MUHAMMAD ASLAM ARAIN, J.--- The appellants were tried by Sessions Judge, Sukkur for offences under sections 302, 460 and 34, P.P.C. The appellant Noor Ahmed is convicted and sentenced to death, subject to confirmation of this Court, while appellants Nazar Ahmed, Niaz Ahmed and Liaquat Ali are convicted for the said offences and sentenced to imprisonment for life. Each one of the appellants is also directed to pay fine of Rs.10,000 or in default to suffer R.I for one year more.
The appellants are further directed to pay compensation of Rs.25,000 each to the heirs of deceased and if the amount of compensation is not recovered, each one of the appellants to suffer imprisonment for a period of 6 months. This appeal is directed against the conviction and sentence described above.
2. The facts in brief are that on 15-6-1986 at 2 a.m. The complainant Habib and his brother deceased Budhal were asleep in their house. They were awakened on the barking of dogs.
Complainant saw on the torchlight, four persons, Noor Ahmed, Nazar Ahmed, Niaz Ahmed all sons of Ghulam Nabi and Liaquat Ali son of Noor Muhammad-by caste Koris. Noor Ahmed was carrying his licensed gun--while the three others had hatchets in their hands. Deceased Budhal also woke up. The complainant, seeing all this, challenged the culprits but they threatened, saying that they had come to murder Budhal and if any one came near, he would also be murdered. Within the seeing of complainant, Noor Ahmed fired at Budhal from a close range, which hit him on right parietal region and he fell on his cot. The culprits then ran away. On the cries of complainant, Muhammad Bux and Ghulam Nabi were attracted and complainant narrated the incident to them.
The witnesses confirmed that they had also seen the culprits running away. They all saw that Budhal had received fir-arm injury on right side of his head and had died. Leaving the witnesses at the dead body, complainant went and lodged report at Ubauro Police Station at 7-30 a.m.
3. The motive shown by the coniplainant is that deceased Budhal had purchased land from one Abdul Khaliq Korai for Rs.20,000 and the accused were dissatisfied because their lands were adjoining the disputed land. It is also in the F.I.R. That accused Noor Ahmed had come and started cultivating land in dispute with Tractor, when it was objected to by the complainant party, as they had purchased the same. On this, there was some altercation and the accused assaulted and threatened to murder Budhal. Budhal filed a report with Ubauro Police Station on 24-5-1986 which was entered in Roznamcha and is produced by complainant as Exh.Ll.
4. Charge was framed against the appellants on 7-1-1981 under section 302 read with section 460/34, P.P.C. To which appellants pleaded not guilty and claimed to be tried.
5. At the trial, prosecution examined P.W.1 complainant Habib and he produced F.I.R. Exh.10, a torch article `A', an entry of Roznamcha dated 24-5-1986 of Police Station Ubauro, Exh.11. P.W.2 Muhammad Bux Exh.12 and P.W.3 Ghulam Nabi Exh.16 are the witnesses who were attracted on hearing the noise of complainant and fire-arm report. They produced their 164, Cr.P.C. Statements as Exhs.13 and 17 respectively. P.WA Bangul Exh.18 was Mashir of Wardat, injuries on deceased Budal and inquest report; production of torch and 2 battery cells by complainant, arrest of all the accused, recovery of single barrel licensed gun from Noor Ahmed at his pointation. He produced the Mashirnamas as Exhs.19 to 23. The Mashirnama of Wardat Exh.19 also showed the recovery of an empty cartridge, from scene of offence. Dr. Hassan Shah P.W.5 Exh.24 conducted post-mortem examination and produced the report as Exh.25: P.W.6 Ghulam Hussain Tapedar Exh.27 produced the sketch prepared at the pointation of complainant and Muhammad Ilyas P.C. As Exh.28. P.W.7.
Muhammad Malook Exh.29 was W.H.C. At Police Station Ubauro and he verified F.I.R. Exh.10 which was signed by A.S.I. Abdul Karim, who had died before his evidence could be recorded. He also verified signatures of A.S.I. Abdul Karim on Mashirnama. Report of Ballistic Expert was produced by D.P.P. With his statcra-tent which was taken on record as Exh.31.32.
6. Statement of the appellant Noor Ahmed under section 342, Cr.P.C. Was recorded as Exh.33 and he produced Exh.34 purporting to be sale agreement in respect of land in dispute. He denied the allegations against him. He further stated that ne had purchased S. No.69 Deh Langah from Abdul Khaliq on which complainant was annoyed. Complainant Habib is Hari of Jam Munir Ahmed, He also stated that during 1985 elections, he. Supported one Ahmed Yar Shar, a rival candidate of :Jam Munir Ahmed, at whose instance complainant has falsely involved him in this case. He also produced a copy of F.I.R. Exh.35 filed by P.W. Muhammad Bux on 17-12-1982 against Bangul and others. He also filed voters list. Appellants Liaquat Ali, Niaz Ahmed and Nazar Ahmed in their statements under section 342. Cr.P.C. Denied the allegation against them.
7. Muhammad Malook H.C. Of Police Station Ubauro was one against called as Court-witness. He verified the photostat copy of entry No.20 recorded as N.C. Report by H.C. Abdul Ghafoor at the instance of deceased Budhal.
8. The evidence against appellants consists of ocular testimony of complainant Habib, supporting evidence of P.Ws. Muhammad Bux and Ghulam Nabi, circumstantial evidence in the nature of recovery of single barrel gun from Noor Ahmed and motive.
9. Mr. Azizullah Shaikh, the learned Advocate, for the appellants contended that the incident was in fact unwitnessed one and the culprits were not seen by anyone. It, is, therefore, that F.I.R, was lodged after unexplained delay of 5-1/2 hours when police station was only 3 k.m. From Wardat.
The delay further confirms that during this period deliberations went on and names of appellants were mentioned as the culprits, although none witnessed the incident. The Mashirnama of Wardat and the sketch produced by Tapedar would also show that the witnesses Ghulam Nabi and Muhammad Bux had no occasion to see the culprits, whose back was towards them while they were leaving-complainant's house.
10. It is also contended that P.Ws. Ghulam Nabi and Muhammad Bux did not state in their 161, Cr.P.C.
Statements that they had seen and identified the culprits at the time of occurrence. These omissions have been proved through H.C. Malook Exh.29. Both the witnesses in their 164, Cr.P.C.
Statements did not state that they saw appellants inside the house of complainant. P.W. Ghulam Nabi in his 164, Cr.P.C. Statement did not state that appellants were armed with particular weapons as alleged. These two witnesses are admittedly relations of complainant and therefore, partisan witness. The ocular testimony of P.W. Habib does not get support from the said two witnesses.
The learned Advocate has placed reliance on Lashkari and 4 others. v. The State PLD 1981 Kar. 1 and the relevant paragraph 11 of the judgment is reproduced:-- "The rule in regard to corroboration of the evidence of the interested and inimical witnesses, although a rule of caution, has virtually ripened into a rule of law. The Supreme Court has, on numerous occasions, stated the rule and cautioned against acceptance of such testimony without corroboration for the reason that false implication is not very rare in this country. One has no hesitation in saying that a murder in such society infuses in the mind of the family of murdered person a desire to avenge and thus a series of murders had taken place. When feelings between the parties become embittered, false implication or inflation in the number of accused very often is resorted to. It is precisely for such reason that the Courts are to be on guard and normally look for some corroboration lending an assurance to the evidence of witnesses."
Reliance in this respect is also placed on Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11.
11. It is next contended that the circumstantial evidence in the nature of recovery of licensed gun of appellant Noor Ahmed at his pointation, empty cartridge from Wardat and report of Ballistic Expert are of no avail to prosecution as the gun and empty cartridge were lying with police for so long a period and such delay is unexplained. The empty cartridge recovered from the Wardat on 15-6- 1986 and the gun allegedly produced by Noor Ahmed on 8-7-1986 were sent to Expert on 11-12-1986.
Reliance in. This respect is placed on Allahando v. The State 1969 SCMR 714 where the delay of four months in sending crime empty to Ballistic Expert and there being no explanation, where parcel containing empties had been kept during this period, were considered and it was held that the evidence of Ballistic Expert was not so strong a piece of evidence so as to warrant conviction of accused.
12. The learned Advocate also contended that motive is not proved because it is the appellant Noor Ahmed who had purchased the disputed land from Abdul Khaliq and such an agreement between them is produced as Exh.34, whereas no such agreement between deceased Budhal and Abdul Khaliq is available. The motive for murder of Budhal cannot be inferred from the non-cognizable report lodged by deceased Budhal at Police Station Ubauro on 24-5-1986. Reliance in support of this contention is placed on Muhammad and another v. The State 1991 P Cr. L J 761, where it was observed that the motive advanced by prosecution could neither be a motive for the murder of deceased nor the same could be used as corroboration.
13. It is also contended that there is material contradiction between ocular testimony of P.W. Habib and the Medical Officer on the point of injury on deceased Budhal. P.W. Habib mentioned in the F.I.R.
That deceased had sustained gunfire injury on right side of his head while the Medical Officer certified injury on left parietal region.
14. The identification of accused on torchlight is again disputed. The witnesses may have had a monetary glimpse of culprits when admittedly there was no light and in such circumstances no reliance could be placed on such evidence of identity of accused. Reliance is placed on Muhammad Naseem Agha and another v. The State 1978 P Cr. L J 579.
15. Mr. A.R. Farooq Pirzada, the learned Advocate for the complainant was also heard by us. He contended that the prosecution had proved its case beyond reasonable doubts. The accused had motive for committing the murder of Budhal who was earlier threatened by accused and the matter was reported by Budhal to the concerned police who recorded N.C. Entry of the incident.
This entry had been produced by the complainant in his evidence and is proved through P.W.
Malook, but gone unchallenged as no question was put to the complainant in cross-examination with regard to the entry.
16. It is also contended that the witnesses in the case are natural. The complainant was sleeping in the house while P.Ws. Muhammad Bux and Ghulam Nabi living in adjacent house were attracted on hearing the gunfire report and cries of complainant. The impartiality of the P.Ws. Has gone unchallenged, except a suggestion given in the cross-examination that they deposed falsely. It is also argued that the accused left through the door on the eastern side and then ran away towards north and were seen by the 2 P.Ws. Named above. The learned Advocate further argued that it was through an error that complainant mentioned in F.I.R. Regarding injury to deceased being on the right side of the head, while it was in fact on the left side of the head.
17. Regarding the recoveries the learned Advocate has contended that the Mashir Bangul was independent person of locality and the Mashirnama prepared after the arrival of the police mentions the recovery of empty cartridge. With regard to failure of complainant to mention in F.I.R.
Regarding empty cartridge at scene of offence, the learned Advocate stated, that it was natural that the complainant, on account of death of his brother was perplexed and failed to notice presence of empty cartridge at Wardat.
18. It is also argued that under section 2650) of Cr.P.C., the statements of P.Ws. Ghulam Nabi and Muhammad Bux recorded under section 164, Cr.P.C. Are substantive piece of evidence which have not been challenged in cross--examination. It is also pointed out that it is cutomary in interior of Sindh not to bring the ladies in Court for evidence and it was in these circumstances that the other inmates of the house we neither cited nor examined as witnesses.
19. It is also contended that since all the accused were concerned in lurking house trespass by night and they could be charged and convicted for an offence under section 460, P.P.C.
Irrespective of the fact that except appellant Noor Ahmed, others did not participate in the commission of the offence. Reliance in this respect is placed on Abdul Majid and others v. The, State PLD 1973 SC 595.
20. Regarding credibility of witnesses, the learned Advocate for complainant contended that merely because the two witnesses Muhammad Bux and Ghulam Nabi are the relations of the complainant Habib, their evidence could not be rejected and they cannot be termed as untrustworthy witnesses. In support of this contention reference is made to (i) Aziz Masih alias Kuddi v. The State 1991 P Cr. L J 419, (ii) Ahmed Khan and 2 others v. The State 1991 P Cr. L J 304, (iii)
Sultan Mahmood v. The State 1978 P Cr. L J 1302 and (iv) Muhammad Nawaz and another v. The State 1983 P Cr. L J 1726. The census of all these authorities is that the evidence of related witnesses should not be discarded, if otherwise their evidence inspires confidence.
21. Regarding identification of accused by complainant on torchlight, the learned Advocate referred to two authorities (i) Muhammad lqbal and others v. The State 1978 P Cr. L J 621 and (ii)
Dodo v. The State 1990 P Cr. L J 2019. In (i) above the accused were previously known to eye- witnesses and the occurrence took place at about `Fajar Nimaz' time and it was held that no difficulty in identification of accused can be possible: In (ii) above it was held that the identification of accused on torchlight no doubt in certain cases was not possible but it cannot be taken as a general proposition that in all cases identification on torchlight is an impossibility.
22. It is next argued that when there is sufficient ocular testimony, coupled with motive, the conviction recorded did not need any inference and in support of this, reliance is placed on Ghulam Ahmed and another v. The State 1991 MLD 1878.
23. Mr. Shoukat H. Zubaidi, the learned A.A.-G. Has not supported the conviction. He has argued that the delay of 5-1/2 hours in lodging the, report is not explained and the possibility of deliberations and consultation during this period cannot be ruled out: It is also pointed out that the occasion for witnesses to reach Wardat would be only after they heard the gunfire shot or cries of complainant.
The witnesses say that they came on hearing the gunfire report. The culprits, after firing one gunshot, must have immediately left the house, giving no chance to anyone to see them. At two places in F.I.R. It is mentioned by complainant that the injury was sustained by deceased on right side of head but in Court the complainant has changed and has stated that the accused placed his gun on the left side of the head of the deceased. It is also deposed by the complainant that there was an exit wound on the right side but the Doctor who conducted post-mortem found no exit wound. It appears that the complainant had in fact not seen the deceased before lodging the report or else he would not have given wrongly the seat of injury.
24. It is also contended by the learned AA.-G. That P.W. Muhammad Bux stated that when he went inside the house of complainant, he found deceased Budhal lying dead due to fire-arm injuries on both sides of his head and bleeding from them while he did not mention- anything about the scat of injury, in his 164, Cr.P.C. Statement. P.W. Ghulam Nabi stated before Court during his cross- examination that he had correctly stated before the Magistrate in his 164, Cr.P.C. Statement that when he saw the deceased he had fire-arm injury on his right side of the head. Voluntarily he stated before Court that deceased was bleeding from both sides of the head. Thus, there are material contradictions 'which have been proved (page 86 of paper book). No reliance, therefore, could be placed on the evidence of witnesses. In these circumstances false implication of accused could not be ruled out. It' is pointed out that complainant did not mention in F.I.R. Regarding empty cartridge lying at scene of offence. Mashir Bangul on the contrary stated in Court that he and Habib (complainant) did not point out empty cartridge to Investigating Officer at the place of incident. The learned A.A.-G. Has further pointed out that during post-mortem, 4 pellets were recovered and were sealed and given to the concerned police but the Investigating Officer has not sent the pellets to Ballistic Expert to verify if these were the contents of empty cartridge fired through the gun. The empty was recovered on 15-6-1986 and the gun was recovered on 8-7-1986, but these articles were sent to the Ballistic Expert on 11-12-1986. It is not known as to where these articles had been during the intervening period, because the Ballistic Expert received the parcel in January, 1987. In these circumstances, the recovery of the crime weapon and the empty cartridge or the report of Ballistic Expert cannot be used as corroborative piece of evidence.
25. He has also argued that the identification on torchlight would come under consideration only if it is otherwise believed that the witnesses had deposed correctly. Since the presence of the witnesses and identification by them of the accused becomes doubtful, the question of identification on torchlight would be irrelevant.
26. It is lastly pointed out that all the appellants were arrested on 8-7-1986 when they were named in the F:I.R. On 5-6-1986 but nowhere it has come on record that they were either absconding or not available.
27. We have heard the learned Advocates at length, gone through the evidence and judgment and also perused the case-law referred. The F.I.R. Is admittedly delayed by 5-1/2 hours when police station is at a distance of 3 k.m. From the place of occurrence. No explanation for the delay is given.
In fact it seems that none saw the accused who came at some odd hour of night, caused murder of Budhal and disappeared. We doubt if even complainant Habib saw, or identified the culprits. The complainant Habib did not know the seat of injury on deceased Budhal and at 2 places in F.I.R. He mentioned that injury to Budhal was on right side of parietal region. During 5-1/2 hours, intervening the incident and report, neither he nor the P.Ws. Noticed the presence of empty cartridge at Wardat: The complainant Habib named in F.I.R. 4 members of the same family and even Ghulam Nabi, father of appellants Noor Ahmed, Nazar Muhammad and Niaz was named to be the one who instigated the accused for the murder of Budhal. This Ghulam Nabi is said to be 80 years of age and is a blind man. The police, however, did not find any evidence against him and did not challan him in Court.
28. Another aspect to which we would like to advert is the mention by complainant in F.I.R. That appellant. Noor Ahmed was carrying his licensed gun with which he fired. It is surprising that complainant could know on flash of torchlight that the gun in question was licensed gun, while presence of empty cartridge at Wardat was not noticed till arrival of police. This clearly shows that the complainant was anxious to name the appellants to be the culprits responsible for the murder of Budhal. Even the mention by complainant in F.I.R. That P.Ws. Muhammad Bux and Ghulam Nabi were attracted on gunfire report and having seen the culprits going away, is doubtful. These witnesses are said to be living in the adjoining house and saw on their arrival the 4 accused going away whom they identified on torchlight flashed by complainant. Neither the complainant knew that the witnesses would arrive on gunfire report nor did the witnesses respond to the cries of complainant. In such circumstances, it becomes difficult to believe that the complainant whose brother was fired at, would not attend to his injured brother but would keep the torch lit till witnesses arrived. The version given by the complainant regarding the incident and identification of accused, supported by the 2 witnesses is not confidence inspiring.
29. Recovery of empty cartridge from Wardat after the arrival of police at 8-00 a.m. Is also doubtful.
Mashir Bangul has stated in Court, `myself and Habib did not point out empty cartridge to Investigating Officer at the place of incident'. No other witness even pointed out the empty cartridge and in these circumstances, we are of the view that no empty was recovered from the scene of offence. Be that as it may; the cartridge and the gun which were available with police on 8-7-1986, were not despatched to Ballistic Expert till 16-1-1987. Similarly the blood-stained earth was also received by Chemical Analyser on 17-1-1987. There is no explanation for the late despatch of these articles for expert opinion. In view of the judgment reported in Allahando v. The State 1969 SCMR 714, we are of the clear view that the report of expert was not so strong a piece of evidence as to warrant the conviction of accused.
30. The 2 witnesses Muhammad Bux and Ghulam Nabi are relatives of complainant and therefore, partisan witnesses. We would not have discarded the evidence of 2 P.Ws. Merely because of their relationship with complainant, if otherwise it had been consistent, natural and firm. But in this case, the manner in which they reached the scene of offence, identification by them of culprits in a dark night on torchlight flashed by complainant, and contradictory narration of facts by them before polices before the Magistrate and before the trial Court, could hardly be considered as natural and worthy of credit. .
31. Admittedly other witnesses from village had reached at -the place of Wardat as stated by P.W.
Ghulam Nabi in his police statement and affirmed by P.W. Malook. None else was examined to corroborate the version as given by complainant but prosecution remained satisfied by examining Ghulam Nabi and Muhammad Bux, both related to complainant.
32. There are material contradictions between the evidence off complainant and P.Ws. Ghulam Nabi and Muhammad Bux on the point of number of injuries, seat of injury and even presence of accused in the house as referred by learned A.A.-G. These contradictions had to be resolved in favour of the accused and not in favour of prosecution.
33. With regard to motive, we may observe that appellant Noor Muhammad has produced a copy of sale agreement between him and Abdul Khaliq whereby he purchased the disputed iand. He had, therefore, a right to restrain deceased Budhal, complainant Habib or for that matter anyone else who attempted to obstruct him in his cultivation work. In these circumstances, the Roznamcha entry at the instance of deceased Budhal, earlier than the date of his murder, would not be a manifestation of appellant's motive for the murder. There is yet another aspect of the case of which we have taken notice. P.W. Ghulam Nabi in his evidence before the Court stated I do not know any Sujawal son of Ismail Dhando. Again says that I know Sujawal Dhando. It is correct that this Sujawal Dhando had filed a complaint prior to this incident against me, P.W. Habib, Budhal and Muhammad Bux'. The false implication of appellants in this case cannot therefore, be ruled out. Admittedly the complainant and deceased Budhal were unhappy over the purchase of land by appellant Noor Ahmed and there was illwill between the parties but similar illwill also existed between Sujawal on one hand and the complainant, deceased Budhal and P.W. Muhammad Bux on the other hand for which F.I.R. No.35 was filed.
34. We attach no importance to the recovery of empty cartridge from Wardat and production of gun by appellant. The delay in arrest of appellants E after about 23 days is unexplained when it is nowhere on the record that they had absconded. In these circumstances we are of the clear view that the prosecution had failed to prove the case against appellants beyond all reasonable doubt.
The conviction and sentence in these circumstances cannot be sustained. We, therefore, -allow the appeal, set aside the conviction and F sentence and acquit all the four appellants. The reference made by the learned trial Judge for confirmation of death sentence of appellant Noor Ahmed is also declined.
By a short order, dated 3-7-1991 we had allowed the appeal and set aside the conviction and directed the release of appellants forthwith if not required in any other case. These are the reasons for the same.