' IRFAN SAADAT KHAN, J---The appellant was tried and convicted vide judgment dated 31-8-2009, passed by the learned Sessions Judge, Jacobabad, in Sessions Case No,838 of 2008, in F.I.R bearing Crime No,64 of 2008 of P.S Mouladad, under sections 302, 149, P.P.C. and sentenced to suffer rigorous imprisonment for life as Ta'zir and to pay compensation of Rs,500,000 for each deceased to the legal heirs said deceased and for each default of payment of compensation he shall undergo SI for a period of six months. Benefit of section 382-B, Cr.P.C. Was- extended in his favour.
2. The brief facts leading to this appeal are that on 19-9-2003, complainant Muhammad Murad son of Abdul Rahman by caste Katohar, resident of .Village Nawra, Taluka and District Jacobabad, lodged the above-mentioned F.I.R. At about 1-00 p.m., with regard to incident of even date, which took place at about 12-00 noon. He disclosed that he was cultivating his own lands. Abdul Rahman, aged about 35 years, was his son and Haji Bahadur son of Suhno Katohar, aged about 35 years, was his' nephew. On that day i,e,, 19-9-2008, he was busy in cutting grass_for his cattle in the land of his brother Sharbat situated near Jattak Wah (minor canal), when at about 12-00 noon time, near- Village Naudhan, he noticed his son Abdul Rahman and nephew Haji Bahadur on one motorcycle and his another son Muhammad Raheem and his cousin's son Ghulam Hussain on another motorcycle, coming from Jacobabad towards their village. He also noticed nine persons duly armed with Kalashnikovs coming out from Jattak Wah, who-challenged Abdul Rahman and others, on which they stopped their motorcycles. He identified those persons as Ghulam Hyder son of Doulat Khan, (2) Nehal Khan son of Bagan, (3) Muhammad Azeem alias Dodo son of Naudhan, all by caste Katohar, resident of village Naudhan, Taluka Jacobabad, while six persons were unknown, whose faces were open. Of them, accused Ghulam Hyder and Nehal Khan made Kalashnikov fires straight at Abdul Rahman, which hit him and he fell down raising cry, while accused Muhammad Azeem alias Dodo and six unknown accused persons made Kalashnikov fires straight at Haji Bahadur, which also hit him and he fell down. The accused persons asked the complainant party to remain silent and on account of being empty handed they remained silent.
Thereafter, the accused persons fled away. Abdul Rahman and Haji Bahadur succumbed to the injuries at the spot. Complainant left witnesses Muhammad Raheem and Ghulam Hussain at the spot and went to Police Station Mouladad for lodging the F.I.R.
3. SIP Aijaz Ali Faiooqui, SIO Police Station Mouladad, after registration of F.I.R., immediately visited the place of the incident in presence of private mashirs, namely, Khadim Hussain and Hamz Ali and prepared such memo and found the dead bodies lying at the inspection path of Jattak Wah and prepared inquest reports. He also secured blood-stained earth and 25 empties of 7.62 bore, which were lying in scattered position and sealed the same. The dead bodies of deceased were forwarded to the hospital for conducting postmortem examinations. He dispatched the blood stained earth for chemical examination. He also arrested accused Muhammad Azeem from Dangai Wah and on his pointation recovered crime weapon viz., Kalashnikov in presence of mashirs Khadim Hussain and Hamz Ali, which was then sent to the Ballistic Expert Division.
4. During the trial, the prosecution examined as many as seven witnesses including eye-witnesses, namely, complainant Muhammad Murad and P.W. Ghulam Hussain, the medical officer, who conducted the postmortems, Mashir Hamz Ali of the place of the incident, dead bodies, recovery of the empties and recovery of Kalashnikov, so also the Investigation Officer SIP Aij az Ali Farooqui.
Necessary documents in support of their oral testimony were also produced and the learned trial Court after hearing both the sides convicted and sentenced the appellant, as mentioned hereinabove.
5. Mr. Asif Ali Abdul Razak Soomro has appeared on behalf of the appellant and read out the entire prosecution evidences and other material available in the paper book. He stated that the incident took place at 12-00 noon, whereas the F.I.R was promptly lodged at 1-00 p.m. i,e,, after one hour. He stated that the distance between the place of incident and the police station is about 10 kilometers and it was quite impossible for the complainant to reach the police station in such a short span of time. He further stated that material witness Abdul Raheem has not been examined in this case, which casts heavy doubt so far as the case, of the prosecution is concerned. He also stated that the empties recovered from the spot and the alleged recovery of the Kalashnikov was not sealed at the spot, which also casts doubt. He stated that admittedly the accused was arrested on 7-10- 2008, whereas the recovery was effected on 14-10-2008 after a period of seven days, which also remained unexplained. He also stated that the crime weapon was admittedly dispatched on 22- 10-2008, whereas as per the Ballistics Expert report the same had reached the Ballistic Division on 16-3-2009, which delay has not been satisfactorily explained. He also stated that admittedly there was enmity between the complainant and the accused, due to which the present case had been foisted upon the appellant. He also stated that P.Ws. Were related and interested and inimical with the appellant/ accused. He also stated that there are material improvements in the statement given by the complainant and has drawn my attention in this regard to the statement give by the complainant in F.I.R and his evidence recorded during the trial. While further elaborating his arguments, the learned counsel stated that the complainant was not the eye-witness of the incident, as admittedly he reached the scene after the occurrence of the incident. He also stated that there are material contradictions in the deposition of P.W. Ghulam Hussain, as he has stated that the complainant first reached the police choki thereafter went to the police station, whereas as per the statement of the complainant he reached the police station and there is no mention with regard to reaching of any police choki in this regard. He further submitted that the complainant had stated that at the time of incident two women were cutting the grass, however these two women were neither cited as witnesses nor their statements were recorded by the Investigating Officer. He further submitted that blackening and charring were stated to be present on the bodies of the deceased, whereas admittedly it has been stated that the deceased were fired at by the accused from a distance of 10 paces. As per the learned counsel, blackening and charring could only appear when fire is shot from a close distance and not from a distance of 10 paces, which has made the present case highly doubtful. He further submitted that as per the complainant a number of accused have fired upon the deceased and it is not known as to whose bullet had caused fatal blow resulting in the death of the deceased. In the end, he stated that the present cases had falsely been foisted upon the appellant/accused, as they were having strained relations with the complainant party. In support of his contentions, learned counsel has relied upon the following decisions:--
(1) Attaullah alias Qasim v. The State PLD 2006 Karachi 206.
(2) Muhammad Asghar alias Nannah v. The State 2010 SCMR 1706,
(3) Liaquat Ali v. The State 2011 SCMR 910,
(4) Hadi Bux v. The State PLD 1963 (W.P.) Karachi 805,
(5) Ayub Masih v. The State PLD 2002 SC 1048,
(6) The State v. Tarique Mahmood 1987 PCr.LJ 2173,
(7) Abdul Hussain v. The State 2003 PCr.LJ 1847,
(8) Syed Saeed Muhammad Shah v. The State 1993 SCMR 550,
(9) Barkat Ali v. Muhammad Asif 2007 SCMR 1812,
(10) Nawaz Ali v. The State, 1981 SCMR 132,
7. On the other hand, learned State Counsel has supported the impugned judgment passed by the learned trial Court and stated that ocular evidence is fully corroborated by the medical evidence.
He has further stated that the crime weapon had been recovered on the pointation of the appellant/accused and the learned trial Court has rightly convicted the appellant/accused, which does not need any interference by this Court.
8. I have heard both the learned counsel at considerable length and have perused the material available on record and have also gone through the case law cited in this regard.
9. The deposition of Dr. Manzoor Hussain, who is the medical officer of Civil Hospital, Jacobabad, reveals that on 19-9-2008 he received the dead bodies of the deceased persons and on external examination he found the following injuries on the body of the deceased Abdul Rahman: --
(1) One lacerated type of punctured wound measuring about 1 cm in diameter situated on lateral surface of middle I/3rd of left side of chest with blackening and charring. (wound of entry).
(2) One lacerated type of punctured wound measuring about 2.5 cm in diameter situated on lateral surface of middle I/3rd of left side of chest with margins averted (wound of exit-I)
(3) One lacerated type of punctured wound measuring about 1 cm in diameter situated on lateral surface of left thigh. (wound of entry).
(4) One lacerated type of punctured wound measuring about 2 cm in diameter situated on medial surface of lower I/3rd left thigh (wound of exit-3).
The Medical Officer further stated that on external examination of dead body of deceased Haji Bahadur, he found following injuries:--
(1) One LTP wound measuring about 1 cm in diameter with blackening and charring situated at upper part of right side of chest (wound of entry),
(2) One LTP wound measuring about 2 cm in diameter situated upper part of right side of back of chest (wound of exit-1),
(3) One LTP wound measuring about 1 cm in diameter with blackening and charring situated left side of chest between nipples (wound of entry),
(4) One LTP wound measuring about 1.5 cm in diameter situated at left side of abdomen (wound of exit-3),
(5) One LTP wound measuring about 2.5 cm in diameter situated at left side of back of abdomen (wound of entry),
(6) One LTP wound measuring about 1.5 cm in diameter situated at lower part of right side of abdomen (wound of exit-5),
(7) One LTP wound measuring about 2.5 cm in diameter situated at lateral surface of right side of abdomen with perturbation of intestine.
(8) One LTP wound measuring about 2.5 cm in diameter situated at right face on chin side of back of abdomen (wound of entry),
(9) One LTP wound measuring about 5 cm in diameter situated at upper at side of chest (wound of exit-8),
(10) One LTP wound measuring about 1.5 cm in diameter situated at left upper arm (wound of entry),
(11) One LTP wound measuring about 2.5 cm in diameter situated at left upper side of chest (wound of exit-10),
(12) One LTP wound measuring about 1.5 cm in diameter situated at dorsal surface of left hand (wound of entry),
(13) One LTP wound measuring about 5 cm in diameter situated at painter surface of left hand (wound of exit-12),
(14) One LTP wound measuring about 1.5 cm in diameter situated at lateral surface of left thigh (wound of entry),
(15) One LTP wound measuring about 3 cm in diameter situated at medial surface of left thigh wound of exit-14),
(16) One LT? Wound measuring about 1.5 cm in diameter situated at lateral surface of right upper arm (wound of entry),
(17) One LTP wound measuring about 6 cm in diameter situated at medial surface of right upper arm (wound of exit-16).
10. The Medical Officer has opined that death of deceased Haji Bahadur was the result of shock and haemorrhage due to the injuries to vital organs. He has also opined that the injuries were fatal and sufficient to cause death in ordinary course of life. He has also stated that deceased Haji Bahadur had received fire shot injuries from a distance of less than six feet, while rest of the injuries were from a distance of more than that. He has also stated that deceased Haji Bahadur was fired at from multiple directions and charring and blackening in respect of two injuries were available on his dead body.
11. The deposition of complainant Muhammad Murad reveals that on the day of incident he was cutting the grass at the lands of his brother Sharbat, when at about 12-00 noon he heard fire shots and found his son Abdul. Rahman and nephew Haji Bahadur on one motorcycle and his other son Muhammad Raheem and nephew Ghulam Hussain on another motorcycle coming from Jacobabad side. When nine persons duly armed with Kalashnikovs and three of them identified as Ghulam Hyder, Nehal Khan and Muhammad Azeem started pointblank fires with their weapons and both the deceased Abdul Rahman and Haji Bahadur received bullet injuries and fell down. It is alleged that the appellant/ accused fired at Haji Bahadur with his Kalashnikov. He further stated that being empty-handed he could not do anything and the accused persons then ran away on their motorcycles. Deceased Abdul Rahman and Haji Bahadur died in front of him. He thereafter leaving Muhammad Raheem and Ghulam Hussain over the dead bodies went to Police Station Mouladad to lodge report of the incident, which report was recorded instantly. Thereafter, the police came at the place of incident and took the bodies to the Civil Hospital and thereafter carried out necessary legal formalities. As per his deposition, it reveals that he heard the fire shot reports from a distance of 20 paces while he was cutting the grass and thereafter he reached the place of incident and thereafter asked the accused persons, who were present there, as to why they intend to kill his son and nephew, who told him not to come near to them and thereafter, fired upon deceased Abdul Rahman and Haji Bahadur. It is noted that the complainant has categorically mentioned that he could not say whether unknown accused also made fire at the deceased. He has also stated that the accused had fired upon deceased Haji Bahadur from a distance of 10 paces. He has further stated that two females were present in their respective land but they did not attract to the scene, however co-villagers came after hearing the fire shots. He also, stated that he alone went to Police Station Mouladad on motorcycle to lodge the F.I.R and the distance between the place of incident and police station is about 08 to 10 kilometers. He further categorically stated that accused Nehal had declared Haji Bahadur to be "Karo" and a penalty of Rs,260,000 also had been imposed on Haji Bahadur in this regard by a 'Faisla' of some Nekmard of the area. He has also admitted that this important aspect has not been mentioned by him in the F.I.R, however has stated that Haji Bahadur was fired at by the appellant/ accused and six unknown culprits.
12. The deposition of P.W Ghulam Hussain reveals that on the day of incident he, Muhammad Rahim, Abdul Rahman and Haji Bahadur were coming from Jacobabad after attending some work to their village and at about 12-00 noon some nine persons stopped them, who were duly armed with Kalashnikovs and among the said accused Ghulam Hyder, Nehal and Muhammad Azeem were present, whose faces were open. Instantly Ghulam Hyder and Nehal fired at Abdul Rahman, while the appellant/accused along with six unknown culprits fired at Haji Bahadur. Both Abdul Rahman and Haji Bahadur after receiving the bullet injuries fell down and thereafter the complainant reached the place of incident. He also 'stated that the culprits then fled away on their motorcycles after killing Abdul Rahman and Haji Bahadur. He further stated that the complainant then after leaving him and Muhammad Rahim over the dead bodies went to police station for lodging F.I.R of the incident. Thereafter, the police approached the place of incident and recorded his statement under section 161, Cr.P.C. He has further stated that the accused fired upon the deceased from a distance of 5/6 paces and the complainant reached the spot only after hearing the fire shot reports. He has further stated that there was no other person cutting the grass available at that time, which statement appears to be in contradiction with the statement given by the complainant that at that time two ladies were also present there cutting the grass. He categorically has stated that the accused were his relatives. He also stated that the complainant went to lodge the report at 1-00 p.m., whereas as per the F.I.R the same has been reported at 1-00 p.m. He has also stated that no enquiry was made by the police from him and Muhammad Raheem. He also admitted the fact that deceased Haji Bahadur was declared "Karo" and thereafter this incident had taken place.
13. The deposition of P.W Mashir Hamz Ali reveals that the police visited the place of incident at the day of the incident and collected blood-stained earth and 25 empties of 7.62 bore and prepared mashirnama in his presence. He also stated that on 7-10-2008 police arrested present accused Muhammad Azeem in his presence and co-mashir Khadim Hussain and thereafter prepared mashirnama. He also stated that on 14-10-2008 the appellant/ accused led the police for the recovery of the crime weapon and at the pointation of the appellant/accused the said crime weapon was recovered. He also stated that the place, from where the crime weapon was recovered is not a place where no one could see the weapon, but could be seen and recovered if somebody had a chance of having a glimpse on it.
14. The deposition of P.W SIP Aijaz Ali Farooqui, SIO Police Station Dodapur, reveals that the basic facts to be the same as of other P.Ws. However, he has stated that he dispatched the Kalashnikov for Ballistics Expert opinion on 22-10-2003 and had also prepared a sketch of the wardat on 26-10- 2008. He has also stated that no enquiry was made by him from the other persons present at the place of incident except the P.Ws. He also stated that he came to know about the availability of the accused at a designated place on spy information and thereafter had arrested him from that place. He also admitted that though the appellant/accused was arrested on 7-10-2008, but only volunteered to help the police in the recovery of the crime weapon on 14-10-2008. He also admitted that the place from where the recovery was made was not a prohibited place where nobody could go. He also stated that empties were lying at the place of incident in scattered position within the range of 10/12 paces from the dead bodies.
15. It is also seen that an examination report is available at page 85 of the paper book, which clearly stipulates that the crime weapons were received by the A.I.G. Police, Criminalistic Division, Karachi on 16-3-2009.
16. The learned counsel for the appellant in support of his contentions has relied upon the above referred decisions, which are discussed hereunder:--
17. In the case of Attaullah alias Qasim it was held that "if evidence of the eye-witnesses is in direct conflict with the evidence of the complainant and the same had been improved at the trial stage, benefit of such doubt is created in this regard. It is also held in the said judgment that improvements made at the trial stage need corroboration and if improvements are made by a witness, the same becomes unworthy of reliance and evidence of such witness requires corroboration."
18. In the decision of Muhammad Asghar alias Nannah it was held by the Hon'ble Apex Court that "onus rests on the prosecution to prove guilt of accused beyond reasonable doubt. It was further held that reasonable doubt is real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence, it is the doubt that is honestly entertained and is reasonable in the light of evidence after a fair comparison and careful examination of entire evidence."
19. In the case of Liaquat Ali, it was held by the Hon'ble Apex Court that "if ocular testimony is not consistent with medical evidence and other discrepancies are available, the same is sufficient to say that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt."
20. In the case of Hadi Bux, it was held that "where a witness improves his version to strengthen the prosecution case, the same statement subsequently made cannot be relied upon."
21. In the case of Ayub Masih, it was held by the Hon'ble Apex Court that "rule of benefit of doubt occupies a pivotal place in the Islamic law and is enforced rigorously and it was held in the said judgment that mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent "
22. In the case of State v. Tariq Mahmood, the Federal Shariat Court has reiterated the same guiding principle of Islamic law.
23. In the case of Abdul Hussain, it was held by a Division Bench of this Court that "when the medical evidence is not corroborated with ocular testimony, the identity of assailant could not be connected with the crime. It was also held in the said judgment that rule of benefit of doubt is ascribed as a golden rule and could not be ignored while dispensing the justice according to law."
In this case also the same guiding principle of Islamic law as enumerated above has been reiterated.
24. In the case of Syed Saeed Shah, it was held by the Hon'ble Apex Court that "statement of the witnesses in the Court in which improvements are made to strengthen the prosecution case are not worthy of reliance."
25. In the case of Barkat Ali, the Hon'ble Apex Court has observed that "blackening on dead body would appear in case deceased received injuries from a distance of 04 feet." It was also held by the Hon'ble Apex Court that "oral evidence to the extent of its inconsistency with medical evidence could not be accepted."
26. In the case of Nawaz Ali, the Hon'ble Apex Court has observed that "in case of doubt regarding the distance of the firing having wounds with charring marks, the testimony of the witnesses was held to be doubtful in the circumstances of the case."
27. In view of the depositions and the decisions relied upon by the learned counsel, I am of the opinion that the present case is not free from reasonable doubts. The prosecution has failed to give plausible explanation that when the crime weapons were admittedly dispatched on 22-10-2008, how they reached the Ballistics Division on 16-3-2009, of which no plausible explanation is available. It is also an admitted fact that there was enmity between the complainant and the accused persons and it is an admitted fact that Haji Bahadur deceased had been declared as "Karo" in some Faisla' by a Nekmard. It is also seen from the record that the complainant had improved his version by firstly stating that he reached the spot after hearing the fire shots and contradicted himself by stating that the accused persons have fired upon the deceased in his presence. There is also contradiction with regard to availability of the two ladies at the place of incident, as one P.W, namely, Ghulam Hussain has categorically stated that no one was present at the spot at the time of incident, whereas as per complainant Muhammad Murad two ladies were present there. There is also contradiction with regard to the time, as P.W Ghulam Hussain stated that the complainant went to police station for lodging the F.I.R at 1-00 p.m., whereas the F.I.R is also of the same time, while it is an admitted fact that the distance between the place of incident and police station is about 8 to 10 kilometers and it is not practically possible to leave the place at 1-00 p.m. And to reach the police station simultaneously at 1-00 p.m. There is also contradiction in the deposition of the P.Ws, as Ghulam Hussain has stated that the complainant first went to police choki and then to Police Station and came at place of incident at 1-00 p.m. It is also not understandable that when the F.I.R was lodged at 1-00 p.m., how the police could reach the place of incident at the same time i,e,, 1-00 p.m., which contradiction has also not been satisfactorily explained. It is also noted from the record that as per the postmortem report some wounds show 'blackening and charring, whereas as per the depositions fires were made upon the deceased from a distance of 10 paces and from that place blackening and charring apparently could not take place. It is also noted that Muhammad Raheem, a material witness of the case, has not been examined by the prosecution, of which no plausible explanation is available. Hence, in view of the above material contradictions, improvements and other shortcomings noted in the present case and in view of the decisions given by the superior Courts, as noted above, I am of the considered view that the present case is not free from reasonable doubts. It was held by the Hon'ble Apex Court in the case of Tariq Pervaiz v. The State, 1995 SCMR 1345 that benefit of doubt has to be given to the accused not as a matter of grace but as a matter of right. In view of the above circumstances, the appeal is allowed, the impugned judgment passed by the learned trial Court is set aside and the appellant is acquitted of the present charges. He may be released forthwith if not required in any other case.