1. ' SAJJAD ALI SHAH, J.---Vide order, dated 18-9-1989, leave to appeal was granted in two Criminal Petition No, Cr.P.3-K/88 filed by Samin Jan, complainant and the other Cr.P.14-K/88 filed by the State, both aggrieved against acquittal of respondent Abdul Karim, who was acquitted by the High Court of. Sindh vide judgment, dated 13-12-1987 in Criminal Appeal No,152 of 1987 and in consequence whereof his conviction under section 302/34, P.P.C. And sentence of life imprisonment and fine of Rs,2,000 or in default R.I. For 6 months and compensation of Rs,10,000 to be paid to the heirs of deceased, were set aside. After grant of leave in both the petitions mentioned above, Criminal Appeal No,27-K of 1989 arising from Criminal Petition No,3-K of 1988 filed by complainant Samin Jan was withdrawn and dismissed as such vide order, dated 28-8-1991.
2. ' Briefly stated the relevant facts giving rise to appeal under consideration are that incident took place on 6-5-1985 at 9-30 a.m. In the street near Dera of Shafiq alias Lal in Majid Colony within the jurisdiction of P.S. Jackson, Keamari, Karachi. In the said incident, it is alleged that Muhammad Fazil and Abdul Karim came on scooter and cycle respectively armed with pistols/revolvers and find shots in the result whereof Jamroz Khan became injured and died. Assailants ran away. Incident was seen by eye-witnesses. Some boys came running and informed Samin Khan, brother of deceased at his Dera about incident and he came to the scene of offence and after being apprised by the facts of incident by the eye-witnesses, went to police station Jackson where report was lodged at 10 a.m.
3. ' The names of the eye-witnesses are mentioned in the F.I.R. And further motive is also explained therein. According to the complainant, he arid his deceased brother were labourers and complainant was permanent labourers in the Dock Labour Board. Karachi Harbour Ship Cleaning Union was split into two factions. Abdul Karim was President and Muhammad Fazil was Secretary of one faction, whereas Saifur Rehman was President of the other faction, which was being supported by deceased Jamroz Khan. Fazil and Abdul Karim suspected that deceased and complainant were instrumental in the creation of second faction of Saifur Rehman. It was also alleged that Abdul Karim and Fazil after taking money admitted new labourers in the Union and provided them work depriving other senior labourers. It is mentioned in the F.I.R. That at the time of incident Jamroz Khan had gone to Dera of Jamadar Shafiq in the company of Hafiz-ur-Rehman, Muhammad Pervez, Mutahir Shah and Noor-ur-Rehman to extend invitation of marriage ceremony..It is stated in F.I.R. That complainant was informed by the eye-witnesses that Fazil and Abdul Karim came on scooter and cycle respectively and both fired at Jamroz Khan with pistols or revolvers, which hit him below the right shoulder and Jamroz Khan fell down and when the witnesses went forward to catch the assailants, Abdul Karim fired shots and then assailants ran away. Scooter No, KCL 8631 belonging to Abdul Karim and cycle of Muhammad Fazil were lying at the Wardat.
4. ' P.W.8 S.I. Muhammad Suleman Mirza, who investigated the case, came to the place of Wardat, prepared inquest report, recorded statements of the witnesses and sent the dead body to the hospital for post-mortem examination. He recovered blood-stained earth and pieces of net of the cot where the dead body was lying. He also took into possession scooter Vespa and cycle.
5. ' It would be pertinent to mention that before submission of challan Muhammad Fazil died, therefore, only Abdul Karim was put on trial. Prosecution in the trial Court examined. 8 witnesses including four eyewitnesses. In 342, Cr.P.C. Statement Abdul Karim denied prosecution allegations and proclaimed innocence. He did not produce any witness in defence but examined himself under section 340(2) of Cr.P.C. And stated that he had no enmity with deceased but complainant who was a dock worker, was annoyed with him because he had reported against him for his misdeeds regarding discharge of his duties. He had also reported against Miskeen Khan Advocate for the complainant who was removed from the post of General Secretary of Labourer Works Union, Karachi Harbour. Complainant and Miskeen Khan were friends and were both annoyed with him and had falsely implicated him in this case.
6. ' It may be mentioned here that initially this case was heard by learned Additional Sessions Judge, Karachi South, who convicted Abdul Karim and sentenced him to life imprisonment alongwith other minor sentences as well vide judgment, dated 4-2-1987 against which Criminal Appeal No,14/87 was filed and heard in the High Court of Sindh which was allowed and in consequence conviction and sentence were set aside and the case was remanded vide judgment, dated 9-3-1987 for retrial and recall of Investigating Officer to provide opportunity of cross-examination to the defence on discrepancies in the evidence of complainant and eye-witnesses and F.I.R. And 161, Cr.P.C.
7. Statements of such parties. After remand, needful was done by learned Sessions Judge himself, who heard the case again and after cross-examination of I.O. Further statement under section 342, Cr.P.C. Was recorded and respondent Abdul Karim declined to examine any other witness in defence. After hearing the arguments, fresh judgment of conviction and sentence on the same lines as before was delivered against which Criminal Appeal No,152 of 1987 was filed in the High Court which was allowed resulting in setting aside of conviction and sentence vide judgment impugned in this appeal before us as stated above.
8. ' We have heard Mr. Abdul Ghafoor Mangi, Additional Advocate-General for State as appellant and Mr. Azizullah Shaikh, A.S.C. For respondent Abdul Karim. Mr. Mangi contended that there was adequate evidence available on the record to connect respondent with commission of crime, as such reasons given in the impugned judgment for acquittal are not sustainable. According to him there are as many as 4 eye-witnesses who had seen the incident and identified respondent Abdul Karim to be present at the spot and specific role is assigned to him of instigation and pointing out of deceased to Fazil and also firing at witnesses. Mr. Mangi further submitted that scooter of Abdul Karim was recovered from the spot which he left after the incident and escaped which was subsequently recovered by police. Further ocular version is supported by medical evidence and motive.
9. It may be mentioned here at the very outset that crime weapons namely pistols or revolvers from which shots were allegedly fired were not recovered nor any crime empty was secured from the spot. According to the prosecution case, Fazil fired at Jamroz Khan who died and before challan could be presented in the Court, Fazil died a natural death. Now remained in the field respondent Abdul Karim and the prosecution case against him is that he instigated Fazil and pointed out deceased Jamroz Khan to him and when witnesses attempted to intervene to save Jam roz Khan from further assault, Abdul Karim fired at witnesses but nobody was injured. Evidence of eyewitnesses is discrepant with regard to the to ascribed to Abdul Karim showing his participation in the incident. First document drawn up by the police in this case is F.I.R. Of course, complainant Samin Jan, who is examined as P.W.1 is not himself an eye-witness of the incident but he was informed by some boys and then came to the spot and was apprised about the facts of the incident by eye-witnesses who were present there. He went to the police station and filed F.I.R.
10. Within half an hour and has given names of eye-witnesses in it with full narration of the manner in which incident took place as claimed by the eye-witnesses. Version stated in F.I.R. Is that when the eye-witnesses and deceased were present in front of the house of Shafiq alias Lal, Fazil and Abdul Karini came on scooter and cycle respectively (which shows that Fazil was on scooter and Abdul Karim was on cycle). Muhammad Fazil and Abdul Karim fired at Jamroz Khan with pistols/revolvers which hit him below the right shoulder. Jamroz Khan fell down and the witnesses attempted to intervene but Abdul Karim fired pistol/revolver shot and then both of them ran away leaving behind scooter and cycle.
11. ' In the High Court during the hearing of appeal, case was remanded for further examination of Investigating Officer and defence was allowed to cross-examine him on the point of discrepancies in the evidence of complainant and eye-witnesses and F.I.R. And 161, Cr.P.C. Statements with regard to the role played by Abdul Karim in the incident. In compliance with the order of the High Court, Investigating Officer was examined again and he was asked questions about what complainant and the eye-witnesses had stated in their earlier statements recorded by the police. It appears that in the trial Court improvements were made by complainant and eye-witnesses in their depositions about the part attributed to Abdul Karim in the incident. According to F.I.R, the case of the prosecution is that both Fazil and Abdul Karim fired at deceased and secondly, it is not mentioned in F.I.R. That Abdul Karim pointed out deceased to Fazil and asked him to fire at him. It also appears that after post-mortem examination, doctor gave his opinion that injuries on the deceased were result of one shot fired at deceased. In the light of this finding, version was modified by complainant and eye-witnesses in the trial Court to be consistent with post-mortem report. In such circumstances, it also became necessary to attribute some other part of inculpatory nature to connect Abdul Karim with murder of Jamroz Khan, hence instigation was considered to be the proper part and was introduced in the evidence. Eyewitneses became exposed when after remand, Investigating Officer admitted that complainant had not stated in F.I.R. And eye-witnesses had not stated in their 161, Cr.P.C. Statements about instigation by Abdul Karim and pointing out of deceased to Fazil to kill him. Even otherwise, evidence on the record is so clear that complainant Samin Jan, deceased Jamroz Khan and the two accused persons in the case were known to each other closely on account of their union activities, hence there was absolutely no need or occasion for Abdul Karim to point out to Fazil as to who Jamroz Khan was, who had to be killed.
12. ' Secondly prosecution also has not explained as to why Muhammad Fazil should come to the spot on scooter of Abdul Karim and Abdul Karim should come to the spot separately on a cycle. If both had decided to kill Jamroz Khan in a pre-concert and for that purpose had come armed with pistols or revolvers, then both could have come on scooter of Abdul Karim and also they could have gone away on scooter after finishing the job. If both Fazil and Abdul Karim had not come together but had met there at the place of incident accidentally, then it can be said that there was no pre-concert between them and prosecution would be required to produce cogent evidence to show and prove sharing of common intention between the two when firing at Jamroz Khan was done exclusively by Fazil. In such circumstances, High Court was of the view that it would not be safe to base conviction on such ocular testimony alone unless there is some independent corroboration. Medical evidence can be used as corroboration to prove in what manner injuries were caused and by which weapon but not qua accused, particularly when in the instant case injuries of the deceased are not attributed to respondent Abdul Karim. So far as motive is concerned, there was political divide between the parties in connection with union activities.
13. Moreover, motive has come out from the mouths of the same witnesses, whose evidence suffers from inconsistencies and need is felt for independent corroboration.
14. ' So far scooter is concerned, in statement under section 342, Cr.P.C., question is put to Abdul Karim whether he came on his scooter to the spot and Fazil came on the bicycle and he (Abdul Karim) asked Fazil to kill Jamroz Khan and this question was replied by Abdul Karim in negative. It is worth mentioning that in F.I.R. It is stated that Abdul Karim and Fazil came on bicycle and scooter respectively which points to the fact that Abdul Karim was on bicycle. Anyway, since the question contained two queries, so one answer was given by Abdul Karim in negative denying both queries.
15. Had a separate question been framed and put to Abdul Karim asking him how his scooter was found at the spot abandoned, which was recovered by the police, he would have replied this question with some explanation directly on the point. In the absence of such pointed question, on the record there is denial in reply by Abdul Karim which shows that prosecution has not proved positively that Abdul Karim had come on the scooter which was left behind by him and also it does not prove the fact that Abdul Karim had instigated Fazil to kill Jamroz Khan.
16. For the facts and reasons stated above, we find no fault or flaw with the impugned judgment of the High Court whereby respondent Abdul Karim is acquitted and we are of the view that no interference is warranted with the impugned judgment which is hereby upheld and acquittal appeal is dismissed.