NAZIM HUSSAIN SIDDIQUI, J.- This Appeal is directed against the judgment dated 31st October, 1994 of the then learned Vth Additional Sessions Judge. Larkana, whereby the appellant was convicted under Section 302 PPC and was sentenced to death. Learned trial Judge has also sent a reference, under Section 374 Cr.P.C; for confirmation of said Death Penalty.
2. The incident took place on 11.3.1990 at about 12.00 noon in the Otaque of one Muhammad Ismail.
Sangi, situated in village Vikia Sangi, at a distance of 3 K.M. From Police Station Dhamrah, District Larkana. The FIR was lodged by complainant Lai Bux. It was recorded by Muhammad Panjal Gopang, Incharge ASI under Sections 302 PPC and 13(d) Arms Ordinance, 1965.
3. The prosecution case, in brief, is that about three years prior to the incident one Tharo Sangi had agreed to give the hand of his daughter namely Mst. Shabiran to Azam, who is a brother of the appellant, It is alleged that due to certain dispute between the parties said Tharo declined to honour his words and instead gave her hand to Bashir Ahmed son of the complainant, and Nikah was also performed. Said Bashir is the deceased of this case. According to FIR, both Azam and the appellant were annoyed and expressed their displeasure as to why the deceased agreed to marry her, when she was already betrothed to Azam. It is alleged that on the day of incident the complainant, deceased Bashir, complainant's brother Muhammad Uris and their relative Munawar Ali were chit-chatting in said Otaque, when at about 12.00 noon appellant Ghafoor appeared there from Southern side, having a rifle in his hand, challenged them, and asked them as to why they had taken the hand of said girl without his permission. It is alleged that, thereafter, he find from his rifle upon Bashir Ahmed, who was hit and fell down. Due to fear, all remained silent and after departure of-the appellant raised cries, which attracted the villagers. The deceased had sustained fire-arm injury on his left nipple and died on the spot. The complainant leaving above-named witnesses as guards over the dead-body, went to his Nek Mard Kazi Muhammad Ramazan for informing him accordingly. His Nek Mard was not available and when he was able to contact him, he informed him about the incident, who advised him to lodge FIR. Thereafter, he came at the Police Station and lodged FIR at 5.45 p.m.
4. The investigation of this case was conducted by SIP Muhammad Panjal Gopang. Alongwith the complainant he visited the scene of offence and found dead- body of the deceased on a cot. He secured from there one empty shell of 7 MM rifle, at a distance of one or two paces away from the cot, in presence of mashirs Muhammad Ismail and Allahdino. Then came the inquest report. He called witnesses Muhammad Uris and Munawar and recorded their statements. On 19.3.1990, he arrested the appellant from near of his house in presence of mashirs P.C. Hussain Bux and P.C.
Hizbullah. It is alleged that the appellant led the police and mashirs towards his village Vikia Sangi and from a heap of paddy had produced an unlicensed 7 MM Rifle, which was secured a mashirnama and a separate case was Registered for it under Section 13 (d) Arms Ordinance, 1965.
On 25.3.1990, he got recorded 164 Cr.P.C, statements of P.Ws. Muhammad Uris and Munawar. The judicial confession of the appellant was recorded on 28.3.1990. On completion of investigation, the charge-sheet was submitted before the concerned Court.
5. At trial, the prosecution examined complainant Lai Bux, P.Ws. Muhammad Uris, Munawar Ali, L.
Naik Nazeer Ahmed, Tapedar Abdul Waheed, Medical Officer Dr. Muhammad Yaqoob, Mian Iqbal Ahmed Resident Magistrate, Larkana, mashirs Abdul Hameed, Allah Dino and Investigating Officer Muhammad Panjal Gopang.
6. Necessary charge under Section 302 PPC was framed against the appellant.
7. The appellant in his statement recorded under Section 342 Cr.P.C, has denied the prosecution's allegations and claimed to be innocent. He specifically stated that his alleged confession was neither true nor voluntary and he was tortured and compelled to give said confession. He also stated that the women-folk of his family were brought at the Police Station and, under such circumstances, he made said confessional statement. According to him, he can sign, but was asked to put thumb mark on it. Neither, he examined himself on Oath nor produced any witness in defence.
8. On assessm ent of the evidence brought on record learned trial Judge convicted the appellant and sentenced him as mentioned earlier.
9. Dr. Muhammad Yaqoob conducted autopsy on the dead-body of deceased on the very day of incident and found the following injuries:-
(1) One lacerated punctured wound 1 c.m. In diameter at left chest above left nipple charring positive. (Wound of entry).
(2) One lacerated punctured wound 1 c.m. In diameter at right mid axillary in the region of fifth rib (Wound of exit).
On internal examination, he found the following damages:- Thorisic wall was lacerated at the sites of injury, the fourth left anterior rib and sixth right rib fractured. Cartilages were ruptured at the site of the injuries. Both pleurae were ruptured right and left lung were ruptured, pericardium and heart were ruptured and blood vessels of thorax were ruptured at the site of injury. Stomach was healthy and empty.
10. The Doctor opined the cause of death was due to shock and haemorrhage as a result of injury No. 1 which was sufficient in ordinary course of nature to cause death. The Doctor specifically stated that above injuries were caused either by pistol or by revolver and not by rifle. In cross- examination, he deposed that if the victim was face to face with the assailant, then the exit wound should have been to the left back and that in the instant case the exit wound direction was towards the mid axillary line approximately at the level of fifth rib. He deposed that direction of the track of injury was below down-wards. He further stated that the track suggested that the deceased was lying in some what "restful posture on right side", when he was find. He also deposed that the deceased was find "from a distance of one foot."
The case of the prosecution rests upon:,-
(i) Motive
(ii) Ocular Account
(iii) Judicial Confession
(iv) Recovery of Incriminating Articles.
(v) Medical Evidence.
11. It is the case of prosecution that deceased was killed due to matrimonial dispute relating to said Mst. Shabiran. It is pertinent to point out that despite the fact that opening line of the FIR refers to said dispute and so also complainant Lai Bux and P.W. Muhammad Uris, in their respective depositions, stated about it. Yet, no question to this effect asked from the appellant when his statement under Section 342 Cr.P.C, was recorded. Consequently, the evidence on above point cannot be used against him; as he was not given an opportunity to explain it. The motive, therefore, as a piece of evidence cannot be considered in this matter.
12. Next piece of evidence is ocular testimony. Mr. A.Q. Halepota, learned counsel tor the appellant argued that testimony of the complainant and of P.W. Muhammad Uris was not worth relying and no conviction could be based upon it. He also argued that delay in lodging FIR was not satisfactorily explained and that manifestly it was an unwitnessed crime which wa#'committed by some unknown culprits.
13. According to the prosecution, the incident was witnessed by the complainant and P.Ws.
Muhammad Uris and Munawar Ali. The complainant in examination-in-chief, kgs given the facts of prosecution case,- as mentioned earlier. In cross-examination, he deposed that there were about 200 or 300 houses in his village and peoples of different caste resided there. He mentioned that the place of occurrence was in main chowk of the village. He also deposed that the appellant was face to face with the deceased, when the latter was find. He stated that he had not narrated the facts to the persons, who gathered there immediately after the incident. He also stated that he left for Larkana to inform to his AW: Mard just after five minutes of the incident. He admitted that Dhamrah Police Station would be at a distance of two miles from his village. He also admitted that for going to Larkana from bis village one has to pass through Dhamrah and Police Station Dhamrah is on the main road. He admitted that Muhammad Ayub was his cousin and he was then P.A. To the Deputy Commissioner, Larkana. He stated that after his son had sustained injuries, he had not touched his body to find out if he was alive.
14. P.W. Muhammad Uris has also claimed to have witnessed the incident.
Lie .Specifically stated that the police did not record his statement, though he was present at the scene of offence right from beginning till the police arrived there. According to him. He was serving as Malaria Supervisor in health department in Ratodero Town, but on that particular date was on leave. He deposed that he had not disclosed the names to-the police of persons of different caste, who had arrived at the scene of offence immediately after the occurrence. He denied the suggestion that on the day of incident the deceased was sleeping alone in Otaque. When he was killed.
15. P.W. Munawar Ali, who according to FIR had also witnessed the incident, has not supported the prosecution and was declared hostile.
16. The evidence of the complainant does not inspire confidence. It is' fully of doubts and improbabilities. It is hard to believe that his young son within his view was critically injured, but he did not even touch his body to find out, if he was alive nor protested against the cold blooded murder of his sons, nor gave the names of the assailant to the persons who had gathered there immediately after the incident, nor disclosed the names to the police of the. Persons who had gathered there, nor stayed at the scene of offence beyond five minutes. It was absolutely against human behaviour and natural impulse. The dead-body of his son was lying and he kept on waiting for his Nek Mard only to be advised to lodge FIR. While proceeding to Larkana, he did not deem it fit to lodge the report at Police Station Dhamrah, which was on his way to Larkana, and instead straight away had gone to Larkana, it appears that he had not witnessed the incident and had reached the scene of offence after the occurrence.
17. The evidence of P.W. Muhammad Uris is also not worth relying. He was serving as "Malaria Supervisor" in Ratodero Town and on the day of incident he had not attended his offence, He has not disclosed any specific reason for being absent from his duties on that particular day. Also, he had no special reason to be present at the Otaque. Where the incident took place. According to him, on the day of incident at early morning, he had gone to his land and thereafter came back to his house and did not come out till 11.30 a.m. Just a few minutes before the incident all of sudden he decided to visit said Otaque, which creates serious doubt about his presence at the relevant time at the scene of offence. We are of the view that he had also not witnessed the incident.
18. P.W. Munawar Ali has not supported the prosecution and even resiled from his 164 Cr.P.C, statement. The conclusion therefore, is that ocular testimony is not worth relying.
19. So far the Judicial Confession Is concerned, it is noted that the Investigating Officer Muhammad Panjal Gopang clearly admitted, in his cross examination, that he had arrested the appellant on 19.3.1990 and from said date till 27.3.1990 he had asked the latter several times if he was willing to confess the guilt and all the times the latter declined, It is alleged that on 28.3.1990 all of sudden the appellant agreed to confess his guilt. Generally, a culprit admits about his guilt within two or three days of arrest, In the instant case, it is evident that the appellant was not willing to confess the guilt at all, but suddenly he changed his mind. The appellant maintained that his women-folk were brought at the Police Station. Learned counsel for the appellant submitted that only to save honour of the ladies of s his family the appellant made the confession on the lines he was directed to do so. It appears that making of the confession by the appellant was the direct result of threats extended' to him. We are not satisfied with this confession. In our view neither it is true nor was made voluntarily, but was obtained by any improper means. This piece of evidence is also of no use to the prosecution.
20. As regards recovery of incriminating article viz Rifle, it is noted that a separate case for it was registered against the appellant. Therefore, the issue of its recovery would be decided in said case.
Suffice it is say that said rifle and the empty shell in question were not sent to the Ballistic Expert. It being so, it cannot be said that said rifle was used in commission of this crime. Under the circumstances, it cannot be used as corroborative evidence.
21. The medical evidence is in conflict with ocular testimony. The prosecution has claimed that the appellant was face to face with the deceased, when he had find upon the latter. According to the Doctor, in such a situation the exit wound should have been to the left back, which was not there.
The Doctor specifically stated that the injuries were not caused by rifle, while the prosecution maintained that rifle was used in the commission of this crime. The complainant categorically stated that the shot was find from six steps, whereas the doctor opined that it was from a distance of "within on foot". This creates doubt about correctness of the prosecution version, as given by the eye-witnesses.
22. Under the circumstances, the prosecution has failed to prove its case against the appellant.
Accordingly we allow this appeal, set aside the impugned judgment and acquit the appellant. He shall be released forthwith if not required in any other case. Reference for confirmation of death is rejected.