' SALAHUDDIN PANHWAR, J.---Through instant criminal jail appeal, appellants have challenged the legality of conviction and sentence, awarded to them vide judgment dated 10.5.2010, passed by learned 2nd Additional Sessions Judge, Larkana in Sessions Case No,299 of 2005 (Re-State v.
Qaiser and others), whereby they were convicted to suffer life imprisonment under section 302(b) read with section 34, P.P.C. With further direction to pay compensation of Rs,50,000/- each to the legal heirs of deceased.
2. Precisely, prosecution story is that on 28.7.2005, complainant along with his sons Himath Ali, Badar and Shaman, were on the way towards Badeh town. When they reached at Seehar Shakh, accused Hakim Ali empty handed while the present appellants, armed with hatchets, were present there. All the appellants caused hatchet injuries to deceased Himath All on his neck, head and left hand and thus, he succumbed to his injuries on the spot hence the complainant lodged the FIR.
After investigation all the appellants were sent up for trial.
3. To substantiate the charge, prosecution examined following witnesses. ASI Abdul Ghafoor Ex.16, who produced FIR (Ex.16/ A); eyewitness Ahaman Ali Badar (Ex.17 and 18); PC/Corpse bearer Altaf Ex.19 who produced the receipt of dead body Ex.19/ A, Medical Officer Qamaruddin Ex.20 who had already produced lash chakas form and postmortem report of deceased Himath Ali Ex.9/A and 9/B, Mashir Gul Muhammad Ex.22 who produced Danistnama of dead body, mashirnamas of place of incident Ex.23, PC Ali Gohar Ex.24, Inspector Habib-ur-Rehman Ex.25, who produced mashirnama of arrest of accused Hakim Ex.25/A; complainant Leemo Khan could not be examined by prosecution because he is said to have been died during trial of this case.
' Such statement of process server was recorded Ex.26/A. This fact has also been confirmed by PW Badar, the son of complainant Leemo Khan in his deposition Ex.18. Thereafter, learned DDPP closed the side of prosecution case vide his statement Ex.28.
4. The statements of accused were recorded under section 342, Cr.P.C. Wherein they professed their innocence and pleaded for trial. At the culminating of trial they were convicted as above.
5. Learned counsel for the appellants, inter alia, contended that co-accused Hakim Ali was let off by the police, hence evidence of the witnesses cannot be presumed as credible; neither any specific role of attributing injury has been assigned to the appellants nor recovery of crime weapon has been effected from any accused though they have been alleged to have caused hatchet injuries on head and neck of the deceased; complainant has not been examined; Material contradictions are available in the depositions of P.Ws but that were not considered by the trial court. It is a settled principle of law that single doubt is sufficient for acquittal of accused.
6. Learned APG contended that ocular account is supported with medical and substantial evidence, hence impugned judgment is maintainable under the law.
7. Heard and perused the record.
8. No doubt deceased Himath Ali received severe sharp edge weapons injuries on his head as well neck and his death (murder) was/is unfortunate and worth regretting but I have no hesitation in safely saying that establishing the death to be unnatural is never sufficient to convict the accused, sent up, to face the trial. The prosecution continues under same bounden obligation and duty to establish beyond shadow of doubt that it was or were, as the case may be, the accused who committed unnatural death. A reference can well be made to the case of 'Abdul Majeed v. The State (2011 SCM R 941)' wherein it is held that:
7. The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden-remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However, this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of Afzal Hussain Shah v State (ibid) where the accused admittedly was present in the house when his wife was killed.
' In the instant case, the prosecution possessed evidence of three witnesses to establish the ocular account i.e Complainant, PW Shaman Ali and PW Badar. Complainant of the case could not be examined by the prosecution because of his (complainant's) death hence prosecution produced the said two witnesses to establish ocular account. There can be no denial to the well-established principle of Criminal Administration of Justice that no conviction can sustain where the direct evidence (ocular evidence) fails. The reference may be made to the case, reported as 2007 SCM R 1535.
9. As per prosecution case, the place of incident is `Seehar Shakh' where ordinarily presence of said witnesses is natural as they have not claimed to be having any land or any work to be done there.
In such circumstances, the judicial proprietary always demands satisfaction regarding presence of alleged eye-witnesses at such place. During course of investigation, these witnesses had not claimed any reason for their presence with deceased at relevant time and place however during trial these witnesses improved their statements by saying that they all were going to attend marriage ceremony of son of their Zamindar. Let's have a look what these witnesses say in their cross-examination about such stand.
' PW Shaman Ali.
' At about 10.00 a.m. We had arranged program for going towards Badeh town. We had left our house after taking the breakfast. We were coming Badeh in order to attend a marriage ceremony of one Faiz Muhammad Junejo. Said Faiz Muhammad Junejo is our zamindars. That Faiz Muhammad Junejo resides in Badeh town but I do not know in which Mohalla of Badeh he resides..., There was marriage of son of our zamindars Faiz Muhammad Junejo. The name of son of our zamindars is Mukhtiar Junejo...'
' PW Badar.
' We were going to attend marriage ceremony of son of Faiz Muhammad Junejo. There was marriage of one Barkat Ali Junejo, the son of that Faiz Muhammad. ... I do not know in which Mohalla there was marriage in Badeh town.
' The above portion(s) would show that these witnesses though claimed to be going to attend marriage ceremony of son of their Zamindar but hav e given different names of bridegroom; these witnesses even could not give the name of Mohalla (area) where they were going to attend marriage ceremony which causes serious doubt in believing such improved stand of these witnesses whereby they attempted to justify their presence at place of incident. Needless to add that the moment attempts to improve their statement with an object to bring their testimony in line, thus it loses credibility and steps into term 'dishonest'. The words of such witnesses normally cannot be not believed to hold conviction in cases of capital charges in particular. Reference can be made to cases, reported as '2007 SCM R 1825 and 2011 SCM R 1517'.
10. The further perusal of the evidence of these witnesses of ocular account would show that these witnesses do not support each other on material aspects which normally should not happen with statements of two, narrating same facts as eye-witnesses.
' PW Shaman Ali.
' When accused went away we had touched deceased Himath. Our hands and clothes were stained with blood of deceased Hirnath My father Leemo Khan alone went to PS for lodgment of FIR.
I do not know on what transport my father went to PS.
' PW Badar.
' We did not touch the dead body. Our hands or clothes were not stained with blood of deceased.
The dead body was lying on earth. There was no grass over earth. We did not cover the dead body with anything. My father alone went to PS for lodgment of FIR on motorcycle. I do not know regarding owner of that motorcycle.
' The above portions also show that these witnesses are not in conformity with each other, hence manner of offence is not genuine and creates serious doubt in the prosecution case. At this juncture, a reference to cross examination of PW ASI Abdul Ghafoor, the recorder of FIR, being material is referred hereunder:- ' In his cross-examination he stated that: 'Complainant appeared at PS alone by foot. I had not seen blood stains over the clothes or hands of complainant when he came at PS for lodgment of FIR. Complainant directly met with me when he came at P.S. This prima facie suggests that complainant (father) and eye-witnesses ID (real brothers), if are believed to be present at the spot at relevant time, then it is quite illogical that these blood- relations neither attempted to intervene while their son/brother was being murdered and even not touched the dying man least to know whether he has succumbed to injuries or otherwise. Such attitude is not worth believing rather brings serious cloud over claim of witnesses of ocular account that they were present at relevant time. It is pertinent to mention that both these witnesses are brothers of deceased but this status alone shall not exempt the prosecution from proving the charge beyond shadow of doubt. The glaring difference in the statements of these witnesses on material aspects seem to have undermined the credibility of these witnesses which normally cannot hold the conviction on a capital charge. I would take the advantage of case of Liaquat All v.
State (2011 SCM R 910) wherein it is held that: `Keeping in mind that the complainant PW 9 was a full brother of the deceased and the only other eyewitness was the son of PW9, strongly suggests that their testimony was tainted on account of their close relationship with the deceased. It is correct, as observed by the learned Courts below, that the testimony of a close relative of a victim cannot by itself, be sufficient for the purpose of excluding the same from consideration. In the present case, however, there are so many circumstances, discussed above, which undermine the credibility of PW 9 and PW-10 and thus seriously weaken, indeed negate the probative value of their testimony. In, these circumstances, it would be unsafe to base a conviction and to maintain the sentence of capital punishment awarded to the appellant.
11. Further, the record shows that complainant lodged the FIR within a period of two and half hours but per these witnesses within one and half hours the police has reached which took dead body to hospital for postmortem which started shortly as stated by PW Shaman Ali in his cross examination that: 'It was about 1.00 or 2.00 (noon) when post mortem of my brother was conducted. We had handed over dead body to Doctor. Dead body was again handed over to us at about 3.00 or 3.30 p.m'. ' but the Medical Officer in his cross examination stated that: 'I have received dead body at about 5.00 p.m'.
' This difference also brings a cloud over claim of these witnesses to be eye-witnesses as claimed by them. Further, it appears that all three brothers and father are nominated in FIR with vague and general role of having caused hatchet injuries to deceased Himath. The prosecution never challenged the letting off of the nominated accused Hakim Ali (father of present appellants). From medical evidence it reflects that all injuries were caused in same direction, hence every injury attributed independently to the appellants requires emphasizes particularly when per witnesses they planned to go Badeh town just before an hour of alleged incident hence 'element of common object' must have been proved/established which was never proved/established by the prosecution through ocular evidence as the witnesses of ocular account said nothing except that all appellants caused hatchet injuries to deceased Himath. The seating of injuries on person of the deceased also causes a doubt towards claim of prosecution that such injuries were caused by all accused with hatchets. At this juncture, it would be conducive to refer description of injuries as mentioned in medico legal certificate/postmortem as under:-
1. An incised wound on left side of forehead on front parietal region measuring 7 cm x 2-1/2 cm scalp cavity deep vertically (Brain matter is exposed).
2. An incised wound running from end of first injury towards left parietal region up to vertex measuring 8 cm x 2-1/2 cm scalp cavity deep (Brain matter is destructed).
3. An incised wound running in right side temporary-parietal region measuring 7 cm x 1.5 cm x scalp deem (bone is visible).
4. An incised wound at back of neck measuring 5 cm x 1 cm muscle deep.
5. An incised wound at left thumb of hand on palmer surface measuring 8 cm x 2 cm x muscle deep.
' Rigor mortis-present.
' Post mortem staining -present.
' Meticulous examination of injuries coupled with ocular account, it appears that the manner of offence as disclosed by witnesses is neither credible, natural nor confidence inspiring hence the conviction for a capital charge of murder be not awarded. It is also strange that no PW and complainant received any injury, particularly when motive is pleaded against all the witnesses. The prosecution failed in establishing motive nor the shaky ocular account was/is shouldered by other pieces of evidence hence it is not safe to hold such a conviction when the settled F principle of law is that single dent in prosecution is sufficient to extend the benefit of doubt in favour of the accused persons.
12. In these circumstances, three brothers, continuing in jail since ten years, were found to be entitled for benefit of doubt and thus, by a short order dated 27.10.2015, they were directed to be released forthwith if not required in any other case/crime. These are the detailed reasons thereof.