1. ' SALEEM AKHTAR, J.---Haji Usman reported on 17-1-1982 at 1715 hours that he, his nephew Ghulam Sarwar, Lutf Ali and Haji Gambal son of Muhammad Hussain all by caste Buriro with other relatives had come to village Daffar to attend the marriage of Usman who is related to them. From there these four persons had gone to Shrine of Gul Shah to offer Fateha. After offering Fateha at about Tripahri time they came to the Autaq of Ghulam Haider Shaikh where the complainant, Lutf Ali and Haji Gonio sat on one cot lying on the northern side and Ghulam Sarwar sat on the cot on the southern side opposite to their cot. All of a sudden from northern side Achar son of Ali Bukhsh Burdi emerged holding a double-barrel gun in his hand. He fired from both barrels at Master Ghulam Sarwar directly which hit him on his arm, abdomen and neck. Out of fear they could not go near him and Achar ran away towards the jungle on the northern side. They then went to Ghulam Sarwar who was bleeding profusely and died. It was also alleged in the F.I.R. That about six months back appellant's son Ali Bukhsh was caught while committing theft and was hit by brick on account of which he died in the hospital. The appellant shifted from village Gather and in order to take revenge for his son he has murdered Ghulam Sarwar as he belonged to Buriro caste. After investigation the appellant was challaned. The prosecution examined eight witnesses. In his statement the appellant denied the charges as false and that he. Has been implicated because of enmity. He refused to give statement on oath. The learned Sessions Judge by the impugned judgment convicted the appellant under section 302, P.P.C. And awarded him death sentence with fine, amounting to Rs,1 lac and in default of payment of fine' awarded rigorous imprisonment for five years. In addition, exercising power under section 544, Cr.P.C. The appellant was ordered to pay Rs,2 lacs to the heirs of the deceased Master Ghulam Sarwar. The eye-witnesses viz. P.W. 1 Haji Muhammad, P.W. 2 Haji Gambal and P.W. 3 Lutf Ali are related to the deceased. The prosecution also examined Dr. Abdul Oadeer P.W. 2 who had produced and proved the post-mortem report of the deceased. P.W. 7 Rustam Ali related to the deceased was examined who had acted as Mashir for recovery of empties, arrest and recovery of gun. The ballistic expert's report confirmed that the empties sent for examination matched with the gun of the appellant. It may also be mentioned that the 'Ban of the cot' and earth were found to be stained with human blood as certified by the chemical examiner.
2. ' Mr.Muhammad Hayat Junejo, the learned counsel for the appellant has contended that all the three eye-witnesses are closely related with the deceased and if they were sitting together or close to each other when the gun shots were fired twice then they should have received some injuries but none of them have been injured and therefore, their evidence cannot be believed. It is true that the eye-witnesses are related to the deceased, but this fact by itself is not sufficient to discredit their testimony. The closely related witnesses can be as reliable witnesses as a completely unknown and stranger witness. The credibility of a witness does not depend upon relationship but it should flow from the statement which he deposes. It is the nature and quality of the statement of a witness which should evoke confidence and trust. There can be no hard and fast rule that any person who is closely or distantly related to the complainant/deceased would always be an untrue and interested witness nor can-it be said with all force and universal application that any person who is a stranger and is not related to the deceased will always be a true witness. The relationship and nearness cannot be the only touchstone, but it may be an important factor in assessing the worth of evidence and credibility of the statement of the witness. The statement of a witness can be accepted or rejected only after it has been examined thoroughly with reference to the facts and circumstances and the evidence of other witnesses recorded in the case. Reference can be made to 1968 SCMR 1059, 1969 SCMR 302, PLD 1983 SC 401; PLD 1976 Kar. 438; PLD 1976 Kar. 1205; 1984 PCr.LJ 965; 1985 PCr.L.I 1803 and PLD 1988 Lah.
557. The evidence of witnesses who are related or close to the deceased should be scrutinized carefully Ref. 1978 SCMR 136.
3. ' The learned counsel for the appellant contended that the statement of P.W. 1 is contradicted by the medical report. P.W.1 has stated that all the four persons including the deceased had taken meals at village Daffar a little before proceeding for Fateha and the incident took place 20 minutes after leaving village Daffar. On the statement of P.W.1 the gap between the taking of food and the murder of the deceased would have been less than one hour. According to the medical report semi-digestod food was found in the stomach of the deceased. This adversely reflects upon the statement of P.Ws.1 and 2 and their authenticity becomes doubtful. In these circumstances the fact that they are related to the deceased becomes relevant for determining the authenticity of their statement. P.W.3 who is also an eye-witness stated that they had not taken meals before going to Mazar. After waiting for half an hour without taking meals they went to Mazar. He, however, explained that they had taken lunch in their village before coming to village Daffar. This statement contradicts the statement of P.Ws.1 and 2 and seems to have been made to improve the case and to make it consistent with the medical report. According to Mr.K.M.Nadeem the statement of P.W.3 is corroborated by medical report. The fact, however, remains that in view of contradiction in the statements of P.Ws.1 and 2 and P.W. 3 with regard to the time of taking lunch makes the statement of P.W.3 doubtful. Normally in the villages lunch is served during marriage ceremony. P.Ws. 1, 2, 3 and deceased had left their village at about noon time for Daffar, which is about 6 to 8 miles away.
4. They reached there by bus. Therefore, question of taking food before leaving their village is remote possibility particularly as they were going to attend marriage ceremony where food was to be served. The semi-digested food in the stomach of the deceased has been referred to establish the time of death and further to show that P.Ws. 1, 2 and 3 were giving false evidence and were not present at the time of incident. P.Ws. 1, 2 and 3 had narrated series of facts to establish that when they proceeded from their village till the incident all of them were together with the deceased. The contradiction between their statement regarding time of taking food and the medical report may not by itself be sufficient to completely discard their testimony but in view of further contradiction with medical report with regard to injury and other discrepancies it makes their evidence highly doubtful.
5. ' The learned counsel contended that the manner in which shots are alleged to have been fired by the appellant and the injury received by the deceased do not substantiate the statements of P.Ws.
6. 1, 2 and 3. All of them have stated that the appellant had fired two shots one after the other from 20 paces. Therefore, according to them the appellant was 20 paces away from the deceased holding a double-barrel gun which was loaded and after firing two shots simultaneously he ran away.
7. According to the medical report the following injuries were found on external examination of the deceased:- "(1) Four puncturing circular wounds of entrance each 1 c m in diameter with inverted margins charring all around at chin and front of chest.
(2) Five puncturing circular wounds of entrance each 1-1/2 c.m. In diameter with inverted margins charring all around at left upper arm.
(3) Two puncturing circular wounds of entrance each 1-1/2 c.m. In diameter at front of left side of chest.
(4) Three puncturing wounds of entrance-each 1 c.Rn. In diameter at front lateral aspect of right side chest,
(5) Five puncturing circular wounds of entrance each 1 c.m. In diameter with inverted margins charring all around at right upper arm.
(6) Four puncturing circular wounds of entrance each 1-1/2 c.m. In diameter with inverted margins charring all around at right forearm, wound of exit: circular wound of entrance 4 c.m. In diameter with averted lacerated margins at medial aspect of right forearm."
8. ' Except injuries Nos.3 and 4 all other four injuries had charring all around. According to the Medical Officer the injuries which had charring might have been caused from a distance within four feet and further that injuries 2 to 6 could be the result of two different shots. The learned counsel has, therefore, contended that considering the nature of injuries, shots fired from 20 paces away would not have caused charring. According to the learned counsel the charring can be caused only from a distance of 4 to 5 ft., and not 20 paces i,e, 30 to 40 ft. The nature of injuries does indicate the approximate distance from which the fire was shot. According to Modi on Medical Jurisprudence charring will be absent in case shots have been fired by pressing gun tightly with the body or beyond 4 ft. Therefore, from the medical report it seems that 4 injuries which had charring would have been caused not from a distance of 20 paces but much nearer. Two injuries which did not have charring must have been either from a different distance or from a different shot. The appellant is stated to have fired both the shots one after the other and there is no evidence that after one shot he came forward nearer to the deceased and then again fired or that he first fired from 4 or 5 ft. And then went away and fired the second shot from a distance. According to eye- witnesses both the shots were fired simultaneously from the same distance. Their statement is thus contradicted by the medical evidence because if we accept their statement charring round the injuries would not have been found. Mr.Muhammad Hayat Junejo has referred to Miran and others v. State S B R 1971 Kar. 494 where it was held that:- "The prosecution version with regard to the range of the fatal gun shot fire being inconsistent with the nature of the wound of entry, the testimonies of P.Ws. Khair Muhammad, Jurial, Bilawal, Sultan, Chuttal and Fateh Ali have to be rejected as eye-witnesses of the offences."
9. ' Mr.K.M.Nadeem, the learned Assistant Advocate-General contended that the evidence on record should be believed in preference to the opinion of the doctor and referred to Ibrahim and another v. The State PLD 1969 Kar. 33 where it was observed that the doctor's opinion as to the time of death that the deceased died eight hours before the post-mortem examination was only an approximation. The analysis of evidence on record in the referred case suggested time of death different from doctor's opinion. In the circumstances of the case such opinion which was mere approximation was not accepted. This observation will not apply to this case as the opinion of the doctor is not an approximation as to time of death. It states the nature and condition of injuries not on the basis of guess or approximation but on visual examination as found at the time of postmortem. In such cases where nature of injuries has been described with exactness and clarity and testimony of the doctor not being doubtful, such evidence of medical expert should be believed in preference to the testimony of the witnesses. The evidence of eye-witnesses is completely contradicted by the medical report in so far as the distance from where the appellant is stated to have fired at the deceased and the condition of injury caused by the appellant.
10. Mr.Junejo has referred to Aminullah v. The State PLD 1982 SC 429 where it was observed as follows:- "It was urged on behalf of the appellant that the ocular testimony of the prosecution witnesses was not consistent in so far as to the place from where the shots were fired. According to the F.I.R. The shots were fired by the appellants when they stood in front of the door of the kitchen but the complainant and the other two witnesses positively stated in their evidence that they did so while they were inside the kitchen. This improvement was obviously made to make the version consistent with the charring found on the clothes of the deceased and further to make the identity certain.
11. The High Court did not consider it as an improvement as it was of the opinion that having regard to the length of the barrel of the guns, the small variation in the distance could not be pivotal. It is the credibility of the witnesses which was being tested and, therefore, such discrepancy would reflect on the overall worthiness of the ocular version when it was asserted earlier that they stood outside the kitchen in front of the door alongwith two other unidentified persons and fired at the deceased."
12. ' The ocular version of the eye-witnesses discussed above is contradicted by the medical report. In such circumstances the credibility of eye-witnesses is completely eroded and cannot be relied upon. In this regard reference can be made to State v. Abdul Sattar 1973 SCMR 312, Bagh All v. State PLD 1973 SC 321, Sardar Baig v. The State 1978 PCr.LJ 690 and Yusuf v. State PLD 1988 Kar.
521. Where ocular testimony is contradictory in material facts with the medical opinion which is not based on approximation but a result of proper observation of the injury medical opinion should be given preference unless otherwise found defective and untrustworthy. If such contradiction is brought on record it is the duty of the prosecution to explain it and not the accused who must be given benefit of such contradiction. Reference can be made to Bagh Ali v. Muhammad Anwar 1983 SCMR 1292.
13. ' The learned counsel for the State contended that a witness cannot have an exact mathematical calculation of the distance and can fail in correctly stating it. It is true that one cannot be expected to give exact mathematical calculation of distance, but it should not be such as to shake the credibility and trustworthiness of the statement. A person firing from a distance of 20 paces or 2/3 paces makes a lot of differences and one is not expected to be so confused or uncertain that even in approximate estimate he may not be able to state the measurement with some exactness.
14. ' The learned counsel for the appellant contended that as Ghulam Haider P.W. 4 is not an eye- witness and his testimony has not been corroborated by P.Ws. 1, 2 and 3 his evidence is inadmissible. He stated that he was at the Dargah when he heard gunshot fires. He came running to Autaq where P.Ws. 1, 2 and 3, told him that Achar had shot the deceased. P.Ws. 1, 2 and 3 have not corroborated this statement. On this basis alone his evidence is inadmissible.
15. ' The corroborative evidence relied upon by the prosecution are recovery of empties and the gun and Mashirnama of Wardat. The learned counsel contended that Rowshan Ali P.W. 7 has acted as Mashir on all these occasions. He is closely related to the deceased and is a resident of Ghathar and not village Daffar. Mithal was one of the Mashirs but he has not been examined. P.W. 7 was examined to prove the recoveries and arrest. He is related to the deceased and is resident of a village situated 6 to 8 miles away from the place of incident. It seems suspicious why P.W. 7 was chosen by the police to act as mashir in respect of Vardat, arrest and recoveries made on different dates, places and times. If at a particular place any person who in the normal and natural course of happening is present and is not a chance witness, he can act as Mashir. But where people from the locality are available such respectable persons should be selected to act as Mashir in preference to strangers. Daffar is a village inhabited by 200 to 300 houses and many persons had collected at the place of Vardat but Roshan was selected. As Mithal the other Mashir has not been examined we have excluded him from consideration. Mashirnama of Vardat and recovery of empties were prepared on 17-1-1982 and Mashirnama of arrest Ex.19 was prepared on 22-1-1982.
16. The appellant was arrested at village Ghezikhan Burdi (Ex.19) and gun was recovered on 23-1-1982 (Ex.20) from the same village. However, P.W.7 in his cross-examination stated that gun was recovered from a gun store at Shandad Kot where he was taken in car by the Investigating Officer and Mashirnama was prepared on the spot. In the face of such facts challenge has been made to recovery of empties.
17. ' Section 103, Cr.P.C. Provides that search should be carried in the presence of respectable persons of the locality. Therefore, the witnesses for recovery should not only be respectable but should be from the locality. Every D citizen is respectable unless otherwise proved PLD 1979 Azad J&K 28.
18. Respectability cannot be attributed only to wealth, social or economic status. Even most of the poorest and humble person can be more respectable than any wealthy person. It is the reputation and respectability of a person he commands which should be the touchstone. In cases where witness of recovery is called from a place other than the locality where search or recovery is made which is a E populated area serious doubts will be cast on such recovery. Evidence of recovery I has been not relied upon where witnesses from other locality have been made mashir. Reference can be made to PLD 1981 Kar. 195 and PLD 1982 Lah. 344 The prosecution did not examine the other Mashir and examined P.W.7. In such situation the recoveries have not been proved and are highly doubtful.
19. ' The learned counsel has challenged the recovery of empties as it has not been proved. According to learned A.A.-G. Two empties were found at the Vardat as is obvious from Mashirnama. In view of the above discussion recovery of empties has not been proved. P.W. 1 has stated that he found two empties at the place of incident and mentioned it to the police but such statement has not been recorded in the F.I.R. The empties were recovered on 17-2-1982, the gun was recovered on 23-2- 1982 and according to I.O. They were sealed on the spot and sent to the S.P. Larkana who sent them to the ballistic expert on 24-5-1983. The gun and empties were sent in sealed packets. The learned counsel for the appellant contended that the delay in sending the parcels to the ballistic expert makes the entire recovery doubtful. The learned counsel has referred to Yousuf v. The State PLD 1988 Kar. 521 where it was held that the crime empties recovered should be sealed at once and sent to the ballistic expert even without seeking recovery of gun to minimise the chances of manipulation. In this case the empties were allegedly recovered, sealed on the spot and forwarded to Superintendent Police. Therefore, the question of creating doubt about the identity or manipulation would not arise. However, the recovery of empties by itself is doubtful and does not fit in the facts of the case stated by the prosecution witnesses. According to P.Ws.1, 2 and 3 the appellant fired in quick succession and ran away. He had used a double-barrel gun and not an automatic weapon which would eject the empties. In a double-barrel gun the ejection of empty is manual and not automatic. Unless a person opens the barrels and ejects the empty cartridges and throws them out they can not be found at the place of incident. There is no evidence that after firing two shots the appellant ejected the empties. Empties are always ejected for the purpose of re-loading the gun, but all these facts have not been stated. Therefore, the question of empties being found at the place of Vardat becomes highly suspicious. In the light of these facts if we examine the credibility of the Mashir which has been attacked on the ground that he is not a man of locality and closely related to the deceased, makes the entire prosecution case doubtful. In the facts and circumstances of the case empties could not have been found at the place of incident.
20. As the recovery of empties has not been proved the question of matching them with the gun of the appellant does not arise and therefore no reliance can be placed on the opinion of the H ballistic expert. In Thanghai v. The State PLD 1969 Kar. 200 it was observed that where 5 empties were recovered but gun was not recovered the empties were of no evidentiary value. Likewise the recovery of a licensed gun without recovery of empties is of no evidentiary value.
21. ' Mr. K.M.Nadeem, the learned AA.-G. Has contended that the F.I.R. Was lodged immediately with promptitude giving full details and name of the accused therefore possibility of manoeuvring and falsely implicating the appellant should be ruled out. Reliance has been placed on Abdul Rashid v.
22. Umaid Ali etc. PLD 1975 SC 227. This is one of the circumstances to corroborate the facts stated in the F.I.R. But where on analysis of evidence on record the prosecution fails to prove the case against the accused beyond reasonable doubt, on mere fact that I F.I.R. Was lodged with promptitude giving full details is not sufficient to convict him.
23. ' It has been contended that the motive for the murder is weak and unbelievable and why a person whose son has been killed in an incident of theft shall take revenge from any member of Buriro Caste. The motive attributed is weak. The learned A.A.-G. Has contended that in presence of ocular testimony the absence or weakness of motive is immaterial. Reliance has been placed on Mushtaq Ahmad v. Siddiqullah and others PLD 1975 SC 160. The absence or weakness of motive is immaterial if the prosecution otherwise proves the case by convincing, cogent and credible evidence. This precondition has not been satisfied by the prosecution. Where motive has been alleged it is the duty of the prosecution to prove it. Failure to prove motive casts doubt on the authenticity of prosecution version and therefore the Court must scrutinize the remaining evidence with caution.
24. Reference can be made to Hakim Ali and others v. State and others 1971 SCMR 432 and 1988 PCr.LJ 1836. From appraisal of evidence the prosecution has failed to prove beyond reasonable doubt the charges against the appellant. We therefore refuse to confirm the death sentence passed against the appellant and allow his appeal. We acquit the appellant and he should be released if not required in any other case.