1. 'KHAWAJA NAVEED AHMED, J.-- This criminal appeal has been filed on behalf of appellants Ghulam Nabi, Sarwar and Rasool Bakhsh, who were convicted under section 302, P.P.C. And were sentenced to suffer imprisonment for life with a fine of Rs,20,000 and in default in payment of fine to undergo further S.I. For six months, vide judgment, dated 8-8-2005 passed by the learned 1st Additional Sessions Judge, Dadu. It was further ordered that if fine is realized, it should be given to legal heirs of the deceased persons. The appellants were also awarded benefit of section 382-B, Cr.P.C. Being aggrieved from the above mentioned judgment, the appellants have preferred this appeal in High Court through Mr. A.Q. Halepota, Advocate.
2. ' The charge against three appellants is that on 29-12-2001 at about 6-00 p.m. On the link road in front of Bashir Arain Road, the appellants by sharing common intention, on the motive of marriage of divorced wife of Ghulam Nabi with deceased Rehmatullah who was residing at the relevant time at Saudi Arabia (7/8 years prior to the incident) committed murder of Rehmatullah and Niaz Hussain by firing upon them with TT Pistols. All the three appellants were named in the F.I.R. By the complainant P.W. Shah Ali, who is first informant in this -case. P.W. Shah Ali is cousin brother of deceased Rehmatullah with whom enmity of appellant Ghulam Nabi is alleged.
3. 'P.W. Shah Ali, the complainant and first informant, in his examination-in-chief has almost narrated the same facts, as were stated in the F.I.R. However, he did not speak anything about motive of the incident. However, he has named the accused 'arsons and has assigned role to them in accordance with one, assigned in the F.I.R. In his cross-examination conducted by the learned defence counsel, he went back from the story given in the F.I.R. As well as from the facts narrated in his examination-in-chief. He stated that at the time of incident, he was in his village. He reached the place of incident, at the time of incident and had seen accused persons, when accused persons were running. He has further stated that he has seen accused persons from the range of 1/2 furlong. It is important to note that the incident had taken place on 29th December, 2001 at 6-00 p.m., which is after Maghrib prayer time and in the month of December it is quite dark by that time.
4. ' Second eye-witness P.W. Mahram Ali has not implicated the present accused persons and has given obliging statement. In his examination-in-chief he has not named the complainant as well as P.W. Ali Sher amongst the persons who were present with him at the time of incident. He has shown his own presence at the time of incident at the place of incident. He claims to be the eye- witness. He neither named the appellants in his statement nor identified them in court. In spite of this hostile role towards the prosecution, he was not declared hostile by the learned prosecutor.
5. Even Court had not asked any questions to him to clarify his statement and his statement had gone unchallenged in favour of the accused persons.
6. The third eye-witness P.W. Ali Sher has fully supported the prosecution case and in cross- examination his statement could not be shattered. He is aged about 70 years. His statement in Court wasrecorded after three years of incident. He has narrated the facts in accordance with the prosecution case set in the F.I.R.
7. ' Mr. Abdul Qadir Halepota, the learned counsel for the appellants has stated that this witness is related with deceased Niaz Hussain. As per his own admission in examination-in-chief, he has stated that deceased Niaz Hussain was his nephew. Learned counsel for the appellants while challenging the evidentiary value of his statement, has argued that the incident had taken place on 29-12-2001 while statement of Sher Ali under section 161, Cr.P.C. Was recorded on 4-1-2002 i,e, after unexplained delay of six days. He has argued that this witness was not at all present at the time of incident at the place of incident and his statement under section 161, Cr.P.C. Was a belated and fabricated statement which has been prepared after deliberations and consultations with the complainant party. He added that in fact this witness himself was an aggrieved person as deceased Niaz Hussain is his real nephew. There is no explanation by the Investigating Officer in his statement or in his cross-examination, as to why he had not recorded the statement of important eye-witness Sher Ali at the time of incident, who is real uncle of deceased. This delay in recording statement under section 161, Cr.P.C. Rendered entire evidence of this witness doubtful. Had he present at the place of incident at the time of incident, his statement under section 161, Cr.P.C.
8. Would have been recorded then and there. The remaining witnesses examined by the prosecution are formal in nature and do not implicate the appellants with the commission of alleged offence.
9. ' Mst. Afsheen Aman, learned counsel for the State while supporting the prosecution case has drawn my attention towards the recovery, made from the accused persons and report of Ballistic Expert, which shows that empties recovered from the place of incident matched with the weapon recovered from the accused persons.
10. ' Mr. A.Q. Halepota, learned counsel for the appellant while replying the above arguments of Ms. Afsheen Aman has stated that recoveries were allegedly made on 6-1-2002 when accused persons were arrested but arms and empties remained with the Investigating Officer till 24-9-2003 in his custody, meaning thereby that the arms and empties were sent to the Ballistic Expert for examination and report after 21 months of its recovery. This delay in sending the empties as well as weapons has not been explained by the Investigating Office, either in his statement or in his cross- examination. This inordinate delay in sending the recovered articles and empties to the Ballistic Expert made the entire examination by the Ballistic Expert and his report doubtful. As according to learned counsel for the appellant this delay could have been used in creating evidence. Learned counsel has stated that has the Investigating Officer collected this evidence at the time of incident then he had no reason to withhold the same with him for 21 months. Possibility of fabrication of this piece of evidence cannot be ruled out. Learned counsel has further argued that motive put up in the F.I.R. As well as statement of P.W. Ali Sher has not been supported by two eye-witnesses, namely Mahram Ali and Shah Ali. Shah Ali is real cousin of deceased Rehmatullah, who is stated to have married the divorced wife of Ghulam Nabi in Saudi Arabia eight years ago. Shah Ali has also not supported the motive.
11. ' Learned counsel for the appellants has argued that the learned trial Judge, while asking the question under section 342, Cr.P.C. From the accused persons had not put the question of motive to them and as such this piece of evidence with which accused persons have not been confronted, could not be used against them for the purpose of conviction. He has finally argued that judgment of learned trial Court is bad on facts as well as on law and is based on misreading of evidence. He has prayed for setting aside the judgment, conviction and sentence of the appellants.
12. ' Ms. Afsheen Aman, learned counsel for the State has strongly opposed the contentions raised by the learned counsel for the appellant. She states that motive has been clearly mentioned in the evidence of Ali. Sher, who is about 70 years of age and he can be termed as reliable witness. 'She has stated that P.W. Mahram Ali has given obliging statement. Regarding the statement of Shah Ali, she has stated that he is illiterate person and did not understand the technicalities of cross- examination. Moreover, she has stated that the language of English used by the trial Judge is also very poor and confusing. It appears that the learned Judge has not properly translated the evidence given by the witnesses in cross-examination and this shortcoming is coming in the way of prosecution. She has argued that as far as witness Shah Ali is concerned he has clearly made statement against the accused persons.
13. ' I have heard both the learned counsel for the parties and have perused the record.
14. ' The factum of death of deceased is not denied. It is proved that both deceased Rehmatullah and Niaz Hussain have died with fire-arm injuries. Place of incident has also not been denied. Even the time of death has not been disputed. The defence plea of the appellants is that they have not committed the murder and they have wrongly been named in the F.I.R. By the complainant party.
15. ' Appellant Ghulam Nabi has died in jail during custody. The main allegation in the F.I.R. In respect of motive is that the divorced wife of Ghulam Nabi had married Rehmatullah in Saudi Arabia eight years ago prior to the incident. Due to death of appellant Ghulam Nabi, the proceedings against him stand abated. As far as appellant Sarwar is concerned, the allegations against him was also that of firing upon deceased Rehmatullah, while the allegation against Rasool Bukhsh is that of firing upon Niaz Hussain. No motive has been attributed to Rasool Bux. Rasool Bux has also taken plea that he has been falsely implicated. The main burden is upon the prosecution to prove its case beyond reasonable doubt. In the present case, the whole case depend upon evidence of three eye-witnesses out of whom, one has not implicated the accused persons and other has nullified his statement in examination-in-chief, during cross-examination so also the facts narrated by him in the F.I.R. Recoveries are mainly treated as corroborative piece of evidence against the accused persons but in the present case, the alleged recoveries are of no use to the prosecution as by withholding the case property with him for 21 months, the Investigating Officer has spoiled the entire prosecution case. Even the mashirs of recovery are not independent persons.
16. At the time of arrest of appellants and recoveries, B the procurement of private persons was not difficult as they were arrested from thickly-populated area. The Investigating Officer in his examination-in-chief and cross-examination has not explained as to why he has not associated private witnesses with him, while making arrest and recoveries from the accused persons. From the record, I feel that Investigating Officer at the investigation stage had spoiled the double murder case and thereafter whatever was left has been destroyed by two eye-witnesses. The only evidence remained to be discussed is evidence of P.W. Sher Ali who is uncle of deceased Niaz Hussain. In criminal cases, Court needs corroborative evidence to substantiate oral testimony of related and interested witness in order to award capital punishment or punishment for life imprisonment to accused persons. In the present case, corroborative evidence is not confidence- inspiring and it is not safe to rely upon it for upholding the conviction and sentence of the appellants. The statement of prosecution witness Ali Shah was recorded after six days of the incident. He is related and interested witness. The evidence collected by the prosecution and witness examined in the Court are not confidence-inspiring and create doubt about the entire prosecution case. This is a case of insufficient evidence which apart from being discrepant is not confidence-inspiring.
17. ' I, therefore, extend the benefit of doubt to the appellants. Appellant Ghulam Nabi has died in custody. Presently Sarwar son of Hussain Bux and Rasool Bakhsh son of Muhammad Khan are in custody. Their appeal is allowed. They are acquitted of the charge. The convictions and sentences of appellants are thereby set aside. The appellants Sarwar son of Hussain Bux and Rasool Bakhsh son of Muhammad Khan shall be released forthwith if not required in any other case.