1. MUNAWAR ALI KHAN, J.---This case arose from the murder of Ghulam Rasool son of Ghulam Murtaza, The F. I. R. Which is the basis of the case was lodged by the deceased's father and it is to the following effect : - "The complalnt is that I reside in village Jahan Khan Sodhar. I have five sons. Hussain, Ali Nawaz and Ghulam Rasool are elder ones and the remaining two are younger ones. I and my sons reside together in the same house. As usual, after taking meal at Somani time, I alongwith the inmates of the house went to sleep. At about 1-30 a.m gun reports were beard from north, towards Gahi Lakhir village. On hearing the firing, 1, my son Ghulam Rasool and my brother Dhani Bux went out of the house and came over the Katcha Road running between Thalo and Sitan. We saw four persons who came running from the north. When they came close to us, my brother Dhani Bux challenged them to stop. They retarted that we had no business and we had better go away silently. On their saying so, I flashed torch and on its light I recognized one of the culprits to be Sawali son of unknown resident of Gulzar Thebo-jo-Kote. He was armed with a single barrel gun. The remaining three persons were unknown to me. If I were to see them, I would recognize them. The gunman Sawali Rind fired at one and the shot hit my son Ghulam Rasool who raised a cry and fell down. On this I approached Sawali that he be ashamed for having killed my son. Then I and my brother Dhani Bux with the help of torch light, saw my son Ghulam Rasool having received gun pellets on his face and other parts of his body, profusely bleeding and having died. Meanwhile Mohammad Jaffar Sodhar, Ghulam Hussain Sodhar and Mohammad Hussain Lakhir and other villagers arrived there.
2. While narrating the above facts, we told them that accused Sawali had killed my son Ghulam Rasool by firing gunshots. On hearing this, Mohammad Hussain Lakhir said that firing had first taken place near his village. On fire shots they went out and saw one bullock and a pool of blood on this road. Soon thereafter firing took place near our village and he had come on hearing the sound.
3. Then leaving the above witnesses at the dead body of my son Ghulam Rasool, I have come here to lodge the report. Justice be done."
4. The F. I. R. Was registered by the A. S. I. Rasool Bux at 4-30 a.m., the same day, at the Police Station, Khairpur Nathan Shah situating four miles away from the place of occurrence. The A. S. I. Visited the wardat which was near the house of first informant. Beside securing the torch produced by the first informant, he took in ht's possession blood-stained earth, two crime empties and a wad of cartridge. Four days after the incident (i.e. 13th November, 1979) the accused Sawali voluntarily appeared before the A. S. I. And produced his licensed gun alongwith two live cartridges which were secured by the A. S. I. In presence of the mashirs. The gun, cartridges and two crime-empties were subsequently sent to the ballistic expert, whose report shows that the crime empties secured from the place of occurrence were fired from the gun produced by the accused. As a result of police investigation, accused Sawali and his brother Isso were placed on trial. Isso was however acquitted. Accused Sawali who was convicted under section 302, P. P. C. And sentenced to imprisonment for life and fine of Rs. 1.000 or in default R. I. For three months and pay compensation of Rs. 1.000 or in default suffer R. I. For three months, has preferred this appeal. The case is also before us to decide if sentence needs to be enhanced.
2. The dead body of Ghulam Rasool was sent to the Medical Officer. Khairpur Nathan Shah. Dr. Ashfaq Ahmed who was the Medical Officer conducted the autopsy and found the following external injuries on person of the deceased :- ---(1) A circular discrete pellet shot wound 1/4" diameter on the lateral. Aspect of the left arm on the lower part. Margins were inverted (wound of entrance).
(2) A circular discrete pellet shot wound 1/4" in diameter 2----- above injury No. 1. Margins were inverted.
(3) A circular discrete pellet shot wound 1/4" in diameter above and lateral to the right nipple, Margins were inverted.
(4) A circular discrete pellet shot wound 1/4" in diameter on the right side of the chest lower costal region axillary plane. Margins were inverted.
(5) A circular discrete pellet shot wound ----- in diameter on the right cubital fossa. Margins were inverted.
(6) A circular discrete pellet shot wound 1/3" in diameter on the posterior aspect of right elbow joint.
5. Margins were inverted.
(7) Small discrete pellet shot wound ----- in diameter, 1----- below the umblicus. Margins were inverted.
(8) Small discrcte pellet shot wound ----- in diameter 2----- above the umblicus. Margins were inverted."
6. In the opinion of the doctor, the Injury No. 4 individually and all the injuries collectively were sufficient to cause death which was the result of shock and haemorrhage produced by the said injuries. That the deceased died of the gunshot injuries is not contested even by the accused. The learned Sessions Judge, bas; therefore, correctly recorded his finding that the death of Ghulam Rasool was caused by the gunshot injuries.
7. The material point for consideration is whether accused Sawali was responsible for causing the death of the deceased. On this point the prosecution have sought to build their case on three pieces of evidence : namely, ocular evidence, corroborative evidence and the evidence of recovery of crime empties and their matching with the license, gun of the accused.
3. The eye-witness account is given by first informant Ghulam Murtaza who happens to be father of the deceased and his brother Dhani Bux. No doubt they are related inter se, but the relationship alone cannot render their evidence unacceptable. Nevertheless it is necessary to make a cautious scrutiny of their testimony. It is an admitted fact that there was pitch darkness at the time of incident. Both the eye-witnesses however claim to have identified accused Sawali from amongst four culprits by flash of torch, which was carried by the first informant. It has got to be examined if in the given circumstances, it was possible for the aforesaid eye-witnesses to have correctly identified the accused.
8. According to their own evidence, they saw the accused from very close range of 4 to 6 feet. They are, however, belied by the medical evidence which shows that the fire was made from a distance of 30 paces. The Medical Officer did not detect any charring or blackening of the wound, indicative of the close range of firing. We are, therefore, convinced that gunshot was fired from an appreciable distance. May be the eye-witnesses had made a mistake in identifying the accused.
9. In this connection reference may be made to 1970 P Cr. L J 633 in which it was held:- ---On behalf of the State it was argued that the respondent was identified by torch light. We are not influenced with this argument because, in our opinion identification in the light of the torch was not considered as sufficient piece of evidence."
10. In another case reported in 1968 P Cr. L J 590 it was observed :- --We are alive to the fact that the incident took place on a dark night, the identification of assailant by Arbab was through his torchwe feel that the possibility of mistaken identify cannot be satisfactorily excluded."
11. Thus it would be unsafe to uphold the conviction merely on the evidence of identification by torch light, unless it is corroborated by some other A independent evidence.
12. The learned Sessions Judge has sought the requisite corroboration from the F. I. R. Which in his opinion was lodged without any loss of time and the name of accused Sawali had been mentioned in that earliest version of the prosecution case. As disclosed in the F. I. R., the occurrence took place at 4.30 a.m., the distance between the wardat and the police station being 4 miles. We cannot persuade ourselves to support the learned Sessions Judge in his finding that the F. I. R. Was not belated: Even if the first informant went to the police station on foot, he would take hardly one bour to traverse this short distance. Still two hours delay remained unexplained. Again the mention of accused's name in the F. I. R., was of no consequence, when the identifica--tion on flash of torch was not free from doubt.
13. The other corroborative evidence relied upon by the learned Sessions Judge is the evidence of Mohammad Hussain and Mohammad Jaffar. They are stated to have arrived at the place of occurrence on hearing firing and-commotion. These witnesses do not claim to have witnessed the incident, muchless seen the accused. They were informed about the incident by the first informant and his brother Dhani Bux. As pointed out earlier the evidence of the first informant and his brother as regards the identification of the accused being of doubtful nature, the evidence of Mohammad Hussain and Mohammad Jaffar does not advance the prosecution case in any manner.
14. Lastly the prosecution have sought to derive support from the report of the ballistic expert. Two crime empties secured from the wardat were forwarded to the ballistic expert alongwith licensed gun of accused Sawali. As stated earlier the report disclosed that the two crime empties were fired from the accused's gun. The learned counsel for the State therefore argued that this piece of evidence has lent the much needed support to the eye-evidence. On the other hand the learned defence counsel launched a serious attack on this evidence which according to him lost whatever little value it carried because of the delay in sending the empties and the gun to the expert. These articles were shown to have been received by ballistic expert on 14th September, 1978, although the incident had taken place on 9th November, 1977 (i.e. Over a year before). There is absolutely no explanation as to what prevented the Police from sending the articles so late. The A. S. I. Rasool Bux who produced the report has told the Court that the S.H.O. Had forwarded the gun and the empties to the Ballistic Expert. Unfortunately the S. H. O. Has been examined. Thus the defence was deprived of the opportunity of eliciting explanation about the delay. The learned Defence Counsel therefore rightly argued that the authority Lald down in PLD 1981 SC 477 is not applicable in the instant case.
15. He has referred us to two cases reported as 1969 SCMR 714 and 1981 P Cr. L J 1313. In these cases, the delay in sending the incriminating articles to the expert was deprecated and the B learned Courts took the view that in such cases the evidentiary value of the report is lost and the prosecution cannot place reliance on such evidence. In view of these authorities the report of the ballistic expert is of no help to the prosecution.
16. There is one important aspect of the case which needs a little elabora--tion. It is in evidence of the prosecution that before the incident relating to the murder of Ghulam Rasool took place, firing was heard near the village of Gahi Khan Lakhir village. P. W. Mohammad Hussain who hails from this village has deposed to this effect. It is in his evidence that he was awakened inn gun report and as he and other villagers came out of their houses, they saw a pool of blood on the road leading to Sita Station and one bullock with gunshot injuries standing there. This is confirmed by the A. S. I.
17. Rasool Bux who has stated that he saw the wardat of earlier incident on the same path near Gahi Khan Lakhir village. At that place he found one bullock standing and noticed some blood. One hatchet was found by the A. S. I. At a distance of 10 to 15 paces from that place. He also secured one wad there. The prosecution have furnished no explanation as to how and in what circumstances the earlier incident involving the injured bullock etc. Had occurred. Obviously this incident had great hearing on the incident relating to the murder of Ghutam Rasool as both had taken place one after the other. The absence of explanation about the earlier occurrence casts a long shadow of doubt even over the incident of the murder, as if deceased Ghulam Rasool was killed in totally different circumstances.
4. After careful consideration of the mass of evidence brought on record, we have come to the conclusion that the prosecution have failed to prove the case beyond the reasonable doubt. The eye-evidence on which the case mainly hinges is of doubtful character. Identification by flash of torch has always been viewed with suspicion. Consequently I cannot provide a safe basis for conviction. The other evidence from which the prosecution tried to muster support, in the circumstances explained above, cannot be relied upon. It is, therefore, difficult rather unsafe to sustain the conviction.
5. The benefit of doubt always goes to the accused, Giving him the benefit of doubt, the conviction and sentence passed against the accused Sawali are set aside. The accused who is in custody is ordered to be set at liberty at one unless he is required in any other case.
18. S. G. D.