Akhtar Zaman Malghani, J.--By this common judgment we intend to dispose of Criminal Appeal Nos,66 of 2007 and Murder Reference No, 15 of 2001 arising out of the same and common judgment dated 12.06.2007 rendered by Additional Sessions Judge, Nasirabad at Dera Murad Jamali, whereby; appellants were found guilty under Sections 302 (b), 337-F (ii) and 427 PPC and sentenced as under:-- (1Y Under Section 302(b) PPC to death. They were also directed to pay Rs. 1,000,00/- each to the legal heirs of deceased as compensation or in default thereof to further undergo six months S.I.
(2)Under Section 337-F (ii) to three years R.I with Daman of Rs.20,000/- each payable to injured Abdul Rahim.
(3)Under Section 427 PPC to one year R.I with fine of Rs. 5,000/- each or in default thereof to further undergo two month S.I.
All the sentences were directed to run concurrently.
The learned Additional Sessions Judge has also sent reference for confirmation of death sentence.
2. Briefly stated, facts of the case are that on 25.06.2004 a case under Sections 324, 447 and 34 PPC was registered in levies station, Dera Murad Jamali vide FIR No, 70 of 2004 on the report of Dedar son of Allah Dina wherein it was alleged that on the said date he alongwith his cousins Muhammad Salah, Abdul Rehman and a guest Abdul Rahim went to attend a dinner in the house of Inayat son of Moula Bakhsh by means of car bearing Registration No, AAG-074 and after taking meal at about 12:00 midnight they proceeded back to their house. Inayat also accompanied them and when at about 12:15 a.m. they reached near Lashari hotel accused Babul, Mir Ahmed, Rahim Bakhsh, Ali Hassan and Akbar already present there started firing upon them by means of Kalashnikov resulting in injuries to Muhammad Salah and Abdul Rahim, whereafter; they fled away from the scene of occurrence. According to complainant he identified accused in the light of vehicle. After registration of case investigation was handed over to Ijaz Hussain Naib Tehsildai who arrested appellant Mithal Khan on 02.08.2004 and submitted interim challan showing other nominated accused persons as absconders. Trial against Mithal Khan was in progress when appellant All Hassan was arrested and a challan was accordingly submitted against him and witnesses already examined were recalled and re-cross-examined. During trial prosecution produced following witnesses:-- PW-1 Dedar Hussain who deposed that on 25.06.2004 he, Abdul Rehman, Muhammad Salah and Abdul Rahim went to the house of Inayat situated in Shahzada Khan as guest and in night were coming back to their Goth Bai Chowki alongwith Inayat in the car driven by Muhammad Salah whereas Abdul Rahim was sitting in the front seat, and he, Inayat and Abdul Rehman were occupying .back seat. When at about 12:15 a.m. they reached near Lshari hotel appellant Mithal Khan alias Babul, Mir Ahmed, Rahim Bakhsh, Ali Hassan and Akbar who were standing armed with Kalashnikov near Lashari hotel started firing upon their vehicle on account of which Muhammad Salah and Abdul Rahim were severely injured hereafter the accused persons fled away by ridding on motorcycles. He further stated that he identified appellants in the light. According to him they brought both the injured to levies station where he lodged report Ex. P/1-A, thereafter they were taking Muhammad Salah to Karachi for treatment who succumbed to his injuries on the way and his dead body was brought back to Dera Murad Jamali. In cross-examination he stated that he lodged report on next day at about 11:00 a.m. and, before registration of FIR Muhammad Salah had already expired whose dead body was lying in the house. He further stated that he went alone to lodge FIR. According to him he knew appellant Mithal for the last about 2-3 years. He denied than suggestion that his name was Mithal Khan. He also denied the suggestion that his nick name was not Babul Khan. He further stated in cross-examination that firing was made upon them from 6-7 paces and that firing was made from both sides. He admitted that it was dark night at the time of occurrence. PW-2 Abdul Rahim deposed that about 7-8 months back he, Ghazi Abdul Rehman, Muhammad Salah and Dedar went to the house of Inayat Umrani and about 11:45 or 12:00 night they and Inayat proceeded back and when they reached at Lashari hotel five accused persons armed with Kalashnikov were sitting there, out of whom he identified three accused namely Babul, Mir Ahmed and Rahim Bakhsh, who made firing upon them due to which he and Muhammad Salah sustained injuries, whereafter; they lodged report. In cross-examination he deposed that he had seen Ali Hassan appellant near Lashari hotel while going to attend dinner. He further stated that name of Ali Ha ssan was not known to him. He also stated that firing continued for three minutes. He admitted, that it was a dark night, voluntarily stated that they had identified accused in the light of vehicle. He denied to have recorded his statement under Section 161 Cr.P.C. According to him he knew appellant Mithal alias Babul for the last six months. PW-3 Dr. Hamadullah Zahri, Medical Officer District Headquarter Hospital, Dera Murad Jamali (earlier examined as PW-4) examined Muhammad Salah and Abdul Rehman and found following injuries on their persons:-- INJURIES OF MUHAMMAD SALAH:-- Direct cross wound seen on right side of chest above the might Brest size three inches large deep to chest ribs. Entrance circular wound was seen on sternum of chest size 10 cm bleeding and inspiration and expiration observed. Exit wound was seen right side of chest size one inch half inch bleeding and inspiration and expiration seen.
Direct cross wound was seen right hand 1st to 4th fingers are damaged (fractured). Large and cross wound was seen left Arm, to elbow joint size (6 inches six) the skin and muscles was absent bleeding seen bone was fractured.
Cross circular wound was seen left forearm medial side 5 cm size apposite side. Cut wound was seen circularly right arm above the elbow joint size two inches skin and muscles are absent. X-ray right hand shows fracture X-ray chest shows hen thoraz X-ray left arm shown compound fractured.
Note:--Patient refer to Jacobabad for further management the patient (fresh) blood arranged patient was expired near Moro Sindh on 26.6.2004.
INJURIES OF ABDUL REHM AN.
Cut wound seen left knee joint 34 inches. Cut wound seen left side of knee joint size inches. Cut wound seen above the left knee joint inches. Entrance and exit circular wound seen right hand bleeding seen. Cut wound seen left hand index finger medial sides seize 54 inches. Entrance wound seen left leg below the knee joint not exit side.
Note:-- x-ray left leg done. X-ray right hand and x-ray left index finger done then i was shows no any fracture.
PW-4 Abdul Rehman (earlier examined as PW-3) deposed that on 25.06.2004 he along with Dedar, Muhammad Salah, Abdul Rahim Rind, went to attend a dinner with Inayat Umrani in his village and after taking meal at about 12:00 midnight they alongwith Inayat proceeded back and when at about 12:20 PM they reached near Lashari hotel five accused persons namely Mithal alias Babul, Rahim Bakhsh, Ali Hassan, Akbar and Mir Ahmed whom he identified in the light of vehicle, made firing upon them due to which Abdul Rahim and Muhammad Salah who were occupying front seats were injured whereafter; they brought the injured to police station and lodged report. He further stated that Muhammad Salah while being taken to Karachi for treatment succumbed to his injuries on his way. In cross-examination he stated that firing was made from both sides of vehicle as well as from front side. He further stated that there was moonlight. He denied the suggestion that name of appellant was Mithal Khan and he had no nick name, voluntarily stated that in Baloch tribes persons have two names.
He also stated in cross-examination that after occurrence 5-6 persons came at the spot but they could not identify them due to night.
PW-5 Khadim Hussain deposed that on 06.08.2008 identification parade in respect of appellant Babul was conducted in his supervision wherein PW Dedar Umrani identified him as Babul and stated that he was involved in the murder of Muhammad Salah. He produced identification test form in his statement as Kx.P/5-A.
PW-6 Abdul Karim deposed that on 25.06.2004 he was present at mangoli check post when at about 9:00 a.m. Naib Tehsildar Khadim Hussain came at check post and seized 30 empties of Kalashnikov and one alto car from hotel through seizure memo Ex.P/6-A and Ex.P/6-B respectively.
He further stated that bloodstained earth was also secured from the place of occurrence through Ex.P/6-C. He is also witness to the bloodstained clothes taken into possession vide seizure memo Ex.P/6-D. In cross-examination he stated that the parcel of empties was prepared in police station whereas; he signed recovery memos at the spot.
PW-7 Khan Muhammad deposed that on 15.05.2005 he was present in Police Station Saddar where Muhammad Hashim ASI took into possession a Kalashnikov along with fifty live cartridges produced by Moharrer of police station which was taken into possession through recovery memo Ex.P/7-A and sealed into a parcel. In cross-examination he stated that the Kalashnikov was without sealed parcel when taken into possession.
PW-9 Muhammad Hashim SI deposed that investigation in the case was carried out by levies wherein appellant Mina' alias Babul was already arrested and interim challan was submitted against him. In his statement he produced certificate about working condition of Kalashnikov as Ex.P/9-A and site-plan prepared by Ijaz Hussain Naib Tehsildar as Ex.P/9-B. He also produced four photographs of vehicle. He also stated that after arrest of appellant All Hassan investigation was entrusted to him and he took into possession Kalashnikov and recorded statements of witnesses and submitted challan. In cross-examination he stated that the Kalashnikov was not in a sealed parcel when handed over to him. He further stated that the Kalashnikov was sealed in parcel by investigating officer of the, case registered under Section 13-E Arms Ordinance, 1965 against the appellant. PW-10 Nasibullah IP/SHO deposed that after receipt of FSL report and medical certificate he submitted challans before the Court.
3. At the end of prosecution evidence appellants were examined under Section 342 Cr.P.0 in respect of incriminating pieces of evidence wherein they denied all the allegations. They neither opted to give statement on oath nor produced any witness in their defence.
4. On conclusion of trial the learned Additional Sessions Judge found the appellants guilty and sentenced them as mentioned above.
5. We have heard learned counsel for the appellants as well as learned counsel for complainant and State counsel. Learned counsel for the appellants raised following contentions:--
(1) The appellant Mithal Khan was not nominated in FIR but one Babul Khan was stated to have participated in the crime, however; PW-1 Dedar Hussain improved his version in Court deposition by implicating appellant Mithal Khan as Mithal alias Babul whereas there was no evidence on record nor collected during investigation to prove that appellant Mithal Khan was also known by his nick name Babul.
(2) The fact that report was lodged at 11:00 a.m. after about 11 hours further indicates that on the spot the accused persons were not identified but the appellants were implicated in the commission of offence after deliberation.
(3) The prosecution failed to prove that there was sufficient light at the place of occurrence enabling the witnesses to correctly identify the culprits and according to witnesses except PW-4 it was a dark night, as such; identification by witnesses in an occurrence which remained for only three minutes, was doubtful.
(4) All the witnesses except Abdul Rahim were cousins of deceased whose presence at the place of occurrence was doubtful, whereas; Abdul Rahim had not nominated appellant Ali Hassan
(5) The recovery of Kalashnikov was not proved as Khalid Zaman SHO Dera Murad Jamali who is alleged to have recovered the Kalashnikov from appellant Ali Hassan was not produced.
(6) The Kalashnikov was allegedly recovered on 02.05.2005 whereas; the same was taken into possession in the instant case on 15.05.2005 which remained unsealed with police.
(7) Though empties were alleged to have been recovered from the place of occurrence on the day of incident but it was not sent to fire-arm expert immediately and even after recovery of Kalashnikov but both Kalashnikov and empties remained lying with the police till March 2006 when were dispatched to fire-arm expert for his opinion, as such; no implicit reliance could be placed on the report of fire-arm expert.
In support of his contentions learned counsel referred to the judgments reported in PLD 1980 SC 293, 1997 SC Monthly Review 89, PLD 1963 Karachi 91, PLJ 1976 Peshawar 70, PLD 1988 Lahore 671, PLJ 1988 SC 1293 and 1998 SCMR 1401.
On the other hand, learned counsel for complainant contended that identity of the appellants was not challenged throughout the trial nor appellant Mithal Khan in his statement recorded under Section 342 Cr.P.0 asserted his actual name. He further argued that even no defence was produced to prove that the appellant Mithal Khan did not carry nick name Babul, as such; application filed under Section 428 Cr.P.0 before this Court at belated stage was not entertain able. He further contended that appellant Mithal Khan was identified by PW-1 Dedar in identification parade, as such; it was proved on record that Mithal Khan was the person who was nominated in FIR as Babul.
According to him there were no contradictions in ocular testimony and medical evidence as cut wounds could have been caused by the pieces of glasses of smashed windscreen and windowpanes. He further argued that the ocular account furnished by three eye-witnesses was consistent, corroborated by the positive report of fire-arm expert and other circumstantial evidence, had proved the charge against the appellants beyond any reasonable doubt and they were rightly found guilty by the learned trial Court.
Learned Special Prosecutor adopted the arguments of learned counsel for complainant.
6. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as evidence on record. According to prosecution version three eye-witnesses, out of whom one was injured in the incident alongwith Muhammad Salah and Inayat were coming back after attending a dinner in the house of Inayat when at Lashari hotel appellants alongwith absconding accused made firing upon them resulting in death of Muhammad Salah and injuries to Abdul Rahim. In order to substantiate the accusations prosecution not only relies upon the ocular account furnished by PW-1 Dedar Hussain, PW-2 Abdul Rahim, PW-4 Abdul Rehman but also positive report of fire-arm expert showing that 13 empties out of 30 empties recovered from the place occurrence were fired from the Kalashnikov allegedly recovered from the possession of appellant All Hassan coupled with other circumstantial evidence such as recovery of bloodstained earth, clothes, medical evidence etc. It may be noted that the incident is stated to have taken place at midnight and according to eye-witnesses except PW-4 it was a dark night and they claimed to have identified the accused persons in the light of vehicle, therefore; their evidence with regard to identity of accused persons requires deep scrutiny as eye- witnesses Dedar and Abdul Rehman Ghazi were not only inter-related but also cousins of deceased Muhammad Salah, whereas;. Abdul Rahim injured is not resident of the area but of Jacobabad and according to him he had for the first time went to the village of Inayat. He in his statement has not nominated appellant Alit Hassan and stated that he knew appellant Mithal Khan alias Babul for the last about six months without explaining as to how he was acquainted with him.
The story narrated by them to have identified the appellants in the light of motor vehicle does not fit in the probabilities of the case as it has come on record that they have gone to attend dinner without any previous arrangements, therefore; it does not appeal to the mind that the appellants who did not know about their going to the house of Inayat and coming back would ambush them on their way without any reason or cause, particularly; when no motive has been disclosed against the appellants for committing murder of Muhammad Salah or attacking upon the complainant party rather the witnesses have stated that deceased or Abdul Rahim had no previous enmity.
Furthermore; according to prosecution version the firing remained continue for just about three minutes which was made from both sides of the car from a distance of 6-7 paces, as such; chances of error become greatly increased in such state of confusion and pandemonium of moment and no implicit reliance could be placed on such claim of identification to sustain capital punishment on the basis of their testimony without corroboration or support of independent evidence about identity of each accused. It may further be noted that PW-4 Abdul Rehman alias Ghazi stated in cross-examination that 5-6 persons gathered at the place of occurrence after incident but they could not identify them due to night, then how it was possible for them to have identified all the five accused persons who have suddenly ambushed them. The story narrated by eye-witnesses is not only improbable but also contradictory to the other circumstantial evidence brought on record, as according to the witnesses after ambush they brought the injured in the same car to the levies station whereas according to PW-6 Abdul Karim on 25.06.2004 he was present at mangoli check post when Naib Tehsildar came there at 9:00 a.m. and took into possession 30 empties as well as alto car from the hotel i,e, place of occurrence through seizure memo Ex.P/6-A and Ex.P/6-B. Perusal of Ex. P/6-B indicate that the car baring AAG 074 was taken into possession by the investigating officer from the place of occurrence which means after incident the car was left at the place of occurrence and the injured were shifted in another vehicle or by any other means, casting doubts in the veracity of testimony of eye-witnesses and possibility could not be ruled out that other witnesses except Abdul Rahim were not present at the time of occurrence while Abdul Rahim being stranger was not able to identify culprits, therefore; FIR was lodged at 11:0G a.m. as admitted by PW-1 Dedar Hussain, after due deliberation, by nominating appellants in the said FIR which in view of unexplained delay would, be of no consequences.
Though; FIR is stated to have been registered at 12:45 a.m. but such fact is not only contradictory to the statements of PW-1 Dedar Hussain but also looks to be improbable because occurrence is stated to have taken place at about 12:15 a.m. and it was not possible for the witness to have lodged report at 12:45 a.m. after just about half an hour in a police station situated at 15 kilometer from the place of occurrence. The delay in lodging FIR though in ordinary course alone is not sufficient to reject prosecution version but in the peculiar facts and circumstances of the instant case wherein the occurrence has occurred in dark hours of the night and identity of culprits was doubtful it has gained significance and it could safely be presumed that the FIR was not lodged promptly in order to gain time to deliberate and nominate the culprits by claiming to have identified them at the spot. The fact that appellant Mithal Khan was not nominated in the FIR but the person nominated in FIR was Babul, however; later on he was implicated in the case by showing his nick name as Babul further creates doubts in the prosecution case. No evidence whatsoever was brought on record to prove that the appellant Mithal Khan had nick name Babul except statement of PW-5 Khadim Hussain who conducted identification test parade but his such statement is not itself sufficient to prove nick name of appellant Mithal Khan because PW-1 has stated nothing in his statement about holding of identification parade in supervision of PW-5.
7. Learned counsel for the complainant insisted for placing reliance upon the testimony of eye- witnesses as they have no previous enmity with appellants but absence of enmity or relationship with complainant cannot stamp statements of witnesses with truth which has to be analyzed in the light of peculiar fact and circumstances of each individual case. In this regard, we are fortified by the judgment reported in 1987 P.Cr.L.J 643, wherein; it was observed as under: "The well-established rule for the appreciation of the evidence is that the absence of enmity with the accused or relationship with the complainant party cannot stamp the statement of a witness with truth. What is to be seen by the Courts is whether the statement of a particular witness is in consonance with the probabilities, materially fits in with the other evidence and inspires confidence in a reasonable and prudent mind. If these elements are present the evidence of a worst enemy may be acted upon even without corroboration and if these elements are missing the evidence of an independent witness may be rejected even without second thought."
8. Another circumstance which has been relied upon by the prosecution to sustain conviction is alleged recovery of Kalashnikov from the possession of appellant Ali Hassan and positive report of fire-arm expert. Prosecution alleges that at the time of arrest of appellant Ali Hassan on 02.05.2005 Kalashnikov along with fifty live cartridges were recovered from him by Khalid Zaman SHO but surprisingly; neither Khalid Zaman was produced in the instant case nor persons who witnessed the recovery were examined but what has been proved is that the Kalashnikov was taken into possession in the instant case on 15.05.2005 which was already lying in the police station. In order to prove that the Kalashnikov belonged to appellant Ali Hassan prosecution relies upon his statement/disclosure made by him during investigation stating therein that the Kalashnikov already taken into possession was the crime weapon with which he made firing on the night of occurrence but such disclosure which amounts to admission of guilt before the police is not admissible in evidence as no new discovery was affected in consequence to such disclosure. It is not understandable as to why the Kalashnikov was not taken into possession and sealed in parcel in the instant case on the day when it was stated to have been recovered. The fact that the Kalashnikov remained with police for about thirteen days in unsealed condition has damaged veracity of fire-arm expert report, which, even otherwise; could not be believed because the empties recovered from the place of occurrence were not sent immediately to firearm expert but remained with the investigating agency till March, 2006 when they were dispatched along with Kalashnikov to fire-arm expert for his opinion. Ex.P/6-A through which empties were taken into possession, further indicate that those were not sealed into parcel at the time of taking them into possession, therefore; the positive report of firearm expert is of no consequences nor it could further improve the case of prosecution. In the judgment reported in PLJ 1992 SC 149 the Hon'ble Apex Court refused to place reliance upon positive report of fire-arm expert when crime weapon and an empty were sent together. The relevant observations are reproduced herein below: "So far as the recovery of revolver P5 is concerned at the instance of the appellant, which matched with the crime empty P4 recovered from the spot, both the crime empty and the revolver were sent after both the recoveries were made to the office of the Forensic Science Laboratory, which destroys its incriminatory value." In the light of above discussed diverse factors no implicit reliance could be placed upon the ocular testimony and other circumstantial evidence produced by the prosecution to maintain conviction on the capital charge. For the foregoing reasons, we are inclined to allow instant appeals after setting aside the judgment dated 12.06.2007 passed by Additional Sessions Judge, Nasirabad at Dera Murad Jamali and acquit the appellants of the charge who are directed to be set at liberty forthwith, if not required in any other case. The murder reference is answered in negative accordingly.