1. HAIDER ALI PIRZADA, J.--The appellant Guhram has been convicted by the Ist Additional Sessions Judge, Shikarpur for offence under sections 302 of the Pakistan Penal Code for causing the death of Haroon deceased. For the offence under section 302, P.P.C. He has been sentenced to death and a fine of Rs.5,000 or in default to undergo imprisonment for a period of one year. The sentence of imprisonment is to take effect only if the sentence of death is not confirmed. He has filed this Appeal against his conviction and sentence and the learned Additional Sessions Judge has also made a reference to this Court for confirmation of the death sentence. This judgment will dispose of both the appeal and the reference.
2. Alongwith the appellant his two cousins Gulbahar, Sawan and Shikeri were also alleged to have taken part in the occurrence. Shikeri absconded soon after occurrence and as such he was not available to stand his trial. Gulbahar and Sawan were acquitted by the learned Additional Sessions Judge.
3. It was alleged by the prosecution that deceased Haroon had got his sister married with one Mirbahar, the brother of appellant Guhram and cousin of Gulbahar and Sawan about 8 to 10 years back. Appellant Guhram had given his sister's daughter to deceased Haroon in exchange of above marriage of sister of deceased Haroon with Mirbahar. The appellant subsequently detained Mst.
4. Pathani, the wife of deceased Hooran. Thereafter Mirbahar was murdered and in that case father of deceased Hooran, Guhram and Qasim Jafferi were challaned by Garhi Yasin Police but they were acquitted by the Sessions Judge Sukkur. After the murder, Mst. Pathani was kept by her relatives Shikeri, Guhram appellant and they refused to give her and they gave out that they would take revenge for the murder of Mirbahar. On 26-11-1977 in the evening the complainant Sa jan (P.W. No.l) deceased Hooran his brother Afghan Oghan (P.W. 2) and Mst. Ajeeban (P.W.3) came to Dawakhana Zahir Muhammad Prayal as Haroon was sick. Doctor Zawar Muhammad Prayal had gone to his house for meals. Deceased Haroon was sitting on the sandal and they were sitting near the bench.
5. At about 4 p.m. Appellant Guhram was armed with a gun while the remaining were armed with hatchets. They gave Hakals to Hooran and said days of Hooran had completed. In the meantime appellant Guhram fired gun shot at Hooran which hit him on his chest on right side and he fell down. They ran away towards southern side. Thereafter Zahir Muhammad Paryal came there. They saw Hooran had died due to gunshot injuries. The complainant made to sit the witnesses over the dead body and went to lodge F.I.R. And lodged F.I.R. At P.S. Ghulam Shah which was recorded by Muhammad Tahir, S.H.O. In Roznamcha under entry No. 7 at about 9 p.m. The S.H.O. Sent this entry of Station Diary for incorporating the same in 154 Cr.P.C. Through P.S. Allah Wadhayo which was recorded by A.S.I., Bakhsh Ali.
6. The S.H.O. Proceeded to the place of occurrence. He prepared the inquest report (Exh. 27) in the presence of Mashirs. He sent the dead body for post-mortem report to Civil Hospital, Shikarpur. He collected two empty cartridges from scene of offence.
7. The post-mortem examination of deceased was performed by Doctor Mehboob Ali. The deceased had the following three injuries on his body.
(1) A lacerated wound about 2" in diameter x chest deep on front of right chest about 1/2"above right breast. There was no charring.
(2) Multiple lacerated wounds about 1" to 1/6" x 3/4"skin deep on the front of chest. There was no charring.
(3) Multiple lacerated wound about 1/2" to 1/6" x 1/6" to 1/4" x skin deep on front of right upper arm.
8. There was no charring.
9. In the opinion of the doctor injury No. I was sufficient to cause death in normal course of life individually. In his opinion death of the deceased was due to haemorrhage and shock as result of injuries on vital organs on the chest due to discharge of fire arm.
10. The appellant pleaded not guilty to the charge against him. He denied that he was responsible in any manner for causing the death of the deceased Haroon. He alleged that he had been falsely implicated on account of past enmity. No evidence, however, was produced in defence.
11. The case of the prosecution rests entirely upon the testimony of Sajan (P.W. No. 1) Afghan (Oghan)
12. (P.W.2) and Mst. Ajeeban (P.W.3) as eye-witnesses. The recovery of one single barrel gun along with two live cartridges from the appellant is supported by Behram Shah, A.S.I. And H.C. Mir Muhammad.
13. The motive is supported by Sajan (P.W. No.l and his other relatives.)
14. It may be observed at the outset that all the four accused persons are closely related inter se. Out of them two are cousins of the appellant Guhram. Similarly, all the material prosecution witnesses are also related inter se. Sajan (P.W. I) is uncle of deceased Hooran. Mst. Ajeeban (P.W. 3) is real sister of deceased. The learned Additional Sessions Judge against the present appellant found that the ocular testimony of the interested witnesses was fully corroborated by the motive attributed to him, the recovery of single barrel gun and the medical evidence. Accordingly he convicted and sentenced the appellant as mentioned above.
15. It is vehemently argued by Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, that the case of appellant as the so--called pieces of corroboration evidence have not been fully established against him. The first item used against him is the motive. According to the prosecution about 8-9 years back deceased Hooran married his sister Mst. Ajeeban (P.W.3) with Mirbahar Jafri. In exchange deceased Hooran married with the niece of Mirbahar Jaferi namely Mst.
16. Pathani daughter of Lakhmir. Thereafter Mirbahar was murdered, in that case Qasim, the father of deceased Hooran, Gulu were challaned by Garhi Yasin Police Station in that case but they were acquitted by Sessions Judge, Sukkur. After the murder Mst. Pathani was kept by her relatives Shikeri and Guhram appellant and they refused to give her and they gave out they would take revenge for the murder of Mirbahar. Exh. 30 is the copy of the F.I.R. Lodged by the Shikeri against Qasim, the father of the deceased Malhoo and Guloo for the murder of Malbar. The present appellant was not shown as a witness nor the name of the deceased appeared as co---accused. This F.I.R. Was lodged on 28-7-1971. After going through the above material, we are clearly of the view that the prosecution has failed to establish the alleged motive against the appellant.
17. Now we take up the question of the alleged recovery of single barrel gun at the instance of the appellant. The recovery memo. Of single barrel gun (Exh. 32) which is attested by A.S.I. Bahrain Shah and H.C. Mir Muhammad. The prosecution did not produce Mashirs A.S.I. Behram Shah and constable having buckle No. 405 Mir Muhammad but has relied only upon the testimony of Muhammad Tahir, S.H.O. (P.W.8). According to this memo. The Mashirs along with S.H.O.
18. Muhammad Tahir left P.P. Lakhi Ghulam Shah at 9 O'clock to village Maril and when they reached at Jamirs village at 4-30 hours near Jamirs village at a bund a man armed with a SBBL gun was coming who on seeing them he tried to run away in the jungle but they at once circled him and caught hold of him. He disclosed his name as Guhram and declared his gun unlicenced and they secured the gun and it is in working condition and there was one cartridge in its barrel of .12 bore.
19. The occurrence took place on 16-11-1977 and appellant Guhram was arrested on 13-12-1977. It is an admitted fact that appellant Guhram was arrested from village Jamira. There must be shops and residential houses around the place of recovery, but none was produced to support the present recovery. There is another very material circumstance which goes against the prosecution. The Investigating Officer did not send, two empty cartridges Shaheen Company out of which one was empty and one missed secured from the place of occurrence and the single barrel gun along with one cartridge secured from the appellant Guhram, to the ballistic Expert for his opinion.
20. Consequently, in the absence of the ballistic expert's report and opinion about the firing of the crime bullet from that weapon did not advance the prosecution case against the appellant. Even if the gun was secured from the appellant, there was no proof that he had shot with it, it would not be safer to convict him on the basis of the evidence of the interested witnesses.
21. As regard medical evidence, that also does not help the prosecution. The mere fact that the doctor found three injuries on the person of the deceased will not automatically corroborate the testimony of eye--witnesses that the injuries were caused by the present appellant and none else. According to the statement of Satan (P.W.1) appellant Guhram challenged deceased Hooran to be careful and he was firing at him. On this challenge Hooran got up but in the meantime accused Guhram fired at him and the gunshot hit him in the right side of the chest. Hooran fell down and accused went away. Similar is the statement of Afghan (Oghan) (P.W.2) Mst. Ajeeban (P.W.3) in her statement stated that appellant Guhram fired with a gun at her brother Hooranwhich hit him in the right side of his chest. She has also stated that appellant had fired in all two shots at her brother.
22. The first gun shot had missed. According to Sajan (P.W.1) the shot was fired from nearby distance of 2 or 3 paces similar is the statement of Mst. Ajeeban (P.W.3). According to the medical evidence the shot was fired beyond the distance of six feet. On this point also the medical evidence goes against the testimony of the eye-witnesses. Thus, we find that in the first instance the medical evidence does not corroborate the occular testimony and even if does, then it will not prove that the appellant who fired the gun shot. Sajan and Afghan have stated that only one shot was fired whereas Mst. Ajeeban has stated that two shots were fired. It is clear that the appellant was the main enemy of .The appellant. The possibility of false attribution of these injuries to the appellant, therefore, cannot be excluded. As there were in all four accused persons, who according to the prosecution participated in the alleged occurrence, the possibility that some other accused may have fired a gun shot can also be not ruled out. It is an admitted fact that adult male members of the family of the appellant were involved in two cases. This clearly establishes that enmity of the complainant party with the present appellant. In this background, the plea of the defence that the fireshot which hit the deceased is falsely attributed to the appellant may be probable. It is pertinent to note that Mr. Muzaffar Hussain the learned counsel for the State has not supported the conviction.
23. After going through the entire record and taking into consideration the facts and circumstances of the case we find that the case is not free from doubt of general character. The prosecution has not relied on the evidence of Doctor Paryal and other persons who were at the hospital. The State did not challenge the acquittal of the co-accused persons. The circumstances relied upon by the trial Court as corroboration in fact not proved as corroborative. The following observation of their Lordships of the Supreme Court in Wasiullah's case PLD 1963 SC 25 are fully applicable to the present case:-- "On further examination, it appears that the case is not free from doubts of a general character.
24. These are caused by (I)-the false inclusion of the name of Hassan Ali at the outset, and the circumstances attending its exclusion later, (2) the weakness of the evidence to show recovery of the alleged "crime empties" and (3) the dubious manner of the arrest of five of the accused persons, and of the recovery of weapons and cartridges both live and empties from them. When such be the case, and the main direct evidence be also that of interested persons i.e., enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt."
25. For the foregoing reasons, we find that the prosecution has not been able to prove the guilt of the present appellant beyond reasonable doubt. Accordingly giving benefit of doubt to the appellant we accept this appeal, and set aside his conviction and sentence and acquitted him by short order, dated 11-3-1986 and the above are the reasons for the same.