' ABDUL RASOOL MEMON, J.---Appellant Ahsan Ahmed was tried for the murder of Munir Ahmed by Additional Sessions Judge, Shandadkot, who vide judgment dated 8-9-2011 convicted the appellant for the offence under section 302, P.P.C. And sentenced him to suffer R.I. For life imprisonment in addition exercising powers under section 544-A, Cr.P.C., the appellant was ordered to pay Rs,100,000 as compensation to the legal heirs of the deceased and in default of payment thereof he would have to suffer S.I for six months.
' He was also convicted under section 148, P.P.C. And was awarded sentence to suffer R.I. For one year. However, he was extended benefit of section 382-B, Cr.P.C. The appellant has challenged his conviction and sentence by filing this criminal appeal.
2. In the evening of 16th May, 2010 murder of one Munir Ahmed took place at a distance of 8/9 Kilometers from Police Station Sijawal. On the next date of incident viz. 17-5-2010 at 09:30 a.m.
Complainant Liaquat (father of deceased) lodged F.I.R. Alleging therein that on the fateful day, he his son Munir Ahmed (deceased), brother-in-law Muhammad Sharif and Imam Bux while returning from their land on donkey cart when at about 6:30 p.m. Reached at the lands of Haji Naseer Ahmed near Tanwari Shakh, accused Rafique with gun, Sharif with repeater Ahsan (appellant) with gun, Sikandar empty handed and one unknown person with pistol met them. On the instigation of Sikandar to kill Munir Ahmed due to dispute over a plot, accused Rafique and Sharif made straight fires from their respective weapons at Munir Ahmed which hit him on the right side of his head, while accused Ahsan fired at his chest, resultantly, he raising cries fell down and died on the spot.
Complainant could not intervene due to fear of weapons, however, the people standing in nearby lands came raising 'Hakals' and on seeing them accused ran away from the wardat. It was further stated that due to night hours and non-availability of conveyance, on morning of next day, the dead body was shifted to taluka Hospital Miro Khan, then complainant went to Police Station and reported the incident. The motive of the occurrence was shown as dispute over the plot and blame of illicit terms of Mst. Zadi will of Ghamtal with complainant party.
3. A.S.-I. Imdad Ali Chandio recorded the F.I.R. Which was entrusted to SIO Abdul Wahab for investigation. He went to taluka Hospital where inspected the dead body of deceased, noted his injury and prepared such mashirnama as (Exh.6/A) so also inquest report as (Exh.6/B) in presence of mashirs Abdul Ghaffar and Muhammad Urs then referred the dead body for Post Mortem examination. He also recorded statement under section 161, Cr.P.C. Of P.Ws. Muhammad Sharif and Imam Bux in the Hospital. The Investigating Officer then repaired the scene of the occurrence which was shown to him by complainant Liaquat Ali. There were three empty cartridges and blood at earth which were recovered by him under memo (Exh.6/C) prepared in presence of same set of mashirs Abdul Ghaffar and Muhammad Urs, thereafter on his transfer, he handed over case papers to SIO Akhtar Shaikh, who arrested the present appellant/accused on 6-6-2010 in presence of same mashirs vide memo of arrest (Exh.6/B), On 13-6-2010 during interrogation the appellant/ accused admitted his guilt before police and led them to his house where from a room, he took out the gun and produced before the police and same mashirs disclosing it to be used in the commission of crime, which was sealed on the spot and such memo was prepared (Exh.6/E). He then sent recovered property to Ballistic Expert and blood-stained earth for 'examination and report. Accused Rafique, Sharif and Sikandar could not be arrested in the recourse of investigation, as such on completion of investigation, challan of the case was submitted against appellant/accused and showing above named three accused as absconders, who ultimately were declared as proclaimed offenders.
4. Prosecution examined complainant Liaquat Ali, P.W. Muhammad Sharif and Imam Bux so also mashir Abdul Ghaffar, PC Abdul Razak corpse bearer, Tapedar Liaquat Ali. Dr. Sikandar, both Investigating Officers of the case, namely, Abdul Wahab and Akhtar Hussain, thereafter prosecution side was closed vide statement (Exh.13).
5. In his statement recorded under section 342, Cr.P.C., the appellant/accused pleaded innocence and claimed his false implication in the case due to dispute over the plot. He, however, did not step into witness box and declined to produce any evidence in defence.
6. Learned trial Court believing the evidence produced by the prosecution convicted the appellant/accused vide impugned judgment which is the subject matter of this appeal.
7. Learned counsel for the appellant/accused has contended that all the three eyewitnesses are closely related with the deceased and inimical towards the appellant/accused, therefore, their evidence cannot be believed without independent corroboration and prosecution has failed to produce any independent witness. He has further argued that all the eye-witnesses have alleged that the appellant/accused had fired on the chest of the deceased but their evidence is contradicted by medical report which discloses only one firearm injury on the right side of skull.
According to the learned counsel the appellant/accused has been falsely implicated in the case due to enmity. It is further contended that there is not only delay in lodging the F.I.R. But also delay in sending the case property to Ballistic Expert, which is foisted upon the appellant/accused and the learned trial Court has erroneously relied upon the alleged recovery as corroborative piece of evidence. Lastly, he has prayed for acquittal of the appellant /accused.
8. Learned State Counsel duly assisted by the advocate for the complainant has opposed this appeal on the ground that ocular account furnished by the prosecution is fully supported by other circumstantial evidence and the trial Court has rightly held him guilty of the offence.
9. Before examining the contentions of the learned counsel for the parties, I would like to observe that closely related witnesses can be as reliable witnesses as a completely unknown and stranger witness. The credibility of a witness does not depend upon relationship but it should flow from the statement which he deposes. It is a nature and the quality of the statement of a witness which should evoke confidence and trust. There can be no hard and fast rule that any person who is closely related with A the complainant or deceased would always be untrue and interested witness nor can it be said with all force and universal application that any person who is stranger and is not -related to the deceased will always be true witness but when Court has to appreciate evidence given by the witnesses, who are partisan or interested, it has to be very carefully in weighing such evidence as is held in the case of Sikandar v. The State reported in PLD 1963 Supreme Court 17. Apart from above in order to sustain the conviction in a case inviting capital punishment, ocular evidence must come from an unimpeachable source B or if such a source be not available, it must be supported by strong evidence such as, might serve to overcome the inherent doubt by which such evidence is necessarily affected. This was the view laid down in Thoba and another v. The State reported in PLD 1963 Supreme Court 40.
10. I have carefully examined the F.I.R. (Exh.3/A), testimony of complainant Liaquat Ali and eye- witnesses Muhammad Sharif and Imam Bux along with other material produced by prosecution i.e, medical evidence, reports of Chemical Examiner and Ballistic Expert (Exh.13/A & 13) as well impugned judgment passed by the trial Court. In the most precise manner it is to be noted that in F.I.R. (Exh.3/A) it is mentioned that when complainant, both alleged eye-witnesses and deceased while returning from their land on donkey cart, reached at the place of wardat, three accused namely Rafique, Sharif and Ahsan Ahmed (present appellant) made firing from their guns and repeater at Munir Ahmed (deceased) which hit him on right side of head and chest, as such, he fell down and succumbed to his injuries instantaneously. If all the alleged eye-witnesses and deceased were sitting or standing together or closed to each other when three gun shots were fired then they should have received some injury but none of them have been injured or received any scratch on their body nor any mark of firing has been found on donkey cart. As per F.I.R. Fires made by accused Ralique and Sharif which hit on the right side of the head of the deceased but this version given in the F.I.R. Is not supported by complainant himself as well as other eye- witnesses in their statements before the Court. Complainant Liaqat Ali and both the alleged eye- witnesses Muhammad Sharif and Imam Bux have clearly deposed that fires made by both the accused Rafique and Sharif hit on the face of the deceased. They have further deposed that fire made by the present appellant/accused hit on the chest of the deceased. P.W. Imam Bux has further deposed that the present appellant/accused had fired at deceased from the distance of 3/4 feet, while medical report/post mortem and evidence of Dr. Sikandar Ali clearly disclose that the deceased had sustained only one lacerated wound of 10 c.m into 6 c.m and to skull deep of right side of skull, thus it is clear from medical evidence that deceased neither had sustained injuries on his face nor any injury be on his chest, as such the ocular evidence does not coincide with the findings in medical evidence and is directly in conflict with it and when such contradiction is brought on record it is the duty of the prosecution to explain it and not accused who must be given benefit of such contradictions, reliance is placed on the case of Bagh Ali versus Muhammad Anwar and another 1983 SCM R 1292. Of course, non-sustaining injuries by the alleged eye- witnesses may not by itself sufficient to completely discard their evidence but in view of further contradictions with medical report with regard to the numbers of injuries sustained by the deceased and other discrepancies it makes their evidence highly doubtful and in such circumstances, the credibility of the eye-witnesses is completely eroded and cannot be relied upon. In this regard reference can be made to State v. Abdul Qadir and 2 others reported in 1973 SCM R 312. The learned trial Judge in impugned judgment has relied upon the case of Sarfraz alias SAPPI v. The State reported in 2000 SCM R 1758 and accepted ocular evidence despite contradictory with medical evidence. He has wrongly interpreted the case-law.
11. In the above case defence counsel pointed out that according to prosecution witnesses fire had been made upon the deceased at the distance of 7-1/2 Karams i.e, about 42 feet, while doctor who conducted post mortem had noticed blackening and tattooing around injury No,1 of the deceased in that case, on which the Honourable Supreme Court of Pakistan observed that there was no doubt about causing injuries with firearm and as far as the contradiction being pointed out by advocate for the appellant would not be fatal for the reasons that humanly it was not possible to measure exact distance in an incident, wherein discriminate firing was going on, hence by invoking the principle namely that medical evidence is produced in support of ocular evidence by the prosecution in the criminal trial or in other words it can be said that such evidence is termed to be confirmatory nature and further held that if there is any variation both in ocular and medical evidence latter will not overweigh the former type of evidence if otherwise it is coherent and trustworthy. With utmost respect to the case law relied upon by the learned trial Court, I humbly mention here that facts of the said case-law and the facts of the case in hand are quite distinguishable as in this case injury alleged to have been caused by the present appellant/accused was not found on the person of deceased by doctor who conducted post mortem examination. According to medical report deceased had sustained only one injury on right side of skull which is attributed to co-accused Rafique and Sharif. It is important to note here that complainant party had not challenged the medical report before any board of doctors, it indicates that they accepted the finding of the doctor recorded in post mortem report showing only one injury on the head/skull of the deceased and from the above discussion the ocular evidence was not proved to be coherent or trustworthy, the trial Court, therefore, by wrongly taking benefit of dictum laid down by the honourable Supreme Court in the above case-law has erroneously ignored the major contradictions in between ocular and medical evidence by giving preference to the ocular account. At least the learned trial Judge had to see the background of the case law because each and every case is to be decided on its own merits.
12. Apart from the above, the evidence of alleged eye-witnesses is not consistent on important points. Complainant in his cross examination has said that the accused fired at deceased at the distance of 10 feet. Whereas P.W. Muhammad Sharif in his cross-examination has deposed that all the accused had fired upon deceased from the distance of 20/25 paces, while P.W. Imam Bux has given different distance by saying that present appellant had fired from the distance of 3/4 feet.
P.W. Imam Bux in his cross-examination has stated that police saw the dead body at the place of wardat at 8:30 a.m., though as per prosecution case on next date in the morning complainant carried away dead body directly to hospital and after leaving it there he went to police for report and police first time saw and examined the dead body in the taluka hospital at 10:30 a.m. These contradictions in the statements of the eyewitnesses raise element of doubt that either these witnesses were not present together with the deceased or the offence was not committed as alleged by the prosecution.
13. In the case in hand as stated hereinabove that there is an admitted enmity between the parties over a plot but no independent ,witness has been produced by the prosecution though as per F.I.R.
Other people standing in nearby lands came raising 'Hakals' at place of occurrence and on seeing them accused fled away from the wardat. Nobody was, however, examined on behalf of the prosecution from amongst those who were independent witnesses and instead the persons who are closely related to the deceased have come forward as eyewitnesses, (P.W.1) is admittedly father of deceased Munir Ahmed. (P. W .3) is brother of the deceased while (P.W.2) is brother-in- law of complainant Liaquat Ali. It is well-established principle of law that court will not base conviction of an accused solely on the testimony of interested witnesses, unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence which is lacking in this case, as such, evidence of interested witnesses cannot be relied upon if any law is needed, reference may be made to the case-laws reported as of 1998 SCM R 25 and PLD 2003 Supreme Court 644.
14. There is admitted delay of fifteen (15) hours in lodging the F.I.R., though the Police Station was at the distance of about 8/9 Kilometers from the place of occurrence, the spontaneous reaction to this aspect is that when said distance could have been covered within hours then why whole night was waited by the complainant. The simple explanation offered for it is that due to late hours of night and non-availability of the conveyance. The explanation furnished by the prosecution appears to be not satisfactory for the reasons that the alleged incident took place in the middle of the month of May at 6:30 p.m. When sun sets at round about 7:00 or 7:15 p.m., as such, there was no question of late night at the time of alleged incident but there was about forty live minutes of day light with complainant to report the incident at Police Station located at the distance of 8/9 kilometers which could have been covered within one hour if person even goes by foot and police could have been easily informed about the incident before 8:00 p.m. But complainant waited whole night and on the next day at about 9:30 a. m, he registered the F.I.R., in such circumstances it could be said that the F.I.R. Was lodged after due deliberation and consultation and there was every possibility of the false implication of the accused due to admitted enmity between the parties.
15. So far the alleged recovery of empty cartridges from the wardat and a gun allegedly produced by the appellant/accused is concerned, P.W.4 was examined to prove the alleged recoveries and arrest. This (P.W.4) mashir Abdul Ghaffar is resident of village Bhai Khan Mastoi, taluka Sijawal situated about 8/10 kilometers away from the place of alleged recovery. It seems suspicious that why P.W.4 was chosen by police to act as mashir in respect of inspection of dead body, wardat, arrest and recoveries made on different dates, places and times. If at a particular place any person who in the normal and natural course of happening is present and is not a chance witness he can act as mashir. But where people from the locality are available such respectable person should be selected to act as mashir in preference to strangers. Complainant party and appellant/accused are resident of one and same village Ibrahim-ji-Wandh, which is inhabited by 20/25 houses but mashir Abdul Ghaffar (P.W) belonging to another village Bhai Khan was selected to act as mashir for all purposes. Co-mashir Mohammad Urs has not been examined. Complainant has admitted that both mashirs are related to him, as such mashir also appears to be interested witness. As per this mashir Abdul Ghaffar three empty cartridges had been recovered from the place of wardat but in the trial Court only two empty cartridges were produced. Furthermore, this mashir Abdul Ghaffar has deposed that he saw injury on the chest of the deceased but his version is falsified by the memo of inspection of dead body and inquest report which are initial documents prepared on the spot after inspection of dead body. These two documents clearly disclose that the deceased had sustained only one injury on the head and thus evidence of mashir is also highly doubtful, as such, the evidence of recovery is of no consequence.. The evidence of remaining witnesses being formal in nature is apparently of no helpful to the prosecution in establishing the charge against the appellant/accused.
15. After discarding the above evidence, I am now left with the evidence of motive which by itself is not sufficient to base conviction. Even otherwise motive is another name of enmity, which can be a ground for false implication of accused person.
17. In the circumstances, discussed above. I am of the view that the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt against the present appellant/accused. Consequently, the appeal filed by the appellant is accepted and the impugned judgment is set aside. Resultantly, the appellant/accused is acquitted after by giving him benefit of doubt, he be released forth with if is not required in any other case.