' Appellant Inayatullah has filed this appeal to challenge the judgment, dated 1-6-1999, passed by the Additional Sessions Judge, Naushahro Feroze, whereby the appellant was convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life and also to pay fine of Rs,20,000 (Rupees twenty thousand only) or in default thereof to suffer R.I. For six-months.
2. The prosecution story as narrated by first informant Muhammad Hanif in the F.I.R. Registered on 18-9-1991 was that he alongwith his younger brother Sardar Khan was proceeding to their land situated at Sadhuja in their car which was being driven by his brother Sardar Khan. When they reached at Tharoo Shah Stop, Ghulam Rasool, Head Clerk in the Office of Sub-Divisional Magistrate, Naushahro Feroze also got into their car. At about 9-20 a.m. When they reached near the shop of Muhammad Yaqoob, a person who was clean shaved and had sturdy body gave signal to stop the car. Whereupon, Sardar Khan stopped the car and shook hand with the said person, who took out a pistol with magazine from the fold of his Shalwar and fired six shots upon Sardar Khan brother of the first informant. The said shots hit Sardar Khan on his abdomen and arm. The complainant and other inmate of the car namely Ghulam Rasool immediately got down from the car and raised cries. However, the unknown assailant got on his CD-70 motorcycle of red colour and drove it away towards Tharoo Shah side. The first informant/ complainant and the said Ghulam Rasool thereafter removed Sardar Khan with the help of Muhammad Sharif who drove them to hospital at Naushahro Feroze. After leaving the injured Sardar Khan at hospital the first informant went to Police Station Naushahro Feroze where he lodged report, material particulars of which have been described hereinabove.
3. After registration of F.I.R., the Investigating Officer P.W. Shamsuddin, Assistant Sub-Inspector of Police Station Naushahro Feroze sent letter to the Medical Officer for examination and treatment of injured Sardar Khan. He then proceeded to the scene of offence and prepared a memo. Thereof.
The Investigating Officer also recorded 161, Cr.P.C. Statements of P.Ws. Ghulam Rasool and Muhammad Sharif on 21-9-1991. The ,police received information regarding death of Sardar Khan on 22-9-1991. The Investigating Officer, therefore, proceeded to hospital at Nawab Shah and held inquest over the dead body of Sardar Khan. He prepared such inquest report. He also prepared a Mashirnama of dead body of Sardar Khan in presence of Mashirs Ghulam Mustafa and Muhammad Jameel. The dead body of Sardar Khan was then handed over to Muhammad Anwar relative of the deceased. The Investigating Officer recorded further statements of first informant on 30-12-1991 wherein he named the appellant Inayatullah for the first time to be the assailant. This statement of the first informant was based upon information said to have been communicated to him by P.Ws. Majnoon and Rajib Pirzada. The Investigating Officer then recorded 161, Cr.P.C.
Statements of P.Ws. Majnoon and further statements of witnesses Rajab, Ghazi Khan and Abdullah.
The appellant had obtained bail before arrest in this case. He was however, taken into custody in another case which was registered as Crime No,32 of 1992. Consequently, the appellant after arrest was put to identification test on 20-4-1992, supervised by P.W. Badaruddin, Assistant Mukhtiarkar and Third Class Magistrate, Naushahro Feroze. Allegedly on the pointation of appellant the Investigating Officer recovered a pistol and bullets from the appellant on 23-4-1992. After completion of investigation the appellant was sent up to stand trial under section 302, P.P.C. In the Court of learned Sessions Judge, Naushahro Feroze, from where his case was transferred to the learned Additional Sessions Judge, Naushahro Feroze for disposal according to law.
4. Charge against the appellant was framed on 25-8-1992, under section 302, Qisas and Diyat Ordinance, to which he pleaded not guilty and claimed to be tried.
5. Prosecution in support of its case, examined Muhammad Sharif as Exh.6, Assistant Mukhtiarkar and T.C.M., N/Feroze Badaruddin Pirzada in whose presence the identification test of accused was held as Exh.8, he produced Mashirnama of identification test of the accused, prepared in presence of Mashirs Subhan and Nadim as Exh.P.I, complainant Muhammad Hanif was examined as Exh.9, he produced his 164, Cr.P.C. Statement as Exh.11/A. Medical Officer Dr. Muhammad Hassan Khashkheli, was examined as Exh.12 and he produced the post-mortem notes as Exh.12/A. P.W. Ghulam Rasool as Exh.14. The Investigating Officer, A.S.-I. Shamsuddin as Exh.15 who produced Mashirnama of injuries as Exh.15-A, Mashirnama of the place of incident as Exh.15.B, Mashirnama of recovery of car as Exh.15-C and Mashirnama of recovery of pistol and bullets, prepared on 23-4-1992 as Exh.15.D.
Perusal of the record further shows that P.Ws. Muhammad Jamil and Nadim were given up by the prosecution vide statements as Exhs.10 and 13 and finally side of the prosecution was closed vide statement as Exh.17, before that the Prosecutor gave up S.H.O. Muhammad Amin Ghoto vide statement as Exh.16.
6. In his statement recorded under section 342, Cr.P.C., appellant/accused Inayatullah denied the allegations and further alleged that neither identification test was held nor recovery was made from him but property was foisted upon him. As regards his arrest the appellant stated in his statement under section 342, Cr.P.C., that he was not arrested in this crime but was arrested in Crime No,32 of 1992. He also alleged enmity with the P.Ws. However, the appellant chose not to examine himself on oath and, led no defence.
7. Learned trial Court framed the following points for determination:--
(i) Whether the deceased Sardar Khan died unnatural death?
(ii) Whether present accused committed Qatl-e-Amd of deceased by way of firing from pistol upon him, as alleged?
8. After discussing the evidence brought on record, learned trial Court convicted the appellant in the terms as mentioned above.
9. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Habib-ur-Rasheed, Advocate for the Advocate-General, Sindh for State and also gone through the R&Ps. Of the trial Court.
10. The case of the prosecution is based on the following pieces of evidence:--
(a) Ocular testimony;
(b) Recovery of crime weapon.
(c) Extra-judicial confession of the appellant.
11. Mr. A.Q. Halepota, learned counsel for the appellant inter alia contended that (i) the ocular testimony was unreliable, the identification test was defective, thus, identification of the appellant as an assailant was not fully established; (ii) the evidence of extrajudicial confession alone without any corroboration was not sufficient to maintain the conviction; (iii) the recovery of alleged crime weapon was doubtful, coupled with the fact that the report of Ballistic Expert was not produced to connect the crime weapon with the commission of the crime.
12. In support of above submission learned counsel for the appellant placed reliance on the following case-law: ' (1) 1995 SCM R 127, (2) PLD 1981 SC 142, (3) Unreported judgment in Criminal Jail Appeals Nos.106 of 1995, 107 of 1995 and 108 of 1995, (4) 2000 SCM R 528.
13. Mr. Habib-ur-Rasheed who appeared on behalf of Advocate-General, Sindh for State did not support the conviction as according to him the prosecution has failed to bring home the guilt of the appellant. He, therefore, stated that the appellant was entitled to the benefit of doubt.
14. Insofar as the medical evidence is concerned, the same has not been called in question as such need not be discussed.
15. So far as the ocular evidence is concerned, the evidence against the appellant consisted of the ocular testimony of P.Ws. Muhammad Hanif and Ghulam Rasool who were accompanying the deceased Sardar Khan who was driving the car at the time of this incident and that of P.W.
Muhammad Sharif who drove the car of deceased after he sustained injuries in order to take him to the hospital at Naushahro Feroze. Apart from these three P.Ws., no other person was produced by the prosecution to enable the Court to find out as to how and in what circumstances this incident took place. Insofar as P.W. Muhammad Sharif is concerned, he categorically stated in the trial Court that he had not seen the culprit who opened the attack and fired at the deceased. He further stated that he had not seen the accused (appellant herein). The perusal of the statement made by P.W. Ghulam Rasool in the trial Court shows that he could not see the accused (appellant) properly and that he could not say whether the accused (appellant) present in Court was the culprit. All that this witness said was that the assailant was a clean shaved person and that the accused (appellant) was also clean shaved. Now this fact alone was not enough to establish the identity of the appellant as perpetrator of this crime, as no identification test of the appellant was held through this witness. It was the duty of the Investigating Agency to do so. In the absence of such identification test the testimony of P.W. Ghulam Rasool is of no avail to the prosecution. The third P.W. Namely Muhammad Hanif is brother of deceased Sardar Khan and he claims that he was accompanying the said deceased in the car at the time of occurrence. He is also first informant. The version initially given by him in the first information report was that his brother Sardar Khan was shot and killed by an unknown assailant. In his further statement recorded by the Investigating Officer on 30-12-1992 the first informant disclosed the name of the appellant for the first time as the assailant. This disclosure was made by P.W. Hanif on the basis of information delivered to him by P.W. Majnoon Chandio, before whom the appellant is stated to have made extra-judicial confession regarding this incident. In his evidence before the trial Court P.W. Muhammad Hanif, however, gave a totally different version. The perusal of his statement made before the trial Court showed that he and P.W. Ghulam Rasool identified on the spot Muhammad Hanif. P.W. Ghulam Rasool did not support his version and this subsequent version of his relating to the identity of the appellant was also falsified by the earlier version given by him in F.I.R., regarding which he stated in his examination-in-chief, which reads as under:-- "I got the injured admitted to O.P.D./Casualty and myself went to the police station where I lodged the report. I produce the F.I.R. Exh.9/A, it is same correct and bears my signature."
' The F.I.R. Has been owned by the complainant and he never complained at any stage that the police did not record the correct version of the incident. On 20-4-1992, P.W. Muhammad Hanif was called in the office of Mukhtiarkar and F.C.M., Naushahro Feroze where he identified the appellant as being the killer of his brother. P.W.2 Badaruddin who was posted as Assistant Mukhtiarkar and Third Class Magistrate, Naushahro Feroze, deposed before the trial Court that in his presence P.W.
Muhammad Hanif correctly picked out the appellant. It is also evident from the evidence of P.Ws.
Ghulam Rasool and Muhammad Sharif that P.W. Muhammad Hanif was not accompanying the deceased at the time of incident. In the circumstances the version given by this witness regarding identity of the appellant and his the assailant who was Inayatullah (the appellant herein). Now this is positively an improvement which was subsequently made by P.W. Subsequent identification before P.W. Badaruddin, Assistant Mukhtiarkar and Third Class Magistrate, Naushahro Feroze, cannot be believed and it is of no value.
16. While discussing the ocular testimony, and more particularly the evidence of P.W. Muhammad Hamel, learned trial Court rightly discarded the ocular testimony in the impugned judgment.
17. So far as the recovery of pistol which was allegedly used by the appellant as crime weapon is concerned, admittedly independent witness was not examined to prove the factum of recovery. No explanation was forthcoming from the prosecution side for such lapse. It is also not disputed that the recovery was effected while the appellant was in custody. Be that as it may, even if the recovery would have been established, it was absolutely of no value and could not be relied upon in view of the dictum laid down by the Honourable Supreme Court in Zafar Hayat's case, reported in 1995 SCM R 896, for the simple reason that the pistol so recovered was not sent to the Fire-arm Expert for examination.
18. The only piece of evidence against the appellant that remains to be considered is that of extra- judicial confession made by him before P.W. Majnoon. The appellant is alleged to have gone to the said P.W. Alongwith his father and one Sikandar and Ghazi Khan and stated before him that he has killed the deceased in order to take revenge. It is well-settled that extra-judicial confession was a weak piece of evidence, and needed to be corroborated. From the above discussion it is abundantly clear that there was no corroboration in this case as was required. In the case of Zia- ur-Rehman v. The State reported in 2000 SCM R 528 their Lordships of Honourable Supreme Court of Pakistan were pleased to hold that, "the evidence of extrajudicial confession alone without any corroboration is not sufficient to maintain the conviction thereon".
19. The gist of the above discussion is that the identity of the appellant as killer of the deceased was not established through any of the three prosecution witnesses who claimed to be either in the company of the deceased or they were around the scene of offence at the time of occurrence. The recovery of the pistol was of no value and the extra-judicial confession was uncorroborated. In the circumstances the appellant was entitled to the benefit of doubt.
20. Their Lordships of the Honourable Supreme Court were pleased to observe in the case of Tariq Pervez v. The State, reported in 1995 SCM R 1345, that if a single circumstance creates doubt in the prudent mind, the benefit of doubt is to be given to the accused, not as a matter of grace but as a matter of right.
21. For the foregoing reasons benefit of doubt is extended to the appellant, the appeal is allowed, conviction and sentence awarded to the appellant is set aside. The appellant is acquitted and shall be released forthwith if not required in any other case.
22. These are the reasons for my short order passed on 21-11-2000.