2000 PLP 1595 (MLD)

3. A.S.I. Akbar Ali recorded the F.I.R. of this incident. He noted injuries on the person of deceased who was then injured in presence of mashirs Allah Bachayo and Ali Gohar. The statement of the injured was also recorded and he was referred to hospital for treatment and certificate. The A.S.I. then recovered the vehicle used in the commission of this crime.. He, thereafter, handed over papers to S.I.P. Muzaffar Ali Vistro for further investigation. The S.I.P. proceeded to the scene of offence. He examined P.W. Ali Gul Shah and Jalal Leghari. He also examined Alain Junejo, Abdul Waheed Nizamani (owner of the said jeep). The S. I. P. Muzzafar Ali arrested appellant from Chotiayaroon Chowk on 2‑2‑1995 at 5‑30 p.m. The appellant is said to have, voluntarily produced a double‑barrel gun from a 'Khabar' tree near his house. The said gun was found unloaded and it is said to have been recovered on the pointation of appellant on 13‑2‑1995 in presence of mashirs Allah Bachayo and Ali Gohar.

4. The autopsy on the deceased was performed at Sanghar by Medical Officer Dr. Hotomal, who found following external injuries on the body of deceased: (a) Lacerated wound of entry 5 m.m. x 6 m.m. into cavity deep at abdomen at middle 1/3 of right Sub Costal area 13 c.m. right lateral to umbilicus through and through surrounded by smoking area with (b) Lacerated wound of exit 2 c.m. x 5 c.m. into cavity deep on back of left renal area in transverse direction with inverted margins. (c) Lacerated wound of entry 5 m.m. x 5 m.m. deep abdomen cavity at right illiac region 11 c.m. below and right lateral from umbilicus surrounded with smoking area through and through with inverted (d) Lacerated wound of exit 2.2 c.m. x 5 m.m. into cavity deep in vertical direction at Thoraco Lumber joint with inverted margins.

5. The Medical Officer has opined that the deceased Muhammad Murad alias Sadawah died due to haemorrhage and shock as a result of fire arm injuries sustained by him. He opined that both the injuries were individually sufficient to cause the death of deceased in the ordinary course of nature.

6. The appellant denied the prosecution allegations and alleged that he was falsely implicated in this case due to enmity. He stated that he has been acquitted in the case under section 13‑D of Arms Ordinance. The appellant produced true copy of judgment of case under section 13‑D Arms Ordinance. He also produced true copy of deposition of P.W. Allah Bachayo, who acted as mashir of recovery of gun. The appellant examined Rahimdad Rajar D. W. l in his defence.

7. I have heard Mr. A.Q. Halepota, learned counsel for the appellant and Mr. Muhammad Saleh Panhwar, learned advocate on behalf of A.‑G, for the State. I have also been taken through the evidence by the learned counsel: The primary evidence against the appellant consisted of ocular testimony of the first information Umed All and P.W. Ali Gut Shah. The third eye witness Jalal ‑was given p by prosecution on 15‑5‑1996, vide statement Exh.16, the ocular testimony of the two eye‑witnesses is supported by the evidence of mashir Allah Bachayo and S.I.P. Muzzafar Ali Vistro in whose presence the appellant is said to have produced a double‑barrel gun of 12 bore used in the commission of this crime‑ The report of ballistic expert in respect of the two empties found from inside the Jeep is also positive.

8. The night of the incident was admittedly dark. Identification of the assailants was made on the light of torch. The names and description of eminent features of the appellant were not given in the F.I.R. The source of identification was torch light but the torch with the help of which the assailants were seen was neither produced before police nor was it secured by police from eye‑witness Ali Gohar Shah, who was carrying it at the time of incident. The only evidence with regard to identity of the appellant was that he was picked‑up in identification test on 7‑2‑1995 which was held, under the supervision of Judicial Magistrate, Sanghar. This identification test was not held separately in respect of the appellant and the other two co‑accused. It was a joint identification parade wherein apart from the appellant the two acquitted co‑accused named herein above were also made to be present. The ratio of dummies was only five to three accused. The identification test of each accused had to be held separately and ratio of dummies prescribed by the Superior Court 8 or 10 dummies to one accused. Reference in this regard can be made to the case of Lal Pasand reported in PLD 1982 SC

142. In view of the absence of names and eminent description regarding features of the appellant and his acquitted companions and in view of joint identification test and lack of proper ratio of dummies and delay of five days in holding identification test no reliance can be placed on this piece of evidence. As regards recovery of gun from the appellant this piece of evidence also cannot be relied upon as no empties were secured from the scene of offence. The empties were found from inside the jeep. It is not understood how the empties found their way to jeep. The empties are said to have been secured from the jeep on 9‑1‑1995. The gun was said to have been recovered on the pointation of the appellant on 13‑1‑1995 whereas he was arrested on 2‑2‑1995. Thus, there is delay of eleven days in recovery of gun. Besides, the empties and gun were sent to the ballistic expert together on 19‑2‑1995, the empties should have been immediately sent to the forensic expert. The police was duty bound to do so. There are many cases in which recovery was held to be of no effect and it was not relied upon as empties were sent after crime weapons were secured. Reliance in this regard is placed on PLD 1988 Kar. 521, PLD 1991 SC 447 at para. 24 of page 301 and 1995 SCMR 1293 at para. 7 of page 1296 and page 1321 with relevant observations at page 1326 of this report.

9. Apart from the testimony of these two eye‑witnesses and recovery of gun, which was double‑barrel, there is no other evidence connecting the appellant with the commission of this crime. The first informant Umed Ali is hari of P.W. Ali Gul Shah. 'The deceased Muhammad Murad alias Sadawah, who is father of the first informant was Kamdar of P.W. Ali Gul Shah. The case of the appellant was that he had been involved in this case due to enmity and he was roped in this case as an afterthought. The appellant examined D.W.1 Rahimdad, who deposed that he remained as Chairman, Union Council Tando Mitha Khan, for eight years from 1980‑81 and that village Chotiayaroon fell within his jurisdiction. He further stated that the appellant was known to Ali Gul Shah, Jala and the deceased prior to the present incident. The appellant. was also acquitted in case under section 13‑D of Arms Ordinance. The said case related to the recovery of unlicensed gun used in the present case. The certified copy of judgment of acquittal Exh.33/A was produced by the appellant alongwith his statement under section 342, Cr.P.C. The medical evidence does not afford any corroboration to the ocular testimony qua appellant.

10. Mr. Muhammad Saleh Panhwar, the learned Advocate on behalf of A.‑G. for the State also did not support the impugned judgment and stated that this is a case of benefit of doubt.

11. For the reasons stated by me above I, am satisfied that the prosecution has failed to establish their case against the appellant beyond reasonable doubt. I, accordingly ‑ set aside the conviction and sentence awarded to him. The appellant will be released forthwith if not required in any other case.

12. By my short order, dated 2‑4‑1999, I had allowed this appeal and ordered the release of the appellant. Above are the detailed reasons for passing of the said short order. H.B.T./T‑4/K Appeal allowed.