1998 P Cr (PLP)

(2) A fire‑arm wound measuring 3 x 1 c.m. into deep going directed upwards and inwards lacerated the lower lip on the outer aspect of left side of lower lip. It was encircled with blackening 5 x 2 c.m. Margins were inverted and blackened (entry wound). (3) A fire‑arm wound 4 x 1/2 c.m. on the left side of mandible in the submendibular region directed upwards and backward. Margins were inverted (entry wound). (4) Five irregular fire‑arm wounds of different dimensions in an area.7 x 7 c.m. on the outer can thus of left arbit, and interior aspect of left temporal region. Margins were everted (exit wound). (5) A fire‑arm wound 3‑1/2 x 1 c.m. on the left side of temporal region 2‑1/2 cm. on the front of tragus. Margins were everted (exit wound). (6) A fire‑arm wound 3 x 1‑1/2 c.m. on the left temporal region kissing the left ear lobule. Margins were everted (exit wound) as a result of injury No.3. . (7) A fire‑arm wound 1‑1/2 x 1‑1/2 c.m. on the left side of face. 2 c.m. behind the injury No.3 (exit wound). (8) A fire‑arm wound 1/2 x 1/2 c.m. on the left cheek (exit wound). (9) Bleeding from both the ears was present and bleeding from both nostrils and mouth was present.

7. When examined under section 342, Cr.P.C. appellant and other accused denied and disputed all the incriminating circumstances figuring against them in prosecution evidence, professed innocence and alleged false implication. Imtiaz Ali Dispenser D.W.1 and Ch. Shafqat Ahmad, D.S.P. were produced in defence, while, none of accused opted to appear to disprove the allegations envisaged by section 340(2), Cr.P.C.

8. As indicated above, appellant Munwar Masih alone was adjudged guilty, convicted and sentenced, while, his companions namely Mashooq Masih and Zubair alias Kali were exonerated, given benefit of doubt and acquitted.

9. Learned counsel representing the appellant has remarked that the prosecution has failed to prove its case beyond reasonable doubt; there are material contradictions between ocular account and medical evidence, it is blind murder, there is serious and inordinate delay in lodging F.I.R.; post‑mortem was also conducted after a considerable delay; recovery is planted; witnesses are interested and related to deceased; motive is not proved; P.Ws. are not from the locality and single independent witness was not produced. Reliance has been placed upon Munir Ahmad and another v. The State 1976 PCr.LJ 1078, Anara v. The State 1988 MLD 237, Sahib Gul v. Ziarat Gul and others 1976 SCMR 236 and Khadim Hussain v. The State 1988 PCr.LJ 1453 to contend that presence of eye‑witnesses at spot and identification of accused by them in moonlight is highly doubtful.

10. Conversely, impugned conviction and sentence have been claimed and described to be not only warranted by data and material on file but also in consonance with law as well.

11. As regards recovery of crime weapon, suffice it to observe that same, even, if, taken to gospel truth despite being perfunctory on several counts does not advance prosecution case in any manner, in absence of report of the Expert. , As such recovery of pistol P.4 by means of memo. Exh.P.E has, no evidentiary value so as to lend any support to the cause of prosecution

12. In wake thereof case hinges on ocular evidence motive and medical evidence. In so far as motive is concerned, same has a direct bearing upon ocular evidence and the identification of accused. If both the eye‑witnesses, who, happen to be brothers of deceased knew that Munawar Masih appellant suspected the deceased of having illicit intimacy with his sister, then, there was hardly any occasion for them to have pointed out the cot upon which the deceased was lying/sleeping particularly when the said accused was armed with a pistol. Conduct of all the prosecution witnesses cannot be taken to be natural on arrival of accused, if set up motive was known to them. Very pointation by said witnesses that the deceased was lying across them on a cot to accused person in dead hours of night does not sound to reason. It rather renders presence of eye witnesses at the spot to be highly doubtful inasmuch as their identification in moonlight of accused, who, cannot be taken to have acquaintance with witnesses previously in the absence of any evidence to that effect. I am fortified in this belief by illuminating observation made in Munir Ahmad and another v. The State 1976 PCr.LJ 1078, Anara v. The State 1988 MLD

237. As a necessary corollary prosecution case has to collapse like house of cards, as motive: presence of eye‑witnesses who, safely can be taken to be chance witnesses and identification of accused in the moonlight is wrapped in doubt.

13. In terms of prosecution story, acquitted accused namely, Mashooq Masih and Zubair alias Kali held the deceased, while, lying on cot and the appellant is states to have fired while standing towards head of deceased. Medical evidence runs counted to such direction and even number of shots ascribed to appellant. Rather there is sharp conflict between medical evidence and ocular account, which is rather falsified thereby.

14. There is yet another aspect of the matter. Learned Trial Court has not believed the prosecution evidence against appellants companions and role attributed to them has been found to be doubtful. Same evidence data and material could hardly afford any basis for conviction of even appellant who, like his companions, was also entitled to the benefit of doubt, as expounded in plethora of authorities and galaxy of rulings on the point,

15. Net result of above discussion is that the presence of eye‑witnesses at the spot and identification of accused by them in moonlight is highly doubtful; recovery of incriminating articles is also not above board; and possibility that the deceased was done to death during night by some unknown persons are apparent on the face of the record. Be that as it may delay in reporting the matter to police, which of course, set the law into motion and post‑mortem examination impair the prosecution case beyond repair. Needless to observe that benefit of doubt, how slight it may be, has to go to accused.

16. Resultantly, conviction and sentence awarded to appellant are neither warranted by data and material on record nor sustainable in law and open to serious and grave exceptions. As a sequel thereto, appeal is accepted, impugned conviction and sentence are set aside and appellant, too, is acquitted of charge) levelled against him by giving him benefit of doubt

17. He shall be released forthwith, if not, required to be detained in any other case. N.H.Q./M‑681/L Appeal accepted.