1. Appellants were tried by learned Additional Sessions Judge, Shahdadkot for an offence punishable under section 302/34, P.P.C. Found them guilty and vide judgment, dated 29-10-1995 convicted Gul Hassan and sentenced him to suffer R.I. For 25 years and convicted and sentenced appellant Khadim under section 302/34, P.P.C. To suffer R.I. For 10 years. The appellants filed this appeal under section 410, Cr.P.C., and have challenged their conviction and sentences.
2. The case of prosecution as unfolded by complainant Ghulam Sarwar in the Roznamcha Entry No.7, dated 28-7-1986 recorded by A.S.-I. Muhammad Yousuf, Incharge Police Post, Sijawal which was subsequently incorporated in 154, Cr.P.C. Book of Police Station, Miro Khan is, that deceased Mehboob was his uncle and his Otaq is situated near abandoned Ambat Canal adjoining to his house. Gul Hassan is their case-fellow and resides at the distance of about one mile from their village. His uncle deceased Mehboob prevented Gul Hassan not to visit their village. Gul Hassan replied that he used to visit the house of Muhammad Yaqoob, as such they have no concern. About a week prior to the incident Gul Hassan visited the house of Muhammad Yaqoob and on this account there was exchange of harsh words between Gul Hassan and deceased Mehboob. On account of this Gul Hassan was annoyed and issued threats to deceased Mehboob. On the night of incident i.e. 28-7-1986 at about "Fair" prayer time deceased Mehboob was sleeping in his Otaq whereas P.Ws. Muhammad Khan and Mithal were sleeping in their own houses.
3. Complainant and P.Ws. Heard gun shot reports and cries of deceased Mehboob and immediately went running towards the Otaq and found on the torch light appellants Gul Hassan and Khadim armed with S.B.B.L. Gun and were firing at deceased Mehboob on which they gave Hakals and culprits made good their escape towards north. Complainant and P. Ws. Went over to Mehboob and found him injured having fire-arm injuries and subsequently he died. Complainant after leaving the P.Ws. Over the dead body went to lodge the report. A.S.-I. Muhammad Yousuf Incharge Police Post, Siawal lodged the report. After lodging the report A.S.-I. Proceeded towards Vardat, inspected the Wardat and prepared Mashirnama in presence of Mashirs Wazir A.I son of Karim Bakhsh and Noor Muhammad son of Piyaro Jatoi and also prepared Danishnama of deceased Mehboob in presence of the same Mashirs. Complainant also produced torch before police on 28- 7-1986 which was secured by A.S.-I. Muhammad Yousuf. A.S.-I. Muhammad Yousuf after completing the usual formalities handed over the dead body of Mehboob to Hazoor Bakhsh, P.C.
4. For taking the same to Medical Officer, Miro Khan for post-mortem examination and report. After usual autopsy, dead body was handed over to Ghulam Qadir by Huzoor Bakhsh, P.C. Under receipt.
5. A.S.-I. Muhammad Yousuf on 22-8-1986 arrested Khadim Hussain in presence of same Mashirs and prepared Mashirnanza and obtained signatures of Mashirs Wazir A.I and Noor Muhammad. On the same day A.S.-I. Secured S.B.B.L. Gun at the pointation of Khadim Hussain in presence of Mashir Wazir A.I and Noor Muhammad and prepared Mashirnama. On 22-8-1986 Gul Hassan was arrested by A.S.-I. Muhammad Yousuf in presence of Mashirs P.C. Muhammad Hassan and Ghulam Qadir of Police Station Miro Khan at Bhand Gharhi Khairo Road near Kot Lal Bakhsh Mahesar. Police also secured S.B.B.L. Gun from accused Gul Hassan in presence of same Mashirs. Police prepared single Mashirnama for recovery and arrest of Gul Hassan. After finalization of investigation accused were challaned in the Court.
6. On 22-9-1987 learned Vth Additional Sessions Judge, Larkana framed the charge against the accused. Accused pleaded not guilty. During the trial, prosecution examined P. W. 1 Huzoor Bakhsh P. C. Exh.7. P. C. Huzoor Bakhsh after receiving dead body of Mehboob from. A.S.-I. Muhammad Yousuf, handed over the same to Medical Officer, Miro Khan for post-mortem examination which was handed over to Ghulam Qadir under receipt which is Exh.7-A by Huzoor Bakhsh. P.W.2 Dr. Aurangzeb Exh.8. Doctor received the dead body of deceased Mehboob. According to this witness, he observed following injuries:-- "External examination: A dead body of middle aged, male, Muslim, rigor mortes present, post-mortem lividity present, no signs of putrifacation.
7. External injuries:
(1) 8 lacerated punctured type of wounds 1/2 c.m. x 1/2 c.m. x diameter over the back of the chest at the mid of vertebral column (wound of entrance).
(2) 7 lacerated punctured type of wounds 1/2 c.m. x 1/2 c.m. x diameter in the left axilla (wound of entrance).
8. Four pallets recovered from the body of deceased and sent to the police station.
9. Internal examination: Brain N.A. D.
10. Spinal Cord ruptured at the side of injury No. 1. Fracture of the 8th and 9th thoresic vertebrae.
11. Chest. Rupture of both right and left lung. Ruptured of the heart.
12. Abdomen. Stomach empty.
13. Few perforation in intestine. "
14. According to doctor, death of deceased has occurred due to shock and haemorrhage, all the injuries were ante-mortem in nature, discharged from fire--arm. The death was instantaneous.
15. Medical Officer produced the post-mortem notes as Exh.8-A. In cross-examination, according to doctor, injuries sustained by deceased were not fired from front. Injury No-1 was fired from back while injury No.2 was fired from left side.
16. P.W.3 is Ghulam Sarwar complainant Exh.9. According to him during night time when as usual he was sleeping in his house at about Fajr prayer time, he heard gun reports coming from the Otaq of his uncle Mehboob. He picked up torch and went running there. P. Ws. Muhammad Khan and Mithal followed him. He flashed torch and saw Gul Hassan and Khadim armed with S.B.B.L. Guns. P.Ws.
17. Mithal and Muhammad Khan also saw the accused. According to him-he had seen Gul Hassan firing at deceased Mehboob. Accused Gul Hassan used to visit the house of Yaqoob. His uncle Mehboob had restrained Gul Hassan not to visit the house of Yaqoob. On this account Gul Hassan was annoyed and subsequently Mehboob was killed on 8th day when Gul Hassan was restrained by Mehboob not to visit the house of Yaqoob. Complainant produced F.I.R. Exh.9-A. He has shown Wardat to police and in his presence dead body of Mehboob was despatched to dispensary for autopsy through P.C. Huzoor Bakhsh.
18. P.W.4 is Muhammad Mithal Exh.10. He has stated that it was night time when he and his brother Muhammad Khan were sleeping in their house. House of complainant Ghulam Sarwar is near to their house. At Fajr prayer time, he heard gun reports and cries coming from west of their house. He and Muhammad Khan went running there and also saw Ghulam Sarwar going ahead of them.
19. They went to the Otaq of Mehboob and saw Gul Hassan and Khadim armed with S.B.B.L. Gun, they were firing at deceased Mehboob and told them not to come near to them as they would be killed.
20. Accused thereafter ran away. They went near Mehboob and found him dead. Muhammad Mithal and Khan Muhammad remained with the dead body of Mehboob while Ghulam Sarwar went for lodging report to the police. He was examined by police. His 164, Cr.P.C. Statement was recorded by Mukhtiar kar and F.C.M., Miro Khan which he produced as Exh. 10-A. According to witness deceased Mehboob had prevented accused Gul Hassan from visiting the village over which Gul Hassan got annoyed.
21. P.W. 5 Muhammad Khan Exh. 11 has stated that it was about Fajr prayer time when he alongwith complainant Ghulam Sarwar and P.W. Muhammad Mithal and other inmates were present in the house. All of a sudden there was gun report coming from the Otaq of deceased Mehboob. They rushed towards Otaq of Mehboob. He saw Gul Hassan and Khadim armed with gun in the Ewan of Otaq. Accused Gul Hassan and Khadim issued Hakal to Ghulam Sarwar and told him not to come near to them. Accused Gul Hassan then fired at Mehboob and ran away. They found Mehboob dead. He was examined by police. His 164, Cr.P.C. Statement was recorded by Mukhtiar kar and F.C.M., Miro Khan which he produced as Exh. 11-A. According to this witness, accused persons have committed the murder of Mehboob without any reason.
22. P.W. 6 Niaz Hussain Tapedar of the beat was examined as Exh.
12. He produced sketch of Vardat.
23. According to him Vardat was shown in this case by Ghulam Sarwar. He prepared sketch of Vardar by showing therein the points, directions and distance and marginal notes. According to him, he has taken the measurements with the measure tape and produced sketch of Vardat in duplicate as Exh. 12-A.
24. P.W. 7 Wazir Khan Mashir was examined as Exh. 15 who did not support the prosecution case regarding the production of torch by the complainant and did not support prosecution case regarding arrest of Khadim and denied that Khadim had led police to his Katcha Landhi and produced one S.B.B.L. Gun and licence copy in his name. Finally he stated "I cannot say if torch and gun available in Court are same". The witness was declared hostile by the learned A.P.P. And the suggestions of A.P.P. Were denied by the witness.
25. P.W. 8 Azizullah was examined as Exh.
23. As Muhammad Yousuf, A.S.I. Has expired and Azizullah was conversant with his handwriting and signature, therefore, he was examined by the prosecution. He produced Roznamcha entry No.7 as Exh. 23-A and also saw Exhs. 15-A, B, C, and 15-D and stated that these documents bear the signatures of late Muhammad Yousuf.
26. Report of Chemical Examiner was produced by A.P.P. As Exh. 24-A, parcel No. l of this crime showing earth secured beneath deceased Mehboob was sent for report and the report of the Analyser is in positive showing earth to be stained with human blood. On 19-9-1995 learned A.P.P. Submitted statement closing the side on behalf of prosecution as Exh. 25.
27. Statement of accused Gul Hassan was recorded as Exh. 26 and statement of accused Khadim was recorded as Exh.
27. Both the accused denied the prosecution allegations and stated that P.Ws. Are inimical, hostile and interested. Accused neither led any defence nor they examined themselves on oath.
28. I have heard Mr. A.I Nawaz Ghanghro 'earned counsel for the appellants who has contended that the evidence adduced by the prosecution at trial is not properly examined, analysed and evaluated by the trial Court; that the ocular evidence produced by the prosecution is without any corroboration and circumstantial evidence is hardly to be believed against the appellants; that alleged identification on torch light during odd hours of night is hardly to be believed. Ocular evidence so furnished by the prosecution is even belied by the persecution story, circumstances and conduct of the P.Ws. So examined by the trial Court. Recovery of torch and gun against the appellants is not supported by the Mashir. Investigating Officer of the case due to his death did not appear in the Court and the F.I.R. Was lodged by the police after preliminary investigation, this fact is admitted by the complainant himself in his evidence. Mr. Ghanghro has referred 1988 PCr.LJ 152 wherein it is held as under:--- "Occurrence a dark night incident and victim of assault having one injury each thereby leaving a little opportunity to eye-witnesses for having witnessed the incident--Incident appearing to be unwitnessed and possibility that complainant party being hostile to accused, falsely implicated them due to suspicion and enmity."
29. Learned counsel for the appellants has also referred 1989 PCr.LJ 471 Afzal Hussain v. State in which dictum laid down is as follows:--- "Investigating Officer was dead and Mashirnama regarding recovery of weapon used in offence was produced through another Police Officer to prove handwriting and signature of deceased Investigating Officer---Mashirnama not being substantive piece of evidence, recovery, held, could not be proved through Police Officer other than Investigating Officer."
30. Learned counsel has also referred 1992 PCr.LJ 2498 Muhammad Zaman v. The State in which the observation of Honourable Judge is as follows:--- "Actual incident was found to be an unwitnessed crime having been committed in the dark hours of the night for which the accused had been roped in."
31. Learned counsel lastly referred 1993 PCr. LJ 527 Muhammad Amin v. The State, D.B. Decision of this Court. The learned Division Bench has held as follows:--- "Ocular evidence was discrepant, full of infirmities and unworthy of credit--Incident having occurred at mid-night mistaken identity of assailant could not be ruled out--F.I.R. Might have been recorded after due deliberations giving names of close relations of deceased as eye--witnesses "
32. I have also heard Mr. Isserdas learned counsel for Additional Advocate---General and I have gone through the record of this case carefully.
33. The fact that Mehboob was murdered by means of gunshot injuries is not in dispute. Besides other evidence on this point, Dr. Aurangzeb P.W. 2 has produced the post-mortem report Exh. 18 referred hereinabove.
34. The case of prosecution against the appellants hinges upon the ocular testimony of complainant Ghulam Sarwar, P.Ws. Muhammad Mithal and Muhammad Khan. Admittedly according to prosecution, incident took place during night time round about Fajr prayer time when Mehboob was sleeping in his Otaq. After hearing gun reports complainant and P.Ws. Went running there and according to them they were on their respective cots when they heard the first fire report. The complainant in his initial report with the police stated that he had only seen accused Gul Hassan firing at deceased and he has admitted this fact during cross-examination in the trial Court. The complainant was confronted by the learned counsel for the defence on making improvement in the case that they had witnessed the incident of firing by Gul Hassan and Khadim at deceased Mehboob. Complainant Ghulam Sarwar in cross-examination has stated as follows:--- "I have not stated in my F.I.R. That in our presence accused Gul Hassan and Khadim Hussain were firing at deceased Mehboob."
35. Admittedly houses of complainant and P.Ws. Are at some distance from the Otaq of Mehboob i.e. The place of Vardat. The contention of the learned counsel that F.I.R. Was lodged by the police after preliminary investigation is supported by the evidence of complainant and during cross- examination he had stated that "I gave the facts to A.S.-I. Who accompanies me to the village of Khan Muhammad Jatoi. We had gone to the village of Khan Muhammad Jatoi in police vehicle.
36. A.S.-I. Told Khan Muhammad that since murder has taken place in his village, therefore, hands of culprits should be entrusted to him. Khan Muhammad told A.S.-I. That he has nothing to do with the matter and that accused had disappeared. After this we came to Vardat where A.S.-I. Took down my report. A.S.-I. Did not examine the witnesses at the Vardat. He brought all of us to Police Station, Miro Khan where A.S.-I. Examined my witnesses". According to complainant Mashirs Noor Muhammad and Wazir are his case-fellows. On the point of production of torch, complainant has stated that he had produced the torch before the police at Police Station, Miro Khan on the next day of incident whereas according to Mashirnama of recovery of torch, same was produced by the complainant at the time when police inspected the scene of offence. This controversial statement itself belies the production of torch by the complainant. P.W. Muhammad Mithal has stated in cross-examination that he was awakened when he heard the gun reports, Muhammad Khan was also awakened. According to P.W. Muhammad Mithal, he and Muhammad Khan saw complainant when he was coming out of his house and was running towards Otaq of Mehboob and that he had heard one gun report while he was in his house and when he reached the Otaq of Mehboob second fire was made by Gul Hassan at deceased Mehboob whereas accused Khadim Hussain did not fire at deceased in his presence. According to this witness deceased had bleeded a lot and the blood spread on the cot as well as on the ground, police had secured all the blood-stained articles including the cot and the bed. This statement is falsified by the Mashirnama of Vardat prepared by the police as except blood-stained earth neither cot was secured by the police nor other blood- stained articles were shown to have been secured by the police in the Mashirnama. According to this witness police had arrested the accused on either second or third day of incident and he had seen the accused present at the Police Station whereas according to police and Mashirnama of arrest of accused and recovery of gun, accused were arrested on 22-8-1986. P.W. Muhammad Khan has admitted that he has stated in his 161, Cr.P.C. Statement and 164, Cr.P.C. Statement that on the relevant night he was sleeping in his house when he heard gun report and that he had heard one fire report while he and other inmates were awakened. Witness has further submitted in cross-examination that he has stated in 161 as well as 164, Cr.P.C. Statements that on reaching the Otaq, he saw only Gul Hassan firing at Mehboob and that he has not stated in his 164, Cr.P.C.
37. Statement that accused Gul Hassan and Khadim Hussain had fired at deceased in his presence and that when they arrived at the Otaq they found Mehboob lying on the ground. Witness was confronted by the learned defence counsel to his 164, Cr.P.C. Statement recorded by Mukhtiar kar and F.C.M., Miro Khan. The learned trial Court has considered only the ocular evidence of the witnesses referred hereinabove. Witnesses have deliberately made improvements in the case and have given story which itself does not inspire confidence. Inasmuch as deceased Mehboob was sleeping in his Otaq whereas complainant and P. Ws. Mithal and Khan Muhammad were sleeping in their respective houses when on hearing gunshot reports they were awakened and they proceeded towards the Otaq of Mehboob. In their 161 and 164, Cr.P.C. Statements they were not unanimous about the role played by both the accused. On the one hand they have alleged incident of firing at Gul Hassan and that Khadim has not caused any fire-arm injury whereas in the evidence they implicated both of the appellants. This ambiguity and improvement in any case shows that evidence furnished by the P.Ws. Is not trustworthy and implicit reliance cannot be placed on the evidence. The non-recovery of cot and bed etc, from the Vardat also casts serious doubt about the veracity of story given by the P. Ws. Recovery Mashir Wazir Khan has not supported the prosecution case on the point of presentation of torch by the complainant and arrest of appellant Khadim Hussain and recovery of S.B.B.L. Gun at his pointation and witness was declared hostile. A.S.-I. Muhammad Yousuf unfortunately expired before recording of his evidence. P.W.
38. Azizullah was examined in his place as he was well conversant with the signature and handwriting of Muhammad Yousuf, A.S.-I. Under these circumstances, recovery in any case against the appellant Gul Hassan cannot be proved through the evidence adduced by the prosecution. It is the case of the prosecution that empties were not secured by the police from the Vardat, therefore, mere recovery of gun without empties is of no help to the prosecution.
39. I have minutely gone through the evidence as discussed above and have also perused the authorities cited by Mr. A.I Nawaz Ghanghro learned counsel for the appellants. Mr. Isserdas learned State Counsel in view of the evidence discussed hereinabove and authorities referred by Mr.Ghanghro, very rightly did not support the conviction awarded by the learned trial Court.
40. As a result, therefore, for this unsatisfactory state of evidence in this case, I find myself unable to uphold the conviction of the appellants and giving them the benefit of doubt, I set aside their conviction and sentences and direct that both of them be set at liberty if not wanted in any case.
41. The appeal is accordingly accepted and the impugned judgment is set aside.
42. By short order dated 13-8-1996 I have allowed this appeal and these are the reasons for the same.