1. The present appellant, Sardaro alias Sardar Khan was tried by the Ist Additional Sessions Judge, Jacobabad and was convicted for offence under section 302 read with 34, P.P.C. And was sentenced to suffer R.I. For life and to pay fine of Rs.10,000 or in default to pay fine to undergo further R.I. For one year. It was further ordered by the trial Court that the fine if recovered to be paid to the legal heirs of deceased Azizullah as compensation under section 544-A, Cr.P.C. Vide his judgment-dated 30-5-1991.
2. The appellant being dissatisfied with the judgment filed an appeal from Jail being Criminal Jail Appeal No.63/91 and also another appeal by Mr. M Daud Baloch, Advocate being Criminal Appeal No.62/91.
3. The appellant in this matter was first convicted by the learned Ist Additional Sessions Judge, Jacobabad, on 12-2-1986 for offences under section 302 read with section 34, P.P.C. And was sentenced to suffer R.I. For life and to pay fine of Rs.10,000 or in default to suffer further R.I. For six months. An appeal being Criminal Appeal No.5/86 was filed by the appellant, which was admitted for regular hearing on 11-3-1986. The appeal was decided on 26-3-1990 setting aside the conviction of the appellant and the case was remanded to the trial Court for affording an opportunity to the appellant in terms of section 340(2), Cr.P.C. After the remand of the case, the appellant was again convicted on 30-5-1991 by the then Ist Additional Sessions Judge, Jacobabad and sentenced him to R.I. For life and to pay fine of Rs.10,000 or in default to suffer further R.I. For one year. Since the paper book was already prepared in Criminal Appeal No.5/86, as such the same was ordered to be treated as the paper book for this appeal by his Lordship who admitted the appeal for regular hearing. The conviction has been maintained on the basis of evidence recorded by the earlier trial Judge, as the case was remanded for only compliance of provision of section 340(2), Cr.P.C.
4. The prosecution story as alleged in the F.I.R. Is that the complainant Khair Muhammad resident of Village Rasaldar, Taluka Thul, District Jacobabad, resided in his village alongwith his cousin Azizullah. It is alleged by him that 6/7 months prior to lodging of the F.I.R. One Fazal Muhammad (absconding accused). Had divorced his wife and she got subsequently married with one Aurangzeb. Due to this marriage, the accused party had got annoyed with the complainant party.
5. It is further alleged that on the day of the incident, complainant alongwith Kaleemullah, Sahib Khan and deceased Azizullah had gone to Mirpur Town for purchasing household articles and when they were returning after making purchases and reached near the lands of Haji A.I Sher at Tripehri time the present appellant, Sardaro, who was armed with gun, Shahul who was armed with hatchet and the absconding accused Mureed, who was armed with gun, came out from the bushes. It is further alleged that after exchanging hot words, the absconding accused, Mureed fired at Azizullah and appellant Sardaro is also alleged to have fired at the deceased, Azizullah, who fell down. During the incident, Mureed, absconding accused had asked the deceased as to why his daughter-in-law was got married to his cousin after obtaining divorce from his son. It is also alleged that accused Shahul threatened the witnesses not to raise any cries or to come near as otherwise they would also be killed. After the incident the accused ran away from the Wardat. The complainant made the witnesses to sit at the dead body of Azizullah, who had by that time died as a result of injuries sustained by him and went to P. S. Thul to file the F.I.R. The F.I.R. Was registered on 24-4-1983 at about 18-00 hours by S.H.O. For offence under section 302/34, P.P.C. Read with 13-D, Arms Ordinance being Crime No.35/83 of Police Station. The police after usual investigation challaned the present appellant alongwith the co-accused Shahul in the Court. The learned trial Court at the time of first trial acquitted accused Shahul but convicted the present appellant for offence under section 302/34, P.P.C. The trial Court framed charge against the accused to which they pleaded not guilty.
6. The case of the present appellant during the trial was one of denial and of false implication in the case on account of enmity with the complainant party.
7. The prosecution had examined 8 witnesses during the trial, namely Tepadar, P.W.I Exh.5, who has prepared the sketch of the Wardat, Rahmatullah, P.W.2, Exh.7, P.C. Khair Muhammad (first informant and eye--witness), P.W.3, Exh.8, Kaleemullah, P.W.4, Exh.10 (eye-witness), Sahib Khan, P.W.5, Exh.10 (eye-witness), Ahmeduddin, P.W.6, Exh.14 (Mashir of Wardat, securing of crime empties and arrest of the present appellant alongwith gun), Dr. Amar Lal, P.W.7, Exh.21 and S.H.O. (I.O.) Aftab Ahmed, P.W.8 Exh.23.
8. The prosecution witnesses Khair Muhammad, Kaleemullah and Sahib Khan, who are eye-witnesses of the incident have supported the prosecution story as alleged in the F.I.R. Mentioned above.
9. Dr. Amar Lal, is medical officer, who has conducted post-mortem examination of deceased Azizullah, S.H.O., Aftab Ahmed has investigated the entire case. He has stated in his evidence that he recorded the F.I.R. Of this case and proceeded to the Wardat and prepared Mashirnama of the Wardat and sent the dead body of the deceased to medical officer for post-mortem examination and report. He has also stated that he sent the blood-stained earth and crime empties secured from the Wardat to the chemical analyser/Ballistic Expert for examination and report. The reports of the Chemical Analyser and the Ballistic Expert have been produced on record.
10. The prosecution has relied upon the following pieces of evidence:-- (i)Oral evidence consisting of the prosecution witnesses Khair Muhammad, Kaleemullah and Sahib Khan.
11. (ii)Motive.
12. (iii)Recovery of gun and crime empties from the Wardat.
13. (iv)Medical evidence.
14. Learned counsel for the appellant has mainly contended that the evidence of the eye-witnesses is not reliable. According to him the presence of the eye-witnesses at the time of the incident is also highly doubtful. He has further contended that all the prosecution witnesses are related to the deceased and they were on inimical terms with the appellant on account of some dispute over lands. He has further contended that all the witnesses have stated in their evidence that they had gone to Mirpur Town for making purchases of household articles, grossery etc. And according to their statement they had purchased the same and were carrying the same to their village at the time of the incident. They have further stated that the articles purchased by them were lying at the place of the incident in this case. However, according to the learned counsel of the appellant nothing has been secured by the police at the time of seeing the Wardat nor even the witnesses produced any of the purchase(i articles by them before the police to establish their presence at the Wardat and also to establish the purpose of their going to Mirpur Town alongwith the deceased. According to him in view of these facts alone the evidence of the prosecution witnesses becomes doubtful. He has further contended that the Wardat is surrounded by cultivated lands and villages and many independent persons were even working at the time of the incident near the Wardat, but none of them has been examined by the prosecution. He has further contended that the motive in any case is double-edged sword which can be used as motive for the purpose of commission of a crime and at the same time can be a reason for false implication of accused in the case. According to him the prosecution has failed to even prove the motive against the appellant, as they have admitted in their statements that the previous husband of Mst. Rabeela who happens to be sister of prosecution witness Khair Muhammad, had voluntarily divorced her, as such according to him the appellant could not have any motive to commit this crime. So far as the recoveries are concerned, the learned counsel for the appellant has contended that the crime empties were sent to the expert after great delay for which no explanation has been given by the prosecution. Besides; according to him, the Mashirs of recovery are admittedly related to the deceased and in view of these circumstances, he has contended that this piece of evidence has not even been considered as corroborative piece of evidence against the accused even by the trial Court. He has further contended that on the basis of the same evidence, the learned trial Court who had tried the present appellant alongwith the accused Shahul earlier had acquitted accused Shahul. This according to him is sufficient ground to suggest that even the first trial Court who had recorded the evidence did not believe the witnesses so far at least the accused Shahul was concerned. .
15. Learned counsel for the State, however, supported the case of the prosecution by contending that this is day time incident and the evidence of three eye-witnesses mentioned above can even be relied upon and conviction can be based on the evidence of these three witnesses even without corroboration, as there cannot be any mistake in identity of the accused as the incident had taken place during day time.
16. I have heard the learned counsel for the appellant and the State at great ~length and I have also gone through the entire evidence which has been brought on record. I have also perused the judgments dated 12-2-1986 by Mr. Abdul Rehman Shaikh, Ist Additional Sessions Judge, Jacobabad, and also the judgment dated 30-5-1991 by Mr. Aftab Ahmed, Ist Additional Sessions Judge, Jacobabad, against whose judgment the present appeal has been filed.
17. It is admitted position on record that all the witnesses in this case including the Mashirs are related to the deceased. It is also admitted by Mashir Ahmeduddin, who acted as Mashir of Wardat, inquest report and arrest of both the accused and also Mashir of recovery of licensed gun from the accused/appellant that he and Ismail were related to the complainant party. Apart from this fact, it is clear that these Mashirs happen to be at the Wardat by chance on both occasions once at the time of inspection of the Wardat and second at the time of arrest of the accused. The Mashir himself has admitted that he resides 5 miles away from the Wardat. According to the P.Ws., both the Mashirs were present at the Wardat before arrival of the police at the Wardat. However, evidence of the S.H.O. Does not support this fact. This clearly shows that the entire evidence of the prosecution consists of interested and hostile witnesses, without any independent corroboration.
18. So far as the securing of the crime empties and the Ballistic report is concerned, the learned trial Judge has not taken into consideration this piece of evidence on the ground that recovery of crime empties and the gun were sent to the Ballistic Expert after a great delay. In addition to this even the Mashir of the Wardat, recovery of the crime empties and gun from the appellant is also related to the deceased and admittedly a chance witness and does not even belong to the locality, where this incident has taken place and also from the place from where accused was arrested alongwith gun. The S.H.O. Has stated in his evidence that he had called-them from their houses, but Mashir has stated that he and the other Mashir happened to be there by chance as they were going on both occasions to that side with their own work. As such this piece of evidence has been rightly rejected even by the learned trial Court.
19. It is admitted by P.W. Sahib Khan that Vikrias and Channas had come to the Wardat and had seen the accused. He has further stated in his evidence in cross-examination that they did not give name of the accused to those persons, as they had themselves seen the incident.
20. It has been held in PLD 1959 Kar. 257 (Umedo and another v. The State) that in murder case when there was no independent witness of the actual occurrence and the witnesses were related to the deceased persons and were not on good terms with the accused and further that there were contradictions and discrepancies in their statements and the evidence as to recovery of weapons, it was held that the case has not been proved beyond reasonable doubt. It was further observed that while relationship with the deceased is not to be considered a sufficient ground to discredit a witness, the prosecution should in all cases, where enmity exists between the parties, and where they can reasonably anticipate that impartiality of the witnesses would be challenged, make effort to see that independent people residing in the area, or having cultivation round the place of occurrence, are examined.
21. 1972 SCMR 144 it has been observed by their Lordships that a large number of persons had gathered on place of occurrence but all the same prosecution failing to produce a single disinterested witness in support of its case. It was held that no implicit reliance could be placed on the evidence of interested eye-witnesses in absence of corroboration. It was further held that the prosecution had failed to prove its case beyond reasonable doubt.
22. I have gone through the medical evidence and according to Dr. Amar Lal, P.W.7 Exh.21 the deceased had 5 external injuries on his person, as such according to his opinion these injuries could not be result of two gunshots, but may be caused by three gunshots. According to the eye-witnesses only two fires were made at the deceased one by Mureed and other by the present appellant. In view of this statement, it is clear that the oral evidence has not even been corroborated by the medical evidence.
23. It has been observed in PLD 1953 FC 93 that conflict between the evidence of eye-witnesses and Doctor was important matter and non---consideration of it can legitimately be regarded as serious omission to consider material evidence.
24. It has also been observed in PLD 1963 SC 25 that if the witnesses are interested exceptionally strong corroboration is necessary, which is almost by itself sufficient to establish guilt of the accused. It has also been held in PLD 1963 SC 40 that ocular evidence of interested and partisan witnesses on capital charge must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of interested or partisan witnesses.
25. PLD 1953 FC 93 it has been observed that in criminal cases it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after examination of whole evidence the Court is of the opinion that there is reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the appellant is entitled to the benefit of doubt and not as a matter of grace, but of f right, because the prosecution has not proved its case beyond reasonable doubt.
26. Considering the entire evidence and in view of the above observations made by their Lordships in various judgments cited above, I feel that conviction of the appellant cannot be based on the evidence of the eye-witnesses mentioned above, who are admittedly interested and even on hostile terms with the appellant even on account of motive as alleged by the prosecution witnesses. There is no independent corroboration to corroborate the version given by the highly interested witnesses in this case. The presence of those witnesses at the Wardat is also doubtful. It is also admitted position that independent witnesses were available in this case, yet neither the police made any effort to even record their statements during neither the investigation nor the said witnesses were produced to give evidence at the time of trial by the prosecution. These circumstances show that had those witnesses been examined, they might not have supported the case of the prosecution. The evidence of recoveries and the ballistic report has not even been relied upon by the trial Court on account of sound reasons mentioned in the judgment. The evidence against the present appellant and the co-accused Shahul, who was acquitted, is practically the same, excepting that accused Shahul did not cause any injury to the deceased, but the learned trial Court had acquitted accused Shahul. The mere fact that the accused had not caused any injury to the deceased was not a sufficient ground for acquittal of co-accused Shahul on that reason alone. It appears that the learned trial Court was not satisfied with the evidence so far accused Shahul was concerned. The evidence even against the present appellant consists of the same witnesses; as such they cannot be partly believed and partly disbelieved, without any independent corroboration. In the case of the present appellant there is no additional independent corroboration. Considering all the facts mentioned above and the contentions raised by the learned counsel for the appellant, I am of the view that the witnesses in this case cannot be relied upon for the purpose of convicting the present appellant only on the basis of their oral evidence and the contention of the learned counsel for State that since the incident has taken place at day time, therefore, evidence of the witnesses should be relied upon is not based on any sound reason.
27. Accordingly I consider that the prosecution has failed to prove case against the appellant without reasonable possibility of doubt, as such the appellant is entitled to acquittal not as a matter of grace, but as a matter of right.
28. I have by a short order dated 27-1-1994 disposed of these appeals and acquitted the appellant and these are the reasons for the same.