'MUHAMMAD ASHRAF LEGHARI, J.--- Through this jail appeal the judgment assailed is dated 29-6- 1994, passed by the Special Judge (S.T.A.), Larkana in Special Case No,154 of 1992, whereby the appellant is convicted and awarded the sentence to suffer rigorous imprisonment for life under section 302 read with section 34, P.P.C. And to pay fine of Rs,50,000. In default of the payment of fine, he has to undergo three years more. The appellant is extended benefit of section 382-B, Cr.P.C.
2. The facts in brief are that on 4-12-1990, at 7-00 p.m., complainant Shaman lodged first information report at Police Station Drig, stating therein that on the day of incident he, his brother Roshan and uncle Muhammad Bux were cutting crop in their lands. It is stated that P.Ws. Mubarak and Ali Muhammad were also cutting crop in their field at some distance. At about 10 a.m., accused Abdul Hameed armed with rifle and present appellant Ameen armed with kalashnikov came there. Appellant Ameen challenged his brother Roshan by saying that he was Karo with his wife and that they would not spare him. It is alleged that Ameen and Abdul Hameed fired at Roshan Ali and Muhammad Bux who fell down after sustaining injuries. Complainant party raised cries which attracted Mubarak, Ali Muhammad and other villagers, who came running. Thereafter, both culprits decamped from the scene of offence. They went near injured and found them dead.
The complainant left P.Ws. Over the dead bodies and he proceeded to police station, where he lodged report on the same day at 7-00 p.m.
3. Police registered F.I.R. And took up investigation. On completion of investigation, the present appellant was sent up to stand trial. Another accused Abdul Hameed was shown absconder in the challan.
4. The charge was framed against the appellant on 1-2-1993. At the trial, the prosecution examined witnesses. Medical Officer, Rashid Ahmed P.W.1, complainant Shaman P.W.2, Ali Muhammad P.W.3, Hajjan Khan P.W.4, Mubarak P.W.5, Additional S.H.O., Punhal Khan P.W.6 and Suhno P.W.7.
5. Thereafter, the statement of appellant under section 342, Cr.P.C. Was recorded wherein he denied the allegations levelled against him by the prosecution and pleaded that he was implicated in false case due to friendship of Abdul Hameed who had strained relations with complainant party.
6. Ultimately the trial Court came to the conclusion that prosecution had been successful to bring home the guilt of appellant and he was convicted in the terms stated above.
7. It is contended by Mr. Ghulam Haider Baloch learned counsel for the appellant that F.I.R. Of this case is delayed by about 9 hours and no explanation is put forth by the complainant. The complainant is brother of deceased Roshan Ali and nephew of deceased Muhammad Bux. The P.Ws. Ali Muhammad and Mubarak are relatives of the complainant, who were allegedly attracted by the cries and witnessed the incident. It is submitted that the incident was unwitnessed and the prosecution witnesses were not available at the scene of offence when this incident took place. The ocular evidence is in conflict with the medical evidence. The interested and inimical evidence is not corroborated by any circumstantial evidence. The sickles and crop allegedly cut by the complainant and witnesses have neither been seen by the police nor shown in Mashirnama of Wardat. The empties allegedly taken in possession from the scene of offence have neither been sent to expert nor such report is produced on record. The deposition of witnesses suffer from material discrepancies and contradictions. The contents of F.I.R. Indicate that some other villagers were attracted by the cries and fire shots but prosecution has failed to examine anyone of them.
The reference has been made to the cases reported as Saindad and 2 others v. The State 1972 SCM R 74; Faqir Muhammad v. Muhammad Ramzan and others 1982 SCM R 41; Ghulam Jaffar v.
Allandad and 2 others 1995 SCM R 173; The State v. Muhammad Sharif and 3 others 1995 SCM R 635; Zafar Hayat v. The State 1995 SCM R 896; Raheb and 3 others v. The State 1980 PCr.LJ 336; Shaukat Ali v. The State 1994 PCr.LJ 1363 at 1365.
8. Mr. Altaf Hussain Surahio learned counsel appearing for the State has supported the impugned judgment. He argued that eye-witnesses complainant Shaman, Ali Muhammad and Mubarak have supported the prosecution case. The empties were secured from the place of incident. Medical evidence supports ocular evidence. The motive is proved by the prosecution. It is submitted that the sentence has rightly been awarded by the trial Court.
9. The incident of this case has occurred at 10 a.m. On 4-12-1990. The F.I.R. Of this case was recorded at 7 p.m. On the same day. The Investigating Officer did not visit the place of incident on the same day but he inspected the place of incident on next day at about 7-15 a.m.
10. The complainant Shaman has stated that P.Ws. Mubarak and Ali Muhammad are his maternal- cousins. Mashir Suhno Khan is his grandfather whereas P.W. Khushi Muhammad is his maternal- uncle. He has stated that P.W. Mubarak and Ali Muhammad are residing at a distance of about 4/5 furlongs from his house. He has testified that except P.Ws. Ali Muhammad and Mubarak none else was attracted on the cries, but in the same breath he deposed that a few persons were attracted and came at the Wardat after the culprits fled away. However, he had not been able to point out their names. P.W. Ali Muhammad has deposed that he and Mubarak were cutting crop at a distance of about 200/250 paces from the complainant. They heard fire shots and rushed to the place of incident where they found Roshan and Muhammad Bux lying injured. They saw the accused running from Wardat. He had not seen the accused firing at the deceased. In cross- examination he has stated that they reached at Wardat within 15/20 minutes. They had left sickles at the place where they were cutting crop as well as cloth sheets. He has stated that his 164, Cr.P.C.
Statement was recorded by Mukthiai kar after about 2-1/2 months of the incident and his no other statement was recorded. He has stated that he has shown the place where they were cutting crop to the police and so also the sickles and bundles of crop lying there. He has deposed that the dead bodies were taken by the police.
11. P.W. Mubarak has contradicted Ali Muhammad and has deposed that they had seen the accused firing at deceased. He has deposed that police came and removed the dead bodies in police vehicle to the hospital. He has, however, stated that he cannot give the distance from which the deceased were fired at by the accused. He has contradicted P.W. Ali Muhammad by saying that he has not taken police to the place where he and Ali Muhammad were reaping the crop.
12. The sickles and cloth sheets have not been taken into possession by the police so that it could be established to some extent that witnesses were cutting crop. The bundles of crop cut by them are not even mentioned in Mashirnama. This fact prima facie negates the presence of eye- witnesses. The reference is made to a case of Faqir Muhammad v. Muhammad Ramzan and others 1982 SCM R 41, wherein it is observed as follows:-- ' "The presence of the eye-witnesses on the scene of occurrence at the time of occurrence appears to be very doubtful. No independent witness has been produced, not even a witness from the railway station where the occurrence took place. No sickles have been recovered or taken into possession by the Investigating Officer which might show that Faqir Muhammad Khan had gone to a place near the scene of occurrence for cutting the wheat crop nor any bundles of wheat had been taken into possession."
13. The aforesaid three eye-witnesses have contradicted each other on material aspects of the case. Their version is in conflict with the testimony of doctor. The doctor has stated that he visited the place of incident at 6 p.m. On 5-12-1990 and conducted post-mortem at the place of incident.
P.W. Mubarak has stated that dead bodies were removed by the police in their vehicle to hospital.
The Medical Officer and the eye-witnesses have been materially contradicted by Investigating Officer, Punhal Khan, who has deposed that Doctor Rasheed Tunio reached the Wardat at about 8- 30 a.m. And conducted the post-mortem at the spot. He further stated that after the post-mortem, the dead bodies were handed over to legal heirs. The delay in recording F.I.R. Has already cast doubt over its genuineness. The aforesaid material inconsistencies in the depositions of eye- witnesses have created a fatal dent in the case. They are closely related and the manner in which they have deposed does not inspire confidence. The fact which needs consideration is that what were the exceptional circumstances for the Medical Officer to conduct the post-mortem at the scene of offence. This suggests that the dead bodies were highly decomposed and were so damaged that their transportation to hospital was not possible. The doctor has not disclosed as to under whose directions he went to the Wardat and conducted autopsy. The incident occurred at 10 a.m. On 4-12-1990. The police reached on the next morning at 7 a.m., but dead bodies were still lying at the scene of offence and the doctor came at the spot in the evening of 5-12-1990. All these circumstances are unbelievable and create serious doubt on the testimony of complainant, Investigating Officer, Medical Officer and the alleged eyewitnesses Ali Muhammad and Mubarak.
14. It appears that the incident is unseen and the story is built up after due deliberations and consultations. The interested witnesses are set up and their presence is doubtful. Reference can be made to a case of Raheb and others v. The State 1980 PCr.LJ 336.
15. The other piece of evidence against appellant is motive which is not proved positively by examining any evidence in this context. Moreover, the motive is double-edged weapon which cuts both ways. The reference can be made to a case of State v. Muhammad Shareef and 3 others 1995 SCM R 635, wherein it is observed:- "If it is considered as sufficient motive for commission of offence, it can also be considered as sufficient for false implication as well."
16. The alleged empties of Kalashnikovs and rifle have neither been sent to expert nor such report is produced by the prosecution. The weapon from which the said empties were discharged is also not recovered. The empties taken from the Wardat in such circumstances do not render any corroboration. The reference in this context, can be had to a case of Saindad and 2 others v. The State 1972 SCM R 74, wherein their Lordships observed:-- ' "The guns and the hatchets alleged to have been. Used by the assailants were not recovered with the result that some empties seized from the place of occurrence were not of any assistance so far as corroboration of the ocular evidence in regard to the identity of the assailant is concerned."
17. The same view gets support from a case of Zafar Hayat v. The State 1995 SCM R 896.
18. The P.W. Hajjan Khan is First Class Magistrate, before whom the statements of P.Ws. Mubarak and Ali Muhammad were recorded under section 164, Cr.P.C. He has testified to that effect. P.W.
Suhno is a Mashir of Wardat, dead bodies and the empties. He has in his cross-examination stated that he had signed the memos. At Police Station, Drig and his signatures were obtained by police at the Police Station Drig after about one month of the incident. He has further stated that doctor came at Wardat after about 1-1/2 hours
19. We have examined the aforesaid ocular evidence which does not inspire confidence. The F.I.R. Is delayed and no explanation is given by the complainant. The witnesses are interested and their testimony is not credible to carry conviction in such heinous offence. The ocular evidence is not supported by any other circumstances as discussed above. In such situation, the impugned judgment is not sustainable. The appeal is allowed and the sentence awarded to the appellant is set aside. He is to be released forthwith if not required in any other case.