' FAZAL-UR-REHMAN, J.--- This judgment will dispose of Murder Reference No,15 of 1999 and Criminal Appeal No,311 of 1999 filed by Karim Bakhsh, Rasheed Ahmed and Manzoor Ahmed alias Bhutto sons of Nabi Bakhsh, who were convicted and sentenced by Sessions Judge, Usta Muhammad, to undergo death sentence under section 302/34, P.P.C. For the murder of Sher Khan and also to pay Rs,70,000 (Rupees seventy thousand) each as compensation to the legal heirs of deceased and in default to undergo 2 years S.I. Each.
2. The occurrence is stated to have taken place on 31-5-1998 at about 1-30 a.m. When Sher Khan (deceased) was sleeping in his house alongwith his family members. The report of this incident was made by P.W.1 Allah Ditta son of Gul Sher, brother of the deceased vide Exh.P.1/A. According to him he woke up on gunshot reports and saw the accused/appellants armed with shotguns while they were running away. He claims to have seen the accused persons in the torch light. He then came to his brother, flashed the torch and saw Sher Khan lying in pool of blood. It is stated that on raising alarm by him and firing which was made attracted Muhammad Khan son of Sabo and Allah Rakhia son of Ali Sher Rahoja and other neighbours who came at the spot also identified the accused persons while they were running away. He has stated that then his brother succumbed to his injuries. According to him since he was empty-handed, therefore, could not follow the accused persons. The motive for the incident was stated to be matrimonial dispute which took place few months earlier.
3. After the registration of the case, the Investigating Officer Behram Khan, P.W.7 arrived in Goth Haji Shabbir Ahmed who was accompanied by Muhammad Ramzan foot-tracker and other police officials. He inspected the place of occurrence and prepared inspection note vide Exh.P.2/B and site plan vide Exh.P./7-A. He took into possession one empty cartridge vide recovery memo. Exh.P.2/C and blood-stained earth was secured from the spot vide recovery memo. Exh.P.2/D. The inquest report was prepared vide Exh.P.2/A. The dead body was sent to Civil Hospital, Usta Muhammad for the purpose of post-mortem examination. The Investigating Officer who was also accompanied by Muhammad Ali, S.H.O. And foot-tracker took the footprints which led to Goth Nabi Bakhsh Jatak where the house of the accused/appellants is situated. According to Investigating Officer the father of the accused/appellants was called on out side of his house by the S.H.O. And foot-tracker and was asked to hand over his sons to police as the footprints led to their house. It is stated that the accused/appellants were handed over to police and accordingly arrested. It is stated that accused/appellant Karim Bakhsh who while in police custody led to the recovery of shotgun single barrel Article P.7/6 live cartridge Articles P.8 to P.13 and licence Article P.14 from his house lying beneath beds which were taken into possession vide recovery memo. Exh.P.4/A. This recovery is stated to have been effected on 14-6-1998 while according to Investigating Officer accused Karim Bakhsh had disclosed on 13-6-1998. It is stated that on 31-5-1998 one torch which had been produced by the complainant Allah Ditta son of Gul Sher was also taken into possession vide recovery memo. Exh.P.3/A. Bloodstained clothes Articles P.16 and P.17 of the deceased were taken into possession vide recovery memo. Exh.P.5/A. After usual investigation the above-named accused/appellants were sent up to face their trial. It is pertinent to note that the name of accused/appellant Manzoor Ahmed alias Bhutto was placed in Column No,2 of the challan Exh.P.7/B as there was no evidence against him according to the Investigating Agency.
4. On 3-7-1999 charge under section 302/34, P.P.C. Was framed by the learned Sessions Judge, Usta Muhammad against the appellants to which they pleaded not guilty.
5. In order to establish its case the prosecution examined as many as 7 witnesses. Brief description of the deposition of these witnesses are as under:--
6. P.W.1 Allah Ditta ' He is the complainant and brother of the deceased who has lodged F.I.R. As Exh.P.1/A. According to him he woke-up on gunshot reports and saw accused persons armed with shotguns while going out of the house. He claims to have seen the accused persons in the torch light. He has also deposed that after going from the house they made two more fires at a distance of about 30 paces. He saw Sher Khan lying dead. He has also deposed "on the commotion of the firing I, Muhammad and Allah Rakhia came at the place of occurrence. We saw that accused were going".
He then went to the police station where he lodged the report. According to him at about 3-30 a.m..
He came back to the place of occurrence alongwith police where the place of occurrence was pointed out by him to the police. In cross-examination he has admitted that the sister of accused persons Mst. Izat Khatoon was the wife of deceased Sher Khan who alongwith her children live with him. He has also admitted that Mst. Sabzi wife of accused Rasheed also lived with him. On the night of incident Sher Khan was sleeping with his wife and children and the cot of deceased was at a distance of about one pace away from his wife's cot. He claims to have identified the accused persons from a distance of about 8/10 paces while they were running. According to him when he flashed the torch the accused persons turned their faces to him, therefore, he identified accused persons. According to him accused Rasheed was armed with double-barrel gun while Karim Bakhsh and Manzoor were armed with single-barrel guns. He has also stated that when he was going towards the cot of his brother, Mst. Izat Khatoon woke up. According to him he went to police station alone on bicycle which is at a distance of about 2 miles from his village. He has stated that police had obtained his thumb-impression on blank paper. According to him police also took into possession two other empties besides the one empty which was secured near the cot and the other empties from a distance of about 30/32 paces away from the cot. According to him he fiad handed over the torch to police of three cells. He has also stated that it was a dark night and the site was inspected in the beam light of the Government vehicle. The witness has denied the suggestion regarding land in dispute between the parties. He has also denied the suggestion that he himself killed his brother and falsely implicated the accused persons.
7. P.W.2 Muhammad son of Sabo Faqir ' He has stated to be neighbour of the deceased and woke up on gunshot report. According to him he came to the house of Allah Ditta. This witness has stated that P.W.1 Allah Ditta flashed the torch light and in that light all the accused persons were identified. He stood as marginal witness of inquest report Exh.P.2/A, Inspection Note Exh.P.2/B, recovery memo. Of one empty Exh.P.2/C and blood-stained earth Exh.P.2/D. In cross-examination he has stated that it was dark night and he had identified the accused from a distance of 20/25 paces away in the light of the torch which was flashed by P.W.1 Allah Ditta. He does not know as to whether the police had prepared Fard of torch or otherwise. The police did not read over the contents of Fard to him. According to him the site was inspected by the police in the light of vehicle. According to him police had recorded the statements of Allah Rakhia, Allah Ditta and his statement on the place of occurrence. He has stated that police got his thumb-impression on the Fard in police station. He has also stated that the thumb- impression of Allah Ditta was obtained on Fard at police station. According to him the torch was of 3 cells and the police did not prepare the Fard of battery in his presence.
8. P.W.3 Allah Rakhia ' Besides other recovery memos., he also stood as marginal witness of recovery memo. Exh.P.3/A and has identified torch Article P.5 and two cells Articles P.6 and P.7. His co-Mashir P.W.2 Muhammad has denied the preparation of any Fard of battery in his presence. There is also mention of a 3 cells in the recovery memo. But only 2 were produced. He himself contradicted his statement by stating that a statement was recorded at the place of occurrence and also thumb- impression was obtained, while replying another question put to him by learned counsel for accused persons he has stated that his statement was recorded at police station and thumb- impression was also obtained. He has also stated that his thumb-impression was obtained on white paper. According to him his statement was recorded after 2/3 days and thumb-impression was obtained after 3/4 days. He has also stated that the statement of P.W.2 Muhammad Khan was recorded and his thumb-impression was obtained after 3/4 days. According to him the colour of the torch was Khaki which was produced by Haji Allah Ditta. He has also stated that the wife of deceased Sher Khan Mst. Konja was also present at the place of occurrence. He claims to have arrived at the place of occurrence after 5/10 minutes of firing where Allah Ditta, Muhammad Khan and Mst. Konja were present. According to him the house of the complainant and deceased has no boundary wall and hedge. He has also stated that Haji Allah Ditta had given the torch at Thana and similarly cartridges were also given at Thana. He has also voluntarily added that these were taken from the place of occurrence and thereafter, shown to him at Thana.
9. P.W.4 Abdul Majeed, Constable ' He is marginal witness of recovery memo. Exh.P.4/A and was employed at Police Station Usta Muhammad as Constable. The recovery has been stated to have been at the instance of accused Karim Bakhsh from his house. The recovery of licensed shotgun from the house of accused Karim Bakhsh after 14 days of his arrest in the absence of any disclosure statement is meaningless.
According to this witness Behram Khan, S.-I. Did not call any person to act as witness. Moreover, prosecution has not been able to produce any evidence which can indicate that the same had been used in the commission of offence. There is also no evidence which can indicate that the empty which is stated to have been recovered from the place of occurrence had been fired from the shot-gun which is stated to have been recovered from the house of accused Karim Bakhsh in order to connect him with the commission of offence. There is also non-compliance of the statutory requirements of section 103, Cr.P.C.
10. P.W.5 Ali Nawaz.
' He is marginal witness of recovery memo. Exh.P.5/A. There is nothing on record which can indicate that the chemical examination has been carried out and the grouping of blood-stained determined or the same was stained with human blood or otherwise.
11. P.W.6 Ali Dost (doctor)
' On 31-5-1998 he had examined deceased in Civil Hospital, Usta Muhammad. He observed the following injuries:-- "Intrance. 1 fire-arm wound left side back of the chest 1/2" in diameter eight in number.
(2) Exit. Fire-arm wound on left side of chest eight in number around the nipple size '1" in diameter.
' Walls, ribs and cartilages damaged. Pleaurae, left lung, pericardium and heart and blood vessels damaged.
' Abdomen ' All the organs of abdomen were found healthy and stomach and its contents were found empty and healthy."
' The cause of death has been indicated to be injuries on vital organs i,e, heart and left lung and haemorrhage and shock. The injuries have been stated to be ante-mortem homicidal in character while weapon used is firearm. He had issued certificate Exh.P.6/A. In cross-examination he has stated that he had handed over to police the blood-stained Kameez Khaki and Dhoti. According to him there was no blackening and charring around the injury.
12. P.W.7 Behram Khan, S.-I.
' He is Investigating Officer' and testified about the various steps taken by him during investigation and identified the signature of S.H.O. Available on challan Exh.P.7/B. In cross-examination he has stated that there is hedge around the house. The wife of the deceased was present at the place of occurrence but he did not record her statement. According to him both the cots of deceased and his wife were lying together. The sealed parcel of recovered shotgun was prepared at police station but the shotgun was not sent to Ballistic Expert. According to him there was moonlight and electricity at the place of occurrence and has contradicted the inspection note Exh.P.2/B which had been prepared by him and also statements of other witnesses. He also contradicted other witnesses regarding obtaining thumb-impression of witnesses at police station.
13. In their statements recorded under section 342, Cr.P.C. The appellants have disputed the case of the prosecution and pleaded their innocence. They have also made their statements on oath as per provisions contained under section 340(2), Cr.P.C. Appellant Karim Bakhsh in his statement recorded on oath has stated as under:-- "The deceased Sher Khan was my matrimonial relative. My sister Izat Khatoon was the wife of deceased Sher Khan. Mst. Sabzi daughter of deceased Sher Khan, is wife of accused Abdul Rashid present in the Court who is my brother. Mst. Konja is second wife of deceased Sher Khan. Mst. Konja and his brother-in-law Allah Ditta, the complainant of the case were not happy with this second marriage. After consultation with each other Mst. Konja and complainant Allah Ditta themselves killed deceased Sher Khan, and levelled allegations against us. There was unhappiness between us and deceased Sher Khan. We have been involved wrongly in this false case with the consultation of police a false case has been lodged against us. I am innocent and want justice. The recovered shotgun is my licensed, which police and complainant recovered from my house and foisted upon me. That is my statement."
' The appellants Abdul Rasheed and Manzoor Ahmed have also made almost the same statements and Manzoor also took the plea of alibi and has produced D.W.1 Habibullah whose statement is to the extent that Manzoor Ahmed alias Bhutto was ploughing the land of Abdul Khaliq with tractor from 6-00 p.m. To 7-00 a.m. The statement of D.W.2 Ali Muhammad is to the extent that Karim Bakhsh and Abdul Rasheed were present on the night of occurrence with their ailing father.
14. The learned trial Court believed the statement of complainant, production of torch while disbelieved the recovery of shotgun and empty. The defence version was not believed for the reason that accused/appellant Manzoor had not produced Zamindar Abdul Khaliq whose land the accused was ploughing with tractor and non-production of medical certificate and doctor regarding ailment of father of the appellants. The learned trial Court, however, convicted the appellants for the offence under section 302, P.P.C. And sentenced them in the manner hereinbefore mentioned, as such, the instant appeal has been preferred.
15. We have heard Mr. Javed Iqbal, Advocate learned counsel for the appellants and Mr. Noor Muhammad Achakzai learned Additional Advocate-General for the State.
16. The main contentions put forth on behalf of the appellants are that witnesses had discredited themselves by making contradictory statements, wife of deceased who was material witness had not been examined, the identification in the light of the torch cannot be considered as sufficient piece of evidence, the eye account of occurrence given by the witnesses was neither natural nor probable, neither fire-arm nor empty was sent to the Arms Expert for analysis whether the same was used in occurrence or not, the motive which was set up has not been established and in support of his contentions the learned counsel . For the appellants has relied upon the authorities in 1995 SCMR page 1345, 1994 PCr.LJ page 356, 1994 PCr.LJ page 596, 1994 PCr.LJ page 1057, 1994 PCr.LJ page 478, 1994 PCr.LJ page 533, 1994 PCr.LJ page 1254, 1994 PCr.LJ page 1237.
17. Learned Additional Advocate-General has supported the impugned judgment by stating that there was common intention. Reliance has been placed on the authorities reported in PLD 1983 SC 35, PLD 1991 SC 923, 1998 PCr.LJ 114 and 1997 PCr.LJ 46.
18. We have considered the submission made by the learned counsel for the parties and are of the view that the case of the prosecution is doubtful in nature. The evidence available on record is in no way sufficient to lead to a conclusion that the accused/appellants can be convicted of the offence alleged against them. The incident quite admittedly took place during night when everybody was asleep. The person who had selected such odd hours to accomplish their act would in ordinary course not have given any opportunity to identify them. We are of the view that the identification of the appellants during the dark night from the distance and in the manner given by the P.Ws. Was not possible. The identification in the light of the torch is not considered sufficient piece of evidence. The recovery of the incriminating weapon inspires no confidence which has already been disbelieved. The recovery of blood-stained earth, clothes and empty also cannot link the appellants with the commission of this offence as stated earlier. The taking of the torch into possession and its production in the Court with two cells and not supporting of the recovery memo.
Exh.P.3/A by co-Mashir P.W.2 Muhammad also make the recovery of the same doubtful. There is also no evidence to the extent that the fire was made by the appellants upon the deceased. In the circumstances the contradictory statements of the witnesses regarding identification of the appellants in the dark night in the light of the torch after occurrence cannot be relied upon. Fl:e prosecution has not established its case beyond reasonable doubt as the case against the accused/appellants is not free from doubt. It is a cardinal principle of law that the evidence on capital charge must come from unimpeachable source. It is also principle of appreciation of the evidence in criminal matters that defence plea of the accused at the trial is placed on juxtaposition to the prosecution version and the Court is to try to evaluate it and discover the probabilities of the case. The learned Sessions Judge did not believe the defence Version as correct but in view of what has been laid-down in Zaheer Din v. The State 1993 SCMR p.1628 fact that accused failed to prove his plea raised in defence can neither reduce the burden of the prosecution to prove the case against him beyond reasonable doubt nor could it be taken into consideration as proved in support of the prosecution case.
19. The Honourable Supreme Court in a case reported in 1995 SCMR p 1345 have made The following observations:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concessions, but as a matter of right."
20. The principles laid down and the observations made by the Honourable Supreme Court in another authority reported in 1999 SCMR p.1220 are reproduced below for the sake of facility:- "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective. It is unfortunate that neither the trial Court nor the High Court thoroughly studied the record so as to reach correct conclusion, rather they dealt with the matter in a very cursory manner which naturally resulted in miscarriage of justice. As noted above, the eye-witness account in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it."
21. Upon considering of the evidence, following the principles laid down by the Honourable Supreme Court and the circumstances of the case we have reached the irresistible conclusion that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt. We, therefore, set aside the conviction and sentence awarded to the appellants and acquits them of the charge.
22. Resultantly, the murder reference is replied in negative and the appeal filed by the appellants is accepted. The appellants shall be released forthwith from jail if not wanted in any other case.