1. ' AMANULLAIJ KHAN YASINZAI, J.--- Instant judgment will dispose of Criminal Appeals No,347 and 348 of 2000 filed by appellants Noor Alam and Khalid as well as Murder Reference No,5 of 2001, made by Sessions Judge, Mekran Division at Turbat, as all the matters arise out of the judgment, dated 10-12-2001.
2. ' It is the case of prosecution that S.H.O. Lal Jan of Police Station, Turbat received a telephonic message on 27-8-1999 at about 2-5 a.m. That an incident has taken place in Sangani Sar and a dead body has been brought to hospital. S.H.O. Alongwith P.W.8 Sarwar Ali reached at the hospital and there, he recorded Fard-e-Biyan (Exh.P.7/A) of complainant Ejaz Ali, who stated that on 26-8- 1999, he was sleeping in his house. His sister Mehmooda informed him that Khuda-e-Rahim has received a bullet injury. He came out and saw that Khuda-e-Rahim was lying dead near the outer gate of his house and he started looking for a vehicle to shift the deceased to hospital. In the meanwhile Noor Alam and Khalid came into the house. Noor Alam kicked the dead body of deceased and stated that he is not dead as yetand he is only acting. Many people gathered there and thereafter accused Noor Alam and Khalid left in a Potohar Jeep and the dead body of deceased was brought to hospital.
3. ' Investigation of the case was entrusted to P.W.8 Sarwar Ali. He took into possession the dead body and prepared inquest report (Exh.P.8/A), and took blood-stained shirt of deceased vide memo.
4. (Exh.P.8/B). He went to the place of occurrence, prepared site inspection report (Exh.P.1/B) and site plan (Exh.P.8/C). He secured three empties and one bullet lead vide memo. Exh.P.1/A. He recorded statements of witnesses and took the vehicle into possession vide memo. Exh.P.6/A and thereafter submitted challan Exh.P.8/D, before the Sessions Judge, Turbat.
5. ' Charge was framed under section 302/34, P.P.C. On 20-11-1999 which was refuted by appellants.
6. To prove its case, prosecution led evidence of following witnesses:--
(1) P.W.1 Abdul Aziz was with the S.H.O. And Investigating Officer at the time when telephonic message was received. He accompanied them to the hospital and also to the place of incident. He is Mashir to the recovery of three empties and bullet lead secured vide memo. Exh.P.1/A. In his presence, place of incident was inspected and site inspection memo. Exh.P.1/B was prepared. He acknowledged his signatures on both the memos.
(2) P.W.2 Allah Dad deposed that on 26-8-1999, at about 11-30 p.m. He heard gunshot report in his house which is situated in front of the house of deceased. The wife of deceased Khuda-eRahim informed him that, her husband has been shot. Thereafter, he went to the house of Haji Saeed, which is situated adjacent to his house and informed Haji Saeed and told him that he has been informed by the wife of Khuda-e-Rahim that he has been shot, then he alongwith Haji Saeed came to the place of incident and saw a Potohar Jeep parked in front of the house of deceased. He also saw appellants Noor Alam and Khalid standing near the jeep. He entered the house of deceased, his body was lying near his gate. In the meanwhile Noor Alam and Khalid entered in the house. Noor Alam gave kick blow to the deceased and stated that he is not dead and is only acting. Witness further deposed that he did not see anything in the hand of accused and thereafter women and children pelted stones on the vehicle of appellants and they fled away.
(3) P.W.3 Dr. 'Moula Bakhsh, Medical Officer, Civil Hospital, Turbat, examined the deceased and issued certificate Exh.P.3/A. He found the following injuries on the person of deceased:-- "On external examination ' There was a circular small hole on left side of Qameez of deceased.
7. ' A circular lacerated wound on the left 4th intercostal area just above the left nipple which was more than 10" in depth by probing.
8. ' X-ray of the chest shows that bullet had entrapped in right lung after piercing heart.
9. ' Deceased died about 1-2 hours before reaching in hospital.
10. ' Cause of death of deceased was injury to vital organ heart and lungs."
(4) P.W.4 Haji Saeed, deposed that on the night of incident he heard gunshot reports and thereafter some one knocked at his door. He opened the door. P.W. Allah Dad was there. He was informed by him that the deceased has been shot. He alongwith Allah Dad went to the house of deceased and there he saw appellants Noor Alam and Khalid. Noor Alam was holding a pistol in his hand. He was inside the house of deceased, while witness was standing outside. In the meanwhile Ejaz and Amna came out of the house and altercation took place between Ejaz and Noor Alam and thereafter they pelted stones on the vehicle of Noor Alam and broke the glasses and then appellants left in the vehicle.
(5) P.W.5 Adil Hussain deposed that on the night of incident, he and Naeem were present in their quarter, which was opposite to the house of deceased. At 11-30 p.m. The door of their quarter was knocked and on opening the same, two persons forcibly entered in their .House and later one they came to know that they were appellants Noor Alam and Khalid. He further stated that he asked them, about the purpose of their visit. Both of them were intoxicated and demanded water, which was given to them. Thereafter they asked for a girl and in the meanwhile they grappled with appellants and asked them to leave the house and while leaving the house, they started firing upon them and in the meanwhile Khuda-e-Rahim deceased also opened the door and asked, as to what is the matter and Noor Alam fired at him, due to which he sustained injury and both of them ran away and came back after 15 minutes. Thereafter family member informed them that Noor Alam entered in the house and gave kick blows to the dead body of deceased and stone were pelted on their vehicle and thereafter they saw both the appellants in the police station.
11. ' P.W.6 Abdul Ghafoor is the Mashir to memo. Exh.P.6/A. In his presence Investigating Officer took into possession the vehicle i,e, Potohar Jeep.
12. ' P.W.7 Ejaz Ali is the complainant, who reiterated the contents of the Fard-e-Biyan. He deposed that his sister Mehmooda woke him and informed him that deceased has been shot. He went towards the house of deceased and saw that his dead body is lying near the gate of his house. In the meanwhile Noor Alam and Khalid came inside Sand Noor Alam gave kick blow to the dead body and stated that he has not expired. Thereafter he scuffled with the accused and many person pelted stones on their vehicle. Later on police recorded his Fard-e-Biyan in the hospital.
(8) P.W.8 Sarwar Ali is the Investigating Officer of case. He investigated the matter and thereafter submitted challan Exh.P.8/D.
13. ' Appellants were examined under section 342, Cr.P.C. And their statements were also recorded on oath under section 340(2), Cr.P.C. They led in defence D.W. Muhammad Tahir, who produced Arms Licence Exh.D.1 issued in favor of deceased.
14. ' On the conclusion of trial, learned Sessions Judge, convicted appellants under section 324 read with section 34, P.P.C. To suffer R.I. For seven years and to pay fine of Rs,10,000 and in default thereof to suffer R.I. For three months and under section 302(b), P.P.C. Both of them were sentenced to death, as Tazir and further each of them was directed to pay Rs,1,00,000 as compensation to the heirs of deceased Khuda-e-Rahim, vide judgment, dated 10-12-2001. Murder Reference has been sent for confirmation or otherwise of the death sentences awarded to the appellants, whereas appellants have separately filed above-noted appeals, challenging their conviction and sentences.
15. ' We have heard Mr. Muhammad Aslam Chishti, learned counsel for appellant Noor Alam, Mr. Amir Rana, learned Advocate for appellant Khalid and Mr. Mushtaq Lodhi, learned counsel for the State.
16. ' Mr. Muhammad Aslam Chishti, learned counsel in support of the appeal, formulated following points:--
(A) The prosecution case rests on the testimony of sole eye-witness P.W. Adil Hussain , whose statement has not been corroborated by any independent evidence, besides the same was also recorded at a belated stage, without giving any explanation, therefore, is not worthy of reliance.
(B) The eye-witness account; that the deceased was fired at near outside the gate, is belied by the fact, that his dead body was found inside the house and the nature of injury, indicate that deceased collapsed there and then, after receiving the injuries.
(C) The material witness i,e, wife of the deceased was not produced.
(D) The version given by the prosecution is very improbable.
17. ' Mr. Amir Rana, learned counsel in addition to the arguments of Mr. Muhammad Aslam Chishti, learned counsel, stated that no overt act has been attributed to appellant Khalid and there is no evidence regarding common intention with the appellant Noor Alam. Mere presence. Of appellant Khalid, without any overt act would not make him vicariously liable for the commission of offence and further the benefit of doubt arising out of the prosecution case, have not been given to appellant.
18. ' Learned State Counsel, while opposing the appeal, contended that at the time of incident, presence of appellants and witnesses has not been disputed. Being the eye-witnesses they have given natural account of the incident, therefore, appellants have been rightly convicted by the trial Court.
19. ' We have minutely perused the record of case, with the assistance of learned counsel for parties.
20. ' Adverting to the arguments of Mr. Muhammad Aslam Chishti, learned counsel attacked the veracity of P.W. Adil Hussain.. It would be appropriate to refer to the statement of said witness. He deposed that on the night of incident he alongwith Naeem were present in their quarter and on the knock of door, they woke up and opened the door and saw the appellants forcibly entering their house. He further stated that prior to the incident, appellants, were not known to them and both of them were intoxicated. They asked for water, which was served to them and thereafter they asked for a girl, on which a quarrel took place between appellants and witness and his friend Naeem.
21. They were asked to leave the place and while going out appellant Noor Alam took out a pistol and started firing at them. Luckily the bullets missed and in the meanwhile deceased Khuda-e-Rahim asked from inside his house, as to what is the matter and he opened his door and then Noor Alam fired at him. Witness further stated that they fled away from the place of incident and came after 10 to 15 minutes. In cross-examination, witness admitted that he alongwith his companion Naeem were detained in the police station for about 4/5 days in the instant case and while confronted with his statement under section 161, Cr.P.C. Some improvements were also brought on surface. Besides, it has come on record that, statement of this witness was recorded on 3-9-1999 and no explanation has come on record for such an inordinate delay. Learned trial Court while taking into consideration the statement of this witness has convicted appellants. It is pertinent to observe that soon after the incident P.W.2 Allah Dad P.W.4 Haji Saeed and P.W.7 complainant came to the place of incident. None of them had witnessed the act of firing, as to how the deceased was done to death. P.W. Ejaz Ali deposed that he was informed by his sister that deceased had received bullet injury and further that when he went near the deceased, Noor Alam came inside and gave kick blow to the dead body of deceased and stated that he is not dead.
22. ' P.W.2 Allah Dad stated that wife of deceased informed him that, her husband Khuda-e-Rahim has been injured. He went to the house of Haji Saeed and then both of them came to the house of deceased, where they saw a white colour Potohar Jeep, parked outside the house of deceased and appellants were standing near the jeep and further stated that both the appellants entered in the house of Noor Alam gave kick blow to the deceased and stated that he has not expired.
23. ' P.W.4 Haji Saeed deposed that at about 11-30 p.m. He was sleeping in the house and he heard gunshot reports. After a while somebody knocked his door and he opened the door and saw P.W.
24. Allah Dad. He stated that appellant Noor Alam was holding a pistol in his hand and stated that Amna wife of deceased also went outside the house and had a quarrel with Noor Alam and thereafter they pelted stones at his vehicle.
25. ' Mr. Muhammad Aslam Chishti, learned counsel, contended that statement of P.W. Adil Hussain is not corroborated by the other witnesses, who happened to be present at the scene of occurrence, soon after the incident and besides the statement given by the said witnesses is very improbable and there are material improvements in the same. He pointed out that according to the witness's own showing the appellants were not known to him, prior to the incident and argued that it is very improbable that, without knowing the appellant, why at odd hours they will enter his house and asked to bring a girl and further nothing has come on record to infer that,_ appellant Noor Alam fired at the witness. Inasmuch as the empties were not recovered from the place of alleged firing and further no bullet marks were noted on the wall. Witness himself was arrested in the said incident. Thus, his statement could not be taken into consideration, without any independent corroboration. According to this witness, the deceased was shot in front of his house, whereas the dead body was found in the middle of the courtyard of house and empties were also secured from inside the house. Thus, for safe administration of justice in criminal cases, which requires from the Courts to look for further corroboration, without independent corroboration statement of such a witness cannot be believed.
26. ' It may be pointed out that, it is a well-established principle of law that, in a case involving the capital punishment, the Court will not base conviction on the sole testimony of a witness, whose credibility is not free from doubts, therefore, for safe dispensation of justice in criminal cases, the Courts look for some independent corroboration, which in our considered opinion is lacking in the instant case. Reference in this regard may be made to 1998 SCM R 25, wherein following observations were made:-- "Therefore, where the trial Court places reliance on the evidence of a witness on the basis of its personal observation regarding the demeanour of witness, such observations cannot be lightly ignored by the Appellate Court. However, where the evidence of a witness is evaluated by the trial Court on the basis of the other evidence and circumstances in the case, such evaluation is open to b'e tested before the Appellate Court on the touchstone of principles and guidlines laid down by the superior Courts for appreciation of evidence in such cases. One salutary principle laid down by this Court in this behalf and which is now firmly established is, that in a case involving capital punishment, the Courts will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstance in the case. This rule of prudence though not statutory in nature, has been followed by Courts so consistently through years that it has come to be recognised almost as a rule of law. The departure from this rule is to be found rarely and in very exceptional circumstances of a case. Therefore, to say that the evidence of an interested witness is to be accepted solely on the ground that it remained unshaken during cross-examination is not a correct proposition. As held by this Court in the case of Din Muhammad v. Crown 1969 SCM R 777, to test the testimony of a witness, Courts should not only consider whether there is consistency in the narrative but should also consider whether the version is probable or not. These observations were quoted with approval in the case of Iqbal alias Bhala v. State 1994 SCM R 1 as follows:-- ' In assessing the value of evidence 'of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown 1969 SCM R 777 it was observed that 'to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not?: ' Scrutinizing the statement of P.W. Adil Hussain on the touchstone of the guidelines laid down in the aforesaid case, it may not be out of place to note that statement of this witness, does not fit in the circumstances of the case. As observed hereinabove, it is very improbable that, without knowing him, the appellants would ask him to procure a girl for them. Besides the witness has made material improvements, such as, firing at them, which has not been supported by independent evidence and the recovery of dead body of deceased from inside the house, itself negates the statement of this witness, as according to him, the deceased received injuries outside the gate. As far as the nature of injury and falling of deceased on the ground is concerned, will be considered at a later stage.
27. ' Thus, keeping in view the rule of safe administration of justice in criminal cases, we are not convinced by the statement of this witness. It may further be observed that it is a well-settled principle of law that, veracity of a statement of witness is reduced to nil, if it is recorded after some delay, without giving any plausible explanation. In the case in hand, record reveals that incident has taken place on 26-8-1999 and statement of this witness has been recorded on 3-9-1999, without any explanation which diminishes the credibility of his version, on this score alone.
28. ' It has come on record that deceased received injury on his chest and the medical certificate indicates that, bullet injury had pierced through vital organs i,e, heart and lungs. From the nature of injury, it can be safely held without any reservation that, after receiving the bullet injury, the deceased collapsed there and then. In this regard Mr. Muhammad Aslam Chishti, learned counsel referred to Parikh's Text Book of Medical Jurisprudence and Toxicology by Dr. C.K. Parikh, wherein following observations were made:-- "Thoracic trauma may lead to (a) cardiac bruising (b) myocardial infarction with or without coronary thrombosis (c) subintimal haemorrhage' in the coronary artery leading to coronary thrombosis (d) arteriovenous aneurysm (e) dissecting aneurysm, and (f) rupture of an aneurysm.
29. ' If the heart has sustained a significant degree of bruising as a result of thoracic trauma, heart failure should be almost immediately apparent. A cardiac bruise either causes death or disability within a few minutes or recovery occurs without permanent or progressive damage to the heart."
30. ' In the case in hand the medical certificate reveals that, deceased sustained heart and lung injury.
31. Thus, in such circumstances, it could not have been possible for the deceased to would have moved from outside the gate, inside the courtyard of his house, whereas the dead body of deceased was found lying inside the gate, which belies the statement of P.W. Adil Hussain. Hence his statement is also found contradictory to the medical evidence and is therefore, liable to be ruled out of consideration.
32. ' After discarding the statement of P.W. Adil Hussain, we are left with the testimony of P.W.2 Allah Dad, P.W.4 Haji Saeed and P.W.7 Ejaz Ali, who deposed that they were informed by the wife of deceased that, deceased has received a bullet injury. It may be observed that though the witnesses stated that, after the incident appellant Noor Alam gave kick blow to the dead body, but said portion of their evidence, does not appeal to a prudent mind. It would be very improbable that after killing a person, the assailant would come in presence of witnesses and kick the dead body to prove his presence and identity. Even all the witnesses have contradicted each other on this point.
33. Complainant Ejaz Ali stated that while coming into the house, appellant was empty-handed and no overt act whatsoever was attributed to appellant, P.W. Allah Dad also stated that appellants were empty-handed, whereas P.W. Haji Saeed stated that appellant Noor Alam was holding a pistol in his hand. Besides even if the testimony of said witnesses is believed, no case under section 302, P.P.C. Can be pressed against the appellants, as none of the witness has attributed an act of firing to them. It may be pointed out that statements of other two witnesses were also recorded with delay and they have also made material improvements in their statements. In this regard the veracity of their statements is also not free from doubt. It is worth while to note that, it has come on record that, deceased had some difference with his wife and even prior to the incident, they were living separately and deceased had come to live with his wife a few days prior to the incident. At the time of incident, wife of the deceased very much present and she informed the other P.Ws.
34. About the incident, therefore, being the eye-witness she should have been produced. Thus, it can be safely concluded that had she been produced in the Court, she would have not supported the prosecution case and even her statement was recorded under section 161, Cr.P.C. On the same night but no explanation has come on record for her non-production.
35. ' Thus, in such circumstances, the statements of witnesses discussed above, being unreliable are ruled out of consideration. It is well-entrenched principle of law that where evidence creates doubt about truthfulness of the prosecution case, benefit of such doubt has to be given to the accused, without any reservations.
36. ' Coming to the argument of Mr. Amir Rana learned counsel that no overt act has been attributed to appellant Khalid, besides he could not be held vicariously liable for committing the offence under the provisions of section 34, P.P.C. As element of common intention is missing in the case.
37. The contentions so raised by learned counsel, in the light of discussion made hereinabove, has substance, even otherwise in view of the above discussion we have disbelieved the prosecution witnesses.
38. ' Thus, for the foregoing reasons, it is held that prosecution has failed to prove its case against the appellants, beyond any reasonable doubt.
39. ' As a result, appeals filed by appellants are accepted and byI giving benefit of doubt to them, they are acquitted of the charge. They be set at liberty if not required in any other case.