' MUHAMMAD ASHRAF LEGHARI, J.---This appeal was directed against the judgment passed by learned 1st Additional Sessions Judge, Larkana in Sessions Case No,314 of 1985, whereby the appellant was awarded death sentence and fine of Rs,20,000 or in default thereof he has to suffer R.I. For two years in offence under section 302, P.P.C. And 13, D.A.O., arising out of Crime No,65 of 1985 Police Station Taluka, Larkana.
2. The incident had taken place on 13-5-1985 at 8-30 p.m., F.I.R. Of which was lodged by Aligohar uncle of deceased Niaz Hussain. The facts as unfolded in the said F.I.R. Are that on the night of incident, complainant alongwith his nephew Niaz Hussain and sister's husband Muhammad Akram son of Dur Muhammad Khuhawar came out from their house in the street adjacent to the shop of Muhammad Bux Khuhawar, but they found the same closed. The complainant further alleged that deceased Niaz Hussain went to purchase Berris from the shop of appellant Dadan Khuhawar which was at the distance of 20/25 paces from there, whereas, the complainant and his sister's husband Muhammad Akram were going towards their house and in the meantime at about 8-30 p.m. They heard cries of Niaz Hussain. They found that Niaz Hussain was being chased by the appellant Dadan who was armed with gun and on seeing the complainant and Akram, fired from his gun towards Niaz Hussain, which hit the latter, who fell down. It is further stated that Ali Akbar was attracted by cries and came out from his house, who also witnessed the incident and the appellant made his escape good towards the house.
3. Thereafter, complainant, Muhammad Akram and Ali Akbar went near Niaz Hussain and found that he had fire-arm injury on his back and had died. Some other villagers were also attracted, the complainant left them over the dead body and he himself proceeded towards police station for lodging of the F.I.R.
4. The motive behind it, as disclosed by the complainant is that about six months back theft from the shop of appellant Dadan was committed and he was suspecting deceased Niaz Hussain to be thief and oath in this regard was administrated to deceased Niaz Hussain, but accused was not satisfied and due to that grudge, he fired at Niaz Hussain and caused his murder.
5. The police after conducting investigation submitted challan and the trial was ultimately conducted by the Court of learned 1st Additional Sessions Judge, Larkana.
6. After framing of the formal charge, the prosecution examined PC Muhammad Ayoob P.W.1, who was corpse-bearer, P.W.2 Aligohar complainant, Akram P.W.3, Ali Akbar P.W.4, Habibulalh P.W.5, who acted as Mashir throughout the investigation, Dr. Dost Muhammad P.W.6, who conducted post- mortem of deceased, Abdul Aziz P.W.7, who had prepared sketch of the Wardat being Tapedar and P.W.8 WHC Fayaz Hussain, who was examined on behalf of the Investigting Officer. Thereafter, the prosecution closed its side.
7. The statement of the appellant was recorded under section 342, Cr.P.C. Wherein he has denied having committed the murder of deceased Niaz Hussain. He also denied the alleged recovery of gun from him and asserted that he has been involved on account of enmity with Serai Liaquat who is the influential man of the village. The learned Judge on conclusion of the trial, convicted the appellant and awarded sentence as stated above.
8. We have heard the learned counsel for appellant and Mr. Abdul Fateh Mughal learned counsel appearing on behalf of the State and have minutely gone through the record of the trial Court.
9. The piece of evidence collected by the prosecution against the appellant are as under:--
(i) Ocular evidence consisting of complainant (1) Aligohar, P.W.2 Akram and P.W.3 Ali Akbar.
(ii) Another piece of evidence against appellant was that of recovery of gun from the accused.
(iii) The next piece of evidence with the prosecution against the appellant is that of motive.
10. We would like, first of all, to deal with the motive as this according to prosecution was the cause for appellant having committed the murder of deceased Niaz Hussain. In this regard, complainant Aligohar has stated that theft from the shop of appellant Dadan was committed and appellant was suspecting Niaz Hussain to be thief and due to that grudge he might have murdered him. P.W.
Akram has not deposed against the appellant for the alleged motive, whereas, P.W. Ali Akbar has stated that the deceased was being suspected to be thief for theft and this dispute was settled on Holy Qur'an.
11. This motive is so flimsy, that a prudent mind cannot believe the same to the extent that a shopkeeper would take a gun against co-villager, in spite of the fact, that the matter according to P. Ws. Was settled on Holy Qur'an. They have not alleged that he was earlier threatening to deceased. Moreover, the motive has come from the mouth of same witnesses, whose evidence needed corroboration. Such approach was disapproved in the case of Rasool Bux v. State reported in 1980 SCM R 225, which reads as under:- "Appreciation of evidence--Evidence of motive for crime flimsy and coming from mouth of same witnesses whose evidence sought to be corroborated by motive, hence, of no corroborative value- Ocular interested nterested and not corroborated by independent evidence of reliable nature-- Recovery not witnessed by independent Mashirs although available--Crime weapon recovered from a hedge accessible to all villagers--Prosecution, held, failed to prove guilt beyond reasonable doubt."
12. This evidence is always considered weak piece of evidence and is double-edged weapon which cuts both ways. It is observed in the case of State v. Muhammad Yasin, reported in 1995 SCM R 635 which follows as under:-- "So far as enmity is concerned, it is a double-edged weapon and cuts both ways. If it is considered as sufficient motive for commission of offence, it can also be considered as sufficient for false implication as well."
13. The evidence of motive even otherwise has come from the mouth of complainant who is paternal uncle of deceased and from P.W. Ali Akbar who is maternal uncle of the deceased. Both the above witnesses are, thus, closely related and have left much to be read between the lines.
Under these circumstances, we have not been able to persuade ourselves to agree with the finding of the learned trial Court that the alleged motive could be the cause of this murder.
14. The next piece of evidence collected by the prosecution against the appellant is that of recovery of gun alleged to have been made from appellant in presence of Mashirs Habibullah and Ghulam Muhammad. Mashir Ghulam Muhammad was not examined by the prosecution whereas Habibullah was examined as P.W.5 (Exh.14). This Mashir has produced the Mashirnamas of recovery and arrest of the accused. According to Mashirnamas, the appellant was arrested on 21-5-1985 and after 8 days i,e, 29-5-1985 he is alleged to have led the police party and the Mashirs to his house and produced the gun concealed under the Palal. This Mashir Habibullah is brother of P.W.
Ali Akbar and has stated that deceased Niaz was son of his sister. The alleged recovery is made after 8 days of appellant's arrest. In his deposition the said Mashir, however, has claimed that the accused had produced the gun before the police on the same day of his arrest. Record shows that his arrest was 8 days prior to the recoveries. Misfortune of the appellant is that Investigating Officer who allegedly made the recovery of gun has not been examined by the prosecution and as such the defence was seriously prejudiced as it has not been able to get the record viz. Mashiranamas and statements confronted to him. The alleged recovery is otherwise of no help to the prosecution for the reason that no empty was recovered from the Wardat so that the empty could have been examined by the ballistic expert for the purpose of connecting the said empty to the gun allegedly recovered from the appellant. The importance of connection of empty as above is recognised in the case of Ch. Muhammad Siddique v. Muhammad Zubair and 4 others reported in 1995 SCM R 1112, wherein their Lordships have held as under:-- "No empty of the revolver was recovered and as such no opinion of the Forensic Science Laboratory was available in this case to lend support to the prosecution case. For the reasons stated above and on the principle of safe dispensation of criminal justice we would not interfere with the order of acquittal of Zaheer accused/respondent. Appeal against Zaheer accused/respondent is, therefore, dismissed and he is discharged of bail bond."
15. Similar view finds mention in Nazir Muhammad v. State reported in 1996 PCr. LJ 1410. Additionally, the expert report indicates that the alleged gun was sent to him by hand on 21-11-1985 i,e, after lapse of about six months of alleged recovery with the result that as observed in the case of Wreshmeen v. State reported in 1990 SCM R 154, and Muhammad Ashfaq v. State reported in 1995 SCMR 7321, the recovery of alleged gun is not helpful to the prosecution case and cannot be connected with the commission of this incident. We fail to understand the need for sending the gun for examination by the expert after six months and that too without the empty. Consequently, the alleged recovery of gun and use of this piece of evidence against the appellant carries no weight whatsoever.
16. The last piece of evidence collected by the prosecution against the present appellant is that of eye-witnesses consisting of complainant Aligohar, P.Ws. Akram and Ali Akbar.
17. Admittedly, complainant Aligohar is uncle of the deceased, P.W. Akram is sister's husband of complainant whereas P.W. Ali Akbar is the maternal uncle of the deceased.
18. We have examined the evidence of these eye-witnesses carefully and find that they have materially contradicted each other and, furthermore, have given statements which are in conflict with medical evidence. It may be noted that the complainant Aligohar has stated that the accused was at a distance of 3/4 paces from the deceased while he was chasing him, whereas P.W. Ali Akbar has deposed that accused was 8 to 10 paces away from the deceased when he had fired.
On the other hand, the doctor has given the distance of fire to be in the range of 20 to 30 feet. As such, the ocular evidence is inconsistent with medical evidence. The post-mortem report clearly refers to absence of charring marks. If the distance of firing stated by the doctor is believed, the pellets would have spread more diametrically. Complainant Aligohar has further contradicted his version, initially set up by him in his F.I.R. To the effect that he alongwith his nephew Niaz Hussain and sister's husband Akram had come out from their houses to the street adjacent to the shop of Muhammad Bux Khuhawar but his shop was closed and as such Niaz Hussain went to purchase Biris and he alongwith Akram were going towards their house. His deposition in Court, however, is as under:-- "I, P.W. Akram and deceased met near the mosque and then went further for the purchase of Biris.
We all the three were sitting near the mosque chit-chatting with each other. It is a common place where the villagers used to sit and play. No other person from the village was available at that time.
We remained there for half an hour. It is incorrect that we were going from our house for the purchase of Biris. I have not stated in my F.I.R. That I, P.W. Muhammad Akram and deceased after coming out of our house, were going to make the purchase of the It has come in evidence of P.W.
Akram that the village where the incident is stated to have occurred, cosists of about 30 houses, but no independent person is cited as witness against the appellant. We are conscious of the fact that mere relationship of P.Ws. Is no reason to discard their evidence, but under the peculiar circumstances of this case, when they have materially contradicted the medical evidence and they have no respect for the truth, we have to look for the corroboration of ocular piece of evidence, in order to satisfy ourselves regarding the realities of the incident, which is lacking in this case in material particulars. Such approach is the consonance with the principle contained in the case of Muhammad Iqbal v. State reported in 1984 SCM R 930.
20. It has also come in evidence that the deceased was facing other cases including one under section 307, P.P.C. In the Court of learned lInd Additional Sessions Judge, Larkana and one -of the cases for which the deceased was facing trial was encounter with the police. The suggestions of the defence to the effect that it was unwitnessed incident rings to be true and under the suspicion of previous enmity, false implication of the appellant cannot be ruled out.
21. Another factor of the case, which has shocked us is that, signature or thumb-impression of the acussed/appellant is not taken on his statement under section 342, Cr.P.C. Which is also fatal to the prosecution. Reference in this behalf may be made to the case of Mst. Sultan Zari v. State reported in 1986 PCr.LJ 1723, wherein their Lordships have observed as under:- "The above provision is mandatory and the trial Magistrate is supposed to append the certificate as above in his own hand. It has been rightly urged that the absence of the certificate is illegality which is not curable by section 537, Cr.P.C. In support of this plea, learned counsel has referred to the case of Muhammad Inyat v. The State 1985 PCr.LJ 469 in which a learned Single Judge of the Lahore High Court held that non-compliance with subsection (2) of section 364, Cr.P.C. Is an illegality not curable by section 537, Cr . P. C .
14. It has also been argued that even the statement of the appellant does not appear to have been written by the learned trial 'Magistrate in his own hand. The statement at page 28 of the record appears to be in a different handwriting from the depositions of the witnesses have been written.
Hence, either the depositions are not in the hand of the trying Magistrate or the statement of the appellant is not in his hand, because the two are apparently written in two different hands. This illegality also amounts to violation of section 364, Cr.P.C. And it has been rightly urged that it has vitiated the trial."
22. As already noted, the prosecution had failed to examine Investigating Officer who had recorded the F.I.R., examined the P.Ws., arrested the accused and made alleged recovery. Apparently, on the record we have not been able to find out any reason for non-examination of Investigating Officer.
The entire investigation, consequently, remains unproved in view of ratio of the case of Muhammad Iqbal v. State reported in 1992 PCr.LJ 2092 at para.16 wherein it is observed as under:-- "Mr. Shaukat Zubedi, the learned A.A.-G., Sindh very frankly conceded that he was not in a position to defend the impugned judgment or justify the conviction of the appellant. He supported the submissions made by the learned Advocate for the appellant and pointed out that in the cases of Muhammad Yakoob v. The State 1981 PCr.LJ 693, Muhammad Sharif and another v. State 1972 PCr.LJ 1259, relying on the case of A.K.M. Reza and others v. The State reported in PLD 1958 Dacca 111, it has been observed that the Investigating Officer must be examined if he is available and in case he is not examined, the entire investigation remains unproved and also causes prejudice to the defence."
23. Same view also finds, affirmation in the cases of Ghulam Ali v. State reported in 1992 PCr.LJ 2033 and Karim Bux v. State reported in 199f PCr.LJ 1337. The rule of oral testimony as required under the law is that best available evidence must alone be given and while dealing with the oral evidence, probabilities, presumptions and surrounding circumstances should always be looked into for more often than not, such evidence is mixture of truth, falsehood, ignorance and motive etc. Refer the case of Muhammad Ashfaque alias Chief v. The State reported in 1998 PCr.LJ 1486. The ocular evidence is further contradicted by the medical evidence as according to the deposition of complainant Aligohar, he alongwith Niaz, after taking meals had come near the mosque as usual, but the Medical Officer does not support his version and has deposed that stomach of the deceased was empty. The importance of this aspect was recognised in the case of Muhammad Aslam alias Auchhu and others v. State reported in 1973 PCr.LJ 263. In para. 14 of this case, it is stated as under:-- "The stomach of the deceased contained fluid and the allegations made, in the F.I.R. That he was taking his meals when Ghous Muhammad came to decoy him is belied by the medical opinion. No solid food was found therein. The witnesses changed their position at the trial and said that he was about to take his meals when Ghaus Muhammad came to decoy him. This change was made in view of the medical opinion regarding the emptiness of the stomach of the deceased."
24. The aforesaid circumstances on the record would show that there is no satisfactory and believable positive evidence on record available for convicting the accused in the heinous offence.
The concept of benefit of doubt to an accused person is deep-rooted in every legal system including ours for giving benefit of doubt to accused. Indeed, it is not necessary that there should be many circumstances creating doubts. If there is a single circumstance which creates reasonable doubt for a prudent mind about guilt of the accused, then the accused is entitled to the benefit not as a matter of grace but as a right. The present is a case of almost no evidence and under the circumstances, as a matter of right,' the appellant is entitled to acquittal. On 11-5-1999, after hearing the arguments, we had allowed the appeal, set aside the impugned judgment and acquitted the appellant by a short order to the effect that he be released forthwith, if not required, in any other case; and these are the reasons for the short order.