1. ' This appellant was tried by the learned Sessions Judge, Thatta for the offences under section 302, P.P.0 which was registered at P.P. Bello. He was convicted and sentenced to suffer imprisonment for life and to pay compensation of Rs,25,000 as Diyat to the legal heirs of the deceased or in default of payment of compensation to suffer R.I. For one year more. The appellant has preferred this appeal through jail.
2. ' The F.I.R. Was lodged by complainant Ghulam Rasool on 20-9-1990 which was recorded by Arshad Rauf, incharge A.S.I., Police Post Bello. He recorded the report in roznamcha at 8.00 p.m. Vide Entry No,
8. The complainant stated that he alongwith his father Bukhshan Khan and elder brother Ghulam Abbas reside in one house. The appellant used to reside adjacent to the house of the complainant. There are also houses of Karim Bux who is uncle of the complainant and other relatives. All these houses are surrounded by hedge and there is a common courtyard. Ghulam Abbas is married to the daughter of the appellant. According to complainant they had dispute over land with the appellant who had threatened the complainant party to hand over possession to him otherwise it would not be better for them. On the day of incident at 6,45 p.m. It was sunset time. The complainant alongwith his brother Ghulam Abbas and uncle Karim Bux were present in the house when the appellant armed with pistol was seen coming in the street and was also abusing the complainant party. They also saw deceased Bukhshan coming from the front direction of the street and when the deceased and the appellant came closer, the appellant fired pistol shot at the deceased, The complainant and the other witnesses challenged the appellant but he ran away with the weapon. They saw that the deceased fall down after sustaining fire arm injuries and was bleeding from his chest. He died on the spot. On hearing the commotion the villagers also gathered at the vardat. The dead body was put on cot by the complainant and leaving behind the co-villagers near the dead body he went to P.P. Bello for report. A copy of the report was sent to Police Station Sujawal which was incorporated as F.I.R. Being Crime No,86 of 1990 (Exh.P/9). After recording report A.S.I. Arshad Rauf took-up the investigation. He went to the vardat which was situate near the house of the deceased in Deh Miran where he prepared Mashirnama of the dead body of the deceased and inquest report in the presence of mashires Juman and Ghulam Nabi (Exhs.P/2 and P/3). He also despatched the dead body of the deceased to the Medical Officer, Sujawal for post-mortem examination. On the next day of the incident he arrested the appellant near Bairaj Moori in the presence of same mashirs and also secured one country-made 12 bore pistol and one live cartridge from his possession. He returned to P.P. Bello and registered the case against the accused under the Arms Ordinance. He then inspected the vardat and prepared such Mashirnama in the presence of same mashirs (Exh.P/5) and also secured one empty and blood- stained earth from the vardat. During investigation he recorded the statements of P.Ws. Karim Bukhsh and Ghulam Abbas and produced the appellant on 27-9-1990 before the Mukhtiarkar and F.C.M. Sehwan for recording his confessional statement. Statement of P.W. Ghulam Abbas under section 164, Cr.P.C. Was also recorded on the same day. He despatched the case property for expert opinion and then handed over the case papers to the S.H.O. For further investigation. The appellant was challaned in Court by-S.H.O. Jawaid on 4th October, 1990.
3. ' The appellant pleaded not guilty to the charge which was read over to him on 13-4-1991. During the trial the prosecution examined seven witnesses. P.W.1 Ghulam Rasool is the complainant and eye-witness of the incident. P.Ws 2 and 3 Ghulam Abbas and Karim bux are also the eye-witnesses.
4. P.W.4 is the mashir of the dead body and inquest report as well as arrest of the accused and recovery of unlicenced weapon. He produced the Mashirnama (Exh.P/2 to P/6). P.W.5 Dr. Kishan Kumar was the medical officer Taluka Hospital Sujawal. He conducted post-mortem examination and produced his notes (Exh.P/7) P.W.6 Noor Muhammad was the Mukhtiarkar and First Class City Magistrate, Sujawal who recorded the confessional statement of the appellant and he produced the same (Exh.P/8) P.W.7 Arshad Rauf is the Investigating Officer and he also produced the F.I.R (Exh.P/9) and report of the Chemical Examiner (Exh.P/10) as well as report of the ballistic expert (P/11).
5. ' The appellant in his statement beside pleading innocence also alleged false implication due to matrimonial dispute and denied having been produced before the Magistrate for recording his confession. He explained that his daughter namely, Marium was married to P.W.11, Ghulam Abbas in exchange for the hand of sister of Ghulam Abbas whose name is also Marium and was engaged to Khamiso, who is the brother of the appellant but at that time she was minor and when the appellant demanded his rukhsati the complainant party was annoyed and implicated him in this case. He did not examine himself on oath and had no evidence in defence.
6. ' So far the homicidal death of deceased Bukhashan is concerned it is not in dispute. On internal examination the following injures were noted by Dr. Kishan Kumar (P.W.V.): "5th, 6th and 7th. Ribs were fractured. Right lung was ruptures.
7. ' Diaphram ruptured. Liver stomach ruptured. All other organs were healthy normal."
8. ' The opinion of the Medical Officer the above external injury appeared to have been caused by fire-arm and was about 4 hours old at the time of examination. The time between injury and death was few minutes, and between death and post-mortem about 4 hours. From the external as well as internal examination of the dead body "he was of the opinion that" death was caused due to excessive haemorrhage and shock as a result of abovementioned injury which was sufficient in the ordinary course of nature to cause death".
9. ' Now, the question is whether the appellant caused unnatural death of the deceased. On this point the prosecution case hinges on the following places of evidence.
(a) Occular testimony;
(b) Motive;
(c) Medical evidence;
(d) Confessional statement;
(e) Recovery;
(f) Circumstantial evidence ' Since this is a jail appeal and the appellant was unrepresented, therefore Mr. Habib Ahmed Advocate consented to learned him and with his assistance I examined the record. Mr. Habibur Rashid learned state counsel was called absent.
10. ' The occular testimony is furnished by P.W.1 Ghulam Rasool and P.W.2 Ghulam Abbas as well as P.W.3 Kareem Bux. The parties are related inter se. The deceased was father of P.W.1 Ghulam Rasool while daughter of the convict is married to Ghulam Abbas who is elder brother of P.W. Ghulam Rasool. In between the house of both the parties there is a lane. He saw his father coming from out side and the appellant went towards him and then when they came closer to each other face to face the appellant fired with his pistol on the right side of the chest of the deceased who fell down.
11. P.W.2 Ghulam Abbas -deposed that at the relevant time they were in the house and when he heard fire arm report he came out of his house and found that the appellant was going towards his house after having fired at the deceased. In other words this witnesses had not seen the appellant actually firing at the deceased. He further deposed that the appellant had pointed his pistol at them and threatened them to keep away and then he went away from the place of incident. In cross-examination he deposed that there are about 8 houses within the same enclosure.
12. ' The house of the appellant is also within the same hedge/enclosure but after the incident these witnesses had shifted from that place. No where he has deposed that there is lane between the house of the appellant and the complainant although the complainant had stated so in his examination-in-chief. In cross-examination he reiterated that on hearing the fire-arm report was got up and rushed at the vardat which was inside the hedge/enclosure of our house." According to this witness the appellant went to his house after causing injuries to the deceased but he also deposed that he had no knowledge as to when the appellant slipped away from his house after the incident. On the other hand P.W. Ghulam Rasool deposed that after the incident the appellant ranway from in front of the Talla of his house. P.W.3 Kareem Bux is brother of the deceased. He deposed that at the time of incident he was in his house and at 6.45 a.m. He saw the deceased coming to the house. At that time according to him the appellant was also in his house and on seeing the deceased he came out of the house and fired pistol shot at the deceased when he reached at the entrance of the house. It is quite unbelievable that this witness could have seen that the appellant first saw the deceased and than came out of his house. It has not been explained as to how this witness could see from his house as "what the appellant was doing in his house at that time. He further deposed that complainant Ghulam Rasool and P.W. Ghulam Abbas rushed at the verdat and the appellant threatened them to keep away. He then went to his houese but in the meanwhile villagers had gathered at the vardat. In cross-examination he stated that about 100 persons from village had gathered at the vardat. It is also surprising that none of the eyewitnesses intervened when they saw the deceased coming from out side and allegedly on seeing the deceased the appellant came out of his house and fired pistol shot at the deceased. Even if it is believed for a moment that the appellant went to his house which was situated on the eastern side of the vardat but within the same hedge he could have been easily apprehended by these witnesses with the assistance of 100 villagers who had gathered at the vardat but he was arrested from a different spot. Undoubtedly, mere relationship alone is not sufficient to discredit a witness but on careful examination of the occcular testimony I find the statement of the three eye- witnesses not free from doubts. Therefore, their testimony is hit by the well-settled principle that test of varacity is inherent merit of the statements of the witnesses. In the first instance the actual place of incident itself appears to be a mystery. According to P.W.1 and P.W.3 the hedge was on the eastern side while according to P.W.2 and P.W.3 it was on the northern side. Likewise the hedge was four feet and the eye-witnesses have contradicted each other by deposing that hedge was inside and outside the house. Furthermore, firing on the chest of the deceased is not denied but the Medical Officer did not find any blackening or charring on the entry wound which shows that he was fired at from the distance of more than three feet and not as was deposed by the eye- witnesses. This is also borne out by the length of the entry wound which was 7.5 c.m. Had there been a shot from a very close range the entry wound would not have been more than 2 c.m.
13. Therefore, the medical evidence is also inconsistent with the oral testimoney and following the law laid down in Bagh Ali v. The State (PLD 1973 SC 321) reliance on such occular testimony is absolutely unsafe. See also Zarshad v. Bahadur (1972 SCM R 644).
14. ' There are other important circumstances which adversely reflected on the prosecution version;
(a) The dead body was removed by the P.Ws. Before the arrival of the police, Normally this should be avoided so that no doubt is created about the actual place of incident otherwise it would be difficult to believe that the deceased was killed in the manner and circumstances as deposed by the prosecution; (b) According to P.W.1 live cartridges was produced in Court but P.W.3 deposed about two cartridges while only one empty was recovered and that too after three hours of the recovery of pistol which was sealed after one week and it was sent to the expert after the lapse of three months in November, 1990; It would be relevant to observe that the police inspected the place of incident and the dead body in the night prior to recovery of crime empty on the following morning but that empty was not found at the vardat despite the fact that several persons were also available at that time. This clearly suggest that the crime empty was not available when police first visited the place of incident. Such doubtful nature of recovery deserve no credence.
15. Recovery should be strictly proved by independent evidence (see Allah Bux v. The State PLD 1978 SC 171); (c) The mashir is also son-in-law of the deceased although admittedly independent witnesses were available but no effort was made to associate any one of them to witness the recovery; (d)
16. The F.I.R. Was registered after inspection of the dead body and that too after the expiry of more than four and half hours for which no plausible explanation has been offered by the prosecution, this makes the presence of eye-witnesses at the spot doubtful; As was rightly submitted by the learned defence counsel the view motive is too weak to be believed and in any ase keeping in view the alleged motive and the statement of the accused one can easily infer that relations between the parties were strained.
17. ' The other important substantive piece of evidence is the confession of the accused but that has been rightly disbelieved by the learned trial Court. Therefore, the cumulative effect of all the above mentioned circumstances is that false implication of the appellant cannot be ruled out and the prosecution has failed to prove the charge beyond any shadow of doubt. Accordingly, by giving him the benefit of doubt he is acquitted. This appeal is allowed. He is in custody. He should be released forthwith if not required in any other case. Before parting with the judgment I wish to place on record my appreciation for the valuable assistance rendered by the Mr. Habib Ahmed, Advocate.