' SYED MUHAMMAD FAROOQ SHAH, J.---Noor Muhammad preferred the captioned appeal fiom jail against judgment dated 30-11-2006, whereby IInd Additional Session Judge Mirpurkhas convicted the appellant for an offence punishable under section 302(b), P.P.C. And sentenced him to suffer imprisonment for life with fine of Rs,30,000, in failure to pay the fine the appellant shall undergo S.I.
For six months more and if the fine recovered, the same shall be paid to the L.Rs, of deceased Ghulam Mustafa. He was given the benefit as provided under section 382-B, Cr.P.C.
2. Relevant facts as narrated in the F.I.R. Lodged at Police Station Digri by complainant Muhammad Soomar are that on 2-9-2001 his son Ghulam Mustafa went at the house of his father-in-law Mitho Kumbhar, situated in Deh 149/A, Taluka Digri, while the complainant himself was available at his house, meanwhile P.W Mitho came at 2130 hours and informed to complainant that he, Muhammad Qasim and Ghulam Mustafa were going towards The house of Usman, when at about 2015 hours they reached near the house of Abdul Khalique Arain, they saw Noor Muhammad son of Ahmed Kumbhar, Perwaiz son of Khadim Hussain, Arshad son of Ghulam Rasool and Shafique son of Fakir Mohammad Arain who came there, where he asked to Pervaiz that Noor Muhammad committed his theft, therefore, they should not accompany with him, to which they all issued abuses to them. Meanwhile Noor Mohammad took out country made pistol from fold of shalwar and made direct fire upon Ghulam Mustafa who fell down. They grappled with accused but they all went away issuing abuses and thereafter they found. That Ghulam Mustafa received firearm 'injury on right side of his chest and blood was oozing. On fire reports Mitho Kumbhar also came. They brought Ghulam Mustafa in a Datsun to Taluka Hospital, Digri, where he died. On receipt of above information, complainant came at Taluka Hospital, Digri, and saw the dead body of his son.
Thereafter, he leaving the dead body at hospital came at Police Station and lodged the F.I.R.
3. On completion of usual investigation the appellant was charge sheeted and thereafter formal charge was framed, to which the appellant pleaded not guilty and claimed to be tried.
4. Prosecution, in support of his contention examined complainant namely Muhammad Soomar as Exh.3, who produced the F.I.R. As Exh.3/A; P.W.2, Mitho was examined as Exh.4, we produced his statement under section 164 Cr.P.C. As Exh.4/A; P.W.3, Allamdin was examined as Exh.5; P.W.4, Muhammad Hasham was examined as Exh.7, who produced the memo of recovery of dead body as Exh.7/C, Danishnama as Exh.7/D, memo of dead body visit as Exh.7/E, memo of recovery of clothes of deceased as Exh.7/F and memo of arrest and recovery as Exh.7/G; P.W.5, Dr. Abdul Jalil Bukhari was examined as Exh.9, who produced the letter of I.O. As Exh.9/A, letter of pellets recovered from the dead body as Exh.9/B, and post-mortem report as Exh.9/C; P.W.6, Tapedar Muhammad Umer was examined as Exh.10, who produced sketch as Exh.10/A; P.W.7, Inspector Kambhoo Khan was examined as Exh.11, who produced the letter of production of accused before the Magistrate as Exh.11/A, letter for recording the confessional statement under section 164 Cr.P.C. Of P.Ws. As Exh.11/B, chemical report of blood stained earth and clothes as Exh.11/C and the report of ballistic expert as Exh.11/D; P.W.8, A.S.-I. Muhammad Daud (Rtd.) was examined as Exh.13; P.W.9, Abdul Sattar Judicial Magistrate was examined as Exh.14, who produced the judicial confession as Exh.14/A; thereafter learned DDPP for the State has closed the side of prosecution vide statement Exh.15.
5. On completion of prosecution evidence, the statement of accused was recorded under section 342 Cr.P.C. In which he denied the allegations levelled against him by the prosecution. He has vehemently denied the allegations and claimed his innocence and stated that he is falsely been implicated in this case by the complainant due to matrimonial affairs.
6. Arguments advanced by both learned counsel have been considered, in view of the evidence brought on the record.
7. Mir Shahzad Ahmed Talpur, learned advocate for the appellant strenuously argued that the learned Trial Court has not only misread the evidence but also mis-exercised its jurisdiction by placing undue reliance on some extraneous consideration, particularly the prosecution had failed, in bringing on record sufficient evidence whereby guilt of appellant and his active participation in the commission of offence is established. The ocular account of only P.W. Allah Dino (P.W.5) is not in consonance with other prosecution witnesses. Learned counsel contended that learned Trial Court unjustifiably drawn arbitrary inferences and conclusion against the norms of justice in evaluation of evidence. According to him the ocular evidence is quite in conflict with the circumstantial and medical evidence, it takes corroboration and is unworthy of credit and unbelievable. Even the recovery of weapon from the appellant without empty was having no significance.
8. Conversely, learned D.P.G., relied on the judgment of Trial Court.
9. The Trial Court while awarding conviction to the appellant has observed that the prosecution did not examine one witness namely Muhammad Qasim named in the charge sheet as witness and he was given up by the State counsel though his statement was recorded before the learned Magistrate wherein he has implicated the accused Noor Muhammad with the commission of alleged offence, however, he has not been put in the witness box therefore, his statement under section 164 Cr.P.C., cannot be considered and mere non-examination of this witness . Is not sufficient to consider the accused to be innocent. Learned Trial Judge further held that there are no major contradictions in the evidence of witnesses examined before the court and some of in the evidence of complainant and his witnesses are not of such nature under which the entire ocular testimony could be discarded. Learned Trial Judge has further observed that the case of the prosecution against the accused is based on the following sets of evidence:-- Direct evidence Postmortem report Recovery of crime weapons Confessional statement of accused Noor Muhammad.
10. While dilating upon the aforementioned headings and points, the learned Trial Court opined that P.W. Allah Dino has fully supported the contents of F.I.R. And stated that accused Noor Muhammad fired on the chest of deceased in result of which he died. The version of this witness is supported and corroborated by witness Mitho who stated that he heard the fire and reached on spot where he saw the deceased Ghulam Mustafa lying on the ground and blood was oozing from his chest due to firearm injury, whereas accused Noor Muhammad was running by showing hi:; pistol in his hand threatening that if any one will follow him he will commit his murder also and by this way the learned Trial Court believed. The ocular testimony of mentioned witnesses, supported by the medical evidence and observed that non-examination of medical officer under the circumstances who conducted the postmortem may not affect the case of prosecution as medical evidence always can be taken as corroboratory piece of evidence in confirmation to the ocular evidence, otherwise, it is not direct evidence against the accused. So far as recovery of incriminating article is concerned the learned Trial Court observed that one country made pistol was recovered from the possession of appellants along with two live bullets and such memo is supported by the mashir Muhammad Hashim.
11. As far retracted confessional statement before the Judicial Magistrate, the learned Trial Court observed that the retracted or not retracted confessional statement can in law validly form the sole basis of his conviction and in this respect reliance is being placed on case-law, reported as 1989 SCM R 446.
12. I have carefully examined the prosecution evidence, from cursory examination of the evidence brought on the record; it appears that complainant Muhammad Soomar stated in his cross examination that, "I do not know the contents of F.L R. But I deposed the real facts before this court.
It is correct to suggest that I am not the eye-witness but I am deposing on the information given to my by Mitho and I cannot say whether the said Mitho informed me the real facts or not". P.W Mitho stated that on the day of incident he was present outside his house and heard the firearm reports and when reached at the spot he saw the deceased was lying on the ground where P.W.
Qasim and Haji Allah Dino were already present. In cross-examination, he has clarified that when he reached at the place of incident there were 20/25 persons already gathered. He has further stated that he had not narrated the details of the incident to the father of the deceased namely Muhammad Soomar. He has also admitted that he was not present at the time of incident but just after few minutes he reached there by running and police recorded his statement after two days.
He has produced his statement recorded under section 164, Cr.P.C. In which he has not given the details and stated that deceased was his nephew and they were having inimical terms with' accused Noor Muhammad and on the day of incident suddenly deceased came in front of accused Noor Muhammad who fired on the right side of chest of the deceased; in result of which he succumbed due to injuries in the way to the hospital. By this way, the disclosed motive is not attracting to the prudent mind, particularly there are different statements i,e, one given before the Magistrate under section 164, Cr.P.C. And the deposition before this court. Now there remains evidence of P.W. Allah Dino who has also admitted that he did not. Disclose the fact regarding the incident to the complainant Soomar but it was. Mitho to whom he narrated the whole story and he narrated the story to complainant. He has further admitted that earlier he has lodged F.I.R. Against accused Noor Muhammad for theft in his house but police did not arrest accused Noor Muhammad in that case of theft. He has also admitted in cross that his statement under section 164, Cr.P.C. Could not be recorded due to his illness. He has also admitted that the complainant had nominated the four accused namely Arshad, Pervaiz, Shafiq and Noor Muhammad in F.I.R. , he has also stated that at the time of incident 20/25 persons gathered there.
13. A perusal of the evidence transpires that mashir Muhammad Hashim (Exh.7) has been declared hostile, after when he had stated that "I do not know whether the police carried out any other proceedings or not in my presence. The police arrested the accused Shafi and Arshad in my presence and I do not remember the other arrest and I do not remember the recovery from any of the accused". He has been cross examined by the State Counsel and during cross the mentioned witness has produced different mashirnamas and stated that the same bears his signature and that the pistol was also recovered from the possession of the accused Noor Muhammad. However, in reply to cross question conducted by learned Defence Counsel, mashir Muhammad Hashim admitted that complainant is his relative and at the time of inspection of place of wardat police brought him from Taluka Hospital Digri to the place of incident which was shown by the complainant Soomar. He has further stated that he was brought by the police with the co-mashir Yousif from the house of complainant and then arrested the accused in his presence and recovered pistol and cartridges in his presence. He deposed that accused was arrested from inspection path of Jamrao canal which is situated at a distance of 18/19 kilometers away from police station.
14. Co-mashir Muhammad Yousif has been given up by the prosecution, knowing the fact that another mashir has been declared hostile. Perusal of the mashirnama of arrest and recovery (Exh.7/G) does not show. That 'empty' used in the commission of offence has also been recovered or not and there is nothing on record showing recovery of the empty cartridge from the place of occurrence and consequently none was wedded or matched with the weapon. The only examined marginal witness mashir Hashim is related to the complainant, who was declared hostile by the prosecution and no other inhabitant of the locality witnessed the alleged recovery of the weapon and arrest of the accused and there is no explanation whatsoever in this respect. Even the record does not reveal as to whether any efforts were made to persuade any person from the locality or for that matter the public to act as witness of recovery, though it has stated by P. Ws. That about 20/25 persons gathered at the spot, thus there was flagrant violation of the provision of section 103, Cr.P.C. And this fact rendered the alleged recovery of weapon extremely doubtful.
15. The fourth point as per judgment of the learned Trial Court is relating to confessional statement of accused Noor Muhammad. It appears that the learned Trial Court placed reliance on the case of Wazir Khan v. The State (1989 SCM R 446) and reproduced part of plasitum 'A without going through the judgment of honourable Court, wherein the honourable Court also observed that "we have not come across any infirmity in the confessional statement of the appellant to render it as unacceptable". However, in the present case there are material infirmities and errors found in the confessional statement recorded by the learned Magistrate Mr. Abdul Sattar Memon, who C admitted in cross examination (Exh14) that, "he did not mention in the printed pro forma of confessional statement that he informed the accused that he is produced before Magistrate. He has further admitted that the confessional statement was recorded on photostat copy of printed form and that he does not know the name of S.H.O. Who produced the accused before him and that accused was produced before him at 11-00 a.m. And he was returned after recording confessional statement at 1-00 p.m., to other police officials of such district. He has also admitted that he did not mention in the printed form that he informed to the accused that if he makes confession or not he will not be given to police and will be sent to judicial lockup. He has further admitted that second warning of reflection is not mentioned in printed form of confessional statement and that the certificate on confessional statement is printed one and is not written with his own hand writing. He has also admitted that letter of police was given prior to recording the confessional statement and facts regarding date, time and place of incident are mentioned in confessional statement but the letter given to him by S.H.O. Does not disclose the date, time and place of incident except crime number. Voluntarily said that the confessional statement was recorded by him in his own handwriting. He has denied that the printed pro forma for recording the confessional statements were not provided by the High Court to him.
16. Aforementioned statement of Magistrate shows that he has not followed the mandatory requirement for recording the confessional statement under section 164(3) of Cr.P.C. In a D.B.
Citation reported as (1984 PCr.LJ 611 Karachi), in the case of Abdul Haleem v. The State, D a procedure for recording the confessional statement is provided, which should be followed by all Magistrates at the time of recording confessional statement. It would be advantageous to reproduce the relevant part of the judgment for guidance of all Magistrates to follow the directions at the time of recording confessional statement:- "Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. Before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that the procedure which is followed in recording confession is reiterated for their guidance. Magistrate would be well-advised to follow the procedure which is given below:- "As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following question should be put to him:-
(i) For how long have you been with police?
(ii) Has any pressure been brought to bear upon you to make confession?
(iii) Have you been threatened to make confession?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
' After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such question to him, as are given in the printed form and then he should proceed to record his confession in verbatim".
17. The above contradictory depositions of the prosecution witnesses does not warrant conviction of the accused particularly, the medical documents were brought on the record by doctor Abdul Jalil and not by the medical officer who examined and conducted the post mortem of the E deceased. The reason of non-attendance of medical officer Dr. Nasir Ali is shown by the Dr. Abdul Jalil MS Taluka Hospital Digri is that Dr. Nasir Ali is no more in government service and his address is not known. How it is possible that a government officer after retirement did not left any address of his residence, therefore, many discrepancies which defence counsel intended to put to the Medical Superintendent who appeared in place of Medical Officer were remained un-answered, though, learned Trial Court noted that raised objections of learned Defence counsel will be considered at the time of arguments and judgment of the case but these objections have not been discussed and decided by the learned Trial Court in impugned judgment. Ocular evidence is not trustworthy, the circumstantial evidence is also not inspiring confidence, particularly the empty cartridge used in the commission of offence has not been recovered, medical evidence is shaky as the medical officer who conducted the autopsy was remained unexamined. The confessional statement of the accused is also not in line of the dicta and guidance prescribed in the citation mentioned supra.
18. It is settled proposition in law that benefit of every doubt is to be resolved in favour of the accused. So, the motive set up by the prosecution in this case is not such thing that it necessarily be viewed alone in favour of prosecution. It rather, equally could be with the complainant party to involve them falsely. The prosecution could not use the motive part of its story to corroborate its ocular account. The background of enmity definitely existed between the parties. Anyhow, enmity is a double edged weapon it prompts one to cause harm to his adversary and the same also can be a factor with other to rope in him falsely.
19. Suffice to say that the Trial Court while attending the plea of the appellant/accused facing trial by reading the evidence may judge credibility and demeanor of the witnesses in view of the principle that every person is presumed to be innocent unless proved guilty. On reappraisal of the evidence on record a different view may be drawn with regard to manifest wrong, perversity or uncalled conclusion from facts provided on record as material evidence has been misread blatantly to an extent that miscarriage of justice has occasioned. The appellant has served almost more than half of the awarded sentence, though there was no sufficient corroboratory evidence brought by the prosecution on record to award him conviction.
20. For what has been discussed above, it is settled that for extending benefit of doubt it is not necessary that there should be many circumstances creating doubt and if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. As discussed above, in the instant case there are sufficient circumstances which create doubt upon the prosecution case. The conviction cannot be recorded merely on probabilities and prosecution has to prove its case beyond any shadow of doubt, which the prosecution has miserably failed to prove in the instant case. Resultantly, the appeal is allowed and the conviction and sentence awarded to the appellant is set aside. The appellant is in jail. Office is directed to issue release writ. The concerned Superintendent Jail is required to release the accused/appellant forthwith, if not required in any other case.