1. ' This appeal has been filed challenging the judgment passed by the learned IInd Additional Sessions Judge, Larkana convicting the appellant under section 302, P.P.C. And sentencing him to life imprisonment and further to pay a fine of Rs,20,000 which is to be given to the heirs of the deceased under section 544(a), Cr.P.C. Or in default of payment of fine to further undergo R.I. For six months. Benefit of section 382(b), Cr.P.C. Is also awarded to the appellant.
2. ' Briefly the facts are that on 8-1-1989 complainant Nadir Ali had registered an F.I.R. With Police Station Ratodero under section 302, P.P.C. Being F.I.R. No,3 of 1989 to the effect that he alongwith his brothers Barkat and Sharbat were standing in their land and their father deceased Sajjan was grazing the cattle in the land of Mir Khatian adjoining the road leading towards Masudero in the southern side: At about 3-30 p.m. The accused came there armed with his licenced single barrel gun and challenging the father of the complainant he fired at him hitting him on the right elbow.
3. The deceased started running towards the road and the accused chased him and during the chase he fired thrice on the deceased hitting him with the result that the deceased fell down and died. After lodging F.I.R. The police party accompanied the complainant to the place of incident where they prepared the inquest report, Mashirnama of Wardat and collected the blood-stained earth and three empty cartridges. The accused was then arrested subsequently from his house and it is said that he had voluntarily produced gun which was also recovered under a Mashirnama.
4. The Mashirnama for arrest was also prepared and after conclusion of the investigation the accused was sent up to stand trial. Charge was framed under section 302, P.P.C. To which the accused pleaded not guilty and claimed trial. The prosecution examined the following witnesses:--
(1) P.W. Nadir Ali, complainant, (2) P.W. Sharbat, the eye-witness, (3) P.W. Barkat Ali another eye- witness, (4) Dost Ali, the Tapedar, (5) P.W. Wazir Ali, the Mashir, (6) Ghulam Shabbir, the corpse bearer and (7) P.W. Allah Warayo, the Investigating Officer and (8) P.W. Dr. Rahmatullah, the Medical Officer.
5. ' The statement of accused was recorded where in he denied all the allegations and claimed that he had been involved in the case falsely on account of enmity. He did not examine himself on oath.
6. He submitted that he will examine one witness in defence but subsequently he gave up that witnesses. The trial Court after hearing the arguments was pleased to pass the above judgment convicting and sentencing the appellant as above. Being aggrieved the appellant filed the present appeal. The points for determination in the present case are:--
(1) Whether deceased Sajjan died due to fire-arm injury.
(2) Whether the accused had caused the murder of deceased by firing at him?
(3) Whether accused after his arrest had produced the licensed gun before the police and empties recovered from the Wardat matched with that gun used in the commission of offence as per ballistic experts reports?
(4) Result?
7. ' I will take the points Nos.1 to 3 together. The contention of the learned counsel for the appellant is that admittedly there is enmity between the parties as the father of the appellant had been murdered much earlier and deceased Sajjan was involved in that case but subsequently a Faisla had taken place. From this the learned counsel has submitted that the enmity is a double-edged sword which can cut both ways. Thus, it cannot simply be presumed that the present appellant could be guilty but it can also be assumed because of that enmity that the present appellant could be falsely implicated in the case. However, he has-challenged the finding of the trial Court on the ground that there are material contradictions and inconsistencies in the ocular evidence and medical evidence. The evidence placed on the record is as under:--
(a) Ocular Evidence.
(b) Recovery.
(c) Medical Evidence. Ocular Evidence: ' I will deal with the ocular evidence first. As regards ocular evidence the prosecution has examined complainant and P.Ws. Barkat Ali and Sharbat Ali who are the brothers of the complainant and all three are the sons of the deceased. According to these witnesses they were present in the land where the incident had taken place and that the appellant had come there from his village duly armed with the gun from which he first fired at their father the deceased hitting him on his elbow whereupon the deceased started running towards the road and was being chased by the appellant. It is the version of these witnesses that while chasing the appellant went on firing deceased and had actually fired three more shots hitting the deceased with all these shots. This implies that the deceased would have sustained injuries on the back side but according to the medical evidence the injuries sustained by the deceased are on the front side i,e, in the chest and pelvic region. This obviously is not in accordance with the contention of the witnesses and doubt can be raised. There are other material contradictions also. According to the complainant and witness Barkat Ali they were cutting grass (Lucern) in the said lands while P.W. Sharbat states that they had also taken a spade with them and were excavating a Wahi (Wali) but according to the Mashirnama no spade or partly or fully excavated Wahi is seen at the place of Wardat. All these three witnesses also state that they had taken sickle and cloth with them and had cut the grass but Mashirnama does not show if any such item was available at the Wardat. There is even contradiction with regard to their leaving the house. According to two witnesses their father had left the house at sunrise time having taken breakfast but according to the complainant he had left the house at about 10-00 or 11-00 a.m. It may also be observed that according to the complainant the land in dispute was in possession of the accused at the time of incident and that the complainant party had taken possession of the said land after the accused was taken in custody.
8. This would show that in such circumstances the complainant party were the trespassers in the said land when they had come to cut the grass which would belong to the person in possession of the land i,e, the accused. It may further be observed that the two witnesses Barkat Ali and Sharbat Ali in their evidence state that they were not examined by the police under section 161, Cr.P.C. But the Investigating Officer, Allah Warayo in his evidence states that he had examined these witnesses. In view of the above contradictions and the facts that on the very admission of the complainant there was enmity between the parties, the deposition of these witnesses cannot be accepted outrightly but the same has to be scrutinised very carefully in relevance with the other evidence on the record. The learned counsel for the appellant has placed reliance on the case of Ghulam Rasool v. The State 1985 PCr.LJ 1097, wherein a learned Single Judge of Lahore High Court has held that evidence of the only eye-witnesses related to the deceased cannot be made the basis for conviction where a serious doubt is cast on their presence at the spot and their evidence is not inconsonance with the medical evidence. In these circumstances, and in view of the above case-law I am not inclined to rely on the evidence of these two eye-witnesses.
(b) Recovery: ' Taking up the question of recovery which involves the recovery of incriminating articles such as gun and empty cartridges from the accused and place of Wardat, I am of the view that the same is also not above doubt. First I will deal with the recovery of the cartridges. According to the Mashirnama of Wardat three cartridges were recovered from the Wardat. The A.S.I. Who is the Investigating Officer also states the same in his evidence the Mashir Wazir Ali in his deposition in Court states "four empties cartridges Exhs.09/E/1 to 09/E/4 present in Court are also same out of which three were acquired from the place of Wardat and one was acquired from the house of accused". Now, this piece of evidence shows that in Court there were four empty cartridges which according to this Mashir were secured from the place of Wardat in his presence. According to the Mashirnama of Wardat and the evidence of the Investigating Officer he had secured only three empty cartridges which were sent by him for the test. According to certificate of Chemical Analyser he had returned the fourth empty cartridge which was used for the purpose of test but according to this Mashir the fourth empty cartridge was recovered from the house of the accused which fact is not in consonance with the other evidence on the record. As regards the arrest of the accused and recovery of gun from him the evidence of the. Investigating Officer shows that accused was arrested on 11-1-1989 by him and that he had met with the Mashir Wazir All in the street when he was going to arrest the accused whereas according to the Mashir Wazir All he had come to learn about the arrest of the accused and, therefore, he had himself gone to the house and the police was present there. This shows that the accused had already been arrested when the Mashir Wazir Ali arrived there and, therefore, the Mashirnama of arrest prepared by the police stands falsified.
9. Since this fact stands falsified the question of recovery of gun of the police in presence of this Mashir also becomes doubtful. Even this Mashirnama does not show if any empty cartridges, was recovered from the house of the appellant. Thus, the recovery of the gun and empty cartridges is also not free from doubt. It may further be observed that nowhere in evidence it has come that the empty cartridges from Wardat were sealed by the police at that time. Thus, the possibility of adding such cartridges subsequently cannot be ruled out. In these circumstances, the evidence on the point of recovery is also doubtful.
(c) Medical evidence: According to the Medical Officer the deceased had sustained four wounds of entry. One of the wounds is on the right elbow of the deceased as stated in the F.I.R. But the other three wounds are sustained by him on the front side i,e, on the chest and in the pelvic region and, therefore, the same is not in consonance with the evidence of the eye-witnesses Barkat All and Sharbat All or the evidence of the complainant Nadir Ali and the F.I.R., according to which the wounds would have been caused on the back side. It may further be observed that according to the evidence of Barkat Ali and Sharbat All their father had left the house at sunrise time having taken breakfast and went to the field to graze buffalos and the incident had taken place at 15-30 hours on the same day which means at least 8/9 hours would have passed after the deceased had taken his last meal but according to the medical evidence the last meal had been taken by the deceased only about three hours before his death. Even this evidence belies the contention of the complainant made in the. F.I.R. And the version of the prosecution as advanced. The learned counsel for the appellant has placed reliance on the case of Ghulam Qadir v. The State 1978 PCr.LJ 448, wherein a Division Bench of this Court has acquitted the accused giving the benefit of doubt in the case where all prosecution witnesses were interested in deceased and were related inter se having enmity with the accused and that there was no corroboration from any independent source. In this case the evidence of Investigating Officer and Mashir of Wardat was also at variance. The counsel for the appellant has also placed reliance on the case of Ghulam Nabi v. The State 1984 SCM R 782, wherein also the honourable Supreme Court has held that in the case the version of the prosecution witnesses was falsified by medical evidence and the evidence of witnesses was contradictory then the same could not be relied on in case the evidence involving capital charge.
10. ' The learned Assistant Advocate-General appearing for the State has vehemently opposed the contention of the learned counsel for the appellant but has not been able to show from the record if the evidence of the eyewitnesses is not inconsistent or contradictory to the facts as discussed above.
11. In the above circumstance I will accept this appeal giving benefit of doubt to the appellant and set aside the conviction and sentence awarded to the appellant by the trial Court. The appellant stands acquitted and shall be released forthwith if not required in any other case.