2004 PLP 1469 (YLR)

6. In support of the appeal Mr. Makhdoom Mujtaba Shah has firstly submitted that while complainant Khakoo has fully supported the F.I.R. as well as corroborated the order eye‑witness Soomar, under cross examination he has admitted that the latter had gone to work in the lands of Mehrab whereas he, had gone to the lands of Haji Rahim Dad where the incident took place. Since these two lands were at a distance of one Kilometer, therefore, per learned counsel it was hardly believable that both could be together at the time of the incident since admittedly per the prosecution case both these persons went running together towards the area where the gun shots allegedly originated. Again P.W. Soomar also supports the F.I.R. as well as the complainant's version but under cross examination he too has admitted that the area of work of both were in different directions. Again per learned counsel there is some contradiction in the version of both these witnesses since according to P. W. Soomar he saw the accused at about 7 or 8 pace whereas the complainant says that this was much greater viz. one or one and half acres.

7. Next, learned counsel has referred to the testimony of P.W. Baboo according to whom he and one Abdullah while going to the fields had heard the arguments between the deceased and the accused and also saw the latter shooting the former. However, under cross‑examination he admits that after witnessing the incident he and Abdullah continued to work in the fields of Mullah Fazal. Per learned counsel this was indeed a very strange behaviour and not to be expected in the natural course of events.

8. Next learned counsel has referred to the recovery of the shotgun from the accused per memo. of recovery Exh.13/F, which was allegedly ,witnessed by Ali Muhammad and Gull 'Muhammad. In his examination‑in‑chief P.W. Ali Muhammad has produced a number of documents including memo. of injury as Exh.13/A, memo. of place of incidence as Exh.13/D, Inquest Report as Exh.13/C and memo. Of dead body as Exh.13/D. This witness has stated that all these exhibits bear his thumb impression as well as that of co‑Mushir Gull Muhammad. However, he has stated that neither was the accused arrested nor the recovery was made in his presence although he has produced the memo. of arrest as Exh.13/E and 13/F and also admitted that these documents bore his thumb‑impression as well as those of the co‑Mushir. Accordingly, this witness was declared hostile by the learned D.D.A. and cross‑examined in which he has denied that the accused was arrested from his house on 19‑11‑1995, or that he voluntarily led the police to the place from where the single barrel gun in question was recovered. In these circumstances, learned counsel has submitted that a doubt has been cast upon the prosecution case at least insofar as the recovery is concerned.

9. Next learned counsel has submitted that P.W. Muhammad Jumman who was the Medical Officer and posted at Rural Health Centre, Chuhar Jamali on 28‑8‑1995, has admitted under cross‑examination that when the deceased was brought to the Centre at about 1‑30 p.m. on 27‑10‑1995 he was in an injured condition and was able to speak. Thereafter he was referred to the Civil Hospital, Thatta, for further treatment and the next morning at about 4‑00 or 4‑30 a.m. his dead body was brought by the police for post‑mortem examination: However, strangely per learned counsel no one recorded the statement of the deceased when he was in an injured condition.

10. Finally, learned counsel has submitted that according to the ballistic test the `empty recovered from the scene of the crime matched the shotgun. However, since there was a delay of about 1 year and six months in sending the weapon and empty for the ballistic test, it was not reliable in the circumstances of the case. In support of these submissions learned counsel has relied upon: Ashiq Hussain v. The State 1993 SCMR 417 and Bashir Ahmed v. The State 1999 SCMR 114.

11. Learned counsel has therefore submitted that as the alleged crime was not witnessed hence the deposition of the prosecution witnesses required corrobo ration which is missing in the circumstances of the case as neither the recovery nor the ballistic test were reliable pieces of evidence. In support of this argument learned counsel has relied upon: Arif Ali v. Muhammad Ramzan alias Janan 1991 SCMR 331, Feroze Baiq v. Abdul Halim 1996 SCMR 516, Budho v. The State PLD 1965 Kar. 76 and Muhammad Ilyas v. The State 1993 SCMR 1602.

12. Finally learned counsel has submitted that this was a case of grave and sudden provocation as deceased had brought his cattle to accused's lands who warned him but deceased did not care and said that the cattle should be put in a pond. He has relied upon; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274, Maqsood Ahmad v. The State 1995 SCMR 359, Hassan Muhammad v. The State 1994 SCMR 1212, Noor Muhammad v. The State 1993 SCMR 208 and Shamoon v. The State 1995 SCMR 1377. Consequently learned counsel has prayed that the impugned judgment be set aside and the appellant be acquitted.

13. Mr. Abdul Ghaffar Samoo appearing for the State on the other hand has fully supported the impugned judgment. He has submitted that ocular evidence on the record supports the medical evidence and recovery has been made from the accused of the gun in question which has matched the empty recovered from the scene of the crime per the Ballistic Expert's Report.

14. I have heard both the learned counsel and my conclusions are as follows:‑‑‑

15. The death of the deceased due to a gun shot wound is not in issue as according to the evidence of Medical Officer Muhammad Jumman, the deceased had received a lacerated wound on the left forearm below the elbow joint resulting in the fracture of the radius and ulna bones, which were in pieces and damage was caused to the muscles and blood vessels. Some of the pellets had touched the chest wall superficial. According to the opinion of the Medical Officer the injury was enough in the natural course of events to cause death due to shock and haemorrhage. According to the Medical Officer this injury was caused due to the discharge of a fire‑arm at a distance of about 15‑30 feet.

16. As regards the ocular evidence on the record, it would be seen that per the complainant P. W. Khakoo he and P. W. Soomar had left their village for work at the Banana cultivation of one Haji Rahim Dad Baloch at 9‑00 a.m. on the day of incident when they heard a fire‑arm report from a nearby field and upon reaching there found the deceased in an injured condition and the appellant/accused running away with a gun in his hand. The deceased told them that it was the appellant/accused who had fired at him with a shotgun on a petty dispute regarding grazing of buffaloes. Under cross‑examination, however, the complainant has admitted that the place of work of P.W. Soomar was at a banana cultivation of one Mehrab which was about one kilometer away from that of Haji Rahim Dad. So also although, these two cultivations were on the southern side and western side of their village respectively, he and P.W. Soomar used to leave together for going to their places of work. He has also admitted that he heard the fire‑arm report from a distance of about one or one anal half acre and so also the accused was seen by them at this distance. Again under cross examination this witness has stated that although the scene of the crime was surrounded by Devi bushes on three sides, they had seen the accused running away on the open side viz. southern side on the barren land.

17. Next P.W. Soomar has supported the deposition of the complainant P.W. Khakoo. However, under cross‑examination he has admitted that he used to work at the lands of Mehrab which was on the south western direction from the place of incident whereas the complainant used to work on the land of Haji Rahim Dad which was on the western side and also they saw the accused at a distance of 7‑8 paces while he was running away.

18. The next witness to be considered as far as the ocular account is concerned is P. W. Baboo who has deposed that on the day of the incident at about 8 or 9 a.m., he and P.W. Abdullah were going to work at the lands of Mullah Fazil when they heard an altercation between the deceased and the accused near uncultivated lands adjacent to Haji Rahim Dad's banana cultivation. Thereafter they saw the accused who was armed with a gun firing directly at the deceased who fell down. Due to fear they dial not go near the place of incident and went on with their work. Under cross examination, this witness has admitted that the distance between the accused and himself was about 20/25 paces as also that he himself had gone to the village of the deceased after the day of incident where the police had recorded his statement.

19. On an assessment of the ocular account it appears that there are some discrepancies firstly as to the distance at which the accused was seen running away from the scene of the crime. Per P.W. Khakoo this distance was in between one to one and a half acres whereas according to P.W. Soomar it was only a few paces. Again, per P.W. Muhammad Jumman Chandio who had conducted the post mortem examination of the deceased, he was shot from a distance of between 15‑30 feet. So also in my view, these two witnesses have not been able to sufficiently explain as to why they were going together from their village towards the banana cultivation of Haji Rahim Dad when admittedly their respective places of work lay in different directions viz. that of the complainant at Haji Rahim Dad's cultivation and of P. W. Soomar's at Mehrab's cultivation. Finally, it would be seen that P. W. Khakoo has admitted that there were thick bushes on three sides of the place of incidence whereas on the side where he saw the accused running viz. southern side it was open land. However, contrary to this per the evidence of P.W. Muhammad Amin, Tapedar the southern side of the place of incident was covered with thick Devi bushes. This inconsistency has not been explained by the prosecution. Finally it would be seen that P.W. Baboo has again supported the version of the complainant viz. when he and P.W. Abdullah were going for work at the lands of Mullah Fazil at about 8‑00 or 9‑00 a.m. they heard some altercation between the accused and the deceased near the land of Haji Rahim Dad. They then saw the accused fired with his gun at the deceased who fell down. Due to fear they did not go near them and went away but on the next day when the police examined him he stated the above version as also in his 164, Cr.P.C. statement. Under cross examination this witness has admitted that the distance between him and the place of incident was about 20‑25 paces. Again in my view this witness has not sufficiently explained as to why after the accused had left the scene of the crime, he and P.W. Abdullah did not go to assist the deceased and only gave his statement to the police on the next day when he had gone to attend the funeral. This was certainly to be expected in the natural course of events.

20. The above inconsistencies in the ocular version may now be examined in the light of the defence put up by the accused. In this regard it would be seen that although the accused has denied the charges against him in his statement under section 342, Cr.P.C., he did not examine himself under Oath. However, in his defence he has examined D.W. Muhammad Umar who has deposed that both the complainant and the accused are his cousins and at the relevant time there was some dispute between the complainant party and Shah Deeno, Hashim and Hussain Shah over abduction of a lady belonging to the complainant party. To settle the score Soomar Noohani abducted a woman belonging to the Syeds' family and so also one Syed Shah Deeno Shah had murdered Shahoo Noohani who is a' cousin of the complainant. As a sequel to this ongoing dispute, he had heard that Shah Deeno Shah had committed the murder of the deceased as both had been quarrelling a few days prior to the event. This witness has also deposed that there was some matrimonial dispute between the accused and complainant Khakoo which was settled by their Sardar namely Ghulam Muhammad Khan Noohani as both the parties belonged to the same tribe. However, the complainant resiled from this settlement and had informed their Sardar. Under cross‑examination this witness has denied all suggestions to the contrary regarding his deposition. Next D.W.2, Haji Ghulam Muhammad has deposed that‑he was the Sardar of the Noohani Community and had settled the matrimonial dispute between the two parties but then had been informed thereafter by the complainant party that they would not abide by his decision. Again under cross‑examination this witness has steadfastly supported his examination‑in -chief.

21. It would thus be seen that there appears to be some enmity between the parties at least over matrimonial matters and hence in my view false accusation cannot be ruled out. Additionally, the main prosecution witnesses viz. complainant and P.W. Soomar are related to each other as well as the deceased hence corroboration would be necessary as far as their version is concerned. I have already observed that the prosecution version which rests mainly on the ocular account has certain discrepancies which have not been explained particularly with regard to the availability of both the above mentioned P.Ws. at the same time at the scene of the incident, the distance between the P.Ws. and the deceased, the probability of the P. Ws. seeing the accused escaping from the scene which was surrounded by thick bushes and finally the failure of P.W. Baboo and Abdullah to assist the deceased at the relevant time. Such discrepancies coupled with the enmity between the parties in my view raises a serious doubt insofar as the ocular account is concerned the benefit of which must go to the accused.

22. The next piece of the evidence to be considered is the recovery of gun in question. In this regard it would be seen that the prosecution has examined two witness viz. Ali Muhammad who has been shown as a witness to the recovery and Gull Muhammad, the other witness. So also the Investigating Officer S.‑I.P. Khadim Hussain has deposed that the accused led to the recovery. P.W. Ali Muhammad was declared hostile and cross‑examined by the learned D.D.A. as he denied that the accused was either arrested or the gun recovered in his presence. However, the other two witnesses have steadfastly testified that the accused was arrested in their presence and so also he led to the recovery of the gun. Per the Investigating Officer the accused had also owned the crime in question. In these circumstances, I am of the opinion that as two of the prosecution witnesses have deposed that the accused was arrested in their presence and also led to the recovery of the gun, this version has to be believed, particularly as P.W.1 Ali Muhammad who has resiled from the memo. of arrest and recovery is a relative of the accused.

23. The next piece of evidence on the record is the. Ballistic Test which has been produced by the Investigating Officer as Exh.16/L and according to which the empty recovered from the scene of the crime matched the gun recovered from the accused. However, in this connection it would be seen that per Exh.13/F, which is the memo. of recovery, the gun was secured on 19‑11‑1995 whereas it was sent for the Ballistic Test on 27‑3‑1997 after a delay of about one year and three months. Similarly, it would be seen that the incident occurred on 27‑10‑1995 whereas the accused was arrested and gun secured on 19‑11‑1995. In these circumstances, I am of the opinion that the Ballistic Expert's report 1 cannot be relied upon. In this connection reference can be made to the case of Bashir Ahmed v. The State (supra) wherein the Honourable Supreme Court has held, inter alia, that the retention of the crime empties in the Malkhana for about a month before sending the same for the Ballistic Test raises an inference that they might have been doctored in order to match the crime weapon.

24. In view of the foregoing discussion I am of the opinion that merely because the gun in question has been recovered at the instance of the accused, he cannot be convicted on this score alone without any corroborative evidence which as already observed is not available as neither is the ocular account fully reliable and nor is the result of the Ballistic Test. The case against the accused becomes even more doubtful since the deceased was alive when he was brought to the Rural Health Clinic, Chuhar Jamali, at about 1‑30 p.m. on 27‑10‑1995 and was in a position to speak. According to the deposition of Muhammad Jumman, the Medical Officer, the deceased remained with him for about one hour when he was referred to Civil Hospital, Thatta. This version has been corroborated by H.C. Hazoor Bakhsh according to whom the complainant had brought the injured Khameeso at his police post at about 9‑30 a.m. on 27‑10‑1995. He had recorded the statement of Khameeso and then had referred him to Rural Health Clinic, Chuhar Jamali, for treatment. However, strangely there is nothing on the record to establish whether the deceased had given any statement at all although he was alive at least till late that night as his dead body was brought back to the Rural Health Centre, Chuhar Jamali at 4‑30 a.m. the next morning for post‑mortem per P.W. Muhammad Jumman.

25. For all the foregoing reasons giving the benefit of doubt to the accused, I would allow this appeal and acquit him. He shall be released forthwith if not required in any other case. N.H.Q./K‑7/K Appeal allowed.