1. ' Through this appeal the appellants have assailed the judgment, dated 19-5-1998 passed by learned 1st Additional Sessions Judge, Sukkur in Sessions Case No,92 of 1995 re: The State v. Ghulam Muhammad and another under sections 302 and 34, P.P.C., whereby he has convicted and awarded the sentence to appellants to suffer imprisonment for life under section 302(b), P.P.C. And tine of Rs,50,000 each in case of default they have a undergo six months more.
2. ' The facts giving rise to this appeal are that on 25-1-1995 at 4-30 a.m. Complainant Gulab Khan Jatoi lodged first information report with Police Station Baiji Shareef alleging therein that they were on inimical terms with Chachar community people, he, therefore, used to keep 7 m.m. Rifle of his brother at their saw mill. His brother Gulzar Ahmed used to keep licensed gun of his uncle Kauro Khan. On the fateful night he and his brother Gulzar Ahmad went to sleep in a room after closing the saw mill at about 3 a.m., they heard some noise outside the room. The complainant picked up rifle and awakened his brother Gulzar Ahmad. The complainant opened the door and saw on the light of bulb that four persons armed with deadly weapons were standing there. Out of them, one challenged them. The complainant also challenged and tired at them from back of the door, whereas his brother Gulzar Ahmed took shelter by his side. The culprits also tired upon them. This cross-fire lasted about 5 to 7 minutes. During this cross-fire a bullet of rifle of complainant struck inside the barrel of rifle and Gulzar Ahmed brother of the complainant fell down on the table after raising cry. The complainant took the gun of his brother and kept on firing upon the culprits. After departure of culprits, the complainant found his brother Gulzar Ahmed dead. 'Thereafter, Dildar the brother of complainant, his cousin Shafi Muhammad and other villagers were attracted to the fire shot reports. The complainant apprised them of the aforesaid facts. The complainant allegod in the F.I.R. That 4/5 persons of Chacher Tribe have caused murder of his brother Gulzar Ahmed due to enmity.
3. ' The complainant lodged the first information report with police. The police took up investigation and arrested the appellants on 10-7-1995. The appellants were put to identification test on 10-7- 1995 before Assistant Mukhtarkar, Pano Akil. They were allegedly identified by complainant Gulab Khan the eye-witness. On 22-7-1995, appellant Qasim led the police party and produced a rifle. The police on completing investigation submitted challan against the present appellants, whereas the co-accused Gulzar was shown as absconder. The case was tried by 1st Additional Sessions Judge, Sukkur. The appellants pleaded not guilty and claimed to be tried.
4. ' The prosecution in order to prove its case examined complainant Gulab Khan as Exh.8, Shafi Muhammad as Exh.P.9, Abdul Sattar as Exh.10, Dildar Ahmed as Exh.11, Muhammad Ishaque as Exh.12, Syed Irshad Ali Shah as Exh.16, Altaf as Exh.19, Dr. Ghulam Yasin as Exh.20, and Assistant Mukhtiarkar Zameer Ahmed as Exh.21. Thereafter, the prosecution side was closed.
5. ' The appellants were examined under section 342, Cr.P.C. Wherein they denied the prosecution allegations and claimed themselves to be innocent. They neither examined themselves on oath nor led any defence evidence.
6. ' The trial Court ultimately came to the conclusion that the prosecution had been able to bring home the guilt of the appellants and awarded sentence to them in terms stated above.
7. ' It is contended by Mr. Manzoor Ahmed Junejo, learned counsel for the appellants that the incident is witnessed by only P.W. Gulab Khan, who is complainant in the case and brother of deceased Gulzar Ahmed. The names of appellants do not figure in the F.I.R. The identification test was held on the same day of arrest through complainant Gulab Khan. The recovery of rifle from appellant Qasim was made after ten days of his arrest. It is submitted that the identification test after the period of six months of the incident, is not possible in the circumstances of the case. The incident was unseen and deceased was seen by the complainant party lying dead. It is urged that complainant Gulab Khan was not present and the alleged rifle is foisted upon appellant Qasim. The details of the weapons carried by appellants at the time of commission of crime, were not disclosed in the F.I.R. The description and features of the culprits were not given in the F.I.R. It is stated that the alleged rifle was sent to Ballistic Expert after more than six months of the incident.
8. There is no evidence connecting the appellants with the commission of offence except the alleged delay in identification test and the recovery of rifle. The reliance has been placed upon the cases of Abdul Rehman and others v. The State 1983 SCM R 958, Ghulam Rasool and 3 others v. The State 1988 SCM R 557, State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo 1993 SCM R 585, Yousif v. The State PLD 1988 Kar. 521, Manzoor v. The State 1995 M LD 1097, Hameedullah and another v. The State 1999 M LD 1055, Abdul Rehman v. The State NLR (sic) Criminal 570, Allah Bux alias Khuda Bux v. The State 1978 PCr.LJ 346, Soomro v. The State 1983 PCr.LJ 79, Muhammad Yakoob and another v. The State 1989 PCr.0 2227, Lutuf Ali and another v. The State 1991 PCr.LJ 544, Abdul Karim alias Raja and another v. The State 1996 PCr.LJ 503.
9. ' Mr. Abdul Sattar Soornro learned counsel appearing for the State has supported the impugned judgment on the ground that the culprits were picked up by complainant Gulab Khan and the rifle used in the commission of offence was recovered from the appellant Qasim. It is submitted that the trial Court has rightly convicted the appellants and the impugned judgment does not suffer from any illegality or infirmity.
10. ' The record reveals that there is ocular evidence of P.W. Gulab Khan only. He is admittedly brother of the deceased and he has admitted the enmity between the community of Jatoi and Chacher.
11. The names of culprits do not figure in the F.I.R. Nor their descriptions and features were mentioned in the F.1.R. The appellants had voluntarily appeared before the police according to prosecution case and on the same day the identification test was held before Assistant Mukhtarkar, Pano Akil.
12. The complainant Gulab Khan has been examined but his testimony is silent about the alleged identification test. He has nowhere in his deposition stated that the appellants were identified by him in the identification test. The incident has taken place at night time on 25-1-1995 whereas the identification test has taken place after about five and a half months of the incident. The version of complainant Gulab is that he tired towards culprits while he was hiding himself behind the door.
13. Under such circumstances the safe administration of justice requires that such evidence is to be considered with a great care and caution and is not to be accepted without any independent corroboration. P.W. Gulab has further exaggerated the facts during his examination that the culprits were known to him by face but this fact does not find place in the F.I.R. The facts and circumstances of the case, even if believed to be true, then in such situation, the complainant could only have the momentary glimpse of the culprits, who were admittedly 4/5 in number. The correct identification in such circumstances after such a long period was not possible for him to pick out the real culprits in the identification test.
14. ' The next witness Shafi Muhammad. He is not an eye-witness of the incident. His village was at a distance of about 1 Km. From the place of incident. They were attracted by the fire shots and on reaching at the Wardat, they were apprised of the facts by complainant Gulab. His evidence is, therefore, of no avail to the prosecution.
15. ' P.W. Abdul Sattar was Incharge of Police Station Baiji Shareef on the day of incident. He recorded the F.I.R. Of complainant. After lodging the F.I.R. He prepared Mashirnama of Wardat and prepared the necessary correspondence of dead body. He recovered the weapons of complainant party and collected the blood from the Wardat. This Investigating Officer has neither arrested the appellants nor recovered anything incriminating from them. He has stated that the complainant had not given the details of the weapons carried by the culprits. He has stated that the features and the descriptions of the culprits were not given in the F.I.R.
16. ' P.W. Dildar Ahmed is the brother of complainant and deceased. He did not see the incident. He later on reached at the Wardat and the facts of the incident were narrated to him by complainant Gulab Khan. He has admitted the relationship of Mashirs Muhammad lshaque as well as Shaman.
17. ' P.W. Muhammad Ishaque is Mashir of Wardat and dead body. He has stated that Wardat was inspected in his presence. The dead body was seen and Danishtnama was prepared in his presence.
18. ' P.W. Shaman was co-Mashir and the police secured two empty cartridges in his presence from the place of Wardat and one empty shell of 7 m.m. Rifle.
19. ' P.W. Nawab is a Mashir of identification test. He has stated that the accused were mixed up with 30 dummies and the complainant Gulab Khan picked up them from the parade. He has stated that he does not remember the time of identification test. The very fact of identification test is not deposed by complainant Gulab Khan himself. The evidence of the Mashir in this regard is, therefore, of no consequence.
20. ' P.W. Altaf is the Mashir of arrest of the appellant Muhammad Qasim and recovery of rifle. He has stated that the appellant Qasim was not arrested in his presence. He, however, produced one ritle from the hedge of his house. The police recovered it in his presence and the co-Mashir was Ghulam Mustafa. The Mashir has stated that he resides at a distance of 4 Kms. From the Police Station, Baiji Shareef and the village of the appellant Qasim was at a distance of about 20 Kms.
21. From the Police Station Baiji Shareef. He was taken by the police from Police Station Baiji Shareef.
22. The witness has not given the date and time of the recovery. He has not been able to give the particulars of the house of appellant Qasim. The fact of recovery of rifle has not been put to the accused in his statement recorded under section 342, Cr.P.C. The alleged rifle was recovered after about 6 months of the incident and thereafter, the alleged rifle was sent to expert for examination and report. The Investigating Officer has not been able to give the details of such discrepancies of the recovery and examination of the weapons by expert. The testimony of doctor Ghulam Yasin only describes the nature of injuries and time of death and examination.
23. ' P.W. Zameer Ahmed, Assistant Mukhtiarkar, Pano Akil before whom the alleged identification test took place, stated that the accused were put in identification test alongwith 30 dummies. The Mashirs of test were Nawab and Elamdin.
24. ' P.W. Syed Irshad Hussain Shah is the Investigating Officer of this case. He received the papers for investigation on 28-1-1995. He has stated that on 17-2-1995 he came to know that present appellants were involved in the case. On 10-7-1995 the present appellants volunteered to appear before the police and on the same day they were put to identification test. He has stated that on 22-7-1995 appellant Muhammad Qasim led police party to produce the rifle allegedly used in the commission of offence. He has produced the Ballistic Expert Report in the Court. The only piece of evidence appearing against the appellants is ocular version of complainant Gulab Khan and the recovery of alleged rifle from appellant Muhammad Qasim. The identification test is disbelieved as stated above. The complainant has himself not said anything in regard to identification test but has only stated that the culprits were already known to him as they were visiting their saw mill. The identification test is belated and enmity between the parties is admitted. Under these circumstances, it is not safe to rely upon the evidence of complainant without being any evidence of corroboration available on the record. The recovery of rifle is after about 6 months of the incident and after 12 days of the arrest of the appellant Muhammad Qasim. Moreover, this piece of evidence cannot be used against appellant as no such question has been put to him while he was examined under section 342, Cr.P.C. The alleged rifle was received in the office of Expert on 28-11- 1995 i.e, after bout ten months of the incident. The recovery is, therefore, of no consequence.
25. ' In view of the above discussion of the evidence, I am of the opinion that the prosecution has not been able to bring home the guilt of the appellants and the appellants are given benefit of doubt.
26. The appeal is allowed, the sentence of the appellants is set aside and they are acquitted. The appellants are to be released forthwith, if not required in any other case.