FAHIM AHMED SIDDIQUI, J.---This judgment will dispose of Criminal Appeal No, S-48 of 2007 titled as Talib Hussain Jatoi v. The State, through which the judgment dated 11-05-2007 passed by learned Additional Sessions Judge-I, Dadu, has been called into question, whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs,100,000/- and in default shall further suffer Rigorous Imprisonment for one year more.
2. The facts of the case unfolded in the FIR No,206/2003 of P.S. Mehar are that the complainant (Mohammed Uris) reported that some time back complaining party had a quarrel with Talib Hussain Jatoi and others. The dispute was got settled by the elders, but Talib Hussain, etc. could not root out animosity from their hearts. In the evening of 26.8.2003, the complainant, his nephew Zulfiqar Ali and his cousin Noor Muhammad went to Mehar Town for some personal affair in the rickshaw of Zulfiqar Ali. In the town, Munawar Ali also met them, and after addressing their interests, they all were returning to their village in the same rickshaw. It was 8.00 p.m. when they reached the link road leading to their village, they saw in the light of rickshaw that accused Talib Hussain armed with a Kalashnikov and Ahmed Ali (son of Talib Hussain) armed with a gun and one unidentified person having pistol who motioned the complaining party to stop. Accused Talib Hussain made a straight fire at Zulfiqar Ali with an intention to kill him, who fell by raising a cry. Accused Talib Hussain repeated fire at the back of Zulfiqar Ali, and the rest of the accused made a straight fire at the complaining party, but all of them, due to jumping from the rickshaw, remained safe. After that accused, decamped from the scene of offence while raising slogans. The complainant party brought injured Zulfiqar Ali to Taluka Hospital Mehar where he expired before getting any treatment.
3. After lodging of FIR, the present appellant and co-accused Ahmed Ali were arrested while co- accused Deedar remained absconder. The investigation was carried out, and after completing the investigation, the police submitted the final report against the present appellant as well as co- accused Ahmed Ali. A charge was framed against the accused persons by the trial Court to which the appellant denied all the allegations leveled by the prosecution against him. I would like to reproduce the relevant portion of charge framed against the accused persons, which is as under:- - "That you on or about 26-8-2003 at about 20:00 hours in the night- at link road of village Ali Mardan Jatoi, leading towards Ramjhoo Wah Mori, being armed with deadly weapons along with absconding co-accused Deedar son of Roshan Jatoi in furtherance of your common intention caused armed injuries to deceased Zulfiqar Ali who succumbed to his injuries and died and that you thereby committed an offence of Qatl-iAmd, being punishable under section 302, P.P.C. read with Section 34, P.P.C. within the cognizance of this court. I, further charge you that on the above said date, time and place being armed with deadly weapons, along with absconding co-accused Deedar son of Roshan Jatoi in furtherance of your common, intention fired at complaining party with such intention and under such circumstances, that, if by that act of firing any of the PWs ' of the complaining party had died, you would have been guilty of murder, and then you thereby committed an offence of attempt to commit Qatle- Amd being punishable under section 324 read with section 34, P.P.C., within the cognizance of this Court."
4.After framing of charge, the prosecution was required to prove the guilt of accused persons from the available evidence. The prosecution examined as many as eight witnesses with the following details:-- i. PW1 Mohammed Uris (complainant), he gave the ocular account of the incident by reiterating the facts narrated in the FIR. ii. PW2 Noor Mohammed (eye- witness), he gave an ocular account of the incident. iii. PW3 Munawar Ali (eye-witness), he also gave an ocular account of the incident. iv. PW4 Dr. Mohammed Umar (MLO), he conducted the postmortem and described the seats of injuries and cause of death. v. PW5 HC Gul Mohammed (official witness), he is formal witness who handed over dead body To legal heirs of deceased. vi. PW6 Nabi Bux (marginal witness of memos), he produced memos of seen of corpse, inquest report, scene of offences, collecting of clots of deceased, arrest of accused, and recovery of crime weapon. vii. PW7 ASI Ghulam Sarwar (official witness), he scribe the FIR as per verbatim of complainant. viii. PW8 ASI Ghulam Mustafa (investigating officer), he described the entire investigation conducted by him.
Subsequent to the closure of side by the prosecutor the accused persons recorded their statements under Section 342 of Cr.P.C. but neither they preferred to be examined on oath nor produced any defence witness. Thereafter the trial Court after hearing the Advocates of parties pronounced the verdict through which accused Ahmed Ali was acquitted and accused Talib Hussain was convicted as mentioned above.
5.The learned counsel for the appellant addressed the Court at length. Mainly his arguments based on false involvement of the appellant in the instant case. According to him there are so many doubts in the entire case of the prosecution. Hepointed out certain contradictions in the statements of witnesses in respect of ocular account as well as medical contradictions about seats of injuries and number of injuries. He also contended that the motive has been alleged within the FIR but it was completely abandoned by the prosecution. According to him, in fact no recovery was effected from the appellant. He submitted that the car driver was an important witness and he should have been examined, but he was not produced before the trial court by the prosecution. His contention is that without testifying the car driver, the accurate picture remained unclear. Per him, the appellant has moved an application himself for calling the driver as witness but the learned trial judge did not consider the same and even no order was passed on it. He took reliance from the following case laws: Amin Ali and another v. The State (2011 SCMR 3233). ii. Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812). iii. Basar v. Zulfiqar All and others (2010 SCMR 1972). iv. Umar Hayat and 3 others v. The State (1997 SCMR 1076). v. Nazir Muhammad alias Nazir Ahmed v. The State (PLD 1974 Karachi 274). vi. Nawab and 4 others v. The State (2002 PCr.LJ 915). vii. Ansar Mehmood v. Abdul Khaliq and another (2011 SCMR 713). viii. The State v. Muhammad Yaqoob and others (2001 SCMR 308). ix. The State/Anti-Narcotics Force, Regional Directorate, Sindh through Deputy Director (Law), Clifton, Karachi, v. Shakeel Ahmed Siddiqui (PLD 2003 Supreme Court 916).
6. The learned APG for the state while supporting the impugned judgment submitted that the judgment is proper, well-reasoned, according to the proper appreciation of evidence as such the same does not require any interference of this Court. He contended that motive is least necessary in the murder cases and there are certain case laws of the superior courts regarding the same issue.
7. The learned counsel for the complainant submitted that under the instruction, he would support the contention of the learned counsel for the accused, as complainant party patched up with accused. The learned prosecutor recorded his objection by submitting that a compromise application was filed but the same could not be materialized because of non-production of the widow of deceased. According to him, the right of compromise is available to the widow of deceased and complainant alone cannot compromise with accused. He again emphasized that sufficient and convincing evidence has come on record, hence, sentence awarded by trial court to be maintained.
8. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
In the light of this principle, I have evaluated the entire prosecution evidence under the assistance provided by the learned counsel for the appellant and learned prosecutor by making their valuable submissions. The perusal of evidence on record shows that the ocular evidence brought by the prosecution consists of the testimony of complainant Muhammad Uris (PW-1) and two of the eye- witnesses namely Noor Muhammad (PW-2) and Munawar Ali (PW-3).. The medical evidence is come on the record through Medical Officer, Dr. Muhammad Umer (PW-4), who conducted the postmortem of the deceased. After going through the evidence so recorded, I found that the witnesses contradict each other on some of the important points in respect of seats of injuries to the deceased and occurrence, of the episode. I have noticed several contradictions in ocular testimony as well as medical evidence.
9. As per complainant and eye-witness Noor Mohammed (PW-2), the accused has fired upon deceased from a distance of 3/4 paces while medical officer (PW-4) in his cross-examination disclosed that the deceased received firearm injury within three feet, but he did not notice any blackening, charring or even tattooing marks around any of .the injuries. I am of the view that at such a close distance at least charring has to be seen. The eyewitness Munawar Ali (PW-3) in his deposition has stated that the present appellant repeated fire on the person of deceased which hit him on his left shoulder but in post-mortem no such injury is reported by medico legal officer. The complainant in his deposition has stated that the deceased received a second shot on his abdomen, eye-witness Noor Mohammed (PW-2) has said that he received a second shot on his backside while eye-witness Munawar Ali, in his deposition has stated that the deceased received second shot fired by the appellant on his left shoulder. In my humble _view these are the major contradictions in respect of seats of injuries as the complainant and eye-witnesses are not in harmony with each other but also it is contradicted by the medical evidence.
10.There are some other noticeable contradictions in the deposition of complainant and eye- witnesses. The complainant during cross-examination stated that he and PW Noor Mohammed were sitting in the rickshaw in the rear seat while PW Noor Mohammad said that the complainant was sitting on front seat of rickshaw with the deceased. The complainant disclosed that they had purchased potato, mango and onion by stopping their motorcycle rickshaw adjacent to a restaurant at Ghanta Ghar while PW Noor Muhammad stated that they stopped the rickshaw near Taluka Hospital Mehar and they all went to different shops to purchase potato, onion and ghee.
11. Another aspect of the case is important; it is stated by the complainant and eye-witnesses that they identified the accused persons in the headlight of motorcycle rickshaw. I am of the view that it is a weak source of identification in the dark night of a link road of rural area. It is also worth mentioning that neither the rickshaw nor headlight was produced before trial court as an important article on which the identification of accused rests. In absence of no other source of identification and non-Collecting of the article, which is the only source of identification, during investigation and non-production of the same before the trial court is fatal for the case of prosecution. In this respect, I would like to take reliance from the case reported as Basar v. Zulfiqar Ali and others (2010 SCMR 1972) and Haleem and others v. The State (2017 SCMR 709).
12. It is the case of prosecution that the appellant used a Kalashnikov in the incident but during investigation, recovery of Kalashnikov was not effected from the appellant, despite of the fact that the appellant remained in custody for a considerable period of time. Even nothing has come on record regarding the non-recovery of said weapon. No doubt, in the case of strong and confidence inspiring evidence, non-recovery and non-production of crime weapon are not fatal for prosecution case, but for suchlike cases, recovery of the crime weapon and the production of the same during trial is necessary as a corroborative piece of evidence. Similarly, the offences may be committed without motive but once the motive is taken by prosecution then it becomes obligatory for it to prove the same. In the instant case, the complainant in FIR stated that accused persons are residing in his village and opposite to his house and some time ago some dispute arose between the appellant and deceased which was got settled on Holy Quran but appellant Talib Hussain could not root out the animosity from his heart, which was resulted in the incident. This motive was abandoned by the prosecution during entire trial and nothing about the same was said by any of the prosecution witness. It has not come on the record that the appellant or other accused are known for criminal activities, i,e, theft or robbery, as such the reason for the occurrence of the incident depends on the motives taken by the complainant in his FIR. The said motive, might be weak, but it is required to be established during trial. I am of the view that abandoning a motive, once taken, itself fatal to the case of the prosecution. In this respect, I would like to take reliance from a case of the division bench of this court reported as Nawab and 4 others v. The State (2002 PCr.LJ 915).
13. Summing up the above, I am of the considered view that the case of prosecution against appellant Talib Hussain was of course symptomatic of deficiencies owing to failure on its (prosecution) part to lead positive and concrete evidence regarding the guilt of accused. There are contradictions in the testimonies of the prosecution witnesses on important points described in the preceding paragraphs.
14. For the reasons stated above, I, on appreciation of the entire material on record and taking into consideration the arguments addressed on behalf of the parties, am satisfied that the prosecution has failed to prove the case beyond all reasonable doubt against the appellant. Therefore, the appeal stands allowed; the conviction and sentence awarded to appellant vide impugned judgment dated 11.05.2007 passed by Additional Sessions Judge-I, Dadu is set-aside and appellant Talib Hussain Jatoi is acquitted of the charge. He shall be set at liberty forthwith, if not required in any other case.