QAISER AHMED HAMIDI, J: -- Appellant Muhammad Achar was tried along with Mehboob (since acquitted) for the offence under section 302, 307, 114/34, P.P.C. And section 13-D of the Arms Ordinance, 1965, by IIIrd Additional Sessions Judge, Larkana, who vide judgment, dated 9-1-1989 acquitted co-accused Mehboob, but found the appellant guilty for the offence under section 302/307, P.P.C. And sentenced him as follows: Under section 302, P.P.C. Imprisonment for life and to pay a fine of Rs.5,000 or in default to suffer R.I. For one year more.
Under section 307, P.P.C.R.I. For three years and to pay a fine of Rs.1,000 or in default to suffer R.I. For six months more.
The appellant was also directed to pay a compensation of Rs.5,000 to the legal heirs of deceased Sikandar or in default to suffer R.I. For one year. The substantive sentences were ordered to run concurrently. The third accused, namely, Ghulam Rasool alias Ghullamoon could not be arrested and an order under section 512, Cr.P.C. Was passed against him. By an appeal filed under section 410, Cr. P.C., the appellant has challenged his conviction and sentence. The sentence awarded to appellant was not found adequate and consequently a notice was given to him to show cause as to why the capital sentence may not be awarded to him. By this judgment we propose to dispose of the appeal filed by the appellant and the suo motu revision for the enhancement of the sentence awarded to him.
2. Mst. Shahzadi, sister of complainant Ghazi is married to appellant Muhammad Achar. It is alleged that the appellant did not behave properly with Mst. Shahzadi who complained to her brother Ghazi about this maltreatment. She was therefore, brought from the house of appellant and was not allowed to go with him till some respectable person was prepared to stand surety of good behaviour on his behalf. It is the case of the prosecution that on 13-8-1982 at about 9-30 p.m. The present appellant alongwith Mehboob (since acquitted), and absconding accused Ghulam Rasool alias Ghullarnoon came to the house of Ghazi to take Mst. Shahzadi with them. The appellant was armed with a revolver, while the rest of the accused carried hatchets with them. They asked complainant Ghazi to allow Mst. Shahzadi to go with them and on his refusal to do so, the appellant is said to have fired at him by means of the revolver, but the shot did not hit, the target. Ghazi ran inside the room, whereupon the appellant fired at Sikandar, brother of Mst. Shahzadi, who was a boy of about 12 years of age at that time. The shot hit deceased Sikandar on his head, who after sustaining injury went unconscious. Besides complainant Ghazi, the incident was witnessed,, by Pathan and Jaffar. The commotion attracted so many persons, whereupon the culprits bolted away. On the same day at 10-30 p.m. Ghazi lodged F.I.R. At Town Police Station Larkana, which was registered for the offence under section 307--114/34, P,P.C. And section 13-D of the Arms Ordinance, 1965. Deceased Sikandar who was alive by that time died in hospital and consequently section 302, P.P.C. Was added in F.I.R. Muhammad Shareef, A.S.I. Recorded the F.I.R. And then referred injured Sikandar to Chandka Medical College Hospital, Larkana, for examination and treatment. He then repaired to the place of occurrence and inspected it in presence of Mashirs Pahalwan and Kouro.
On 14-8-1982 the Police Officer recorded the statements of Jaffar and Pathan. On 19-8-1982 he arrested the present appellant and recovered the crime weapon and empties at his instance. After completing the investigation the appellant and co-accused Mehboob were sent up.
3. At the trial the prosecution has examined Ghazi (P.W.1), Pathan (P.W.2), Jaffar (P.W.3), Noor Muhammad Tapedar (P.W.4), Dr. Mohan Lal (P.W.5), Pahalwan (P.W.6) and Muhammad Shareef A.S.I. (P.W.7).
4. The appellant has disputed the case of the prosecution in his statement recorded under section 342, Cr. P.C. He did no step into the witness-box and also led no evidence in defence.
5. On the assessm ent of evidence available on record the learned Additional Sessions Judge found the appellant guilty for the said offence and convicted him accordingly.
6. The case of the prosecution against the appellant mainly hinges upon ocular testimony consisting of Ghazi (P.W.1), Pathan (P.W.2) and Jaffar (P.W.3), which is further corroborated by the recovery of crime weapon from his possession. There is also evidence of motive furnished by Ghazi (P.W.1).
7. Ghazi (P.W.1) is the star witness of the prosecution and his testimony seems to have weighed considerably with the trial Court in tipping the balance against the appellant. It has come on record through Ghazi (P.W.1) that on the relevant night appellant Muhammad Achar, armed with a revolver, Mehboob (since acquitted) and Ghulam Rasool alias Ghullamoon entered into his house at about 9-30 p.m. In an attempt to take Mst. Shahzadi with them and on his refusal to allow her to go with them, the appellant opened fire at him, but the shot did not hit the target. The evidence of Ghazi (P.W.1) further shows that the appellant then fired at deceased Sikandar who was hit on his head resulting into the fracture of his parietal bones. The appellant then fired third shot in the air to scare the persons and then decamped along with his companions.
8. Undoubtedly Ghazi (P.W.1) is a natural witness in this case. His presence at the scene of incident at that time is hardly open to any suspicion. The evidence of a natural witness who is a close relative of deceased has, however, to be examined with great care and caution. In such a case the Court may begin with an enquiry as to whether such a witness had really seen the incident and has honestly told his story. On a close examination of the evidence of Ghazi (P.W.1), we have noticed that he has not come out with truth. In order to get at the truth, we propose to examine the salient features of the evidence adduced by Ghazi (P.W.1). The dispute between the parties arose over the detention of Mst. Shahzadi, sister of Ghazi (P.W.1) and were of the appellant. Ghazi (P.W.1) has stated in clear terms that he had brought Mst. Shahzadi to his house about 8 or 10 days prior to this incident. His evidence further shows that the appellant had come to his house for the return of Mst.
Shahzadi one day prior to the incident and on his refusal he went away from the house and came finally to his house with co-accused on the night of incident. The appellant who had a cause of annoyance with complainant Ghazi (P.W.1) had fired at him, but the shot did not hit him. The fact that Mst. Shahzadi, sister of Ghazi had complained to him about the maltreatment at the hands of appellant, however, finds no place in F.I.R. The F.I.R. (Exh.6/A) further ,shows that the appellant had approached the complainant on the day of incident in the morning time for the return of Mst.
Shahzadi, but he had refused to give her hand to him and thereafter at 9-30 p.m. The appellant again came to the house of complainant with two of his companions and then the incident in which Sikandar was shot dead took place. Pathan (P.W.2) who is said to be an eye-witness has also testified that Mst. Shahzadi, sister of Ghazi was residing with him during the days when this incident took place. He was confronted with his 161, Cr. P.C. Statement in which he had not stated so.
Muhammad Shareef A.S.I. (P.W.7) who has investigated this case has confirmed this position. He has also testified that on 14-8-1982 he had gone to the house of Mst. Shahzadi where he recorded her statement. Mst. Shahzadi who was a star witness in this case was, however, not examined in Court, giving rise to an adverse inference. It, therefore, follows that the incident had not taken place on account of alleged detention of Mst. Shahzadi by complainant Ghazi (P.W.1). The version of Ghazi (P.W.1), Pathan (P.W.2) and Jaffar (P.W.3) about the manner in which the incident took place against does not appeal to reason. Quite admittedly the appellant and co-accused had grievance against complainant Ghazi and they had no cause of annoyance with deceased Sikandar, a boy of about 12 years of age. Ghazi (P.W.1) has made it clear that he saved his life by taking shelter in the room. Pathan (P.W.2) has also supported the complainant in this behalf. Jaffar (P.W.3) has, however, come out with a new story by stating as follows: "Accused Achar then fired his revolver shot at Ghazi, which was missed by Ghazi and he concealed under the cot."
It will not be out of place to mention here that all the three culprits were armed with deadly weapons, viz. Revolver and hatchets and if they had really any intention to commit the murder of Ghazi, it was not difficult for them to have done so, in either of the two circumstances as put forward by the prosecution witnesses.
9. The F.I.R. (Exh.6/A) recites in clear terms that deceased Sikandar was fired at while he was sleeping on the cot of his brother Ghazi. Dr. Mohan Lai (P.W.5) who had conducted the autopsy on the dead body of Sikandar found the following injury on his person: "Lacerated punctured type of wound 2 c.m. In diameter at mid-parietal region with protrusion of brain matter."
The site of injury lends support to the contents of F.I.R. (Exh.6/A) in this behalf. The evidence of Ghazi (&W.1), however, shows that Sikandar was sitting on the cot when he was fired at and he claims to have stated so in F.I.R. (Exh.6/A). We have examined the evidence of complainant Ghazi (P.W.1) and his witnesses, namely, Pathan (P.W.2) and Jaffar (P.W.3) in juxtaposition to the contention raised by learned counsel for the appellant that only one shot was fired by the assailant which hit deceased Sikandar while he was sleeping on the cot of Ghazi, in order to see whether we could reasonably reach a conclusion that the latter version could be held to be true or that at any appreciable measure rendered the story of the complainant such which it might not be safe to accept in order to base conviction on it. It may be added that the commotion followed by firing must have awakened deceased Sikandar and the incident would not have taken place in the manner as disclosed by the prosecution witnesses.
10. The witnesses having no respect for truth and being capable of changing their versions, as and when it suited to them are worthy of no credence even if they are found to be natural witnesses.
The dictum laid down in Akbar Shah v. C The State reported in PLJ 1974 Cr. C. (Lahore) 84, is to be followed while appreciating evidence of such witnesses in the given circumstances.
11. The only fact that a witness has got no apparent cause to depose falsely against an accused person is not a sure guarantee that whatever he has testified is nothing but truth. This question,, was examined by a Division Bench of our own High Court in the case of Allah Rakhio alias Moro v.
The State reported in 1983 P Cr. LJ -1714, in which it was held: "Mr. Muhammad Hayat Junejo has argued that if there is no background of enmity then also there is no guarantee that the eye-witnesses must have spoken nothing else but absolute truth. He has further stated that such eye-witnesses may still speak lies to bring their statements in conformity with the case of prosecution. Mr: Muhammad Hayat Junejo has referred us to the case of Nazir Muhammad v The State PLD 1974 Kar. 274 in which it is held that there can be no general rule that the testimony of a witness having no apparent reason to falsely implicate an accused person should be accepted at its face value or that, conversely, the evidence of a person who is interested should be completely discarded. Indeed such an approach to the question of assessing the oral evidence of witnesses would be rather artificial and has been repeatedly disapproved by the superior Courts. Simply because the witness has no enmity and appears to be independent, does not necessarily mean that what he states is not untrue."
12. Both Pathan (P.W.2) and Jaffar (P.W.3) again appear to be chance witnesses. Pathan (P.W.2) is a cousin of complainant Ghazi and he was sitting in the house of complainant by chance when this incident took place. Jaffar (P.W.3) is maternal-uncle of complainant Ghazi and at his own showing he resided in village Rojhan Jamali situated in the Province of Baluchistan. He claims to have come to meet his sister (mother of Ghazi) for the purpose of giving Eidi (gifts) to her. Ghazi (P.W.1) states that Jaffar had come to his house 4 or 5 days prior to this incident. Pathan (P.W.2) contradicts complainant Ghazi by stating that Jaffar had come 10 or 12 days before this occurrence. Jaffar (P.W.3), however, does not agree with any of these two witnesses and has stated that he had come only one day prior to this incident. Admittedly 13 August, 1982 corresponds to 21st Shawal of the lunar month and, therefore, the visit of Jaffar (P.W.3) for giving Eidi to his sister long after the festival of Eid appears to be a concoction, specially when the fact of bringing Eidi in the shape of gifts was not disclosed by Jaffar (P.W.3) in his 161, Cr. P.C. Statement.
13. In Nausher v. The State reported in 1971 P Cr. L J 811, it was held that the evidence of chance witnesses cannot be straightaway believed unless there are corroborative circumstances available on record to support the same. It was further observed that where the statements of witnesses are bristling with doubtful circumstances then testimony of such witnesses cannot be relied upon.
14. Admittedly number of neighbours were attracted on the cries raised at the time of incident.
Ghazi (P.W.1) admits this fact in clear terms by stating that they had also witnessed the incident.
Ghazi (P.W.1) states: "On north of my house there are houses of Karam Randho and others adjoining to my house. On east of my house adjoining there are houses of Langah and Kalhoras. House of Haji Langah is adjacent to my house on east. On south, adjoining there are houses of Langahs, namely, Akram, Ghulam Rasool. All other houses around my house belonged to people of different castes. On our cries Akram Randho, Haji Langah, Ghulam Rasool Langah, and others arrived. They also witnessed the incident."
None out of these witnesses was, however, examined to lend support to the case of the prosecution. The observations made in the case of Sikandar. v. The State reported in PLD 1963 SC 17 are, clear in this behalf, wherein it was held that where natural witnesses are available but not produced by the prosecution, no reliance can be placed upon chance witnesses having background of enmity.
15. The recovery of the revolver and crime empties at the instance of the appellant is again not proved. Muhammad Shareef A.S.I. (P.W.7) who has made the alleged recoveries stated that the appellant was arrested on 19-8-1982 in presence of Mashirs Pahalwan and Kouro and he led them to his house and from beneath the empty cement bags he produced the crime weapon and empties which were sealed and sent to Ballistic Expert whose report (Exh.12/A) is in affirmative.
Pahalwan (P.W.6) who is brother-in-law of complainant Ghazi has destroyed the entire evidence of Muhammad Shareef AN.I. (P.W.7), by admitting as follows: "Police showed me bullets, revolver and hatchet at police station and sealed articles at police station."
It may be added that almost all the prosecution witnesses have admitted that appellant was arrested on 14-8-1982 immediately after the commencement of investigation. Muhammad Shareef A.S.I. (P.W.7) has, however, shown his arrest on 19-8-1982. No reliance can, therefore, be placed on such dishonest investigation resulting into the alleged recoveries, and since the recoveries are not established the report of Ballistic Expert (Exh.12/A) has got hardly any value.
16. In Thoba and another v. The State. Reported in PLD 1963 SC 40 and Bagh Ali and 4 others v. The State reported in PLD 1973 SC 321, it was held that the evidence on capital charge must come from unimpeachable source or to be supported by strong circumstances that might remove inherent doubt attaching to evidence .Of interested a partisan witnesses. Such evidence is lacking in this case.
17. Upon considering of all the evidence and circumstances, including the absence of an apparent motive, we have reached an irresistible conclusion that the prosecution has failed to trove the case against the appellant beyond any reasonable doubt. We would. Therefore, set aside the conviction and sentence awarded to the appellant and acquit him from the charge. The appellant who is on bail is discharged from his bail bond. As a necessary corollary to this finding the notice issued to appellant for enhancement of sentence is recalled.