1. ' AZIZULLAH M. MEMON, J.---Appellant Gul Muhammad alias Guloo stands convicted for committing offence under section 302, P.P.C. By learned 1st Additional Sessions Judge, Thatta, vide judgment dated 27-5-2000, impugned in this appeal and passed in Sessions Case No,129 of 1998 "The State v.
2. Gul Muhammad alias Guloo and another" pertaining to Crime No,51 of 1998 of Police Station Thatta, and is thereby sentenced to death (subject to confirmation by this Court), while co-accused Laloo son of Ranoo stands acquitted through the very same judgment; appellant has filed the present appeal against the said judgment, while reference under section 374, Cr.P.C. Of the trial Court is also being disposed of through this judgment.
3. ' Prosecution story, briefly, is to the effect that accused/appellant Guloo was previously serving with complainant Muhammad Ramzan and deceased Abdul Salam "and was removed from service due to theft committed by him and, therefore, the said accused was feeling annoyed with them"; so also, acquitted accused Laloo and the deceased had exchanged hot words for some dispute, whereupon the said acquitted accused had issued threats of dire consequences to him before this incident; hence, on 15-6-1998 at 7-30 p.m. Accused/appellant Gul Muhammad alias Guloo at the instigation of acquitted accused Laloo went to the "quarter" situated in the Soomra Manzil, Thatta Town, which was with deceased Abdul Salam on rent, and the appellant fired the pistol twice on the person of Abdul Salam, and thereby caused injuries on his throat as well as on his right leg; P.Ws. Din Muhammad, Gul Dad and Noor Muhammad heard the fire-arm reports, while sitting in another room of the said "Soomra Building", and rushed towards the place of incident viz. a room on rent with deceased Abdul Salam in the very same building, and they witnessed the present appellant already having fired the pistol upon deceased Abdul Salam; and then threw the same there viz. After the said witnesses entered into the room of the place of incident, appellant Guloo threw the revolver in one corner of the room and went out of the room of place of incident.
4. ' Leaving P.W. Din Muhammad over Abdul Salam, P.W. Gul Dad went to Truck Stand to inform complainant Muhammad Ramzan (the brother of the deceased), but could not find him available' there and therefore, such information was passed on by him to the complainant by telephone, who reached the 'place of incident "within 7-8 minutes"; on inquiry, Abdul Salam (injured deceased) disclosed to the complainant in presence of P.Ws. Din Muhammad, Noor Muhammad and Gul Dad that appellant Guloo fired the pistol upon him and thereby caused injuries on his person, with conspiracy of acquitted accused Laloo Manghawar, for the reason that Abdul Salam had exchanged hot words with acquitted accused Laloo Manghawar some days before the said date of incident; Abdul Salam succumbed to the injuries in a short while and died; leaving his dead body with the said P.Ws., complainant went to Thatta Police Station and lodged F.I.R. Of this case, which was registered by S.H.O. Muhammad Bashir Gujjar at 7-45 p.m. And who then went to the place of incident and prepared Mashirnama thereof in presence of Mashirs Mir Muhammad and Muhammad Ismail, by securing one empty bullet and one live bullet from the place of incident, alongwith the pistol containing the magazine therein, wherein three live bullets were still left (in its magazine); 12 other bullets in a belt of the pistol were also secured and the live bullets lying in the magazine were also secured by him. Licence of the said pistol was also secured which was in the name of the deceased; some other articles were also secured from the place of incident.
5. ' S.H.O. Then prepared inquest report over the said dead body and referred it to the Medical Officer, Civil Hospital, Thatta for its post-mortem examination and report, which was conducted by Medical Officer Mushtaq Ahmed Memon, who then handed over the blood-stained clothes of the deceased to the S.H.O.; he returned back to the place of incident and recorded 161, Cr.P.C. Statements of witnesses Gul Dad, Noor Din and Noor Muhammad and arrested the appellant on 18-6-1998 under Mashirnama and also secured the clothes of the appellant; the S.H.O. Arrested acquitted accused Laloo on 19-6-1998, under Mashirnama; he produced the said witnesses before the Civil Judge and F.C.M., Thatta on 26-6-1998, who recorded their 164, Cr.P.C. Statements; S.H.O. Referred the said blood-stained clothes to the Chemical Examiner for analysis thereof and such report is produced in the evidence at Exh.17/A which is in the positive. The pistol and the empty recovered from the place of incident were also referred to the ballistic expert, who 'examined the same and issued the report produced in the evidence at Exh.17/B which is to the effect that empty recovered from the place of incident was actually fired from the pistol recovered from the very same place of incident.
6. After completing the investigation, S.H.O. Sent up the appellant with acquitted accused to the competent Court for trial.
7. ' Charge was framed against them by the learned 1st Additional Sessions Judge, Thatta on 15-5- 1999, to which they pleaded not guilty and claimed trial.
8. ' In support of its case, prosecution examined complainant Muhammad Ramzan at Exh.9, who produced the F.I.R. At Exh.9/A, P.W. Gul Dad at Exh.2, who produced his 164, Cr.P.C. Statement at Exh.10/A, P.W. Din Muhammad at Exh.11, who produced his own 164, Cr.P.C. Statement at Exh.11/A, Medical Officer Dr. Mushtaq Ahmed Memon at Exh.13, who produced the post-mortem notes at Exh.13/A, Mir Muhammad at Exh.14, who produced Mashirnama of recovery of blood-stained clothes of the deceased at Exh.14/A and the Mashirnama of place of incident at Exh.14/B and inquest report of the dead body at Exh.14/G, Mashirnama of arrest of accused appellant Gul Muhammad alias Guloo at Exh.14/D, Mashirnama of securing of clothes of the appellant at Exh.14/E, Mashirnama of arrest of acquitted accused Laloo at Exh.14/F, Revenue Tapeadar at Exh.16, who produced the sketch of the place of incident at Exh.16/A, Investigating Officer Muhammad Bashir at Exh.17, who produced the chemical examination Report at Exh.17/A and Ballistic Expert Report at Exh.17/B.
9. ' P.Ws. Noor Muhammad and Muhammad Moosa were given up by the prosecutor in the trial Court vide statement Exh.12. The post-mortem notes produced in the evidence at Exh.13/B disclosed that the time in between death of Abdul Salam and post-mortem examination was about three hours and further that the death of the deceased was result of receipt of the above-stated injuries on his person, and was instantaneous.
10. ' In their respective statements under section 342. Cr.P.C., the appellant and the acquitted accused denied the allegations and stated that the deceased might have been murdered by people of Khushk Community, who were having enmity with the complainant. Accused Laloo further stated that he was falsely implicated by the complainant party in this case, "as I was employee of the complainant and I had demanded salary from him".
11. ' The appellant and the acquitted accused neither examined themselves as their own defence witnesses under section 340(2), Cr.P.C. Nor produced any other defence evidence. As stated above, learned trial Court awarded benefit of doubt to co-accused Laloo and acquitted him under section 265-H, Cr.P.C., while the present appellant stands convicted under section 302, P.P.C. (for committing murder of Abdul Salam) and is sentenced to death.
12. ' `Hence this appeal filed by appellant Gul Muhammad alias Guloo.
13. ' We have heard Mr. Mehmood A. Qureshi, Advocate for the appellant who was appointed on State expenses to appear for the pauper appellant; we have also heard Mr. Jawaid Akhtar, Advocate for the State, and have perused the evidence produced by the prosecution in support of this case in the trial Court; also heard learned Advocate for the complainant, who cited 2000 SCM R 727, (2)
14. 2000 SCM R 919, (3) 2003 SCM R 231, facts and circumstances whereof are distinguishable.
15. ' Learned counsel for the appellant argued that the prosecution version of the incident, implicating the appellant is unnatural; it cannot be believed that while the appellant fired two shots from the pistol upon Abdul Salam, three P.Ws. Were thereby attracted, who went running to the place of incident while the appellant was carrying the said pistol in his hand and, admittedly, its magazine was still left with live bullets therein, even then he would throw the said pistol in the very same room of the place of incident to go away, and would not feel apprehensive of being caught at the hands of the said witnesses by throwing away the pistol; that the natural conduct would have been otherwise viz. That the appellant having seen the witnesses arriving at the place of incident would not throw the pistol and, instead, would show and point the same towards the said P.Ws. In an attempt to deter them from coming near to him or to catch him; learned counsel for the appellant has further argued, though the appellant threw the pistol and started escaping away in presence of at least three witnesses, but none of the witnesses attempted to catch him having committed the incident of this case, and instead they preferred to allow the appellant to go away safely; learned counsel has further argued that the pistol secured by the Investigating Officer from the place of incident was admittedly owned by deceased himself, and there is no explanation as to how and in what manner the deceased would have parted with the possession of his own pistol, and to go in the possession of the appellant, in such a manner to safely afford an opportunity to the appellant to fire the same upon the deceased; further that admittedly there is no witness having seen the appellant entering into the said room of the deceased, and it appears most unnatural that though the appellant allegedly went inside the room of the deceased with an intention to commit his murder, yet without arming himself with any weapon of his own, and instead relied upon the pistol of the deceased. Under such circumstances, learned counsel for the appellant has invited our attention to the cross-examination of the complainant, to the effect that "pistol was lying at the place of Wardat. I know one Fauji Khushk and was murdered. The relatives of Fauji Khushk had suspected us responsible for murder of Fauji Khushk but same was not proved", and has argued that the benefit of such doubtful circumstances is to be given to the appellant, as possibility cannot be ruled out that some other person, inimical to the complainant party found an opportunity to enter into the room of the deceased, fired the pistol upon him and committed his murder, and further that the incident was not witnessed by anybody and the appellant was got falsely implicated in this case, with the co-accused.
16. ' Learned counsel for the appellant has further pointed out that the description of injury Nos.1 and 2 suffered by the deceased on his throat, is as under:--
(a) One fire-arm lacerated wound 1 c.m. x 1 c.m. In diameter with inverted margin and blackening present and skin, muscle, vessels and tracia deep on right side of front of neck (wound of entrance).
(b) One fire-arm lacerated wound 1.5" c.m. x 2 c.m. x deep in muscles with averted margins, deep to tracia (wound of exit) on the back of upper part of chest on left side.
17. ' Learned counsel further argued that the said post-mortem report clearly states that the death of the deceased was instantaneous on receipt of the abovesaid injuries, as well as the injury on his leg, and has referred to the medical jurisprudence authored by Modi which has laid down the Rule, that the wound of the larynx below the vocal cards and in that of the tracheae, no speech is possible (p.268 of Modi's Jurisprudence (Pakistan Edition).
18. ' It is further argued that on receipt of above throat injury deceased could never be expected to have spoken to the P.Ws., and having died instantaneously, prosecution witnesses have falsely deposed that the deceased informed the witnesses that appellant Gul. Muhammad fired the pistol and thereby caused injuries on his neck and the leg (and in the consequence thereof the deceased succumbed to the injuries).
19. ' Learned counsel has further argued that none of the witnesses has given the details of alleged exchange of the words by deceased Abdul Salam and acquitted accused Laloo, and also as to further allegation of present appellant while previously serving under the complainant party he committed the t heft and, therefore, was removed from the service by them, and that no details of such theft and the nature of the job allegedly carried out by the appellant under them, are elaborated, therefore, such motive can neither be believed nor the same has been proved by the prosecution against the appellant; he has referred to the deposition of the complainant recorded at Exh.9 to the effect "my brother deceased had not made complaint against accused Laloo regarding the threats before the incident " .
20. ' Learned counsel for the appellant has further argued that P.W. No,2 Guldad has admitted in his examination-in-chief that before entering into the room he had heard two fire reports coming from the room and has admitted that he did not witness the actual firing made upon the deceased; further that the said witness did not state in his 164, Cr.P.C. Statement that the deceased and acquitted accused Laloo had exchanged hot words few days before the incident, that there is no evidence of conspiracy with acquitted accused, in consequence whereof the appellant fired upon the deceased, that the witness also did not state in his 164, Cr.P.C. Statement that P. Ws. Dinoo and others were available with him who also heard the fire-arm reports and entered into the room of deceased Abdul Salam with hint; that P.W. Guldad has further admitted in his cross-examination "the complainant also reached there in presence of the several persons", and such other persons of the locality must have heard the deceased narrating the details of the incident but none of the independent persons has been examined by the prosecution to prove such narration of the incident by the deceased to the witnesses and others; further, P.W. Guldad was confronted with his 161, Cr.P.C. Statement made before the 'police and admitted that he did not state while making such statement that the complainant had disclosed to this witness that appellant had committed murder of Abdul Salam in conspiracy with acquitted accused Laloo.
21. ' Learned counsel has further drawn our attention to the sketch of the place of incident prepared by P.W. Alladinoo, Revenue Tapedar and has argued that admittedly the witnesses were attracted on the fire-arm report while sitting in the other room of the building (wherein the room of the place of incident was situated) and thereby it is clear that when the assailant fired upon Abdul Salam, the witnesses did not see the actual firing and only heard the fire-arm reports; further that Investigating Officer Muhammad Bashir deposed at Exh.17 that when he secured the pistol from the place of incident, it was having the magazine wherein three live bullets were still available, and 12 other live bullets were also found in the belt which was also secured by the Investigating Officer and that the appellant cannot be expected to have thrown the pistol. With the loaded magazine on seeing the witnesses having arrived at the place of incident, as by doing so he would have exposed himself to the grave risk of being caught at the hands of the witnesses and, instead, would have either fired in the air, or upon the witnesses to keep them away from the appellant and to feel secured, and that the version of the incident as given by the prosecution witnesses being most unnatural, the witnesses cannot b e believed and the appellant is entitled to be acquitted.
22. ' Prosecution evidence having been carefully perused, we found that appellants learned Advocate has rightly argued that the same suffers from infirmities and improbabilities, and could not be made the basis for conviction of the appellant; the nature of conduct and behaviour of the prosecution witnesses does not inspire confidence to believe their depositions; it is rightly argued that on the one hand three P.Ws., named above, alleged that they witnessed the appellant throwing the pistol in one corner of the room of the place of incident after having fired the same upon deceased Abdul Salam, yet they did not put any effort to catch him and instead allowed him to go away; so also no details of the alleged motive have been elaborated as to the nature of the work for which the appellant had been previously employed by the deceased and as to the details of the theft allegedly committed by the appellant, for which reason he was allegedly removed from such service; in the absence of elaborate details thereof, such a motive can neither be believed to be with the appellant nor the same can be taken to have been proved by the prosecution, under the above-stated circumstances of this case.
23. ' In "Mukhtar Ahmed v. The State" 2001 YLR 1673, the accused of the said reported case was given benefit of doubt on the grounds that complainant and his two companions of the said case though claimed that they had seen the accused inflicting hatchet blows to the deceased and inflicting injuries to the deceased and ran away from the spot, yet no one had tried to chase or apprehend the accused, and such being the most unnatural conduct of the complainant and two other witnesses, their presence at the spot could not be believed; and no independent witness had been produced by the prosecution; for such reasons and for the infirmity in the motive and evidence of recovery coupled with conflicting medical evidence, it was held in the said reported case that the prosecution failed to prove its case against the accused beyond any shadow of doubt and was acquitted on the basis of such doubt.
24. ' So also, the seat of the throat injury sustained by the deceased (reproduced above) excludes the possibility of the deceased to speak or to narrate the facts of the incident; such piece of evidence of the prosecution cannot be believed for the reasons that the medical jurisprudence rules out the possibility of such an injured, having received such type of injury, to speak more for the reason that the postmortem notes conclusively mention that the deceased died instantaneously on receipt of such injuries; so also, admittedly, some other people of the locality also had arrived at the room of place of incident alongwith the above named P.Ws. To whom the deceased allegedly narrated that the appellant fired upon him and thereby caused injuries to him, but none of such independent persons was either cited as a witness nor produced to support such piece of evidence; it is a well- settled principle of law that where the independent witnesses were found available but none of them was produced to act as witness of such incident, the presumption is to be drawn that had they been produced, then they would not have supported the story of the incident of the case, as narrated by the prosecution, and that benefit of such circumstances is necessarily to be awarded to the accused, there are other instances also pertaining to the infirmities and improbabilities in the evidence of the prosecution, which need not be reproduced here for the simple reason that it is a well-settled principle of safe administration of criminal justice that an accused has only to show a dent having occurred/created in the evidence/care of the prosecution, and that he is entitled to the benefit of even a single doubt, found in the evidence of the prosecution, and that he has not to show that its case suffers from more than one doubts; so also it is further settled provision of law that the quality of the evidence and not the quantity of the evidence has a bearing on the fate of the case of the prosecution; such is the guideline given by Honourable Supreme Court of Pakistan reported in "Haq Nawaz and others v. The State and others" 2000 SCM R 785. So also, in Muhammad Khan and others v. The State 1999 SCM R 1220, Honourable Supreme Court was pleased to direct that conviction of an accused must be based on unimpeachable evidence and certainty of guilt, and any doubt arising in the case of prosecution must be resolved in favour of the accused.
25. ' For the above-stated reasons, the accused was entitled to the benefit of doubt and was so acquitted by a short order passed by us on 21-3-2003 and the appellant/accused was directed to be released forthwith if not required by any other Court in any other custody case. Above are the reasons for such short order, whereby the reference for confirmation of the death sentence awarded to the appellant was also not accepted.