1. ABDUL HAYEE KURESH1, Acre.C. J.-Appellant Nasir was tried along with Ghulam Nabi and Saith by the Additional Sessions Judge, Kandhkot on a charge under section 302/34, P. P. C. And under section 13-E of the Arms Ordinance. The Additional Sessions Judge, by his judgment dated 21-1-1980, Convicted the appellant under section 302, P. P. C. And sentenced him to death, as also under section 13-E of the Arms Ordinance and sentenced him to R. I. For one year. The case has been submitted to this Court for confirmation of the sentence of death imposed on the appellant Nasir, and he has also filed an appeal to challenge the convictions and sentences awarded. The co- accused Ghulam Nabi anti Saith have been acquitted by the trial Court.
2. We propose to dispose of the confirmation case and appeal filed by the appellant by this judgment We have heard Mr. Azizullah K. Shaikh, for the appellant, and Mr. Jalaluddin Baloch, for the State. The brief facts of the case are that the deceased Bangul lived with his brother, the complainant Wali Muhammad, on the land of Chutto Dombki at Deh Noorpar Paki located at a distance of six miles from Police Station, Buxapur in the district of Jacobabad. On 28-10-1979 at 1 pehar after sunrise, which would roughly correspond to about 10-00 a.m. Acquitted accused Ghulam Nabi came to the house of the deceased Bangul, and asked him to go along with him.
3. When they. Had travelled a short distance of about 100 yards, acquitted accused Saith instigated appellant Nasir to murder Bangul, where upon the latter fired at him with a gun causing his instantaneous death. The complainant Wali Muhammad, together with prosecution witnesses Allan and Haji Abdur Rehman, the latter two having come to the wardat, chased the assailants, whereupon the latter fired in the air, and made good their escape. The motive for the murder, according to the prosecution, is that four, or, five days prior to the incident, the appellant and acquitted accused had come for Shikar near the houses of the deceased and the complainant, where--upon they were prevented.
4. Complainant Wali Muhammad proceeded to Buxapur Police Station, and lodged the report at 2-00 p.m. On the same day. This report was recorded by S. H. O. Abdul Quddus. It seems that earlier to the lodging of the report, the Police Officer started a sort of preliminary investigation, when he visited the scene of occurrence, secured the dead body and perhaps examined the witnesses. On 4-11-1978, appellant Nasir was arrested, and, while he was in custody, he led the Police Officer and mashirs Ramzan and Sathi to his house and produced a gun with cartridges from underneath paddy grass lying in the courtyard of the house. A mashlrnama was prepared in regard to securing of the gun, and, on 16-1-1979, the alleged crime weapon, together with a spent cartridge recovered earlier at the scene of offence, were sent to the Ballistic Expert for opinion and such opinion was positive. It may be mentioned that an inquest report had been prepared by the Investigating Officer and autopsy was carried out by Dr. A.I Raza on the day of incident.
5. The appellant had examined no witnesses in defence, but in their statements under section 342, Cr.
6. P. C. They had denied the allegations. Appellant Nasir had sent up a case that one Sanwan, a brother of eye-witness Allan, had filed a murder case against his cousin Hussain Bux, and it was for such reason that he had been implicated. The acquitted accused had also adopted the same defence, and stated that they were related to appellant Nasir.
7. At the trial, the prosecution examined complainant Wali Muhammad, and eye-witnesses Allan and Haji Abdur Rehman. They furnished ocular testimony. On the point of recovery, evidence was furnished by S. H. O. Abdul Quddus. Sathi was declared hostile witness, so that, after the close of the prosecution case, the twin mashir Muhammad Ranizan was summoned to give evidence at the instance of the Public Prosecutor, but even this mashir stated that appellant Nasir did not produce a gun before the Police in his presence. The report of the Ballistic Expert was placed on record as Exh.
19. The Expert was not examined, nor does the report contain any reason for the opinion. The remaining evidence of any significance is that of Dr. A.I Raza, who conducted the post-mortem examination on the body of the deceased, and S. H. O. Abdul Quddus, who investigated the case:-- While complainant Wali Muhammad, who is the brother of the deceased, has fully supported the prosecution case, the remaining two eye-witnesses have not given any convincing evidence. Allan had stated that he had only seen the back of the accused persons, and the names of the three assailants were disclosed to him by complainant Wali Muhammad. This witness also went on to state that, of the three accused persons, two were carrying guns, which is in conflict with the version given by complainant Wali Muhammad. In regard to the identity of these two persons, who were carrying guns, he stated that complainant Wali Muhammad informed him that their names were Nasir and Saith. The other eye-. Witness Haji Abdur Rehman had stated that, upon hearing the gun report, he, alongwith complainant Wali Muhammad, where deceased Bangul was lying dead, and then rushed to the wardat, at a distance of three, or four survey numbers, both he and Wali Muhammad noticed two persons armed with guns, running away, but such persons could not be identified It would thus be seen that, on the point of identity of the culprits, both Allan and Haji Abdur Rehman have not supported the prosecution. We have even entertained serious doubts in regard to their presence at the wardat. While the incident had occurred near Meenhoon Chachar Village, Allan and Haji Abdur Rehmar. Respectively belong to Sanwan Chachar village and Rais Muhammad Bux village. Allan has attempted to explain his presence on the hypothesis that he wanted to purchase a heifer for sacrifice, and therefore he had come to complainant Wali Muhammad, whereas Haji Abdur Rehman has given no explanation for his presence, except that he had gone to the house of the complainant Wali Muhammad, perhaps for a visit. Allan had not been able to obtain any heifer from complainant Wali Muhammad. Their evidence is also in conflict with the evidence of the complainant and the contents of the First Information Report in regard to number of weapons carried by the culpits, and also the number of persons. The learned trying Judge in paragraph 14 of the judgment has stated about Allan that he had not fully supported the complainant on the point of identification of the accused. The evidence of Haji Abdur Rehman is even less useful for the prosecution. Both these witnesses, in spite of relationship with the deceased, have not supported the prosecution. We are then left with the: evidence of Wali Muhammad alone.
8. It is no doubt correct that Wali Muhammad has supported' the prosecution story, but we have entertained doubts in regard to the veracity of this witness. The incident is alleged to have occurred at about 10-00 a.m. Or slightly earlier. Dr., A.I Raza has stated that the stomach of the deceased was found empty. He has stated that even the large and the small intestines were empty. Normally in villages in upper Sind, breakfast would be eaten at about 8;00 or 9 a.m. The deceased had not added reason for taking breakfast, as, according to the prosecution story, he was leaving for his work on the lands. If that is so, then the stomach and intestines being empty is not consistent with the time of the incident as given by the complainant. What is more that, according to the prosecution, this was a murder with a design. It had been planned in a manner that one out of the three assailants bad called the deceased and took him to the place where the two other assailants were in ambush. In t`4ese circumstances, the time that was elected for the commission of the crime also appears improper. There is still another circumstance, which is of, no lesser significance and that is the absence off mention of empty cartridge lying at the wardat in the First Information Report. The complainant has further stated that Police had carried out a sort of preliminary investigation before recording the First Information Report. If the empty cartridge had been recovered from 'the wardat, the absence of mention of such important circumstance assumes importance. There is also evidence that the lands surrounding the wardat were under cultivation. In such a case, the persons working in the fields at that time would have been natural witnesses, but no such person is mentioned in the evidence. Even the learned trying Judge was of the view that the evidence of Wali Muhammad could not be acted upon without corroboration, and such corroboration, according to the trial Court, was available in the evidence of recovery of the incriminating articles. We are, however, of the view that even the evidence of Wali Muhammad is not reliable, and indeed the circumstances of the case would indicate that this incident might have occurred in the very early hours of the morning, when the deceased might have gone to ease himself and by which time he had not taken his breakfast.
9. The other piece of evidence is the recovery o(' the crime weapon from appellant Nasir with which the crime empty found at, the wardat be watched. In regard to the recovery of crime empty, we have already noticed that there was no mention about it in the First Information Report. This was a very significant circumstance and the absence of its mention is an important aspect of the case. In regard to the recovery of the gun, both the mashirs have not supported the prosecution. In such circumstances, the trying Judge has relied on the evidence of S. H. O. Abdul Quddus alone. While Abdul Quddus has supported the prosecution case, the two mashirs have not supported it. This by itself is a circumstance to put the Court on caution. Even on the point of identity of the gun, there is a contradiction in the case. Complainant Wali Muhammad had stated that the gun handled by appellant Nasir was a double-barrel gun, whereas the one recovered was a single-barrel gun. The tying Judge proceeded to resolve this contradiction on the hypothesis that since the gun was seen by the complainant from a distance, he might have committed a mistake. While this process of reasoning, is not devoid of all force, still this conflict in evidence is material. Moreover, the crime empty was sent to. The Ballistic Expert after three months of recovery and such time is not explained. The report of the Ballistic Expert discloses no reasons for his opinion, nor does it disclose the points of similarity on which the opinion is based. There is nothing to indicate that 'any micro- composite photographs had been obtained. In the case of Masoor v. The State (1), the effect of the amend--ment in section 510, Cr. P. 1C. was considered by a. Divisional Bench of .This Court of which one of us I was a Member. While the report of Ballistic Expert is admissible in evidence without the Expert being examined, still the A obligation of the prosecution to support the opinion of the Ballistic Expert by reasons has not been displaced. While coming to such conclusion 'the D. B. Deciding the case of Manzoor had considered some earlier cases reported in AIR 1933 All. 394, AIR 1944 Dom.
10. 321 and AIR 1933 All. 837. Similar point also arose in the case of lmambux v.' The State (2), and the same opinion was reiterated by another Bench. Our attention has, however, been drawn to the case a A.I Hassan v. The State (3), in which a D. B. Of this Court has taken a somewhat different view. Even in this case, Mr. Justice Z. A. Channa, who wrote the judgment on behalf of the D. B.
11. Stated that the report was admissible by itself, but if the Court considered that it should have before it the reasons, 'or, the material on the basis of which the Ballistic Expert has given' his opinion, it could summon the Ballistic Expert. It seems that two other judgments of the D. ';B. Were not brought to the notice of the D. B. That decided the case of A.I Hussan. In fact, the point of difference between the two views of the different Benches is that, while in the case of Manzoor, it was held that the duty was on the prosecution to substantiate the opinion by reasons, in the case of A.I Hassan, it was stated that reasons should be provided if the Court thought that the same should be brought on record. It may be reiterated that after all the opinion of a Ballistic Expert is based on observation, which is never infallible, nor is it undertaken with such a scientific process that should guarantee exactness. In such circumstances, we are of the view that the evidence of Ballistic Expert without arty reasons is hardly of any avail to the prosecution in this case. Such evidence, therefore, does not carry the prosecution case any further.
(1) PLD 1979 Kar. 276(2) 1979 P Cr. L J 1008
(3) PLD1979 Kar.1661 To conclude, we have not been impressed by the ocular evidence, and we find the evidence in regard to recoveries also discrepant and doubtful. The evidence of Ballistic Expert opinion is also hardly of any use to the C prosecution. We, therefore, allow this appeal, set aside the convictions and sentence and acquit the appellant. The death sentence is not confirmed. The appellant shall be released forthwith unless required in any other case.