IRFAN SAADAT KHAN, J.---This Criminal Jail Appeal has been filed against the Judgment in Sessions Case No, 18 of .2001 passed on 30th July, 2007, wherein the learned Second Additional Sessions Judge, Thatta after finding the accused persons namely Murad Ali son of Muhammad Haroon and Haji Abdul Rehman son of Dhingano to be found guilty of committing Qatl-e-amd of the deceased Umar Chandio punishable under section 302(a), P.P.C., convicted and sentenced them to death. It was further directed by the learned court that the accused persons will pay 50,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. and in case of non-payment of the said compensation, the accused shall have to undergo R.I. for six months each. However their sentence of death was subject to confirmation by this Court.
2. Briefly stated the facts of the case are that the complainant Rawat lodged an F.I.R. in Crime No, 38 of 2000 with Police Station Ladiyoon on 18-12-2000 by stating that he and his brother deceased Umar were present in the house while the deceased was reciting Holy Quran, when about 8-30 a.m. his brother was called from outside by someone claiming to be guests. When the deceased came out from his house followed by the complainant and one Dharoon and Gul Muhammad they found Murad Pittafi holding a gun in his hand and Abdul Rehman was holding a hatchet. The accused Abdul Rehman instigated accused Murad who directly fired at the deceased who fell down when the accused Abdul Rehman caused Hatchet blow on the head of deceased and then ran away by firing in the air. Deceased Umar died on the spot. Thereafter the complainant reached the Police Station for lodging the F.I.R. The accused persons were thereafter arrested on 20-12-2000, crime weapons were recovered on their pointation and the investigation was conducted and necessary legal requirements were then carried out. The proceedings of the case was initiated before the learned 2nd Additional Sessions Judge, Thatta who after examining all the P.Ws. and the relevant material and documents passed the above judgment by finding the accused persons guilty of the charges. It is against this judgment that the present Criminal Jail Appeal has been filed. The 2nd Additional Sessions Judge has also sent confirmation case, as required under the law, which forms part of the present appeal
3. Mr. Muhammad Ashraf Kazi, learned Senior Counsel, appeared on behalf of the appellant/accused and submitted that there is a delay of more than two and a half hours in lodging the F.I.R., which delay has not been properly explained by the complainant. Elaborating his arguments the learned Counsel submitted that the prosecution case rests on 3 points,
1. Ocular evidence 2: Recovery evidence and 3. Medical evidence. As per the learned Counsel all the above three ingredients are lacking in the present case as firstly the Ocular evidence based on the deposition. of P.W.1 to P.W.3 is highly .doubtful as in the deposition there are contradictions between the Ocular testimony with the medical evidence. He further submitted that the recovery of crime weapon is also doubtful as there was a seven days delay in dispatch of the same for expert opinion. He further submitted that there are a number of improvements made in the prosecution case, which has made the present case highly doubtful. In support of his above contention the learned counsel has placed reliance upon the following judgments:-- (i)Sirajuddin v. Kala and others [PLD 1964 SC 26] (ii)Muhammad Siddique and another v, The State [PLD 1960 SC 223] (iii)Sahib Gul v. Ziarat Gul [1976 SCMR 236] (iv)Saeed Muhammad Shah v. The State [1993 SCMR 550] (v)Raham Ali v. The State [1976 PCr.LJ 17] (vi)Mehmood Ahmed v. The State [1995 SCMR 127]
4. He further submitted that there' is a contradiction of ocular testimony of eye-witnesses with medical evidences and in this regard placed reliance on the following decisions:- (i)Bagh Ali v. The State [PLD 1973 SC 321] (ii)Thoba V. The State [PLD 1963 SC 40] (iii)Atta Muhamamd v. The State [1995 SCMR 599] ' He further submitted that the presence of eye-witnesses at the place of incidence and- their testimony is highly doubtful and in this regard invited our attention to the depositions made by P.W.1, P.W.3. and P.W.7 and submitted that in view of their testimony being doubtful, the accused persons are liable to be acquitted. In support of his above contention the learned counsel placed reliance on:-- (i)Ziaullah v. The State [2008 SCMR 1210] (ii)Rehmatullah v. Muhammad Iqbal [2006 SCMR 1517] (iii)Muhammad Bashir v. The State [2005 PCr.LJ 1135] (iv)1991 PCr.LJ 174 (v)Nawaz Ali v. The State [1981 SCMR 132] 5.He further submitted that the Ocular testimony of the eye-witnesses is also doubtful that deceased sustained firearm injury from the distance of 2-3 paces whereas the postmortem report clearly shows that on the surrounding skin there is neither any sign of blackening nor scorching or charing and even no tattooing on the wound entries of deceased Umar was found. He further submitted that the statement of the Prosecution that the deceased first sustained firearm injury then fell down and thereafter other accused persons caused hatchet blows on the head of the decoased is also doubtful in view of the Mashirnama of the place of incidence. He further submitted that the deceased also received injury on his right hand which fact has not been mentioned in a proper manner in certain documents. He further submitted that the sketch prepared by Tapedar totally discards the case of prosecution and makes the presence of the eye- witnesses highly doubtful. In support of his above contention the learned counsel relied upon the case of M. Shafiq v. The State reported as PLD 2008 Lahore 268.
6.The learned counsel further submitted that recovery of the crime weapons is also doubtful as no independent witness was associated but the I.O. has picked and chose the Mashirs on the behest of the complainant. In support of his above contention the learned counsel relied upon:-- (i)Jehangir v. Nazar Fareed [2002 SCMR 1986] (ii)Tayyab Hussain Shah v. The State [2000 SCMR 683] (iii)Yamin Kumhar v. The State [PLD 1990 Kar. 275] Learned counsel further submitted that recovery is also doubtful on the point that a single Mashirnama for recovery of crime weapons was prepared, which makes the case of prosecution highly doubtful. In support of his above contention the learned counsel relied on:--
(i) Nazeer v. The State [PLD 1989 Kar. 466] (ii)State v. Ihsan Shah [1989 PCr.LJ 2234] (iii)Muhammad Bashir v. The State [2005 PCr.LJ 1135] He thereafter submitted that the recovery is also doubtful on the point that the place from where the crime weapons were recovered was a public place and it is hardly believable that the said items kept lying there without being noticed by any person and were recovered after three days of the incident.
7. The learned counsel further submitted that there is also a delay in sending articles to the Chemical Examiner and in support thereof placed reliance on PLD 1990 Peshawar 10. He further submitted that there is an omission in recording statement under section 342, Cr.P.C. of the accused as no specific and definite question was put to them hence the purpose and object of section 342, Cr.P.C. has been defeated. In support of his above contention the leained counsel placed reliance on:-- (i)Muneer Ahmed v. The State [2001 SCMR 56] (ii)Aashiq Ali v. The State [2005 PCr.LJ 48] (iii)Asif Ali Zardari v. The State [PLD 2001 SC 568] (iv)Din Muhammad v. Crown [1969 SCMR 777]
8. The learned counsel further submitted that 164 Cr.P.C. statement of the P.Ws. are inadmissible under the law and no reliance can be placed on the statements of P.Ws. Allah Bachayo and Khamoon as proper procedure, as provided under the law, has not been followed. In the end the learned counsel submitted that the prosecution had failed to prove its case beydnd reasonable doubt and the accused may be acquitted by giving them the benefit of doubt, as it is the right of the accused persons that they are entitled to be acquitted in case of doubt not as a matter of grace but as a matter of right.
9. Mr. Abdul Rehman Kolachi A.P.-G. appeared on behalf of the State and dislodged the submissions made by Mr. Muhammad Ashraf Kazi, Advocate and submitted that it has no where been stated that deceased died at the door steps of his house, hence the assertion of the learned counsel of the accused that there is difference in the depositions made by P.Ws. that the accused died at the door step and that his body was found in the sugarcane field, which 'is half furlong away from his house. He further submitted that recovery of crime weapons were made on the pointation of the accused persons, which fully implicate them with the alleged crime.
10. The learned A.P.-G. submitted that the witnesses were not interested witnesses hence their deposition could not be ignored or brushed aside. The learned counsel in this regard relied upon the judgment reported as 2001 SCMR 1474. He further submitted that there is no violation of section 103, Cr.P.C. as the Police witnesses are as good witnesses as private persons and no violation of the law has been made in this regard. In support of his above contention the learned counsel relied upon a decision reported as Mir Muhammad v. The State [1995 SCMR 640].
11. The learned counsel further submitted that firstly there are no contradictions in the depositions made by the P.Ws., however if there are some, the same are minor and simple and could be ignored by the Court and in support thereof relied upon the decisions reported as (i)Muhammad Ilyas v. The State [2006 SCMR 1761] (ii)Dilbar Masih v. The State [2006 SCMR 1$01]
12. The learned A.P.-G. further submitted that even if it is assumed that proper distance has not been mentioned with regard to place of, incidence where the accused was killed and the place from where the dead body of the deceased was found, no adverse inference could be drawn in this regard. In support thereof the learned counsel relied on the decision reported as 2001 SCMR 1842(sic.). He thereafter submitted that the ocular evidence is available and the testimony of which has not been shaken by the appellants' side. He further submitted that three P. Ws. were the direct witnesses of the incidence and hence their depositions are enough to implicate the accused in the alleged crime.
13. The learned A.P.-G. also invited our attention to Article 40 of the Qanun-e-Shahadat Order and in support of his contention relied upon the decision reported as Mst. Robin Bibi v. The State [2001 SCMR 1914]. He further submitted that this is a case of direct evidence and the trial Court after examining the case in detail had affirmed the charges levelled against the accused, hence the judgment passed by the trial Court and death sentence awarded to them may be confirmed. In the end the learned A.P.-G. submitted that the accused persons were aware of the fact that they have committed the crime that is why they had never applied for bail in the present case, which proves that they were mindful of the fact that they do not have a case of acquittal. However in response to a question raised by this bench that whether any ballistic report of crime is available with the prosecution or whether any chemical examination of the blood found on the hatchet was ever carried out to implicate the accused with the alleged crime, the A.P.-G. candidly conceded that such exercise was not carried out.
14. We have heard both the learned Counsel at considerable length and have gone through the record and the decisions relied upon by them.
15.It would be in fitness of things if the depositions of various P.Ws. are first discussed. The deposition of the complainant who is P.W.1 Rawat, reveals that he has stated in his examination-in- chief that he was available at the house when somebody knocked the door from outside and the deceased came out from the house followed by him, Dharoon and Gul Muhammad and when they came out from the house they saw that accused Murad Pittafi was holding a gun in his hand whereas Abdul Rehman was holding a hatchet in his hand. Then Abdul Rehman instigated Murad not to spare the deceased Umer who fired upon the deceased which hit him and he fell down.
Thereafter the accused Abdul Rehman caused hatchet blows on the head of the deceased and the accused ran away by firing in the air. However the cross-examination reveals that the deceased was called from a distance of half ' furlong away from the main gate of the houses. Now a question arises that if someone knocked the door of the deceased Umar and called him how it is possible that in the cross the P.W.1 has mentioned that deceased was called from a distance of half furlong away from the main gate. Again a question would arise that if the deceased was called from half furlong away then who knocked the door on which call the deceased Umar came out from his house followed by Rawat, Dharoon and Gul Muhammad. No proper reply is available with regard to these questions.
16.It is also seen from the deposition of P.W.1 that he has stated that as soon as the deceased came out from his house, he was fired by the Murad whereas according to the record his dead body was found half furlong away from his house. Now again a question would arise that if Umer was killed the moment he .came out from his house, as per deposition of P.W.1, then how his body was found half furlong away from his house. Again there, is no reply to this question. 'P.W,1 has further stated on page No, 59 of the paper book that prior to the incidence there was a dispute between them and Bagio community over the land. Whereas on the same page made a contradictory statement by stating that it is incorrect to suggest that there was an enmity over the land of the deceased Umar with Bagio community. As per the statement of P.W.1 the fire was made by Murad Pittafi from 2/3 paces. It is pointed out by the learned counsel that if the fire was made from such a close distance signs of charing should be available on the body of the deceased and in absence of such marks of charing on the body of the deceased the statement of P.Ws. had become doubtful. The complainant who pointed out the place of incidence to be situated at Northern side of Water course and there is crop of sugarcane, whereas the deposition of P.Ws. 2 and 3 reveals that when Umer came out from his house he was killed by Murad Pittafi and Abdul Rehman.
17.The deposition of P.W.2 Dharoon reflects somewhat identical facts as he has also stated that firstly somebody knocked at the door of the house and secondly Muhammad Umar died on the spot. However in the cross stated that he was available in his house when somebody called Umar and he was behind Umar and when they came out from his house, the deceased received firearm injuries caused by accused Murad Pittafi, who fired at him from a distance of 2/3 paces. Now again a question would arise that if Rawat and Dharoon were just behind the deceased Umar and as per their deposition Abdul Rehman had caused hatchet blow on the head of deceased Umar why they did not try to stop Abdul Rehman from doing so, when admittedly Murad Pittafi fired from a distance of 2/3 paces away from the deceased Muhammad Umar meaning thereby that Murad Pittafi was at some distance of Muhammad Umar but Abdul Rehman was quite close to the deceased as he had caused hatchet blows on the head of the Umar and as per their deposition Rawat and Dharoon were just behind Umar when he came out from his house.
18.The deposition of P,W.3 Gil Muhammad also narrated some what similar story, he in his cross had stated that his house is half furlong away from the house of the deceased Muhammad Umar and he was at his house, which belies the statement of P.Ws.1 and 2, who stated that someone knocked the door and Umar came out from his. house and they along with Gul Muhammad were behind him. How he reached instantly at the house of the Umer after hearing the knock also raises doubt.
19.The deposition of P.W.4 Allah Bachayo reveals that while he was going towards his village On the date of incidence he met Murad Pittafi and Haji Abdul Rehman who were going in a hurried manner and told him that they had killed Umar Chandio. He then went-towards the place of incidence; whereas in his cross 'narrated that while he was coming from village Moallah, he heard about the incidence, which contradicts his own deposition that Murad and Abdul- Rehman told him that they had murdered Umar Chandio. In the cross he stated that the accused persons met him in the middle of village Moallah, which is two and half kilometers away from the place of vardat without discussing anything about the crime weapon whereas in his deposition has stated that when he met Murad and Abdul Rehman, Murad was having a shot gun in his hand whereas Abdul Raman was empty-handed. It is also seen that his statement under section 164, Cr.P.C. was recorded after one and a half months of the vardat whereas no explanation of such delay has been explained. He has further revealed that he himself went to the Police Station after six days of the incidence and informed the police about happening of the said incidence, which is also doubtful as how without being called by any person or police authority he went to Police Station all by himself when it was alleged that he was a hari of the deceased and was an interested witness.
A question would arise that when he saw the accused, as described by him, who stated that they have killed Umer and Murad was having a gun in his hand why he waited for six days to go to the Police Station to narrate the whole story.
20.P.W.5 Kamoon also narrated somewhat similar story as that of P.W.4 Allah Bachayo, however in his deposition he has stated that when he and Allah Bachayo met Murad and Haji Abdul Rehman they disclosed that they had killed Umar Chandio and further threatened them not to intervene otherwise they will kill them also. However no such statement found mention in the deposition of P.W.4 Allah Bachayo, who as per his statement, was with him when he met with the accused persons.
21.The deposition of P.W.6 Muhammad Ibrahim, who was a cousin of complainant and the deceased, reveals that he accompanied Rawat and SHO of Police Station Ladiyoon towards the place of incidence whereas the deposition of Rawat reveals that he alone went to Police Station for lodging the F.I.R. Rawat reached the Police Station at about 11-10 a.m. and about 1-00 p.m. reached the place of vardat along with the Police officials and there is nothing in his deposition that Muhammad Ibrahim was with him, whereas the deposition of Muhammad Ibrahim reveals that he and the complainant Rawat and SHO Police Station Ladiyoon went to the place of the incidence. As per his deposition the accused persons were arrested from Pakka road leading towards Shah Bandar in his presence and in presence of co-Mushir Abdulla. He also stated that he was called on 23-12-2000 by I.O. Allah Dino Jokhio at Police Station Ladiyoon when Murad Ali was taken out from the lock up in his presence and was thereafter taken . to the sugarcane crop and on his pointation gun was recovered by removing the grass. And on the pointation of Haji Abdul Rehman at the distance of 20, 25 paces from the place of incidence hatchet was recovered. He also stated that when SHO checked the gun odour was coming from it and then it was sealed. Hatchet which was blood-stained was also sealed by SHO in his presence. He further stated that an empty cartridge of Shine Company was found near the body whereas the deposition of other P.Ws. reveals that Murad Pittafi fired upon the deceased from a distance of 2-3 paces away. Hence it is strange to note that how the empty cartridge was lying near the body of the deceased. He has further stated that the house of the deceased is situated at a distance-of half furlong away from the place of incidence.
He further submitted that at the time of recovery of the gun there was no Mushir except him and the accused persons. He also stated that when the accused were arrested neither any person gathered at the spot nor any one except him was made Mushir by the Police. He further admitted that on the day of incidence many people gathered at the place of vardat while he and co-Mushir Abdullah were not there. He also admitted that police took him and the co-Mushir for arresting the accused persons and they went to arrest the accused on a private car and the complainant was not with them. He also admitted that the accused were arrested near a Dargah where a number of people come for Ziarat but none was made Mushir at the time of arrest of accused. He also submitted that on the day of recovery of crime weapons he was called by the SHO Police Station Ladiyoon and from there he along with police pfficials and the accused went to recover the same.
However he admitted that he neither remembered the time at which he arrived the Police Station nor remembered the time they left to the place of recovery. He further submitted that as per his information and belief there is no enmity between the accused and the Bagio community whereas in the deposition of P.W.1 he has revealed that prior to the incidence there was a dispute between them and the Bagio community over a piece of land.
22. The deposition of P.W.7 Muhammad Shah, who is S.-I. at Police Station Bachin, reveals that on the day of incidence i.e, 18-12-2000 he was A.S.-I. at Police Station Ladiyoon as incharge SHO, one Rawat came to him and disclosed that Murad and Abdul Rehman had killed his brother Umar Chandio. He stated that when he reached the place of incidence he found the deceased lying dead on the ground near water course at a distance of 10 feet on Northern side of the water course, whereas according to the deposition of other P.Ws. he was killed when he came out of his house. He also stated that he found one empty cartridge at a distance of 10 feet from the dead body whereas in the deposition of Muhammad Ibrahim he has stated that he found cartridge near the dead body. He further stated in the cross that when he reached the place of vardat except Dharoon, Gul Muhammad, Ibrahim and Abdullah no other person was available, whereas according to the deposition of other P.Ws. when the police came at the place of vardat at about 1-00 p.m. about 100 and 150 village persons gathered at the spot. He also admitted that except the two mushirs, who are close relatives of the complainant, no other person was made mushir. He also admitted that the Mushirs were the same who were present at the place of vardat and when the accused were arrested. He also admitted that he recorded the statement of P.Ws. on 19-12-2000 i.e, on the next day of incidence and no plausible explanation was available with him for recording the statement of P.Ws. under section 161, Cr.P.C. one day late. He also does not remember on which date he sent the empty cartridge for chemical examination. However as per the record a report was sent to the Chemical Examiner after a delay of 29 days. He also admitted that he has not mentioned in the Danishnama as well as in the inquest report about the empty collected by him at the time of his visit from the place of vardat. He also admitted that the P.Ws. have not stated in their statement under section 161, Cr.P.C. about the securing of the empty cartridge from the place of vardat.
23.The deposition of P.W.8 Dr. Nazeer Ahmed reveals that on 18-12-2000 he was posted as Medical Officer at RHC Chuchar Jamali, when he received the dead body of Muhammad Umar and conducted the post-mortem of the deceased and found the following injuries:-- <i>Injury No,
01. Lacerated and punched wound about 2.5 cm x diameter on Right Side of neck and one lacerated in punctual wound on right side of face 3-4 cm in diameter (Entrance wound) x = + exit wound on Lt. neck 4 in diameter and one about 1-1/2 in diameter on left cheek.
Injury No,
02. Incise wound about 6.0 inch. x 2 cm over ocipatial region fracture of bone z + Brain matter out.</i> ' The learned doctor has stated that in his opinion the deceased has expired due to firearm injury and due to sharp cutting object, both injuries were ante-mortam in nature. He has stated that he has not mentioned in his post-mortem report that from what distance firearm was used in the commission of the crime. However he admitted that during his examination of the dead body lie found firearm injury on neck of the dead body.
24.The deposition of P.W.9 Muhammad Khan Tapedar reveals that he visited the site on 23-12- 2000 and prepared a rough sketch, which has not been produced by him and thereafter he prepared a fair sketch. He admitted that he has not obtained the signatures of lylukhtiarkar on the said sketch. He also admitted that he has drawn the sketch on the pointation of complainant Rawat.
25.The deposition of P.W.10 Allah Dino, who is the SIP Incharge, reveals that on 21-12-2000 when he was posted as SHO at Police Station Ladiyoon, he received the case paper of Crime No, 38 of 2000 form S.I. Muhammad Shah for investigation. He also received accused Murad and Haji Abdul Rehman involved, in said crime. He stated that he recovered the crime weapons on the pointation of the accused. He also stated that he prepared Mushirnama in presence of Mushirs Muhammad Ibrahim and Abdullah, thereafter he produced Kamoon, Gul Muhammad, Allah Bachayo and Dharoon before the Civil Judge Sijawal for carrying out necessary legal formalities. He further stated that on 23-12-2000 both the accused admitted their guilt. He admitted that he does not remember the time on 23-12-2000 at which he left the Police Station for recovery of crime weapons. He also admitted that he went on a private car and does not remember its number nor other particulaRs, He also does not remember as to who paid the fare of the said car. He also admitted that he does not remember the time at which the Mushirs came to the Police Station with whom he left the Police Station to the place of recovery. He also admitted that fie does not remember the time spent at the place of recovery and also does not remember the time when he reached back to the Police Station from the place of recovery. He also admitted that though departure entry is always kept in Police Station diary but same has not been produced by him. He also admitted that lie prepared a single memo of the recovery for both the crime weapons. He also admitted that he does not know whether both the Mushirs were related inter se to the complainant party.
26. The examination of the inquest report reveals that there were three injuries sustained by the deceased.
(i)A cut like injury at the occiput head.
(ii)A whole like fire arm injury passed through and through below the kidneys towards the right side.
(iii)A whole like injury at the right hand passed through and through.
' So far as third injury of the deceased is concerned, there is nothing in the Medical Report about the said injury caused on the hand. Examination of the mushirnama regarding the scene of offence and dead body reveals that the dead body was found lying in the sugarcane crop near water course whereas the deposition of P.Ws. reveals that he was killed when he came out of his house, whereas the place mentioned in the said mushirnama regarding the place from where the dead, body was found was half furlong away from the house of the deceased. How his body reached the sugarcane crop near water course was not explained by the Prosecution in this regard. It is also seen from the report that an empty cartridge was lying 7 to 8 'paces away from the dead body whereas the deposition of P.W.6 Muhammad Ibrahim revealed that empty cartridge was lying near the dead body. Mushirnama of recovery reveals that a single barrel shot gun was recovered and one blood-stained hatchet was also recovered, though the hatchet was also sent for the chemical examination which affirms that the same was stained with blood but no attempt was made to verify that the blood found on the hatchet, was that of the deceased Umar. The statements of the accused persons recorded under section 342, Cr.P.C. also reveal that they had categorically denied the charges and stated that they were innocent and were falsely implicated in the case. The Mushirnama of the recovery prepared by A.S.-I. Muhammad Shah reveals that when he interrogated Murad Ali regarding the licence of the gun he disclosed the same to be unlicensed and thereafter he registered a case under section 13(e) of the Arms Ordinance against him.
However this mushirnama prepared by the A.S.I. subsequently was found to be incorrect as Murad Ali was acquitted in the said case by IInd Civil Judge and Judicial Magistrate, Thatta vide his order dated 17-1-2005 after proper verification of the licence of the said gun. The statement of Abdul Rehman recorded under section 342, Cr.P.C. reveals that the present case has been falsely imposed upon him due to enmity as there was a dispute on an agricultural land between him and the complainant party and there were some Revenue Appeals pending in the Revenue Court which were decided in his favour, which annoyed the complainant party and they falsely implicated him in the present case.
27.Mr. Muhamamd Ashraf Kazi has stated that there was.a two and half hours delay in lodging the F.I.R. and according to him this delay has not been properly explained. Here we would like to state that the incidence took place at 8-30 a.m. in the morning and it is an admitted position that the distance of Police Station is about 30 to 35 kilometers from the place of incidence. Hence we do not find any force in the contention of learned counsel that there was a delay in lodging of the F.I.R. as the complainant after happening of the incidence must have been in a state of shock for quite sometime and thereafter after gaining his senses went to police station, which is 30 to 35 kilometers away from the place of vardat. Hence in our considered view there was no substantial and, unexplained delay in lodging the F.I.R. which was promptly registered and this plea taken by the learned counsel is hereby repelled.
28.So far as contradictions in the statements given by the P.Ws. are concerned we agree with the submissions made by the learned counsel. In the above mentioned paragraphs we have given in detail the depositions made by various P.Ws. and from these depositions it is clear that there are marked contradictions with regard to place of vardat, the place from where the dead body was found, with regard to the distance from where the accused fired at the deceased, with regard to the deposition of P.W.4 as there is difference in his deposition and statement given under section 164, Cr.P.C., contradictions in the deposition of P.W.6 Muhammad Ibrahim with regard to place of arrest of accused persons and recovery of the crime weapons, about the securing of the empty cartridge and sending it for chemical examination, non-mentioning of the wound on the hand and preparation of sketch by the Tapedar etc. 29.The learned A.P.-G. has admitted that neither any ballistic report is available nor the blood found on the hatchet was sent for examination hence in view of above mentioned contradictions as well as shortcomings in the prosecution case, we have come to the conclusion that the Ocular testimony contradicts the medical evidence. We further find that the recovery of crime weapons was not only doubtful but these were sent for expert opinion after a delay of seven days. We have also found that there are a number of improvements made in the prosecution case which also have made the case doubtful. We have further noted that there have been divergent depositions with regard to the place from where the body of the deceased was found which has elaborately been discussed above. We have also found that enmity between the complainant and the accused has been admitted. We have further observed that the Tapedar has prepared the sketch on the instructions of the complainant.
30.It is a trite proposition of law that capital punishment could not be awarded in the case where the prosecution fails to prove its case through unimpeachable ocular testimony. We have also seen that single mushirnama for the recovery of the both the crime weapons was prepared, which also has made the case quite doubtful. If the above factors are gathered together and are considered in jwttaposition, it would be clear that the prosecution has failed to prove its case against the accused beyond any reasonable doubt. It is a well-settled proposition of law that when the prosecution fails to prove its case beyond reasonable doubt benefit of the same has to be given to the accused. Reference in this regard may be made to a latest judgment given by the Hon'ble Supreme Court of Pakistan in the case of Amin Ali v. The State, 2011 SCMR 323, wherein the Hon'ble Court observed as under:-- "After considering the material available on record, we are of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt.
Therefore, they are entitled for the benefit of doubt, which is accordingly given to them. The conviction and sentences awarded to them are set aside, therefore, they are acquitted of the charge. They should be released forthwith, if not required in any other custody case. Consequently the appeal is allowed."
31.We also would like to observe that admittedly the incidence took place when P.Ws.1, 2 and 3 were present, however they neither showed any resistance nor made any attempt to overpower the accused Abdul Rehman or try. to rescue the deceased from the clutches of Abdul Rehman not to give hatchet blow on the head of the deceased in view of fact, if taken to be true, that Murad fired at the deceased from 2/3 paces whereas Abdul Reiman give a hatchet blow on the head of the deceased. This also cast heavy doubt on the story narrated by these P.Ws.
32.We have also noted that all the witnesses were close relatives of the deceased and no independent or private person was either examined or made mushir in the present case: Hence apparently the witnesses appear to be interested witnesses and the court in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witnesses. Reference in this regard may be made to decision of the Hon'ble Supreme Court of Pakistan in the case of Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others reported as 1998 SCMR 25 wherein the Hon'ble apex Court observed as under:-- "One salutary principle laid down by this Court in this behalf and which is now firmly established is, that in a case involving capital punishment, the Courts will not base conviction of an accused solely on the testimony of interested witness unless such evidence find corroboration by some other independent and unimpeachable piece of evidence or circumstance in the case. This rule of prudence though not statutory in nature, has been followed by Courts so consistently through years that it has come to be recognised almost as a rule of law. The departure from this rule it to be found rarely and in very exceptional circumstances of a case. Therefore, to say that the evidence of an interested witness is to be accepted solely on the ground that it remained unshaken during cross-examination is not a correct proposition. As held by this court in the case of Din Muhammad v. Crown (1969 SCMR 777), to test the testimony of a witness, Courts should not only consider whether there is consistency in the narrative or should also consider whether the version is probable or not. These observations were quoted with approval in the case of Iqbal alias Bhala v. State (1994 SCMR 1) as follows:-- ' In assessing the value of evidence of eye-witness it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCMR 777) it was observed that 'to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not."
' It is an admitted fact that the parties were having dispute with each other and were at logger head with each other as is evident from the deposition of P.W.1. Hence in view of this factor also the depositions of P. Ws. have 'become doubtful.
33. It has also been averred that there has been some unnecessary delay in recording the statements by the police without any explanation. Our attention in this regard was invited to a decision reported as Saeed. M. Shah v. The State, 1993 SCMR 550, wherein the Hon'ble apex Court observed that in the absence of satisfactory nature of explanation normally rule is that statements recorded by the police after delay and without explanation are to be ruled out of consideration".
We have also seen that failure on the part of the I.O. to involve independent witnesses in the present case also makes the case of the prosecution doubtful. It is an admitted fact that all the prosecution witnesses were inter se close relatives of the deceased. Despite the fact that the occurrence took place in a village no independent witness was examined by the prosecution and even the mushirs taken in the case were inter se related with the deceased person.
34.We have also seen that both the crime weapons were jointly recovered from both the accused, which is not permissible under the law. In the decision of Muhammad Bashir, mentioned supra, the Lahore High Court observed as under:-- Meaning thereby that there was joint recovery from both the accused which is not permissible under the law. It has been held in a case reported as Nazeer and 2 others v. The State PLD 1989 Kar. 466 that, 'joint and simultaneous recovery of weapons are of no value". In this case the Investigating Officer had not procured the attendance of independent witnesses. Failure to do so would cast doubt on the factum of recovery as held in case of Sultan and others v. The State 1987 SCMR 1177."
' It is also an admitted position that the co-mushirs were called at the Police Station by the I.O. from where they were taken along with the accused persons to the place of recovery of the crime weapons. Our attention in, this regard was also invited to the case of Yameen Kumhar, mentioned supra, wherein a Division Bench of this Court observed as under:-- "The fact that P. W. I had picked up mashirs and taken them to the place of vardat clearly proves that he had procured these persons prior to recovery to witness the occurrence. This mode of witnessing the recovery will be improper even if such collected persons are resident of locality."
35.Hence in view of the above narrated facts and the law, we have come to the conclusion that the prosecution has miserably failed to prove its case beyond reasonable doubt. We are therefore of the considered view that the accused persons are entitled to benefit of doubt, which is accordingly given to them. The conviction and sentences awarded. To them are set aside, therefore, they are acquitted of the charges. They may be released forthwith, if not required in any other case. As a consequence of above findings this Criminal Jail Appeal is allowed and as a further consequence the reference for confirmation of Death sentence has become infructuous and is disposed of accordingly.