MUHAMMAD IQBAL KALHORO, J.---Appellants were tried in Sessions Case No,104 of 2011 by learned 1st Additional Sessions Judge Badin on the charge of committing murder of son of complainant namely Imdad Hussain at City Naka Golarchi, Sajawal Main Road with their common intention on 21.05.2011 at about 1430 hours, and vide impugned judgment dated 25.05.2015 were convicted under section 302(b), 114, P.P.C. read with section 34, P.P.C. to suffer sentence of imprisonment for life as Tazir and to pay Rs,200,000/- (Rupees two lac) as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C., and in default thereof to suffer two years more with benefit of Section 382-B, Cr.P.C. extended to them.
2. In the trial the prosecution has examined PW-1 Dr. Muhammad Anwar Mandhro at Exhb.13; PW-2 Tapedar Karooji at Exh.14; PW-3 Abdul Khalique ASI (Rtd) at Exhb.15; PW-4 complainant Ali Muhammad at Exhb.16: PW-5 Karim Bux at Exhb.17; PW-6 Inayat at Exhb.18; PW-7 PC Jan Muhammad at Exhb.19; PW-8 Muhammad Amin Mashir at Exhb.20; and PW-9 ASI Muhammad Salam (I.O. of the case) at Exh.21. These witnesses have produced all the necessary documents from FIR, to relevant Memos, Postmortem Report. FSL Report, Chemical Report, etc. in support of prosecution case. Thereafter, the statements of the appellants under section 342, Cr.P.C. at Exhs.23 to 27 have been recorded in which they have denied the allegations against them. In defense, the appellants have examined themselves on oath under section 340(2), Cr.P.C. Appellant Muhammad Hussain has taken a specific plea in his defense that he is a primary teacher and was present on his duty in Government Primary School Hussain Khan Chandio on the day of incident. The appellants in their support have also examined Defense Witnesses Ghulam Mustafa and Muhammad Umar. The appellants, however, at the conclusion of the trial were convicted vide impugned judgment in the terms as stated above and by means of this appeal, they have challenged their conviction and sentence.
3. Mr. Muhammad Asharaf Kazi, learned counsel for the appellants has argued that appellants are innocent and have been falsely implicated in this case; that the prosecution has utterly failed to prove motive part of the story, which is alleged enmity on the matrimonial affairs, therefore, the evidence of the prosecution witnesses requires extra care and caution; that there are a number of contradictions in the evidence of eye-witnesses, which have rendered the prosecution case highly doubtful; that there is a glaring discrepancy in between medical evidence and the ocular account of the incident furnished by the PWs, which has made suspicious presence of the prosecution witnesses at the spot, and it suggests that this is an unseen incident; that from the discrepancies in the prosecution case, it has become obvious that the complainant has contrived a false story to implicate the appellants. Learned counsel further argued that in the FIR and in the depositions the witnesses have alleged that after appellant Abdul Rehman fired at deceased Imdad Hussain, the remaining accused had made firing upon the complainant party but strangely from the place of incident only one empty was recovered, which belies the prosecution case, and presence of the witnesses at the spot. Learned Counsel in support of his arguments relied upon the case laws reported in 1997 SCMR 214, 1985 SCM R 410, 2010 SCM R 97 and 2011 SCM R 323 and an unreported judgment of the Honorable Supreme Court in the case of Dodo Khan v. The State in Cr. Appeal No,56-K/2013. While rebutting the arguments of learned counsel for the complainant and learned A.P.G. subsequently, he contended that the spot as shown in the memo of place of incident is populated area, where, among others, many shops are situated but no independent person has been cited as a witness to corroborate the prosecution story, which thus has become unreliable and could not be made a basis of conviction.
4. On the other hand, learned Counsel for the complainant has contended that appellants are nominated in the FIR with specific role of causing murder of the deceased in furtherance of their common intention, and this account has been supported by the eye-witnesses in their depositions; that there are no material contradictions to suggest false implication of the appellants; that medical evidence is in consonance with the ocular account of the incident and there is no contradiction in this respect; that medico-legal officer has deposed in cross-examination that blackening will occur, if fire is made from the distance of 10-15 feet, which is exactly the prosecution case; that mere weakness in establishing motive would not vitiate intrinsic value of the evidence describing the incident in unequivocal words. Learned counsel in support of his arguments has relied upon PLD 1983 SC 35; 2010 SCM R 650, and 2010 SCM R 1025.
5. Ms. Rahat Ahsan learned Additional Prosecutor General has adopted the arguments of the learned Counsel for the complainant and has supported the impugned judgment. She has further relied upon the case law reported in 2001 SCM R 1334, PLD 2007 SC 93 and 2009 SCM R 825.
6. I have considered the submissions of the parties, perused the material available on record and have taken guidance from the case law cited at bar. As per prosecution case this incident took place at Golarchi City Naka on 21.05.2011 at about 1430 hours where the complainant along with PW Inayat Ali, his son, and PW Karim Bux, after returning from village of Muhammad Nawaz Chandio, an MPA, was waiting for his son Imdad Hussain, who was employed in WAPDA office there. At the time of incident i,e, 02:30 p.m. complainant party saw Imdad Hussain coming towards them from WAPDA office, and so also the appellants and accused Roshan (since dead) who were duly armed with pistols. Thereafter, within their sight at the instigation of appellant Mubarak, appellant Abdul Rehman fired at Imdad Hussain on his abdomen which left him critically injured, and meanwhile the remaining appellants/accused made firing upon the complainant party. As a result of such firing, the people of the City assembled at the place of incident and seeing them the appellants fled away. Thereafter, the complainant party took injured Imdad Hussain to hospital but he could not survive and died there. The complainant and eye-witnesses in their depositions have supported in unambiguous words the role of main accused, appellant Abdul Rehman that he was armed with the pistol and fired on the deceased, which caused his death. Their evidence is further supported by recovery of the pistol used in the offence from appellant Abdul Rehman at the time of his arrest on 24.05.2011. The said pistol was sent along with crime empty recovered from the place of the incident to the Ballistic Expert, whose report has been produced by the I.O. of the case ASI Muhammad Salam in his evidence (Exhb. 21), which establishes that the said crime empty was fired from the same pistol. The lengthy cross-examination of these witnesses does not indicate that defense counsel have been able to extract from them any material contradiction on salient features of the case relevant to the role of appellant Abdul Rehman and recovery of incriminating weapon from him.
7. Learned defense counsel in his arguments emphatically referred to medical evidence showing presence of blackening of skin around the wound of entry on the deceased, which, according to him, is indicative of the fact that he was fired at from close range, and not from the distance of 10- 15 feet as deposed by the witnesses. And in order to support such contention, learned defense counsel read out a passage (Distance of the Firearm) from chapter 24 page 540 from A Textbook of Medical Jurisprudence and Toxicology by Modi, Twenty-Fourth Edition, which reads that "Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet". A perusal of evidence of the eye-witnesses on this point would show that first they have given such distance (10-15 feet) in their evidence only a probable distance and second that this distance was between the accused (party) and the deceased. None of eye-witnesses has deposed that exactly from such distance accused Abdul Rehman fired at the deceased, nor does such suggestion appear to have been given to them by the defense counsel in their cross-examination. Further, the evidence of the eye- witnesses shows that they themselves were 50 to 60-65 feet away from place of incident at the relevant time and in between them and the deceased plus accused many people were going to and from. In such a scenario a witness, who is not an expert in discipline of measurement and whose attention by nature would be more to the incident itself than to remembering distance between accused and victim, cannot be expected normally to describe an exact distance between two persons who are 50-60 feet away from him. And it would be even difficult in a situation where those two persons/or more are in a moving state, which is the case here as is evident from the evidence of the eye-witnesses. It may also be pointed being relevant here that the medico-legal officer in reply to a suggestion has stated in cross-examination that blackening will occur, if fire is made from the distance of 10-15 feet and such assertion does not appear to be rebutted by the defense in the trial. Therefore, mere a disclosure of an-about-distance of 10-15 feet among the accused and the deceased at the time of incident by the witnesses would not be construed as a conflict between medical and oral evidence, and thus presence of blackening around the wound of entry on the deceased would not render the prosecution case against appellant Abdul Rehman as doubtful.
8. Regarding argument that prosecution has failed to establish motive part of the story and in these circumstances the prosecution evidence has to be considered with extra care and caution. It may be stated that there is no cavil to this proposition, however, at the same time it must be noted that in a murder case if prosecution alleges a motive but fails to prove the same, then such failure would be taken as a mitigating circumstance reacting against the sentence of death only.
Reliance in this regard can be placed on the case of Qurban Hussain v. The State (2017 SCM R 880).
In my humble view the failure of the prosecution to prove the motive although asserted in the case would in no circumstances be read as a failure of entire prosecution case, because it is not the legal requirement to prove motive in all circumstances. If the evidence of the witnesses is consistent otherwise on main aspects of the case and inspires confidence, the same can be relied upon and sentence as provided in law can be awarded to the accused. In the present case no doubt the prosecution has alleged that there was enmity between the parties over matrimonial affairs, which it could not establish, but except that the evidence of the witnesses against appellant Abdul Rehman has remained unshaken. Their evidence is further supported by medical evidence, recovery of incriminating weapon from him and report of Ballistic Expert. All said witnesses have been able to prove their presence at the relevant time satisfactorily by promptly registering the FIR in half an hour at police station that is at the distance of 1 K.M. from place of incident, which otherwise would not have been possible, because they are residents of Badin, which is about 50 k.ms away from place of incident. No material discrepancies have been pointed out, the ones, which learned defense counsel has referred to in his arguments, are insignificant and on the basis of which the statement of the eye-witnesses qua role of appellant Abdul Rehman could not be discarded. The trial court in view of prosecution's apparent failure to establish motive has already taken a lenient view and has awarded the sentence of life imprisonment, which for foregoing discussion is unexceptionable.
9. However the prosecution case against remaining appellants does not appear to be confidence- inspiring. The eye-witnesses have deposed that said appellants had fired upon them, but at the place of incident no spent bullet casings except a crime empty that was identified with the pistol recovered from appellant Abdul Rehman, was found. During the investigation, no incriminating weapon was recovered either from them to lend support to the prosecution case qua their role of being armed with pistols and firing at complainant party. Moreso, as per evidence of the eye- witnesses they were 50 to 60-65 feet away from the accused at the relevant time and there were many people between them. In such a situation their assertion that said appellants being armed with the pistols had fired upon them does not appear to be plausible and trust-worthy, nor does it relate to the circumstances stated by the prosecution in the case. The role of instigation ascribed to appellant Mubark by the eye-witnesses too is not credit-worthy because the question would be that if he himself was armed with the pistol and his intention was to kill the deceased, then why he did not fire at the deceased and instead instigated other accused to do so. Therefore, in my view the prosecution has not been able to prove its case against the said appellants beyond a reasonable doubt. The above observations, however, would not be read in favor of the appellant Abdul Rehman and on the basis of such observations the entire evidence of the witnesses could not be discarded, because it is the duty of the courts to sift grain from chaff and if one part of the evidence against an accused or a set of accused is found trust-worthy, it can be relied upon while rejecting the other portion of evidence, which is dubious, against the same accused or against a different accused or a set of accused. For reliance the decision of Honorable Divisional Bench of this court in the case of Abdul Ghaffar Ansari v. The State (2016 M LD 546) can be cited.
10. As a result of above discussion, the appeal of appellant Abdul Rehman is dismissed. However, the appeal of appellants namely Mubark, Muhammad Hussain and Muhammad Amin is allowed, they shall be released forthwith, if not required in any, other custody case.