' SYED MUHAMMAD FAROOQ SHAH, J.---Through the captioned Criminal Jail Appeal No,166 of 2009, titled as Rasool Bux and another v. The State, the appellants by claiming their innocence, prayed to set aside the judgment of the trial Court.
2. The learned Additional Sessions Judge, Sehwan Shareef vide judgment dated 24-8-2009, convicted both the appellants for an offence under section 302 read with section 34, P.P.C. And sentenced them to undergo imprisonment for life and to pay fine of Rs,100,000 each or in case of default to undergo SI for two years more. They were also convicted under section 324 read with section 34, P.P.C. And sentenced to undergo R.I. For 5 years and to pay fine of Rs,25,000 each or in case of default in payment of fine, to undergo S.I. For 6 months more. By making justification of not awarding the death sentence, the learned trial Judge has observed that the extreme penalty of law to accused in this case has not been awarded because the accused persons have tried to commit murder of "Kari" in order to remove black spot from their faces and accused had no previous animosity against the deceased. One of accused is 75 years old while the other is young man of 40 years old and this is another mitigating circumstance for which he awarded lesser punishment to them. He has further ordered that both sentences shall run concurrently with benefit of section 382-B, Cr.P.C.
3. Succinct story of the prosecution case as narrated in the F.I.R. No,94/2001, lodged by complainant Ghulam Hussain Solangi on 11-10-2001 at Police Station Bhan under section 324 Q&D 34, P.P.C., is that daughter of complainant namely Mst. Shabiran was married with accused Gullan W Ghulam Muhammad son of Rasool Bux Solangi. About -1-1/2 years back, his daughter eloped away with Ghulam Hyder Khoso and such case was registered by him and police got returned Mst. Shabiran from Ghulam Hyder and such case is pending trial in the Court of law. Gullan alias Ghulam Muhammad and his father Rasool Bux declared Mst. Shabiran to be "Kari" with Ghulam Hyder and they used to say that they will not spare her. On the fateful day, he along with his wife Sakina aged about 40 years and daughter Shabiran were sitting in their house; at about 1-00 P.M. Rasool Bux having DBBL gun and. Gullan with SBBL gun came to their house and accused Rasool Bux challenged (Hakald) to his daughter Shabiran that she was "Kari" with Ghulam Hyder hence they will kill her, saying so both accused aimed their guns and accused Rasool Bux made straight fire with the gun at Shabiran but same did not hit her, thereafter, he made another fire at Shabiran but his wife Mst. Sakina in order to save her daughter came in front of her and the fire hit his wife on, abdomen, thereafter, accused Gullan and Ghulam Muhammad made fires with their gun at Shabiran with intention to kill her but same did not hit her, on which they raised cries and their cries and gun shots attracted his cousin Muhammad'Khan and other villagers who came running there and beseeched the accused persons. Thereafter, accused persons went away along with their respective weapons. Complainant stated that there was fire arm injury on the abdomen of Sakina and blood was oozing, as such they took her to Bhan hospital for treatment and after leaving his wife at hospital, he appeared at Police Station Bhan and lodged the instant F.I.R, Mst. Sakina succumbed her injuries in the hospital. During investigation both accused were arrested and on completion of usual investigation they were charge-sheeted.
4. At trial, prosecution to substantiate the charge examined Dr. Najma as Exh.6, who produced postmortem report along with police letter. Medical Officer Dr. Ghulam Sarwar was examined as Exh.8, who produced carbon copy of dying declaration (Exh.9), Tapedar NaWab Khan (Exh.11), produced sketch of wardat. Complainant Ghulam Hussain as Exh.13, produced F.I.R. And receipt of receiving dead body (Exh.14 and 15) respectively, Mst, Shabiran as E,xh.16, Muhammad Khan as Exh.17, ASI Nasrullah as Exh.18, Mashir Ghulam Hyder as Exh.19, who acted as mashir of injuries, place of occurrence, dead body, inquest report, mashirnama of clothes of deceased and mashirnama of arrest and recovery (Exh.19-A to 19-F). Investigation Officer Inspector Farooq Qadir Lakhair Exh.20, produced original dying declaration of deceased Mst. Sakina, Chemical Examiner Report and ballistic expert's report as Exh.20/A to 20/C respectively. Thereafter, prosecution closed its side vide statement Exh.21, filed by D.D.P.P.
5. Both appellants were Charged on 08th March, 2004 by the Sessions Judge, Dadu to face a trial of committing intentional murder of Mst. Sakina and so also attempted to commit Qatl-e-Amd of Mst.
Shabiran and thereby committed an offence punishable under sections 302, 324, 34, P.P.C.. Both appellants pleaded not guilty and claimed to be tried. Prosecution, to support its contention have examined as many as 9 witnesses and thereafter closed its side. In defence, statement of accused were recorded under section 342, Cr.P.C., in which they have vehemently denied the allegations levelled against them and stated that actually Mst. Shabiran wife of his son Gullan elopes away with her paramour namely Ghulam Hyder Khoso and subsequently she was recovered by her father, who assured that after divorce by son of accused Rasool Bux, he got her remarriage with Ghulam Hyder but deceased was not willing to do so, therefore; Ghulam Hyder killed her. They have further stated that no recovery of weapon was effected from them and consequently they were acquitted in a case punishable under, section 13(d) Arms Ordinance, by the competent court of law. They have also exhibited the copy of acquittal order, however co-accused, 'appellant Gullan has also stated that his wife. Mst. Shabiran elopes with her paramour namely Ghulam Hyder Khoso and she was recovered by her father on the pretext that he will get her marriage with Ghulam Hyder Khoso after getting divorce from him (accused Gullan) but deceased Mst. Sakina was not inclined to do so, therefore, Ghulam Hyder Khoso murdered her. He has also produced copy of acquittal judgment pronounced in a case under section 13(d) Arms Ordinance. He has denied the allegations levelled against him.
6. The prosecution case is based on the following piece of evidence:-
(i) Ocular testimony.
(ii) Medical evidence.
(iii) Motive.
(iv) Recovery of crime weapons.
(v) Dying declaration.
7. On the above points, I have anxiously considered the arguments advanced by Mr. Amjad Ali Sahito, Advocate for appellants, Syed Meeral Shah learned D.P.G. For the State and have gone through the evidence and material placed on the record.
8. Mr. Syed Meeral Shah, Deputy Prosecutor-General supported the judgment of the trial Court and submitted that there is no gross irregularity or illegality appears from the impugned judgment, therefore, the same may be maintained.
9. Conversely, learned counsel for the appellants at the very outset contended that the account of ocular testimony is in conflict with medical evidence. It is next contended that the defence evidence adduced by the appellants while producing copy of acquittal order in a case under section 13(d) Arms Ordinance, shows that the recovery has not been established or the judgment recorded by the learned Magistrate under section 13(d) Arms Ordinance is in conflict with the impugned judgment pronounced learned Sessions Judge.
' Ocular and medical evidence:-- ' It shall advantageous to make comparative analysis of ocular testimony with medical evidence. It has come on the record that prosecution first of all examined P.W.1 Dr. Najma who produced postmortem report of deceased Mst. Sakina and stated that on external examination of dead body of deceased, she found the following injuries on her person:--
(i) Fire arm lacdated wound measuring 3 cm in> diameter, present at 4 cm right to umbilicus, blackening and charing around the wound. (wound of entrance).
(ii) Two lacerated injuries each measuring 0.5 cm in diameter present on the left gluteal region.
(Wound of exit). On internal examination, she found damages of stomach, small and large intestine and other organs were found normal.
' From the external as well as internal examination of .Dead body, she was of the opinion that the injuries were anti-mortem in nature and death occurred due to hemorrhage and shock and the injuries were caused by firearm weapons. In cross examination, she stated that:- "From the examination of injuries it can be said that deceased may have committed suicide. The fire may be made from pistol. The weapon with which the offence was committed cannot be shot gun or rifle."
10. It is an admitted position that complainant Ghulam Hussain, husband of the deceased Mst.
Sakina deposed that accused Rasool Bux armed with DBBL gun and co-accused Gullan alias Ghulam Muhammad armed with SBBL gun fired gun shots. The gun shots of appellant Rasool Bux hit to Mst. Sakina who tried to save her daughter Shabiran and appellant Gullan fired from his gun upon Mst. Shabiran which also did not hit to her. In cross-examination, the complainant has stated that accused had fired upon his deceased wife from the distance of 7/8 paces. PW-5 Mst. Shabiran has also stated almost similar facts while deposing that accused Rasool Bux armed with DBBL gun and Gullan alias Ghulam Muhammad armed with SBBL gun entered in their house and fired upon her but her mother tried to save her, came before her and fire hit to her on her right side of abdomen and fire by. Gullan did not hit her. PW Muhammad Khan stated that Mst. Sakina was wife of his cousin. On noise of gunshot he rushed to the house of his cousin and saw accused Rasool Bux having DBBL gun in his hand and Gullan was also armed with SBBL gun. Rasool Bux fired from his gun on Sakina and Mst. Shabiran was raising cries. In his presence accused Rasool Bux had fired upon Mst. Sakina and accused Gullan had also fired upon Shabiran but same had been missed.
Apparently, there is material contradiction in between ocular testimony and medical evidence as all the eyewitnesses have deposed that the both appellants duly armed with shot guns caused firearm injuries to deceased Mst. Sakina but the injuries on the person of deceased have explained by the Medical Officer to be caused with pistol fire. Doctor has emphatically denied that the alleged offence was committed with gunshot or rifle. The injury No,1 as shown in the postmortem report by the Woman Medal Officer shows the signs of blackening and chairing around the wound, which can be caused by inducting body with weapon such as a pistol fire. Insofar as, the medical evidence brought by the prosecution on record reveals material contradictions with the count of ocular testimony, more particularly with regard to kind of weapons allegedly used in the commission of offence and the distance of fire shots. It is well-settled law that the medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence reference in this context may be made to the cases reported as. PLD 2009 Supreme Court 53, 2008 SCM R 1103 and 2009 SCM R 1410. Undisputedly, the medical evidence is in conflict with ocular testimony.
Motive:- ' There are 'counter-versions of the motive from both sides as the eye-witnesses deposed that the allegations of "Kari" have been levelled upon Mst. Shabiran wife of appellant Gullan with Ghulam Hyder Khoso by the accused persons in result of which the appellant Rasool Bux fired upon her but accidently the said shot hit to her mother Mst. Sakina on her abdomen who intervened , to save Mst. Shabiran. Fortunately Mst. Shabiran is still surviving and gave evidence before the trial Court.
On the other side, the accused/appellant Rasool Bux who was father-in-law of P.W. Shabiran and appellant Gullan who is her husband stated in their statements recorded under section 342, Cr.P.C.
That Mst. Shabiran wife of appellant Gullan eloped away with her paramour namely Ghulam Hyder Khoso, subsequently, she was recovered by her father (complainant) on the pretext that after divorce by her son he will get her remarried with .Ghulam. Hyder but deceased was not willing to do so therefore, Ghulam Hyder killed her.
Recovery of crime weapons:-- ' With regard to recovery of illicit crime weapons, P.W.8 Ghulam Hyder who acted as mashir of firearm injuries, recovery and arrest was also examined by the prosecution, who stated that three empty cartridges and blood-stained earth from'the wardat was sealed in his presence. He has stated in cross that his signatures on mashirnama of recovery and arrest were obtained at Police Station. On the other hand, the appellants have produced copies of acquittal order whereby they were acquitted for having illicit weapons, allegedly secured during recovery from their possession.
Learned Magistrate in his acquittal order recorded in Crime No,96/2001 under section 13(d) Arms Ordinance (connected Case No,165/2001), triable by the Court of Magistrate, held that recovery has not been proved as the mashirs have not corroborated the version D of Investigation Officer SIP Farooque Qadir Lakhair hence the recovery of illicit weapon viz. Crime weapon in this case has not been established.
Dying declaration:-- ' Dying declaration of the deceased Mst. Sakina recorded on 11-10-2001 before Medical Officer Rural.
Health Centre, Bhan, reveals that the same was recorded by the Investigation Officer Inspector Farooque Qadir Lakhair, wherein the deceased had stated that Rasool Bux attempted to cause firearm injury. To Shabiran and she tried to save her which fire hit on her abdomen and fire of Gullan missed. Medical Officer Ghulam Sarwar in his deposition (Exh.2), supported the dying declaration of deceased Mst. Sakina but stated in cross-examination that he does not know as to who wrote dying declaration.
11. In criminal administration of justice, ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence but there should be chain among the ocular testimony, Expert evidence, medical evidence and circumstantial evidence. As discussed supra, the medical evidence is entirely in conflict with all other piece of evidence. Recovery of alleged weapon has also not been established, particularly the E only mashir of recovery, arrest and injuries P.W. Ghulam Hyder stated that police recovered DBBL gun and five live cartridges from accused Rasool Bux and one SBBL gun and four live cartridges from accused Gullan and in cross-examination he has admitted that complainant is his maternal uncle and that his signatures were obtained at Police Station. However, this witness has not supported the mashirnama of recovery in a case registered under section 13(d) Arms Ordinance.
12. Admittedly, the quality of ocular account is not corroborated by the medical evidence which is rather found in conflict with the ocular account. The distance from which appellants allegedly fired with short guns was not less than 7/8 feets and the only injury on the person of deceased had blackening and if a person fires with gun, there cannot be blackening from such distance. Woman Medical Officer who conducted the postmortem emphatically stated that the injury was caused with pistol bullets. In these circumstances the medical evidence does not lend any corroboration to the prosecution, instead it contradicts it. In the case of Ghulam Shabbir and others v. The State 2008 PCr.LJ 1131 a Division Bench of Federal Shariat Court of Pakistan held that medical evidence must be in line with ocular account on all material facts. Evidence must co-relate and establish the accused with the crime. In the case under consideration, the element of the requisite corroboration and nexus between the accused and the crime is lacking. In Faryad Ali v. The State (2008 SCM R 1086), Honourable Supreme Court of Pakistan field that medical evidence or Expert opinion has always been treated to be conformity in nature, medical opinion as to injury sustained by the deceased was caused by which weapon, it is the medical Expert who can opine that a specific injury was inflicted by which kind of weapon. Apparently, in the instant case, there is material contradiction in between ocular and medical evidence, as mentioned above.
13. Suffice is to say that in view of medical evidence, the prosecution, story is not trustworthy and the depositions of alleged eye-witnesses are not beyond the shadow of reasonable doubt. It is settled law that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the case of Tariq Pervaiz v.
The State (1995 SCM R 1345), Muhammad Saeed v. The State (2008 PCr.LJ 1752), Ghulam Murtaza, v.
The State (2010 PCr.LJ 461). In the case of Farzand Ali v. The State (2012 M LD 882), recovery of weapon of offence made on the pointation of accused was held to be inconsequential as there was no positive report from Forensic Science Laboratory. It appears that the evidence of prosecution witnesses has been recorded by the police at belated stage without furnishing any plausible explanation. The Honourable Supreme Court in the case of Rahat All v. The State (2010 SCM R 584),medical evidence, as mentioned above held that the said lacuna fatal to prosecution case and the statement of such witnesses were not to be relied upon. In the case of Sultan and others v. The State (1987 SCM R 1177), the honourable Supreme Court held that Investigating Officer is bound to secure the attendance of independent witnesses to attest the recovery of crime weapons at the pointation of accused and failure to do so would cause doubt on the factum of recovery. In the present case both recovery witnesses of crime weapons are relative of the deceased. Prosecution without showing any explanation of non-availability of independent person of the locality examined mashir Ghulam Hyder, who is inimical to the accused. It is well-known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless to the fact as to whether he has taken any such defence plea Or not. The prosecution evidence appears to be not trustworthy nor consistent to establish accusation against the appellant, therefore, false implication of appellants in this case due to their stained matrimonial relations with the deceased and her parents and their involvement in this case due to animosity with the complainant party cannot be brushed aside.
14. The law developed in our country is based on maxim that it is better that ten guilty persons be acquitted rather than one innocent person convicted, reference in this regard may conveniently be placed on citation of Apex Court ruling reported as PLD 1973 SC 418 and 2011 SCM R 664. It is also an established principle of administration of criminal justice coupled with Islamic Law that conviction cannot be based on any other type of evidence unless direct or substantive evidence is available and the guilt of accused cannot be based on high, probabilities that may be inferred from evidence in a particular case. Sufficient discrepancies are appearing in the statement of prosecution witnesses and the memos of place of occurrence and recovery, prepared during investigation, appears to be suspected.. It is regrettable to note that the appellants are languishing in jail since last more than 12 years period without remission period if applicable and the appellant Rasool Bux is an aged person of about 80 years of age as the age recorded in his statement under section 342, Cr.P.C. On 28-7-2009 was 75 years. Both appellants are produced in custody and were found in merciful condition.
15. For the foregoing reasons, I have no hesitation to old that the prosecution case is doubtful. The appeal is accordingly allowed conviction and sentence awarded to the appellants for the murder of Ms Sakina and murderous assault upon Mst. Shabiran vide judgment passed by the learned trial Court is set aside. While extending the benefit of doubt, the appellants are acquitted of the charges. They are confined in jail. The concerned Superintendent Jail is required to release them forthwith if not required in any other case.