' SYED MUHAMMAD FAROOQ SHAH, J.---By virtue of this judgment, I intend to dispose of the captioned Appeal arising from judgment dated 27-5-2010, whereby the appellant/Convict Ali Muhammad Lashari son of Late Muhammad Usman booked in FIR No, 47 of 2008, registered at Police Station Talhar, under Sections 302 and 324, P.P.C., was tried by the learned Sessions Judge, Badin of committing Qatl-i-amd of deceased Ali Hyder and was convicted and sentenced under section 302(b), P.P.C. To suffer imprisonment for life, the appellant/ accused was also directed to pay Rs,1,00,000 (One Lac) as compensation to the legal heirs of deceased or in default, to suffer further R.I. For six months more. Benefit of Section 382-B, Cr.P.C. Was extended to him.
2. Prosecution story as narrated by the complainant Ghulam Hyder in FIR, lodged on 18-5-2008, at 1030 hours, at Police Station Talhar, is that his younger brother Ali Hyder aged about 30-31 years used to reside with him. About 8-10 days prior to the incident, his younger brother Ali Hyder had purchased agricultural land from Ghulam Muhammad son of Muhammad Ibrahim Machhi admeasuring 1-06 acres out of Survey No,301, for total consideration Of Rs,1,50,000 in their presence and had also paid an amount of Rs,10,000 in advance and such agreement of sale was also reduced in writing. The remaining sale consideration was to be paid on 19-5-2008 and thereafter, sale deed would have been executed by Ghulam Muhammad Machhi. The possession of land was already handed over to Ali Hyder, brother of complainant. It is further stated by the complainant that on the date of report, he along with his brother Ali Hyder and Muhammad Moosa went to plough the land and they were working in the land, when at about 0830 hours, Ali Muhammad son of Muhammad Usman Lashari duly armed with double barrel gun came on the said land and asked the complainant party as to why they have ploughed the land, whereupon Ali Hyder replied that they have purchased the said land from Ghulam Muhammad Machhi and that they will plough it. On this, accused Ali Muhammad caused straight fire shot upon Ali Hyder which hit him on right side of chest in result of which he fell down. The complainant party challenged the accused and on commotion and firearm report, Mashooque Ali son of Ghulam Hussain Lashari also came running there and within his sight, accused Ali Muhammad Lashari again fired from gun which hit P.W Muhammad Moosa. The complainant shifted the injured and deceased to the Taluka Hospital Talhar, where he left PW Mashooque Ali at the injured Muhammad Moosa and dead body and went to the police station and lodged the FIR, alleging therein that due to wrong transaction by Ghulam Muhammad Machhi with regard to agricultural land, accused Ali Muhammad has committed murder of his brother Ali Hyder and also fired gun shot straight at his brother Muhammad Moosa with intention to kill him and have injured him.
3. The police after registering the FIR took up the investigation, arrested the accused and on completion of usual investigation and formalities submitted the challan against the accused.
4. On commencement of trial, the copies as required under section 265-C, Cr.P.C. Were supplied to the appellant/ accused and thereafter, on 18-7-2008, the charge was framed for an offence punishable under sections 302, 324, P.P.C., to which charge, he pleaded not guilty and claimed to be tried.
5. Prosecution to prove its case, examined as many as 8 witnesses and remaining witnesses were given up by the prosecution and closed its side, vide statement filed by the Deputy Public Prosecutor Badin. In defence, statement of the accused was recorded under section 342, Cr.P.C., in which he has denied the allegations of prosecution and submitted . That the complainant is inimical to him due to dispute over agricultural land. He has claimed his innocence and stated that on the contrary, the complainant, deceased and others attacked upon him and deceased Ali Hyder caused him sharp side hatchet blow on his head, thereupon, he had fallen down and went unconscious and regained his senses in the hospital. He has produced final medical certificate and stated that he does not know about injuries sustained by the deceased and injured Muhammad Moosa. However, neither he examined himself under Section 340(2), Cr.P.C. In disproof of the charge levelled against him nor he adduced defence evidence.
6. Arguments advanced by the learned counsel for the appellant and Dy. Prosecutor General are considered and record has also carefully been perused.
7. Learned counsel for the appellant pointed out that the following inconsistencies/contradictions, legal defects and lacunas in the prosecution case have not been considered, while recording the impugned judgment by the trial court:-
(i) All P.Ws., mashirs and complainant are related inter se and inimical to the appellant due to dispute over the agricultural land. Appellant is brother in law of the deceased Ali Hyder. As per FIR, cause of the dispute is over a piece of land owned by Ghulam Muhammad son of Muhammad Ibrahim Machhi who has neither been examined nor he has been included in the list of witnesses.
(ii) Dispute is one of the sudden provocation and appellant/accused sustained hatchet injury on his head and went unconscious and subsequently he was admitted in Taluka Hospital Talhar, where from he was referred to LUMHS Jamshoro and regained his senses there. Such injuries on the person of appellant are supported by the Medical Certificate i,e, page No,59 of paper book dated 18-5-2008 and so also supported by the deposition of Dr. Aijaz Hameed Senior Medical Officer, Rural Health Center Talhar i,e, page 53, Second paragraph.
(iii) The alleged recovery of Crime weapon is foisted upon the appellant as he was in the hospital in critical condition as the mashir Ali Muhammad in his chief deposed that on the same day of incident i,e, 18-5-2008 at 03.30 p.m. Recovered alleged gun and four live cartridges were recovered under mashirnama of recovery but the mashirnama of recovery shows alleged recovery on dated 21-5-2008 at 1600 hours.
(iv) While pointing out the contradictions in prosecution evidence, the learned counsel for the appellant submitted that P.W. Muhammad Moosa (brother of deceased) alleged in his deposition that accused caused firearm injury on his right arm in presence of P.W. Mashooq All (nephew of complainant) but as per deposition of P.W. Mushooq the appellant caused firearm injury on both arms upon P. W. /injured Muhammad Moosa.
(v) Medical certificate of injured P. W. Muhammad Moosa dated 18-5-2008 is not supporting the injuries caused by fire arm weapon but with hard and blunt substance, more particularly as per mashirnama of place of incident the recovery of two cartridges of .12 bore have allegedly been recovered but the mashir has stated that the same were not recovered from the place of incident.
(vi) The complainant Ghulam Hyder has admitted that the accused Ali Muhammad is the brother of deceased All Hyder and admitted in cross that the village of deceased All Hyder and accused is the same and complainant is residing 04 paces away from that village but in FIR it is stated that the deceased All Hyder is residing with complainant. Injured P. W. Muhammad Moosa (brother of deceased) stated that it was about 10:00 a.m. When police reached at the place of incident and recorded his statement but FIR lodged at 1030 hours and reached at hospital at 1045 hours on the same day. P.W. Mashooq Ali (nephew of complainant) deposed in chief that police reached at about 11:00 a.m. At Taluka Hospital Talhar where 161, Cr.P.C. Statements of P. Ws. Were recorded. He has stated that about 50-60 private persons came at the place of incident where the accused was also found in injured condition.
(vii) Mashir All Murad admitted in cross that complainant Ghulam Hyder went and brought the police at the place of incident where police inspected the dead body of deceased at 11.10 a.m. But on the contrary postmortem report shows that the dead body was received at RI-IC Talhar at 10:35 a.m. Mashir Ali Murad stated that the dead body was shifted in the ambulance provided by the hospital authorities and reached at hospital at 9:30 a.m. But in cross stated that he and mashir Muhammad Mustafa took the dead body and injured P. W. Muhammad Moosa in white colour hired car at 11:25 a.m. Learned counsel submits that the mentioned contradictions are sufficient to give benefit of doubt to the appellant.
8. From examination of prosecution evidence it reveals that complainant Ghulam Hyder who was elder brother of deceased Ali Hyder stated that accused Ali Muhammad fired gun shots on right side of chest of deceased Ali Hyder due to dispute over the land and on his cries P. Ws. Mashooq Ali reached there, when accused fired another gun shot on the person of P.W Muhammad Moosa at his right arm, with the result he received the injuries and thereafter he took his brother Ali Hyder (deceased) and P.W Muhammad Moosa to Taluka Hospital Talhar. In cross examination, he has categorically denied that he caused hatchet injuries to accused Ali Muhammad on his head with the result he had fallen down on the ground. He has also denied that accused Ali Muhammad was admitted in the hospital due to said hatchet injury and went unconscious: P.W. Muhammad Moosa who is one of the brother of complainant and deceased stated that over the harvesting of disputed land accused Ali Muhammad fired from his gun at Ali Hyder at his chest who died at the spot, when Mashooq Ali reached at the place of occurrence and in his presence the accused fired another fire shot upon him (P.W Muhammad Moosa) at his right arm in order to commit his Qatl-i-amd with the result he had fallen down on the ground. In cross, he has denied that complainant Ghulam Hyder caused hatchet injury to accused Ali Muhammad with the result he had fallen on the ground and went unconscious. P.W. Mashooq Ali stated that on gunshot he rushed to the agricultural land of deceased Ali Hyder who was in injured condition and had died in his presence. He has further stated that accused Ali Muhammad fired another shot upon P.W-2 Muhammad Moosa, which hit him on his both arms with the result he had fallen down on the ground and then accused ran away. In cross-examination, he has denied that in order to save himself from punishment he had suppressed the injuries sustained by accused Ali Ahmed. P.W Ali Murad who is mashir of inquest report, memo of dead body, memo of arrest and injuries on the person of deceased and injured person, place of occurrence, recovery of clothes, recovery of weapons etc. Has also produced mashirnama of arrest and injuries on the person of accused Ali Muhammad, which shows that the accused was having an injury on his head near to his left ear and blood was oozing from it.
9. The Senior Medical Officer Dr.Aijaz Ahmed in his deposition stated that on 18-5-2008, at about 9:10 a.m., Talhar police brought the accused Ali Muhammad son of Muhammad Usman in injured condition for examination, treatment and certificate. On examination of the injured accused, he found an incised wound measuring 08 cm x 0.75 cm x bone deep over left parietal region of skull, the injury was caused with sharp cutting weapon such as hatchet and the same was observed fresh in nature. It was reserved and on receiving the report of radiologist the injury was declared as shajja-e-madiha under Section 337-A (ii), P.P.C. He has further stated that on the same day at about 10.45 a.m. (after about 1 hour and 35 minutes of arrival of injured accused), Talhar police brought another injured namely Muhammad Moosa son of Ghulam Ali Lashari and on his examination, he found a lacerated wound measuring 01.8 c.m. x 01.8 c.m x 0.6 c.m. x muscle deep with black skin margins over mid of right forearm laterally. The injury was declared as Ghyr-e-jaifa mutalahimah under section 337-F(iii), P.P.C. Caused with hard and blunt substance and such as lathi. The injury was observed to be fresh in nature.
10. Admittedly, alleged eye-witnesses deposed that the accused Ali Muhammad inflicted gun fire shot injury to the injured Muhammad Moosa, which fact has vehemently denied by the Medical officer, by stating that the said Injury was caused by hard and blunt substance.
11. The Medical Officer has further stated that on the same day at 12:00 noon (after about 2 hours and 50 minutes of arrival of injured accused), the dead body of deceased Ali Hyder was brought and on his examination he found gunshot injury on his person. Dr. Aijaz Hameed, in cross- examination admitted that ' the injury received by the injured (accused Ali Muhammad) was bone deep, which was dangerous to his life. He has also admitted in cross that he has not produced the radiologist report in respect of injured accused Ali Muhammad.
12. Ocular account of prosecution reveals that the accused Ali Muhammad has not received any injury but the medical evidence contradicted the ocular testimony as the medical officer has stated that the injury on the head of accused Ali Muhammad was sufficient to cause danger to his life. Perusal of the record reveals that P.W. Ghulam Mustafa who had also claimed to be an eye- witness of the incident, stated that on fire shots he rushed along with Ali Murad to the place of occurrence and in his presence accused Ali Muhammad fired gunshot upon P.W. Muhammad Moosa at his left arm. However, as stated above, the Medical Officer has categorically denied firearm injuries on the person of P.W. Muhammad Moosa. In his examination in chief, he has deposed that the accused Ali Muhammad came in injured condition at Taluka Hospital where he was arrested and injuries were found on his head and left side ear.
13. Investigating Officer Abdul Ghafoor, SHO Gulab Leghari in his cross-examination admitted that he found injury over the head of accused at the time of his arrest but he did not collect blood stained clothes of the accused nor he lodged any report regarding injury sustained by the accused. He has also admitted that the injury sustained by Muhammad Moosa was declared by M.O. To have been caused with hard and blunt substance. He has stated that he do not remember the period that for how long the accused remained admitted in the hospital. He has further stated that both mashirs were called at police station, then they proceeded for recovery of weapon on the pointation of accused.
14. The cursory examination of evidence of Investigation Officer shows that neither he recorded the statement of injured accused under section 154 Cr.P.C. Or in station diary, showing that how and from whose hand the accused Ali Muhammad had received injury, which was dangerous to his life, as per the statement of Medical Officer. Such conduct of I/O depicts either inefficiency or dishonest investigation on his part, who did not record the counter version of the incident, deliberately and intentionally, just to oblige the complainant party and on the other side to fully implicate the appellant/accused in commission of offence charged with.
15. Suffice is to say that the prosecution evidence appears to be shaky, misconceived, untrustworthy and is not inspiring confidence. It is very shocking enough that the appellant received injury on his head but such material fact has been suppressed by the eye-witnesses including the investigation officer and the same has not even been discussed or considered by the trial court while recording the impugned judgment. Per ocular account, many persons reached at the place of incident, those were close relative of deceased and complainant but they did not try to overpower the only assailant/appellant who was severally injured and no efforts were made by them to save the victim and went away safely without any resistance which looks very unnatural, especially in the circumstances, when the appellant was referred to the hospital much prior to the arrival of injured Moosa and deceased. This shows that their presence at the scene of occurrence at the relevant time was doubtful. Moreover, the complainant stated that the incident took place because of dispute between him and accused over agricultural land which he had purchased from one doctor, which annoyed the accused persons but to prove the motive nothing has been produced by the prosecution side including any independent witness to show that there was any dispute between the complainant, deceased and the accused persons due to purchase of agricultural land by the deceased. When motive was alleged but not proved, then ocular evidence was required to r be B scrutinized with great caution as held in 2010 SCM R 97 and 2009 SCM R 916 that motive cuts both ways, if enmity persuades a person to commit a crime, then it is also sufficient to falsely implicate some person from the other side. Ocular version is inconsistent with medical evidence hence not reliable and the presence of eye witnesses at the spot is doubtful as held in the case of Ashiq Hussain v. The State 1993 SCM R 417. Improvements made by the eye witnesses in order to strengthen the prosecution case, would lose their credibility and evidentiary value, more particularly, when a witness made contradictory statement or improvement, changing his version to suit the situation, if found deliberate and dishonest, would cause serious doubt in his veracity and credibility as it is settled law that a single circumstance creating reasonable doubt in a prudent mind is sufficient for acquittal of accused, not as a matter of grace but as a matter of right. As mentioned supra, the evidence about recoveries of crime weapons and empty cartridges is unconvincing as the accused Ali Muhammad was seriously injured and after firing two shots from DBBL it was not easy for him to escape from the scene of occurrence with gun. In the case of Ghulam Qadir and 2 others v. The State (2008 SCM R 1221), a bench of three Honourable Judges of Supreme Court held that for the purpose of benefit of doubt to an accused single infirmity regarding the truth of charge makes the whole case doubtful.
16. Having come to the above conclusion, the sentence imposed upon injured accused Ali Muhammad by the learned sessions judge, is not warranted in law hence set aside. Consequently, the appeal is allowed. The appellant is in custody. The concerned Superintendent Jail is directed to release him forthwith, in this case, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.