The applicant Mohammad Zaman son of Ghulam Hyder was convicted under section 302, P.P.C. By the learned Sessions Judge, Naushero Feroze vide his judgment dated 9-12-1991 and was sentenced w imprisonment for life in addition a fine of Rs.50,000 was also imposed or in default of payment of fine to undergo R.I. For one year. The appellant has challenged his conviction and sentence under this appeal.
2. The prosecution case is that the deceased Mst. Rant was the wife of accused. On the night of 29th/30June, 1986 the appellant, Mst. Rant and other family members namely Allah Rakhio, Muhammad Jumman, Qurban Ali and the complainant Maula Bux were also sleeping in the courtyard of their house situated in the Village Rahab Khan Mooro which was at a distance of about 6 miles from the Police Station Naushero Feroze. At about 1-30 a.m. There was a report of fire-arm, on which the deceased woke up and on torch light they saw the appellant Muhammad Zaman who was armed with a revolver and within their sight he again fired at hiswife Mst. Rani which hit on her stomach. The complainant party raised cries and tried to capture him but the appellant managed to escape. Thereafter the complainant took Mst. Rant and was going to lodge the report but she died on the way. Leaving her dead body in hospital the complainant went and lodged report, which is Exh.6/A.
3. This report was recorded by A.S.I. Nisar Hussain, who himself took up the investigation. He went to the hospital, inspected the dead body and forwarded the same to the Medical Officer for post- mortem examination and report. He then proceeded to the place of Wardat and inspected the same in the presence of Mashirs Sher Muhammad and Muhammad Zaman. He then examined the witnesses under section 161, Cr.P.C. And on 30-6-1986 at about 4-00 p.m. He arrested the accusedth in presence of the same Mashirs and prepared Mashirnama. Thereafter on 6-7-1986 he recovered the revolver on the pointation of accused which contained two empty bullets and four live bullets.
This recovery was also made in the presence of same Mashirs. He then got the statements of the witnesses recorded under section 164, Cr.P.C. Before the Mukhtiarkar and F.C.M. Naushero Feroze.
After completing investigation he handed over the case papers to the S.H.O., who submitted the challan.
4. At the trial the prosecution examined ten witnesses and thereafter the statement of the accused was recorded under section 342, Cr.P.C. The accused denied the allegations and claimed that he has been falsely implicated as prior to this case he had dispute with P.W. Qurban Ali over partition of land on account of which he has been implicated in this case.
5. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Mohammad Zubair Qureshi, Advocate for A.-G. For State. The learned counsel for the State has not supported the conviction of the appellant on the ground that it was not possible for the witnesses to identify the appellant and the circumstances of the case indicate that the present appellant was implicated on suspicion only. The learned counsel for the appellant has argued that the entire case rests on the identification of the appellant on torchlight. The identification on torchlight was not possible as the culprit was seen by the witnesses from his back side. He further argued that in respect of recovery of torch also there is an anomalous position, which cannot be reconciled. He further submits that" the learned trial Judge has taken into consideration only examination-in-chief of the witnesses and not the cross-examination part, resulting in misreading of evidence.
6. I have gone through the evidence on record with the assistance of the learned counsel for the State as well as the learned counsel for the Appellant. The prosecution examined P.W.1 Maula Bux, complainant, whose evidence is at Exh.6. He has stated that he alongwith appellant, his daughter Mst. Rant, his brother Allah Rakhio, Jumman and Qurban Ali were all sleeping when they heard fire- arm report. They got up and on torchlight flashed by P.W. Qurban Ali they saw the present appellant who again fired at Mst. Rant. On their cries accused ran away. Thereafter the complainant went to lodge report. In his cross-examination he has admitted that P.W. Allah Rakhio is his brother, P.W. Qurban Ali is his nephew and P.W. Jumman is his cousin. He also admitted that night of incident was dark. He further states that the accused was immediately arrested by the police from the kitchen of his house where he was confined. He further states that accused was brought from the kitchen and he produced revolver from the cot which was lying in Verandah. He further states that the accused was confined in kitchen, the door was closed from outside and many villagers were standing outside the kitchen. He also admits that police had secured the torch in his presence from the place of wardat and also admits that they had produced the revolver before the police which was brought from courtyard of the house of the accused.
The next witness examined was P.W. Qurban Ali, who has fully corroborated the statement of the complainant. He states that he had flashed torch and saw accused Muhammad Zaman, who had fired one gunshot on Mst. Rani and he also fired second shot at Mst. Rani in their presence. In his cross-examination he admits that in his 161 Cr.P.C. Statement he had stated that complainant Moula Bux, P.Ws. Sher Muhammad, Ahmed Bux and others co---villagers came to the wardat after the accused had disappeared. He also admits that in his 161 Cr.P.C. Statement he stated that the incident was witnessed only by the ladies in the house. He further says that the police had accompanied them to the place of wardat where Mst. Rani was still alive. He also admits that prior to this incident about 200 Acres of land was jointly owned by him and the accused. He further admits that the accused had asked him for separation of the land which was declined by him.
The third eye-witness examined by the prosecution is P.W.3 Allah Rakhio, whose evidence is at Exh.8. He also confirms the version of the complainant and states that in their presence accused had fired at Mst. Rani, which hit her and she fell down. They had, seen the accused on torchlight, which was in the hands of the P.W. Qurban Ali. He also states that accused ran away, they removed Mst. Rani but she died on the way. Thereafter the complainant went to lodge the report. He was examined by the police and his 164, Cr.P.C. Statement was also recorded by the Magistrate. In his cross-examination he admits that on the first shot that was fired they awoke and the second shot which was fired at Mst. Rani was seen by them. He denies that at the time of Vardat only ladies were available in the house and that the complainant, P.Ws. Ahmed Bux and Sher Muhammad had gathered after the shot. He states that police had recorded his statement at the place of wardat when the dead body was lying there and it was morning time. He admits that P.W. Qurban Ali is his sister's son. In his further cross-examination he states that he was examined by the police twice, one at the wardat and second at the police station on the third day of the v9rdat. He further states that the P.Ws. Qurban Ali Jumman and Moula Bux had accompanied him at the police station when the statement was recorded.
Apart from these 3 eye-witnesses the prosecution examined P.W.5 Sher Muhammad and P.W.9 Mohammad Zaman son of Haji Joomo, who were both Mashirs. Their evidence appears at Exhs.11 and 14 respectively. Both of them stated that they were called at the police station where their signatures were obtained on various documents. They also denied the arrest of the accused and recovery of revolver having been made in their presence. Both the witnesses were not cross- examined.
The prosecution then examined P.W.6 Dr. Zahid Hussain, who conducted post-mortem examination on deceased Mst. Rani. He has produced the post-mortem report as Exh.13/A. He has opined that the cause of death was due to fire-arm injury. Prosecution also examined P.W.4 Noor Muhammad, who is Tapedar. He had examined the place of Vardat and prepared sketch, which is Exh.9/A.
Lastly the prosecution examined P.W.10 A.S.I. Nisar Hussain, who is the Investigating Officer. He has deposed giving details of the investigation of the case and has also produced the report of the Ballistic Expert as Exh.19.
The prosecution had also examined P.W.8 Allah Rakhio and P.W.9 Head Constable Roshan Ali. Both these witnesses are formal is nature. At the conclusion of the prosecution case the statement of the accused was recorded under section 342, Cr.P.C. As already mentioned hereinabove.
7. I have carefully applied my mind to the facts and circumstances of the case and I have also gone through the entire evidence available on record. I find that the entire case of the prosecution rests on the identification of the appellant by the witnesses at the time of incident. In the present case the identity of the culprit/appellant is based on the fact that the material witnesses namely P.W.1 Moula Bux, P.W.2 Qurban Ali and P.W.3 Allah Rakhio claimed to have identified the appellant on torchlight which was flashed by P.W. Qurban Ali. This will go to show that the only source of light was one single torch available with P.W. Qurban Ali. Therefore, all of them depended on this torchlight to see who was the assailant. It is also obvious that all the eye--witnesses namely P.W.
Moula Bux, P.W. Allah Rakhio and P.W. Qurban Ali could have seen the assailant only after the torchlight was flashed and in this .Way whatever act was being conducted by the appellant/assailant after the torchlight was flashed, the same act will have to be uniformly seen by all of them. It will not be possible for each of the witnesses, to see different acts of the assailant at one and the same time. In the present case I have noted that after the torchlight was flashed in the same uniform act of seeing, the three witnesses claim to have seen different acts of the assailant at one and the same time. In order to make it clear I would like to explain in a little detail as to what has been done/seen by the three eye-witnesses. Now the torch was in the hands of P.W. Qurban Ali.
He flashed the torch when P.Ws. Moula Bux and Allah Rakhio were also with him. As soon as P.W.
Qurban Ali flashed the torch this is what he had seen as admitted by him in the cross-examination reproduced as under:- "I saw the assailant While running away. I saw him from back side and from his stature I guessed him to be the present accused."
From the above quotation of the evidence of P.W. Qurban Ali it means that Qurban Ali saw the assailant on torchlight but he had actually seen him running away and had seen him from the backside. This will go to show that P.W. Moula Bux and Allah Rakhio also must have seen the backside of assailant because that is what P.W. Qurban Ali had seen after the flash of the torch. It is surprising that P.W. Moula Bux claims to have seen the accused firing at his daughter not one but twice and at the same time he claims to have identified the accused on torchlight flashed by P.W.
Qurban Ali. Similarly P.W. Allah Rakhio also claims to have actually seen the appellant firing with his revolver one shot at Mst. Rani, which hit her and she fell down and he had seen the accused on the torchlight of P.W. Qurban Ali.
8. It is surprising that P.W. Moula Bux claims to have actually seen two shots being fired by the assailant while P.W. Allah Rakhio claims to have seen the assailant firing one shot. In view of what has been stated by P.W. Qurban Ali obviously P.W. Moula Bux and Allah Rakhio could not have seen the appellant firing at the deceased because after flashing of the torch when P.W. Qurban All could only see the assailant running away they these two witnesses P.W. Moula Bux and Allah Rakhio also must have seen the same thing and therefore they could dot have actually seen what exactly transpired before the running away of the assailant. This means the torchlight was flashed by P.W.
Qurban Ali at that particular time when the assailant was actually running away and his back was towards the witnesses. Therefore, the three eye--witnesses were not in a position to identify the actual culprit. Consequently the implication of the present appellant in the above circumstances is either false or based on suspicion. In any case the night was dark and in the circumstances of the case identity of the present appellant was not possible.
9. There is also further doubt regarding the production of torch before the police and the securing of the same. 1n this regard the Mashirnama of Vardat Exh.11/A clearly indicates that the Investigating Officer had found one torch which was lying at the place of wardat. On the other hand the complainant admits in his cross-examination that he cannot say if police had secured the torch in his presence from the place of wardat though the place of wardat was pointed out by the complainant. Even the Mashirnama of Vardat was prepared in his presence. In spite of the torch having been recovered from the place of wardat there is yet another torch alleged to have been recovered by the police under a separate Mashirnama Exh.14/A. It indicates that this second torch was produced by P.W. Qurban Ali. But P.W. Qurban Ali is completely silent in his deposition about the production of this torch. The Investigating Officer P.W. ASI Nisar Hussain is completely silent in his deposition about the recovery of the first torch while in respect of the second torch alleged to have been produced by P.W. Qurban Ali, the I.O. States that the second torch was produced before him by the complainant which he secured under the Mashirnama Exh. 14/A. This will go to show that two torches were recovered, to whom the first torch belongs is a mystery while in respect of the second torch there is material contradiction as to who had produced the same as discussed above.
10. It will appear from the above discussion that the witnesses aid not have the opportunity of actually seeing the culprit. In this regard there is further admission in the cross-examination of the witnesses, which also clearly indicates that the three eye-witnesses Moula Bux, Qurban Ali and Allah Rakhio had not seen the culprit. According to the complainant P.W. Moula Bux, who claims that the appellant was caught at the spot and he was confined in the kitchen room of his own house, the door of which was bolted from outside and so many villagers were standing outside that kitchen. P.W. Moula Bux further admits that the accused was arrested by the police, from the said kitchen of his house. He also admits that accused was brought from that kitchen and thereafter he produced the revolver from the cot which was lying in Verandah. This aspect of the matter is completely contradictory to the prosecution case. According to the prosecution the appellant was arrested on the same day of Vardat at 4-00 p.m. From the village while the revolver was recovered on the pointation of the appellant on 6-7-1986 vide Mashirnama Exhs.11/D and 11/E respectively. This will go to show that the version given by the complainant is not reconciled with the prosecution case. There is yet another version regarding the recovery of revolver as given by the complainant.
On his own admission the complainant states that they had produced the revolver before the police and the exact portion from his evidence is reproduced as under:- "It is correct to say that women were sitting on that cot where revolver was secured. Again says we had produced the revolver before the police which was brought from the courtyard of the house of the accused.--- According to this admission the revolver was not secured from the appellant, it was produced by the complainant, either this version of the complainant is false or the mashirnama of recovery of revolver Exh.11/E dated 6-7-1986 is false. In this view of the matter not only the complainant belies the prosecution case but at the same time renders his own deposition doubtful.
P.W. Qurban Ali has also made an admission to a question which was put to him by the defence counsel pertaining to his 164,'Cr.P.C. Statement. The answer given by this witness is reproduced as under:- "I have stated in my 164, Cr.P.C. Statement that complainant Maula Bux. P.W. Sher Muhammad, Ahmad Bux and other co-villagers came to the scene after the accused had disappeared:"
According to this admission, as stated by P.W. Qurban Ali which is earliest in point of time, it indicates that the complainant and other witnesses arrived at the scene after, the culprit had run away, therefore, this will also go to show that the only person who had seen the culprit running away was P.W. Qurban Ali while the other witnesses had come to the place of Vardat after the assaillant had run away.
As such, the complainant and P.W. Allah Rakhio could not be deemed to be the eye-witnesses.
Again P.W. Qurban Ali has made further admission in the cross-examination which is also reproduced as under :- ---I have stated therein (164, Cr.P.C. Statement) that the incident was witnessed only by Mst. Satali, Mst. Pathani, Mst. Zuhran, Mst. Zeenat and Mst. Sahib Khatoon."
Again this admission made by Qurban Ali will go to show that the actual eye-witnesses were the ladies of the house and none of them were examined or made witnesses in this case.
11. From the above discussion it will, therefore, appear that the three witnesses namely, P.W. Moula Bux, P.W. Qurban Ali and P.W. Allah Rakhio, were not the eye-witnesses in this case. The actual eye- witnesses were the ladies, who have not been made witnesses in this case. The recovery of the revolver on the pointation of accused is falsified by P.W. Moula Bux. Revolver is shown to have been produced by P.W. Moula Bux. The recovery of torch is also doubtful as the person who is supposed to have produced it is silent. According to the mashirnama Exh.14/A the torch is supposed to have been produced by P.W. Qurban Ali but the Investigating Officer says that it was produced by the complainant while the complainant, just like P.W. Qurban Ali, is also silent on this count. All the above circumstances clearly go to show that the appellant has been roped in this case while the actual incident was an unwitnessed crime having been committed in the dark hours of the night.
As such I have no hesitation in holding that the prosecution has not been able to establish the case against the present appellant.
12. Accordingly, I am of the considered view that the case against the appellant is completely doubtful and, therefore, he is entitle for acquittal. Consequently the conviction and sentences of the appellant are set aside, he is acquitted of the charges levelled against him.
13. By a short order dated 25-5-1992 the appellant was acquitted and ordered to be released if not required in any other case. These are the reasons for the same.