for offence punishable under section 302(b), P.P.C. Sentenced him to suffer imprisonment for life and fine of Rs,1,00,000 or in case of default to suffer S.I. For two years under the impugned judgment dated 18-12-2006.
2. ' I have heard the Advocate for the appellant, A.A-G. For the State and perused the record of this case very carefully.
3. From the evidence it is clear that the case of prosecution rests upon ocular testimony only which consists of two witnesses as the hatchet allegedly secured from the appellant was not sent to the Chemical Analyzer for examination and report about the presence of human blood on it. The complainant gave the same details of the incident as mentioned in the earlier part of the judgment therefore need not to be repeated. From his evidence it is not clear as to where he was present at the time of the incident and at what distance he was away from the deceased or saw him coming at the place, of the incident. In the cross-examination he categorically stated that he alone came on the cries and other villagers came thereafter. Thus from his statement it appears that he was the only eye-witness of the incident but his stand is not supported and A corroborated by P.W. Muhammad Malook as according to his evidence he along with Allandad Bugti and complainant Ghulam Hussain went running to the place of the incident where they saw appellant causing hatchet injuries to deceased as he was present at his land. He also saw Gulzar and Rajho present empty-handed there. His evidence further reveals that appellant challenged them not to come near them otherwise they would be killed and then ran away by disclosing that the was going to kill his wife. From his evidence, it is clear that there were three eyewitnesses of the incident which is contrary to the statement of the complainant. However from the statement of the complainant he had shown the presence of Allandad Bugti and on his advice he went to Police Station and lodge the report. The presence of Allandad has been established by P.W.2 but the prosecution did not examine him on the ground that he made statement in writing before the Court. I have gone through the said statement which is available in the original file of the trial Court.
4. In that statement he stated that his name was malafidely given by the complainant in the case but in fact he did not know about the incident thereafter the complainant made statement that he was won over by the accused therefore, he might not be examined and then the D.D.A. Gave up the said witness. If the witness was hostile then the proper course for the prosecution. Was to examine him in the Court to as to cross-examine him and then it was for the trial Court assess his evidence about the value of his statement. Non-examination of such a material witness who was alleged to be the eye-witness of the incident as claimed by P.W. Muhammad Malook clearly demonstrates that the witness was not supporting the stand of the prosecution, therefore in such circumstances a presumption under Article 129(g), Qanun-eShahadat Order can finally be raised that had the witness Allandad Bugti been examined in Court his evidence would have been unfavourable to the prosecution.
5. ' Thus the stand taken by the complainant that on the advice of Allandad Bugti he lodged F.I.R. Is also not supported and corroborated by such witness. The stand of Muhammad Malook that the incident was witnessed by Allandad Bugti has also not supported by the said witness. From the statement of the complainant it is clear that he had excluded the presence of Muhammad Malook at the place and time of the incident. Thus, it is not known, which of the witnesses is speaking the truth.
6. Furthermore from the evidence of both these witnesses it is clear that the dead-body was lying on the ground whereas the inquest report, evidence of Investigating Officer and Mashir reveals that the dead-body was lying inside a but of the appellant. How the dead-body was lying in the but has not been clarified by the prosecutio. It is not the case of the prosecution that the dead body was shifted from its actual place where it was lying to the but therefore the stand taken by the witnesses that the deceased had received injuries near the house of accused is not getting support from the circumstantial evidence of the presence of the dead body which was found lying at different place as alleged by the witnesses.
7. As regards the statement of complainant that appellant while running away disclosed that he saw the deceased with his wife and then killed him has not been supported and corroborated by P.W.
8. Muhammad Malook as he did not state such fact. Both the witnesses disclosed that appellant disclosed that he was going to kill his wife Hakimzadi but there was no evidence that accused had actually killed her or attempted to kill her.
9. ' In the present case the incident took place at about 9-00 a.m. And report was lodged at 11-00 a.m.
10. The Investigating Officer P.W.7 stated that on 18-8-1998 at 9-00 a.m. The complainant reached at the Police Station and lodged the report. He further clarified his statement about the time and reaching of the complainant at the Police Station in the cross-examination by confirming his earlier position by standing that the complainant came to police station at about 9-00 a.m. If the complainant was present in the Police Station at 9-00 a.m. How he saw the incident or reached the Police Station at the same time of the incident and the distance between the police station is about 10-12 Kms. Thus, the ocular testimony is highly doubtful which cannot be safely relied upon in a case involving capital punishment.
11. ' The appellant examined two defence witnesses Tando and Ghulam Rasool. Their evidence reveals that in the morning at about 8-9 a.m. The complainant came and informed them that his son was murdered therefore, they went to the place of the incident which was in the Jungle where they found the dead body lying and one Rili was lying over it. Their evidence further reveals that the appellant was with them during the whole night. If the case of prosecution and defence are examined in juxta position with each other then it further supports the plea of the appellant that the incident was unwitnessed and then the appellant was involved falsely in the case.
12. After considering the material available on record, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, he is entitled to the F benefit of doubt which was accordingly given to him while passing the short order dated 3-7-2007 by which I had allowed the appeal. These are the reasons of the said order.