' ABDUL HAMEED DOGAR, J.--- By this judgment, we propose to dispose of Confirmation Case No,21 of 1992 and Criminal Appeal No,305 of 1992 as they arise out of one and same judgment.
2. In the appeal, the appellant Soomar has challenged the judgment, dated 21-12-1992 of learned Additional Sessions Judge, Naushero Feroz whereby he was convicted under section 302/34, P.P.C.
And sentenced to death and also fine of Rs,10.000 or in default whereof to undergo further R.I. For one year and if fine so recovered shall be paid to the legal heirs of the deceased.
3. Briefly stated the facts of the prosecution case are that complainant used to deal in the business of selling grains in Moro Town. On 15-9-1990 at about 8-00 a.m. Haji Abdul Razzak Sethar went to the Otaq of complainant and enquired about complainant's father, namely, Arz Muhammad Leghari, who was told to have left for Dadu. He asked the complainant to send his father on return as they wanted to exchange views about Faisal in between Sethars and Legharies communities over previous murders. The case of the prosecution further is that complainant narrated the above facts to his father who returned at about 1-00 p.m. And consequently complainant as well as his father Arz Muhammad, P.Ws. Ashraf Ali and Haji Akbar left for village Haji Abdul Razzak at about 7- 30 p.m. In Suzuki Car bearing No,228-003 Karachi along with driver Ghulam Rasool and when they reached near the water course of Abdul Razzak, all of a sudden there appeared Haji Abdul Razzak armed with rifle, appellant Soomar, Kamdar Abdul Ghafoor armed with guns and two unidentified culprits with Lathies and also saw one Suzuki Jeep of white colour of Haji Abdul Razzak standing.
Accused Abdul Razzak instigated the others that their enemies had come as such they should not be spared, upon which appellant Soomar fired straight at complainant's father Haji Arz Muhammad which hit him on the right side of chest and thereafter, accused Abdul Ghafoor fired which hit his father on the right arm, whereas accused Haji Abdul Razzak fired from his rifle which hit deceased over left hypochondria region after going through the door of the car. The culprits with Lathies caused blows to driver Ghulam Rasool. Thereafter, appellant and accused decamped by raising slogans that they have avenged and have killed their enemy. The appellant as well as other accused were arrested and challenged before the Court of law.
4. A formal charge was framed against them to which they pleaded not guilty and claimed trial.
' Prosecution at trial examined complainant Iqbal Ahmed, who produced copy of F.I.R., P.W. Dr. Mumtaz Ali, who produced post-morteri\ report of deceased Haji Arz Muhammad and medical certificate of P.W. Ghularn Rasool, P.W. Ashraf Ali, P.W. Ghulam Rasool, P.W. Mir Hazar Khan, the Mukhtiarkar and First Class Magistrate, who produced copy of confession of appellant Soomar. On the application of A.P.P. Trial Court called P.Ws. Ahmed Khan and Imdad Ali out of whom P.W.
Ahmed Khan the Mashir was examined, who produced Mashirnama of injuries on the person of P.W.
Ghulam Rasool. ' P.W. Haji Ali Akbar, P.W. Almandine produced Mashirnama of arrest of accused Abdul Ghafoor, P.W. Munawar Ahmed, Investigating Officer, produced Mashirnama of recovery of Suzuki Jeep, Mashirnama of arrest of appellant Soomar and recovery of gun and cartridges from him, Ballistic Expert Report and Chemical Examiners Report and P.W. P.C. Imdad Ali. Lastly gave up P.W. Karam Ali and closed side.
5. Appellant in his statement under section 342, Cr.P.C. Denied the case of the prosecution and claimed innocence. About confession he denied that it was never recorded but his women-folks were called at police station and were severely mal treated. He, however, did not examine himself on oath under section 340(2), Cr.P.C. And also did not lead any evidence in defiance. The appellant produced copy of direct complaint and F.I.R. In support of his case. Co-accused Haji Abdul Razzak and Abdul Ghafoor too denied the case of the prosecution and claimed innocence in their respective statements.
6. On the assessm ent of evidence and after hearing the counsel for the parties, the appellant was found guilty and was convicted and sentenced as above, whereas co-accused Haji Abdul Razzak and Abdul Ghafoor were extended benefit of doubt and were acquitted. The learned trial Court also forwarded abovementioned reference for confirmation of death penalty against appellant.
7. We have heard Mr. Abdul Mujeeb Pirzada, learned counsel appearing on behalf of the appellant and Mr. Habib Ahmed, learned Assistant Advocate-General on behalf of the State at length and have gone through the judgment and record and proceedings of the case.
8. The learned counsel for the appellant mainly contended that complainant Iqbal Ahmed, P.Ws.
Ashraf Ali, Haji Akbar and driver Ghulam Rasool have not supported the case of the prosecution against acquitted accused, namely, Haji Abdul Razzaq and Abdul Ghafoor and have deviated from their earlier stand as such their credibility is shaken and should not be relied upon against the appellant also. He next contended that the judgment of the trial Court suffers from legal and factual infirmities and has mainly been based upon non-appraisal as well as misreading of evidence. He next argued that complainant in F.I.R. Has assigned specific role to acquitted accused Haji Abdul Razzak and Abdul Ghafoor and has categorically said that irrespective of appellant they too fired from their respective weapons viz. Gun and rifle at the deceased which hit him on right arm and left hypochondria region, whereas in his statement in the trial Court he said go bye to the above case of the prosecution and seated that he identified appellant Soomar only, whereas could not identify other three persons who were with muffled faces' and were armed with SBBL gun. In cross-examination complainant has said that the contents of F.I.R. Were not read over to him by the police. In such circumstances it is argued that such F.I.R. Looses its value and the testimony of complainant should not he believed even against the appellant. According to him remaining eye- witnesses, namely, P. Ws. Ashraf Ali, Ghulam Rasool and Haji Ali Akbar have also not supported the case of the prosecution in to and have stated in their statements before the trial Court that they saw 4/5 persons at the time of incident out of whom they identified appellant alone. The fact that the main culprit, namely, Haji Abdul Razzak against whom complainant party had motive has not been identified and exonerated at trial the benefit of which goes in favors of the appellant also.
Learned counsel for the appellant further submitted that complainant and other witnesses are near relative of deceased as such their not implicating the main accused at the trial has entirely shaken the case of the prosecution and the benefit of which clearly goes in favors of the appellant.
He argued that the confession of appellant relied upon by the trial Court should not have acted upon as it suffered from serious defects. According to him the said confession was retracted at the first instance and it is a well-settled principle of law that a retracted confession also not be believed for the purpose of conviction unless corroborated by some independent pieces of evidence. Here the contention of appellant that he was detained in illegal custody for about more than 20 days and during that period he was severally mal treated and his women-folks were called at the police station was another important factor that same was extorted. According to him the same was supported by P.W. Haji Ali Akbar who had said that he heard that police had dragged and detained the family of appellant Soomar at police station. Learned counsel went on arguing that another important aspect which left the sight of learned trial Court was the statement of complainant Iqbal Ahmed, who in his cross-examination has said that appellant surrendered his arrest voluntarily alongwith the gun before police within one hour after the incident whereas according to the confessional statement the appellant was arrested on 8-10-1990 at 19-00 hours and was produced for recording of confession on 9-10-1990 i,e, after 23 days of incident. Learned counsel argued that no reliance can be placed on the recovery of gun or cartridges as police had failed to arrange any independent person to act as Mashir though two private persons namely, Kamil and Rustom were accompanying the S.H.O. At the time of recovery. In support of his contentions he placed reliance on 1984 PCr.LJ 611(f) and 1995 SCM R 351(b).
9. Learned Assistant Advocate-General frankly conceded with the above submissions of appellant's counsel and admitted that prosecution has miserably failed to prove the case against the appellant.
10. What worth, if any, be given would be attached to the prosecution case, the evidence in material particulars of the prosecution witnesses is to be viewed in the light of the law quoted above. The case of the prosecution hinges upon the following pieces of evidence;
(1) Eye-witness account consisting of complainant Iqbal Ahmed, P.Ws. Ashraf Ali, Ghulam Rasool and Haji Ali Akbar;
(2) Circumstantial evidence, namely, that of
(i) recovery of gun and cartridges;
(ii) confessional statement of appellant;
(iii) medical evidence and motive.
11. In F.I.R. Complainant Iqbal Ahmed has specifically nominated appellant Soomar, acquitted accused Abdul Ghafoor to be armed with guns whereas Haji Abdul Razzak and two unidentified culprits with rifle and Lathies respectively. According to F.I.R. Appellant fired from his gun straight at deceased Arz Muhammad which hit him on right side of chest, whereas acquitted accused Abdul Ghafoor fired from his gun at deceased which hit him on his right arm and acquitted accused Haji Abdul Razzak fired from rifle which hit deceased on left lumber region. Complainant, however, at trial has said go bye to his case as set up in the F.I.R. And categorically deposed that on the day of incident while the deceased Arz Muhammad, P.Ws. Ashraf Ali and Haji Ali Akbar were going in car being driven by driver Ghulam Rasool and when arrived at the bridge of Haji Ghulam Mohiuddin they saw appellant Soomar armed with gun along with three others with muffled faces, out of whom one was armed with rifle and other with gun and third was empty handed. He has assigned a single gun fire shot to the appellant, which according to him hit the deceased on the right side chest. With regards to the others, he has stated that they also fired upon the deceased which hit him on upper right arm and left lumbar region. About F.I.R. Complainant has said that the same was not read over to him. He voluntarily deposed that appellant surrendered along with gun within an hour of the incident.
12. P.W. Ashraf Ali in his examination-in-chief has stated that on the day of incident at about 5-30 or 6-00 p.m. He, deceased Arz Muhammad, complainant Iqbal Ahmed and P.Ws. Haji Ali Akbar and driver Ghulam Rasool had gone to the Otaq of Haji Abdul Razzak who was not available and while returning from there when arrived at Moori of watercourse in the lands of Haji Ghulam Mohiuddin, there appeared 4/5 persons from sugar cane crop. He identified appellant only who was having single barrel gun. Out of unidentified two were armed with guns and two had Lathies. According to him appellant fired from his gun at Arz Muhammad which hit him on the chest. He also fired second shot which also hit deceased at the same place and the right arm. He has further deposed that he was not sure whether second shot was fired by appellant or any other accused. About third fire he has said that he could not say as to who fired the same which while hitting the door of the car struck deceased on his lumbar region. With regards to injuries on the person of Ghulam Rasool driver deposed that those were inflicted to him by unidentified person having Lathes. In cross- examination he has said that at the time of attack all were inside the car.
13. P.W. Ghulam Rasool has stated that on the day of incident at about 5-30 p.m. He, deceased Arz Muhammad complainant Iqbal Ahmed, P.W. Ashraf Ali had gone to the village of Haji Abdul Razzak and on return when arrived near sugar cane crop of Ghulam Mohiuddin they slowed the car and at that time appellant having SBBL gun fired at Haji Arz Muhammad from the distance of five feet. He was accompanied by three other persons armed with Lathes and hatchet to whom they could not identify. Explaining his own injuries he has said that he received Lathes injuries in the incident. In his cross-examination he has further said that 4/5 persons had come on the cries who also saw the culprits. At the time of firing all the three were inside the car only two fires were made and nobody except Haji Arz Muhammad was injured.
14. P.W. Haji Ali Akber repeating the same story has deposed further that when at 4-15 p.m. He, deceased, P.W. Ashraf and complainant arrived near sugarcane crop of Ghulam Mohiuddin, there appeared three persons with guns, out of whom they identified appellant Soomar only. He heard two fire reports. One was made by appellant at deceased Arz Muhammad who was sitting on the front seat of the car. Thereafter, he decamped while firing in air. In cross-examination this witness has not deposed the name of accused who fired at deceased but had said that three accused emerged out of sugarcane cultivation out of whom one fired at deceased from range of 2 or 2-1/2.
He also denied that his 161,. Cr.P.C. Was ever recorded. He has further stated that police has detained the family of appellant that police station.
15: Seemingly from the ocular testimony two version of the incident have emerged out. One set up in F.I.R. Whereby the three accused had actively participated in commission of offence, whereas, second at trial wherein entirely a different version has been disclosed whereby they identified appellant only and could not identify the other accused. This reflects seriously over the veracity of complaint and other P.Ws. That they in any case cannot be turned truthful witnesses. If they have spoken false for the principal accused Haji Abdul Razzak, how their testimony be considered to be of any worth against appellant. By stating false they have lost their entire credibility and as such should not be believed for the purpose of conviction.
16. Recovery. Admittedly Kamil and Rustom the private persons were accompanying Investigating Officer at the time of recovery of gun and cartridges from appellant, but they were not joined to act as Mashirs. On the contrary P.C. Imdad has been shown as Mashir of recovery who is not only a police personnel but a interested one, hence his evidence cannot be independent. Moreover, provisions of section 103, Cr.P.C. Have not been complied with by joining any independent person from locality to act as Mashir of recovery, confessional statement of appellant. The same cannot be acted upon for the purpose of conviction for the following reasons:--
(i) It was retracted at the first available opportunity by the appellant.
(ii) Plea of appellant that he was maltreated severely by police, detained for so many days and that his women-folks were also brought at police station, has been supported by P.W. Haji Akber in his evidence as discussed above.
(iii) According to complaint appellant surrendered within an hour of incident along with gun whereas according to confession P.W. Mir Hazar Khan the Magistrate he was arrested on 8-10-1990 and produced for recording confession on 9-10-1990 i,e, after 23 days of incident.
This all shows that the appellant had never volunteered to confess the guilt,. But lc such confessional statement was engineered one.
17. Motive. None of the witness has said even single word about motive 1 against the appellant. Haji Abdul Razzak the Zamindar against whom there was motive has been acquitted as none supported case against him. In such circumstances it can be safely inferred that this piece of evidence also lacs against the appellant.
' The case-law referred by appellant's counsel fully supports his case.
' The Division Bench of this Court in the case of Abdul Haleem v. The State reported in 1984 PCr.LJ 611 has observed at side line (f) on page 619 that:-- "It is now well-settled that rule of prudence requires that retracted confession should not be acted upon and be made the basis for conviction unless it is corroborated in material particulars, where no corroboration worthy of mention has been brought by the prosecution in support of retracted confession. It is to be taken out of consideration."
' Honorable Supreme Court in the case of Muhammad Yousaf v. The State reported in 1995 SCM R 351 has held:-- "That where no direct evidence is available confessional statement made by the appellant could be made basis for his conviction when the same had been disbelieved regarding material particulars like implication of co-accused, the motive and recovery."
18. From what has been discussed above we are of the firm opinion that the evidence of eye- witnesses is non-worthy of reliance as they have not spoken truth and as such their credibility have been shaken to the maximum possible limit. The benefit of which would go definitely in favors of appellant. It would be appropriate to refer the case of Ata Muhammad and another v. The State reported in 1995 SCM R 599, wherein Honorable Supreme Court has dealt with the case exactly identical to the case in hand and has classified the witnesses into three categories. Firstly wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroboration evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. The present case is that of pick and choose.
Here appellant being Hari was picked to be the accused of the case, whereas the principal accused Haji Abdul Razzak, the Zamindar, against whom there was motive, and his Kamdar Abdul Ghafoor were not implicated by the witnesses at the trial and were acquitted. In such circumstances, their evidence would be wholly unreliable. Itfespective of this the circumstantial evidence as discussed above is highly tainted and cannot at all be made basis for conviction. By .Now it is well-settled principle. Of law that a tainted piece of evidence cannot be used for the purpose of corroboration against another tainted piece of evidence.
' Consequently, appeal succeeds and is allowed, whereas reference for confirmation of death sentence is declined. These are the reasons of short order, dated 3-11-1998.