' AMANULLAH ABBASI, J.--- Both these appeals are being disposed of through this single judgment as these appeals have arisen out of same judgment of Special Court Anti-Terrorism, Hyderabad and Mirpur 'Chas Division, at Hyderabad. The facts leading to the present appeals are as under:-- ' On 16-9-1997 at 21-30 hours Lakhano lodged F.I.R. At Police Station Banoo for offence under section 302/34, P.P.C. Complainant Lakha Dino stated in the F.I.R. As under:-- "I cultivate the land on ' Harap' basis. Today, in the evening of 16-9-1997, I accompanied by my maternal-cousin Ishaque son of Allah Dino Mirbahar, father Amb son of Essa Mirbahar and cousin Mir Muhammad son of Gul Mirbahar went to Banoo Town for some work. Following disposing of the work we left for the village on foot along Banoo Shah Karim Road at sunset time. At about 8-30 p.m., when we reached at Chhandan Mori to the West of Ali Bahar at about 1/2 k.m., we witnessed that three (3) unidentified persons were beating Muhammad Qasim son of Muhammad Saleh Palijo resident of Yameen Palijo, Village Deh Pad, Taluka Bathoro who acquainted by us and he was raising cries. Seeing so my maternal-cousin Ishaque intervened. Thereupon two out of the said three (3) persons said to the person having pistol that he should bump him off by opening fire with pistol. Then the said person having pistol opened straight fire with pistol at my maternal-cousin with intention to commit his murder within our sight which hit him and he fell down. Thereafter two
(2) persons leaving Muhammad Qasim Palijo moved away towards east along the road by riding on their motorcycle 70 without number plate which was parked there, while the third one ran away towards 'Bund' northwards on foot. Approaching there we witnessed that Ishaque had sustained pellet injuries of the cartridge of pistol on front of his neck from which blood was oozing and he had died on the spot. Then Muhammad Qassim Palijo narrated on enquiry, ' I was on the way to Banoo from my village by my motorcycle. These three (3) persons followed me by their motorcycle from Oagh Mori. When I reached Chhandan Mori they intercepted and made me get down and started saying that they would not spare me and they will bump off me on that day. As a result I raised cries and you have reached upon my cries. Upon intervention of Ishaque they have committed murder of him by opening fire with pistol and they have fled'. Following such narration made by Muhammad Qassim leaving the said persons over the dead body of Ishaque now I have appeared and lodged complaint that three (3) unidentified accused persons aforesaid witnesses and I have witnessed thoroughly in moonlight, they were unmasked, we can identify them on seeing again.
They were beating Muhammad Qassim Palijo. We approached there upon his cries. My maternal- cousin Ishaque intervened. Thereupon one out of three persons has shot dead Ishaque by opening straight fire with pistol. All of three (3) accused persons have fled. I am the complainant.
Investigation be made."
' On 16-9-1997 Ghulam Rasool Sial was posted as S.H.O., Police Station Banoo. The complainant Lakha Dino came to the police station and lodged' his F.I.R. Which was read over to the complainant and he signed it. The S.H.O. Proceeded to place of incident and prepared Mashirnama of Wardat in presence of Mashirs Khair Muhammad and Muhammad Bux. He recorded statement of P.Ws. And thereafter prepared Mashirnama of recovery of motorcycle in presence of same Mashirs. He prepared inquest report of dead body of deceased Muhammad Ishaque and, thereafter, the dead body was sent to hospital for postmortem report. On 25-9-1997 he arrested accused Gul Sher in presence of same Mashirs. On 26-9-1997 he produced accused Gul Sher before F.C.M., Mirpur Bathoro for recording of his judicial confession. On 29-9-1997 he arrested accused Qasim Dhammach and Ghulam Ali alias Karo in presence of same Mashirs. He recovered .12 bore pistol, 2 live cartridges and one motorcycle which belonged to accused Qasim. He came back to Police Station Banoo where he lodged F.I.R. Against accused Muhammad Qasim for offences under section 13-D, Arms Ordinance. On 30-9-1997 he brought accused to Mirpur Bathoro for identification parade where accused were identified by the P.Ws. Then he sent the case property for Ballistic Report and from there he obtained the Ballistic Report subsequently. He challaned the accused on 1-10-1997 in Special Court Anti-Terrorism, Hyderabad.
' During trial proceedings charge Exh.2 was read over to the accused on 15-10-1997 but the accused did not plead guilty. The prosecution examined complainant Lakhano Exh.6, he produced F.I.R. As Exh.6-A, P.W. Ghulam Ali, Civil Judge and F.C.M., Bathoro, District Thatta as Exh.7, he produced judicial confession of accused Gul Sher as Exh.7-A, P.W. Mir Muhammad as Exh.8, P.W. Muhammad Qasim as Exh.9, Tapedar Karim Dino as Exh.10, Dr. Sher Muhammad as Exh.11, he produced post- mortem as Exh.11-A, Mashir Khair Muhammad was examined as Exh.12, he produced Mashirnama of scene of offence as Exh.12-A, Mashirnama of recovery of motorcycle as Exh.12-C, Mashirnama of recovery of clothes as Exh.12-D, Mashirnama of arrest of accused Gul Sher as Exh.12-E, Mashirnama of arrest of accused Qasim and Ghulam Ali alias Karo as Exh.12-F, Investigating Officer Ghulam Rasool Sial, S.H.O., Police Station Banoo was examined as Exh.13, he produced report of Ballistic Expert as Exh.13-A, and Chemical Examiner's Report as Exh.13-B. The S.P.P. Gave up P.Ws. A.S.-I. Abdul Aziz Soomro, D.S.P. Muhammad Yousif and P.W. Amb vide statement Exh.14 and closed side of the prosecution vide statement Exh.15. The accused in their statement under section 342, Cr.P.C. Denied the allegations of prosecution. Accused Ghulam Ali stated that the case has been foisted on him due to enmity. Accused Qasim further stated that the case has foisted on him on account of enmity with Yar Muhammad Dhammach and Master Mir Muhammad Dhammach who are nearest to complainant party and at whose instance he had been implicated in this case. Accused Gul Sher also stated that he had been falsely implicated due to enmity.
' The learned Judge, Special Court Anti-Terrorism, Hyderabad and Mirpur Khas Division at Hyderabad convicted the accused and sentenced each of them to suffer R.I. For life and also to pay fine of Rs,1,00,000 (Rupees one lac) each and in case of default in payment of fine they were ordered to suffer R.I. For five (5) years more each. They were also separately convicted for offence punishable under sections 393, 397 and 398 and sentenced each of them to suffer R.I. For seven (7) years. The accused were given benefit of section 382-B, Cr.P.C.
' The learned Advocate for appellants Gul Sher and Ghulam Ali submitted that the prosecution failed to prove case against the accused/appellants. The evidence on record has not been examined properly. There are material contradictions. The burden of proof is on the prosecution to prove the case beyond reasonable doubt. The Mashirs Khair Muhammad and Muhammad Bux were close relatives of complainant and they acted as Mashirs throughout the investigation. No independent witness was associated as Mashir. The incident had taken place during night time and according to F.I.R. The identification was on moonlight but the judgment is silent as to whether it was first of lunar month or fourteenth of lunar month. The date of lunar month is not mentioned in the entire judgment. The evidence has been accepted as gospel truth. The learned Advocate for the appellants pointed out the contradictions and improbabilities. He also submitted that the medical evidence contradicted the ocular version as according to prosecution case shot was fired from close range but the Medical Officer's view is that the pellets of fatal shot had spread and this fact suggested that the shot was fired from a distance, therefore, the ocular version is not being supported by medical version. The witnesses are not truthful as there was no source of light, judicial confession of Gul Sher is exculpatory and according to him accused Qasim had fired the fatal shot but according to prosecution witnesses it was shot of Ghulam Ali alias Karo. He submits that no weapon was recovered from Ghulam Ali. The weapon was recovered from Qasim but the P.Ws. Do not attribute fatal shot to him. So, according to him the prosecution case is inconsistent and it has not been established as to whether it was shot of Ghulam Ali or Qasim which proved fatal.
' Similar are the arguments advanced on behalf of appellant Qasim. The confession of co-accused cannot be treated as evidence against appellant Qasim. The eye-witnesses do not implicate applicant Qasim. The identification during night time was not possible and, therefore, subsequent identification at the time of identification parade is on account of enmity which has been suggested in cross-examination of complainant.
' Learned A.A.-G. Supported the conviction stating that the eye-witnesses have identified and implicated the accused/appellants in their evidence. There is judicial confession of accused Gul Sher and it is a valid piece of evidence. Weapon was recovered from accused Qasim and the crime empty has matched the weapon recovered accused Qasim.
' There is something unusual about the prosecution case. According to P.W. Qasim Exh.9 on 16-9- 1997 at about 8-00 p.m. He went to Banoo Town to bring his brother on motor bike. On the way he saw light behind him. He was caught and he fell down from motorcycle. There were three culprits who started bearing him when he started cries. He had thrown key of the motorcycle and in the meanwhile he grappled with one of the culprits. He also stated that identification test was held before a Magistrate in Bathoro and he identified the accused in Court. He has not mentioned or pointed out the accused with whom he had grappled although he identified them at the time of identification parade. According to him he was on one motorcycle and the accused had come on another motorcycle. He has also stated that out of them two went on motorcycle towards eastern side and the third one went towards jungle side. It is difficult to understand as all the three of them had come on one motorcycle but after the offence two went on motorcycle and third went on foot.
P.W. Qasim has not given the number of his motorcycle. S.H.O. Ghulam Rasool Sial Exh.13 has stated that he prepared Mashirnama of recovery of motorcycle which is Exh.12-C. According to this Mashirnama this motorcycle was owned by Muhammad Qasim son of Muhammad Saleh Palijo. It is CD-70 motorcycle with Chassis No,AE-1362 and Engine No,1636592. According to S.H.O. On 29-9- 1997 he arrested accused Qasim Dhammach and Ghulam Ali alias Kara in presence of Mashirs and this Mashirnama is Exh.12-F. The Mashirnama Exh.12-F gives description of motorcycle CD-70 with Chassis No,AE-083320 and Engine No,1583393. The ownership of this motorcycle has not been established. In whose name this motorcycle was registered is not known. The learned Judge, Special Court, while passing property order has shown this motorcycle as unclaimed property and has confiscated it to the Government. As already stated the ownership of this motorcycle has not been established. Whether it is owned by any of the accused/appellant or registered in name of either of the appellant is not known. It is also not known whether it is a stolen or robbed property.
Therefore, it creates doubt as regards use of this motorcycle at ' the time of commission of the offence. Three persons on this motorcycle were following a motorcycle of similar make on which there was only one person. How he was stopped is not known because Qasim does not give description as to how he was stopped. He also does not say that he made any attempt to escape seeing a motorcycle following him. According to him he was beaten but there is no mark of injury on his person. He has not pointed out the person with whom he had grappled out of the three accused/appellants. P.W. Muhammad Qasim in his cross-examination has stated that P.Ws. Are known to him being his friends. P.W. Mir Muhammad has stated in cross- examination that two of the culprits were armed with pistols. He has also stated in cross- examination that the culprits fired on Ishaque from distance of two/three feet. This statement is not consistent with medical version. According to Medical Officer Dr. Sher Muhammad Exh.11 he had found following injuries on person of deceased Muhammad Ishaque.
"Multiple circular red colour hole measure 1-1/2 c.m. Deep into skin muscle and other structures.
There is no any exit wound all around both side of neck. Small pellets taken out and handed over to A.S.-I. Abdul Aziz Soomro for chemical examination."
' He stated in cross-examination that if distance is more than 10 yards then the penetration would be skin deep. The pellets were skin deep and muscle deep. He took out nine (9) pellets from the dead body. So, the statement of P.Ws. That the shot fired from distance of two or three feet cannot be accepted in view of statement of Medical Officer that pellets were skin deep and muscle deep.
There was no exit wound. The quality of evidence is such that reliance cannot be placed on it without independent corroboration which is lacking. The judicial confession of accused Gul Sher is exculpatory. According to him it was Qasim who had fired but according to P.Ws. It was Ghulam Ali alias Kara who had fired. No weapon has been recovered from Ghulam Ali alias Kara. The prosecution witnesses are not consistent as to whether culprits had one pistol or two pistols. The ownership of the motorcycle on which the accused are alleged to have come has not been established and it is not known whether this motorcycle was in their use. The prosecution witnesses are not reliable because they have made contradictory and inconsistent statements. Medical opinion does not support the ocular version. The source of light at the time of offence has not been established by the prosecution. The judgment of Trial Court is silent as to whether the visibility was such that the persons could have been identified. The prosecution has not brought on record as to what was the date of lunar month on the night of incident. Subsequent identification cannot be accepted because the identification at the time of incident appears to be improbable. Which of the accused had grappled with P.W. Qasim is not known. P.W. Qasim does not give exact facts as to how he was stopped by the persons on the other motorcycle who according to him were following him. He claims to have suffered beating at the hands of culprits but there is no injury to this effect.
Mere report of Ballistic Expert will be of no value because appellant Qasim had not fired the fatal shot according to P.Ws. The prosecution has failed to prove the case against the appellants beyond all reasonable doubt. The result of this discussion is that. We will have to give benefit of doubt to the accused. Accordingly, we set aside the judgment and sentence awarded by Trial Court to the appellants. The appellants may be released forthwith if not required in any other case.
' RANA BHAGWAN DAS, J.--- I am in respectful agreement with the conclusion drawn by my learned brother Amanullah Abbasi, J. But I would like to add a few lines of my own.
2. Admittedly assailants were not known to the party of the first informant. Identification of the assailants by the witnesses is said to be effected on moonlight but actual date of the lunar month has not been brought on record. On a reference to the official diary for the year 1997 it appears that on 16th September, 1997 it was 13th Jamadi-ul-Awal according to Hijra calendar. Now the source of light as compared to the first of lunar month would be greater but reference to the distance from which the witnesses had the occasion to see the culprits is of paramount importance. It appears from the evidence of first informant Lakhano P.Ws. Mir Muhammad and Muhammad Qasim that in fact Muhammad Qasim was being maltreated by some of the assailants and he was raising cries for assistance on which Lakhano, Mir Muhammad and Muhammad Ishaque (since dead) were attracted. It further appears that the witnesses responded to the alarm raised by Muhammad Qasim for assistance but there was a counter-alarm raised by the assailants not to proceed further whereupon the witnesses did not budge of from their place. It is in the evidence that approximately there was a distance of 100 paces between the two places. It is, thus, highly improbable and very difficult to have an accurate glimpses of the criminals who were involved in beating one of the witnesses namely P.W. Muhammad Qasim. It is in this background that appellant Muhammad Qasim instigated appellant Gul Sher to do away with deceased Muhammad Ishaque in consequence whereof Gul Sher fired from his .12 bore pistol at the deceased who died at the spot as a result of fire-arm injuries. To quote P.W. Lakhano in his evidence stated that he was 100 paces away when he heard the cries while denying that he was at a distance of 2-1/2 furlongs from the place of incident. On further probe as to the source of light during the cross-examination the witness stated that in the kind of night of incident it would be possible to differentiate between a tree and an animal at a distance of 10-12 feet. He further stated that on such height one will be able to differentiate from the distance of 10/11 feet between a man and a woman. Likewise he claimed that from the distance of 10/11 feet it would be possible to differentiate between the features of persons at that kind of night. Interestingly he was able to assert that the assailants were wearing dark colour clothes including the person who fired at the deceased. Surprisingly he stated that the accused who fired at the deceased was bare headed while the person who instigated the assault was also bare headed.
3. The situation is no better with the second ocular witness namely Mir Muhammad who states that "we heard the cries at a distance of 20/25 paces from the place of incident". He admitted that "we had seen the persons available at the scene of Wardat and immediately shouted back that we were coming to his rescue". He conceded that "when we replied to the shout we were warned by the culprits not to come near otherwise we will be killed. Due to warning of culprits we stopped there". As to the moonlight on which the witnesses were able to see the culprits, the witness claimed that if he was put to situation in the moonlight to identify from a distance of 30 paces he could not identify exactly. Apart from the fact that the evidence of this witness does not materially corroborate or strengthen the case made out by the first informant, it may be pertinent to note that he is real cousin of Lakhano as well as deceased Ishaque. The third witness who was allegedly in company of the first informant namely P.W. Amb is also his uncle but for the reasons best known to the prosecution, this witness was not examined at the trial.
4. Even from the evidence of P.W. Muhammad Qasim, who allegedly received beating at the hands of the culprits, I am unable to find any material circumstance to improve the quality of evidence which by its nature is weak, infirm and not capable of being safely relied upon.
5. With regard to the use of pistol there are divergent views in the evidence. While the witnesses consistently claimed that appellant Gul Sher fired from his pistol at the instigation of co-appellant Muhammad Qasim, self-exculpatory confession made by Gul Sher tends to show that on the material day he was approached by appellant Muhammad Qasim at hotel of Juman Palejo who also asked the third appellant namely Ghulam Ali to accompany him whereafter they left on the motorcycle of appellant Muhammad Qasim. A perusal of the confession tends to show that in fact these persons noted a person going on a motorcycle ahead of them who was cautioned to halt but while crossing the said motorcycle driver turned his vehicle with the consequence that the appellants fell down on the road. It is said that there ensued scuffle between appellant Muhammad Qasim and Ghulam Ali on the one hand and motorcycle owner on the other hand. The alarm raised by said motorcycle owner attracted two persons whereupon appellant Muhammad Qasim fired a pistol shot at one of those persons which hit the latter. At any rate the confessional statement runs counter to the prosecution case inasmuch as instead of corroborating the prosecution version that the fatal shot was fired by Gul Sher, it gives an impression as if the fatal shot was fired by appellant Muhammad Qasim. Obviously both the statements cannot be reconciled as these are completely incompatible with each other. It may be pertinent to point out that under Article 43 of Qanun-eShahadat, 1984 confession of an accused may be proved against the person making it and in suitable cases Court may take into consideration such confession as circumstantial evidence against another person concerned in the commission of a crime but in the facts of the present case since the accused who made the confession did not inculpate himself and thereby falsified the prosecution case, it is hardly possible to attach any importance to it as against a co-accused. It is well-settled that a confession must be accepted in toto or not at all.
Indeed law does not permit the use of a confessional statement in part. In the case of Mr. Zulfiqar Ali Bhuttoo v. The State PLD 1979 SC 53 Anwarul Hach C.J. (as he then was) while referring to the case of Bhuboni Sahu decided by their Lordships of the Privy Council quoted with approval as under:-- "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in section 3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. Section 30 (Evidence Act, 1872), however, provides that the Court may take the confession into consideration and thereby no doubt makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction."
6. For the aforesaid reasons and in the face of authoritative case-law conviction of the appellants cannot be sustained on the basis- of retracted exculpatory confession by appellant Gulsher dishonestly implicating appellant Muhammad Qasim. In any event in the absence of strong corroborative evidence connecting the appellants with the commission of murder conviction cannot be founded on such confessional statement which is hardly of any significance.
7. There seems to be a glaring conflict between the ocular and medical evidence. Whereas Dr. Sher Muhammad who performed post-mortem examination on the dead body of deceased Muhammad Ishaque stated that there were no blackening, scorching or tattooing marks on the dead body and there were only wounds of entry without any wound of exit, P.W. Mir Muhammad stated at the trial that deceased Muhammad Ishaque was fired from a very close distance. On further questioning he claimed that the culprits fired upon him from a distance of 2/3 feet which cannot be possibly reconciled with the medical evidence. For this vital contradiction in the evidence prosecution owes an explanation but unfortunately the same is not forthcoming. In fact first informant Lakhano's evidence is not very clear on this point except that two assailants were armed with pistols and standing whereas one of them fired at the deceased. In law and according to Modi if a fire is shot from a close range of 4 to 6 yards ordinarily it causes blackening and scorching around the wounds. In the present case as no such marks were noted by the expert medical witness it is, therefore, difficult to accept the ocular version that the deceased was fired from a close range.
8. In the facts and circumstances of the case, in which the assailants were not known to the witnesses before the incident; their identification from a long range at odd night time in the background of fear and terror and lack of other independent and strong evidence tending to create a nexus between the appellants and the commission of the crime conviction cannot be sustained. It is, therefore, a fit case for allowing the appeal which is accordingly allowed. Appellants shall stand acquitted of the charge and are directed to be released forthwith unless required to be detained in connection with any other case.