MUHAMMAD HALEEM, J-Appellant Minhoon was tried for the murder of Fakir Muhammad for attempted murder of Qasim, for causing simple injuries to Moharam and for committing theft, convicted under sections 302/34, 307, 323/34 and 382, P. P. C. And sentenced on the first count to transportation for life, on the second to four years' rigorous imprisonment, ran the third to three months' rigorous imprisonment and on the fourth to one year rigorous imprisonment, by the learned Additional Sessions Judge. Dadu, vide judgment dated 14th October 1971, The sentences were ordered to run concurrently. Three other persons, namely A.I Gohar, A.I Hassan and Kouro were also tried along with him but they were acquitted. The appellant has appealed to impugn his conviction and sentences.
2. According to the prosecution case, the incident occurred at midnight on 3rd April 1970 in the courtyard of Khamiso's house in village Aliwal, taluka Mehar. Khamiso, his father Faqir Muhammad , his son-in-law Moharam, and sister's husband Muhammad lived in the same house in the aforesaid village. At the time of the incident, Moharam slept in the passage of the house leading to the entrance while the others in the courtyard. All of them woke up on the cries of Moharam. They saw a man driving away a bullock towards the passage. They followed him. There were other persons who were waiting at the passage. Khamiso flashed his torch at them and identified one of the culprits as Kinhoon, who was armed with a country-made pistol. Faqir Muhammad advanced towards the culprits, whereupon Minhoon shot at him, as a result of which he sustained injuries of his chest and fell down. The others out of fear kept behind but they followed the man who was driving away the bullock. He left it and caused blows with the blunt side of the hatchet, but to whom it is not apparent from the F. I. R. On hearing the commotion, Qasim, Shaman and others responded and challenged the culprits, whereupon they were also shot at as a result of which Shaman and Qasim received pellet injuries. They thereafter left pursuing the culprits out of fear, who managed to escape in darkness. Moharam at the same time informed Khamiso that one of the culprits dashed against his cot, upon which he woke up and shouted at him. That culprit abused and caused a blow with the blunt side of the hatchet on his forehead; and he identified him to be Kouro. He also claimed to have identified Minhoon who was armed with a pistol and had fired. Faqir Muhammad who had received gunshot injuries had by then expired. Khamiso after informing his Zamindar, Muhammad, lodged the F. I. R. At 9 a.m. At Police Station Mehar, 10 miles away.
3. Ghulam Mustafa S. H. O. After recording the report repaired to the wardat. He saw the dead body of Faqir Muhammad lying on a cot near the shed. He secured blood-stained earth from there and one crime empty which was lying at the passage near the entrance by the side of 'patar'. He saw the place where Shaman and Qasim had received injuries which was 50 paces away from the house of Khamiso. He secured a torch produced by Khamiso vide mashirnarna, Exh. 14/3. He also secured a bullock which was produced by Khamiso vide mashirnama, Exh. 14/4. He recorded the statements of Shaman, Qasim and Moharam and sent them for examination and treatment to medical officer, Mehar. He next examined Muhammad son of Ramzan, Muhammad son of Ghulam Muhammad, Soomar and Ahmad. He arrested appellant Kouro from village Phuri on 26th April 1970.
Appellant Minhoon was arrested the same day from village Aliwal. On the next day appellant Minhoon led mashirs, Karimbux and Haroon, to the module of watercourse No. 16/A. R. Which was dry at that time. The appellant removed some bricks and from the bed of the module he produced a country-made pistol which was secured vide mashirnama, Exh. 15/3. Acquitted accused A.I Gohar and A.I Hasan voluntarily appeared at the police station on 27th April 1970 and, they were arrested.
They were put to identification test the same day and P. Ws. Khamiso, Muhammad and Maharam identified A.I Hasan. Khamiso and Muhammad, however, failed to pick out A.I Gohar while Moharam picked him out. The crime empty and the pistol were sent for matching to the forensic laboratory, but according to the evidence of the ballistic expert, the crime empty was not fired from the pistol.
4. P. Ws. Moharam, Qasim, Shaman and Khamiso were examined by Dr. Muhammad Hashim. On Moharam, he noticed one lacerated wound on the left side of the forehead just above the eyebrow which, in his opinion, was simple in nature and appeared to have been caused by a blunt weapon, such as lathi. On Qasim he noticed four gunshot injuries which too, in his opinion, were simple in nature and caused by the discharge of firearm. On shaman, he noticed the following injuries:- "(1) One abrasion --x -- ' on the front of right thigh at middle 1/3 rd.
(2) One abrasion -- ' x 1/6' on the front of right thigh one inch above. The injury No. 1.
(3) Abrasion -- ' x 1/8 " on the lateral side of right thigh at middle 1/3 rd.
(4) Abrasion-- ' x 1/6 ' on tote lateral side of right thigh 1 -- ' above the injury No. 3.
(5) Contusion over the front of right little finger."
According to him the injuries were simple in nature and appeared to have been caused by some hard and blunt substance. He also expressed that injuries 1 to 4 could also be caused by fail on some rough substance, such as "ground or bushes". On Khamiso, he noticed one scabbed abrasion on the chest `which was simple in nature and appeared to have been caused by some blunt weapon. He again expressed that it could also be caused by a fall on the ground. The same doctor performed autopsy on the body of the deceased. He noticed the following injuries:- "(1) 130 pellet wounds of entrance of pea size deep in the chest cavity scattered over the front of the chest above and in between the nipples and also around the left nipple,
(2) Oval abrasion -- " x -- " on the front of right side of chest 2 --' above and medially to right nipple.
(3) 17 pellet wounds scattered on the medial side of the left arm of pea size skin deep at its middle 1/3rd.
Which, in his opinion, were caused by the discharge of a firearm and that injury No. 1 was individually sufficient in the ordinary course of nature to cause death. He further opined that the shot was fired from a distance and that death was instantaneous.
5. When called upon to enter defence, the appellant denied his involvement in the crime and pleaded that the witnesses, who had deposed against him are related inter se. Lastly, he denied the production of the pistol.
6. The prosecution examined Khamiso, Moharam, Muhammad Bus and Qasim to furnish direct evidence in the case. While scrutinising the evidence there appear features which leave room for doubt as to the identity of the appellant and also reflect on the--credibility of these witnesses. Over 130 pellet injuries won noticed on the deceased. It could not be the result of one shot as is deposed to by the prosecution witnesses. It is true that the doctor has not spoken of more than one shot, but one cartridge is not likely to contain so many pellets. The crime empty did not match with the weapon recovered at the instance of the appellant. There is, therefore, no assurance of the ocular testimony. In the F. I. R. Khamiso merely stated to have identified Kouro while he gave the name of the appellant on being informed by Moharam that be had identified the appellant. However, in his deposition he stated that he identified Minhoon and that three persons had caused blows to Moharam whereas only: one lacerated injury was found on him. Moharam ascribed this injury to Kouro alone who has been acquitted. Further Khamiso stated that he was given injuries by the companions of the thief who was driving away the bullock but only one scabbed abrasion was noticed which was too insignificant to be caused with a blunt weapon. It could, as is opined by the doctor, be the result of a fall on the ground or by striking against some object. The injuries on Shaman, who has not been examined, are also not consistent with the medical evidence. He is stated to have received gunshot injuries, whereas the doctor stated that they were caused by a blunt weapon. Again Mobaram denied when confronted with his police statement that it was A.I Gohar who was armed with a pistol and it was he who had fired it and that the appellant was armed with a hatchet. Muhammad Bux also stated in his police statement with which he was confronted that it was All Gohar who had fired the pistol. Muhammad Memon, a corroborating witness ascribed a statement to Khamiso in his police statement, with which he was confronted, that it was A.I Gohar who carried a pistol and had fired the shot. All these contradictions stand proved. The witnesses are, therefore, not agreed even as to the culprit who was armed with the pistol. Qasim, who was injured, has not identified any of sue culprits. His evidence, there--fore, does not advance the prosecution case any further. The above contradictions indicate that some of the prosecution witnesses have resiled from the earlier version and attributed at the trial the pistol shot to the appellant. The confusion in the context of the contradictions and inconsistencies leaves room for doubt as to whether they had in fact witnessed the occurrence with any certainty.
Kbamiso admitted that it was dark night and that he bad identified the appellant on torch light.
Whether he had one is doubtful. According to him, he had purchased it 8 or 10 days before the incident, whereas Moharam stated that it was purchased 2 or 3 months before. What was the occasion to purchase it 8 or 10 days earlier is not apparent. He had also not produced it at the time of lodging the F. I. R, It. As stated by him. It was produced the next day at the wardat. In the circumstances, it is plausible that it may have been procured and produced to lend weight to the identification of the appellant.
7. The trial Court has accepted the identification of the appellant while giving the benefit of doubt to A.I Gohar, A.I Hasan and Kouro. His case stands on no different footing. The witnesses have indulged in prevarications to an extent that it is not possible to accept their ipse dixit. Two eye- witnesses, namely Moharam and Mohammad Bux in their earlier version have attributed the pistol shot to A.I Gohar. It is not possible to reconcile this discrepancy when the case entirely rests on the ocular testimony. The trial Court has resolved the benefit of doubt in favour of the prosecution while convicting the appellant, which is not correct. The learned State counsel in the circumstances has not supported the convictions of the appellant. The prosecution has accordingly failed to establish the guilt of the appellant. We would, therefore, give to him the benefit of doubt and acquit hind.
While accepting his appeal we would direct that he shall be released forthwith unless required in some other case.