' BIN YAMIN, J.---Through this judgment I intend to dispose of Criminal Jail Appeal No,S-87 of 2004, filed by appellant Ghulam Muhammad Jamali, who has been convicted and sentenced by VII- Additional Sessions Judge, Larkana, on 24-9-2004, in case F.I.R. No,71/1995, registered at P.S. Shandadkot, (Sessions Case No,229/1998), to undergo rigorous imprisonment for life and to pay fine of Rs,100,000, and if the fine amount is deposited by accused same be paid to heirs of deceased Abdul Rasheed as compensation; in case of default in payment of compensation/fine, the accused shall undergo S.I. For a period of one year more.
2. Brief facts of the case are that on 8-5-1995, complainant Muhammad Shareef lodged F.I.R. At P.S. Shandadkot, stating therein that he, his brother Sher Muhammad, Muhammad Siddique, and his nephew Abdul Rasheed used to live in same house in village Sanjar Khan Jamali. That on the night of incident after taking night meal complainant, and the afore-noted persons including deceased Abdul Rasheed were sleeping on different cots in the courtyard of their house. That at about 1-30 hours, complainant and others woke up on barking of dogs. On torch light they saw accused Ghulam Muhammad, Gul Hassan, and Mir Hassan armed with guns, whereas accused Ali Dost armed with rifle, were present in their courtyard. All the accused belong to Balochistan. The complainant further stated that deceased Abdul Rasheed challenged the accused persons, on which accused Ghulam Muhammad fired a direct shot of gun upon Abdul Rasheed, which hit him on his right side of abdomen. On sustaining injury Abdul Rasheed fell down on the ground. That accused also made direct fires upon complainant and others but they saved themselves by falling on the ground and the fires made by the accused hit one calf, which was tethered in the courtyard.
The calf, as a result of fire died on the spot. Cries of the complainant party and fire-arm reports attracted other persons of the area, on which accused ran away from the place of incident.
Complainant and others then brought injured Abdul Rasheed to Taluka Hospital Shandakot, but when they reached near hospital he died. Thereafter, complainant left P. Ws. Sher Muhammad and Muhammad Siddique at the dead body and he himself went to lodge F.I.R. Of the incident at police station Shandakot.
3. After recording F.I.R. Of the incident, police visited the hospital to see the dead body of deceased, the dead body of Abdul Rasheed was examined in presence of mashirs Muhammad Ramzan and Muhammad Hayat by A.S-I./ Investigating Officer Ghulam Farooq, such mashirnama of dead body was prepared on the spot, thereafter, an inquest report was also prepared in presence of the same mashirs. Thereafter, A.S-I. Ghulam Farooque the Investigating Officer of the case visited the place of incident situated in the house of complainant and saw dead body of one calf which had died due to fire shot injury. He also issued a letter to the Veterinary doctor for examination of dead body of the calf and thereafter recovered four empty cartridges of red colour from the place of incident along with two empty bullets of .7-mm. Rifle. He prepared such mashirnama, on which he obtained signatures of the mashirs. Thereafter, he made attempt to arrest the accused nominated in the F.I.R., but they were not traceable, therefore, on conclusion of the investigation he handed over the case papers to S.11.0, who filed challan under section 512, Cr.P.C. Showing all the accused named above as absconders. Subsequently, during pendency of the case, accused Mir Hassan was arrested by the police on 1-9-1998, whereafter supplementary challan against this accused was filed. Thereafter, on 29-12-2000, police arrested accused Ghulam Muhammad who was under detention in Mach Jail in Balochistan and produced him before trial Court to face trial; other two accused could not be arrested in this case, therefore, they were declared absconders by the Court on 28-6-2002, after completing the formalities. It was also observed that the evidence against the absconding accused will be recorded under section 512, Cr.P.C. In their absence.
4. After framing of the charge in this case of 2-3-2002, prosecution in support of its case examined complainant Muhammad Shareef at Exh.5, who produced F.I.R. Of the case as Exh.5-A. P.W. Sher Muhammad at Exh.6 and P.W. Muhammad Siddique at Exh.7. All the three claimed that they had witnessed this incident.
5. Investigating Officer of the case A.S-I. Ghulam Farooque Brohi was examined at Exh. 8, he produced mashirnama of dead body as Exh.8-A, inquest report of the dead body of deceased Abdul Rasheed as Exh.8-B, letter issued for postmortem as Exh.8-C, mashirnama of place of incident as Exh.8-E, and certificate issued by Record Keeper Sessions Court, regarding receipt of four empty cartridges.
6. Dr. Jameel, who had conducted postmortem on dead body of deceased Abdul Rasheed had died during pendency of the case, therefore, Deputy Taluka Health Officer, Shandadkot, namely, Dr. Gordandas, who claimed to be familiar with the handwriting of late Dr. Jameel was examined at Exh.11, he produced postmortem report as Exh.11-A, bearing No,665, dated 14-5-1995, and further stated that same bears signature of late Dr. Jameel. Tapedar of the beat, namely, Qurban Ali who prepared site-plan was examined at Exh.12, he produced sketch of the place of Vardat as Exh.12-A, on record in triplicate. Mashir of place of Vardat and inquest report was examined as Exh.13 Mashir of arrest of accused Mir Hassan, namely, LNC Gada Hussain was examined as Exh.14, he produced such mashirnama of arrest of accused as Exh.14-A. Thereafter, Public Prosecutor produced report of Chemical Examiner at Exh.15-A and closed side of prosecution under his statement at Exh.15.
Statement under section 342, Cr.P.C. Of the appellant Ghulam Muhammad was recorded at Exh.16, and that of co-accused Mir Hassan at Exh.17; they neither gave statement on oath under section 340 (2), Cr.P.C. Nor examined anybody in their defence. On conclusion of the trial the learned trial Court convicted appellant Ghulam Muhammad as stated above, whereas co-accused Mir Hassan was acquitted from the charge of this case vide judgment dated 24-9-2004.
7. Feeling aggrieved with the conviction recorded against appellant Ghulam Muhammad, he preferred this criminal appeal before this Court.
8. Heard learned counsel for the appellant, so also learned State counsel and perused the case papers.
9. Learned counsel for the appellant submitted that complainant Muhammad Sharif (Exh.5), in his deposition has stated that on the night of incident i.e, 8-5-1995, while he, his brother Sher Muhammad, father Muhammad Siddique and his nephew Abdul Rasheed were sleeping in their courtyard on different cots, at about 1-30 hours, they woke up on barking of the dogs and saw accused Ghulam Muhammad, Gul Hassan, Mir Hassan armed with gun and Ali Dost armed with rifle were present in their courtyard. That his nephew Abdul Rasheed challenged accused, on which appellant Ghulam Muhammad made direct fire of the gun, which Abdul Rasheed sustained on his right side of abdomen. The other accused also made fires upon them but the same did not hit them, as they saved themselves by falling down on the ground. However, some fire made by the accused hit a calf tethered in the courtyard, which died on the spot. That they had identified appellant and other three accused on the torch light. That, thereafter on their cries and fire-arm reports some people from nearby houses came, on which the accused ran away from the Vardat. The learned counsel further stated that in his cross-examination the complainant gave different version, as he stated that he woke up on fire-arm reports but had not seen who fired. He identified accused on torch light containing two battery cells with red colour. In the same breath he has stated that he had not produced the said torch before the police during investigation. The learned counsel for the appellant further contended that as per admission of the complainant in his cross examination he had not seen the person who made fire at the time of incident and further that though he identified accused with the help of battery having two cells, but he has not produced the said battery before the police.
10. P.W. Sher Muhammad (Exh.6), has supported version of the complainant regarding the sustaining fatal injuries by the deceased Abdul Rasheed and his death which took place in Taluka Hospital, Shandadkot. That he has further claimed that he identified the appellant and other accused on torch light. However, in his cross examination he admitted that the torch on the light of which they identified culprits was containing three battery cells. That they had only one torch with them at the time of incident.
11. The learned counsel further submitted that P.W. Muhammad Siddique an eyewitness in his deposition (Exh.7), has also deposed that on the night of incident he along with complainant, P.W.
Sher Muhammad and deceased Abdul Rasheed woke up on the barking of dogs at 1-30. That on torch light they saw appellant and other accused persons in their house. That when deceased Abdul Rasheed challenged the accused persons, appellant Ghulam Muhammad made direct gunshot fire upon him, which hit him on right side of abdomen. That because of the said injury deceased Abdul Rasheed died while he was being taken to Taluka Hospital, Shandadkot. That this witness in his evidence has also admitted that he cannot say as to whether they had produced the torch, on the basis of which they had identified accused before the police or not. That all the three persons i.e, complainant and P.Ws. Sher Muhammad and Siddique in their respective statements have deposed that they identified the appellant and other accused on the light of torch, but the said torch as per admission of complainant Muhammad Shareef was not produced before the police to show that actually a torch at the time of incident was available at the place of incident. By non-production of the torch, the point of identification of the accused becomes highly doubtful and no reliance can be placed upon the oral word of the complainant and other P.Ws; that they identified the accused at the time of incident at Vardat.
12. P.W. A.S-I. Ghulam Farooq Brohi, deposed that he investigated the case. That he recorded F.I.R. Of the case, which is at Exh.5-A, on record and the same bears his signature, that thereafter, he went along with complainant to Taluka Hospital, Shandadkot, and prepared mashirnama of dead body of deceased, which he produced as Exh.8-A, on the record; that it is same, correct and bears his signature. That he also prepared inquest report of dead body and thereafter visited the place of Vardat and performed other formalities of preparing of mashirnamas etc. The evidence of this witness is corroboratory in nature and is not directly against the appellant. That the Investigating Officer has claimed that from the spot he secured four live cartridges two empty bullets of the rifle, however at the time of trial only four empty cartridges were produced and no bullets secured from spot were produced for exhibition before the Court. That the recovery of bullets is also not of any help to the case of prosecution, as no report of the ballistic expert is available on record, because no fire-arm was recovered from the appellant.
13. That Dr. Jameel who conducted postmortem on the dead body of the deceased has not been examined in Court, as during pendency of the case he died, therefore, Dr. Gordandas the Deputy Taluka Health Officer, Shandadkot, was examined at Exh.11, who produced postmortem report of the deceased Abdul Rasheed at Exh.11-A, on the record and stated that the same bears signature of late Dr. Jameel.
14. P.W. Ramzan (Exh.13), acted as mashir of the place of incident, inquest report of deceased and mashirnama of examination of dead body. He stated that the mashirnama Exh.8-D and Exh.8-A, respectively, on record are the same and bears his LTIs. In cross examination he denied that he deposed falsely at the instance of complainant.
15. LNC Gada Hussain (Exh.14) of P.S Shandadkot, had acted as mashir of arrest of accused Mir Hassan on 13-9-1998, thus his evidence is formal in nature. He produced such mashirnama Exh.14- A, on record.
16. Learned Public Prosecutor had produced report of Chemical Examiner, according to which one sealed parcel containing white colour clothes and parcel No,2, having blood-stained earth, these were found stained with human blood.
17. Accused Gul Hassan Jamali and Mir Hassan are examined under section 342 Cr . P. C . At Exh . 16 Exh. 17 respectively. They denied the allegations of the prosecution, but neither they examined themselves on oath under section 340 (2), Cr.P.C. Nor they examined any other witness in their defence.
18. As the complainant and other two eyewitnesses namely, Sher Muhammad and Muhammad Siddique have claimed that they at the time of incident had identified the accused on the torch light, but as per admission of the complainant the said torch was not produced on record to show that actually any such torch was available with them at the time of incident to identify the accused. The complainant has clearly stated that he has not produced any torch before the police.
The other two witnesses in their respective statements have given the different description of the torch, as both the witnesses have deposed that the torch which was used at the time of commission of offence was containing three battery cells, whereas complainant has given the description of the torch having two battery cells. Furthermore, the complainant has not supported case of the prosecution against the accused on the point of identification as he clearly stated that he had not seen as to who fired gunshot upon the deceased Abdul Rasheed. Thus the prosecution have failed to establish the identity of the accused as culprit of the case beyond reasonable doubt.
When the identity of the accused as a culprit of this case has become doubtful, no responsibility regarding the commission of the offence can be fixed upon him.
19. It is settled law that one circumstances to create reasonable doubt in a reasonable and prudent mind is sufficient to earn benefit of doubt, and numerous reasons for benefit of doubt are not necessary. Reliance in this respect is placed on 1983 PCr.LJ 983.
20. It is also well settled law that statement of eyewitnesses which are in contradiction to each other and also self-contradictory had no evidentiary value. Reliance is placed on 2006 M LD 313.
21. From the above discussion, it is clear that prosecution has failed to prove its case against the appellant, beyond reasonable doubt, therefore extending benefit of doubt, I allow this appeal and set aside the conviction recorded against appellant Ghulam Muhammad son of Gul Hassan Jamali on 24-9-2004, in Sessions case No, 229 of 1998. Appellant be released from custody immediately, if not required in any other custody case.