1999 PLP 1995 (MLD)

4. After the registration of F.I.R. A.S.I. Ghulam Abbas Rahoojo :,roceeded to the scene of offence, which was situated in the sugarcane cultivation of Ghulam Shabbir Bughio. The dead body of Hidayatullah was found lying at the scene. One empty cartridge was lying near the dead body. He '1cld inquest over the dead body of Hidayatullah and sent it, for post-mortem amination. The empty cartridge and blood-stained earth were secured in presence of mashirs Haji Ghuiarn Rasool and Ghtilam Hussain. The A.S.I. Gulam Abbas Rahoojo then recorded statements of witnesses kltishtaq, Hajan, ner and Loung.

5. The appellant was arrested on 16-8-1988 from the Otaq of Roshan t'handio in village Misri Chandio. It is stated that nothing was recovered from birn at the time of his arrest. The remand of the appellant was obtained on 17-8-1988. The A.S.I. Ghulam Abbas Rahoojo continued interrogating the Tpellant who volunteered to produce gun on 20-8-1988. It is stated that he led tile police to village Misri Chandic and produced a single barrel gun from the '1cddings lying inside his house. The co-accused Soomar was arrested on -8-1988. He was identified by the first imformant and P.W. Hajan in the identification parade held on 27-8-1988, under the supervision of Assistant Mukhtiarkar and IIIrd Class Magistrate, Khait-pur Nathan Shah.

6. The gun secured from the appellant was sent to Ballistic Expert on 11-1991. By his report dated 18-11-1991 he opined that one 12 bore crime empty was fired from the said gun, which had a single barrel. After the investigation w:js completed the appellant and accused Soomar were sent-up to stand trim before the Court below.

7. The autopsy on the deceased was conducted by Dr. Captain Munir Ahmed, Medical Officer of Taluka Hospital, Khairpur Nathan Shah. He found nine pellet wounds 1 c.m. in dia meter and about 1/2 to 1 c.m. away from each other at backside of left side of abdomen at renal angle. In consequence of this injury left kidney and left renal vessels were ruptured. Right lobe of liver was also ruptured and whole liver was congested. He opined that probable time between deceased receiving injuries and his death was between 10 to 20 minutes. In the opinion of Dr. Captain Munir Ahmed cause of death was internal haemorrhage in abdominal cavity and shock due to injury mentioned above.

8. The defence of the appellant was one of denial. He denied that he fired upon the deceased or that gun was recovered from him. He claimed that he was falsely implicated by prosecution witnesses, who are closely related to each other, on account of enmity due to previous murder case between the parties.

9. The case against the appellant rests on: Firstly, the ocular testimony of Haji Photo alias Ali Bakhsh. Hajan and Mushtaq;. Secondly, the corroborative testimony of Loung; Thirdly, evidence regarding recovery of gun; lastly, motive.

10. The allegation in regard to motive was attacked by learned counsel for the appellant on the ground that the incident, in which the father of appellant was killed occured more than 17/18 years before this incident and, therefore, it was unlikely that after this long period the appellant would still be harbouring such a deep grievance against the deceased as to kill him. The learned counsel submitted that apart from bare allegation in the F.I.R., which is not a substantive piece of evidence, none of the prosecution witnesses said any thing in their evidence about this motive. In the circumstances, he submitted that the prosecution abandoned the motive initially set-up in F.I.R. This being so, the Courts have to be very much on guard to accept the story of prosecution of which motive was an important constituent.

11. So far as ocular evidence is concerned, it is furnished by P.Ws. Haji Photo alias Ali Bakhsh, Hajan and Mushtaq. P.Ws. Haji Photo and Hajan are brothers of deceased Hidayatullah and P.W. Musthaq is son of the deceased. P.W. Mushtaque was shown to be aged about 11 Years at the time when his evidence was recorded by the trial Court on 8-3-1994. The incident is of 9-8-1988, which would mean that Mushtaque was about 5-1/2 years of age when this incident occurred. In his evidence before the trial Court P.W. Mushtaque stated that he did not know the appellant prior to the incident. He also did not know accused Soomar previously. Strangely, the prosecution did 'not get the identity of the appellant as well as that of acquitted accused Soomar established through this witness by holding identification parade of the appellant. It is hard to believe that a child of such a tender age would be able to recognize the assailants of his father after such a long time. The learned counsel for the appellant has submitted that the evidence of P.W. Mushtaque, is, therefore, fit to be discarded and that identification of accused by him in Court was not sufficient. In this regard, re]iance was placed on 1992 SCMR 2088 and 1993 SCMR 585 wherein it was held that identification of accused in Court was not sufficient. P. Ws. Ali Bakhsh and Hajan witnessed the incident by chance, while they were proceeding to the lands and they happened to pass by the suger-cane field of Ghulam Shabbir when they witnessed this incident by chance. The learned counsel for the appellant argued that both the witnesses are chance witnesses. Both of them are real brothers of the deceased and keeping in view the background of enmity between the parties on account of previous murder of the father of the appellant their evidence was not worthy of credence. It is in evidence of P.W. Mushtaqe that Ghulam Shabbir the owner of sugar-cane field was present in the said field at the time of incident. It is indeed surprising that Ghulam Shabbir was-not cited as a prosecution witness in this case. He appears to be a natural witness of this incident but for reasons best known to the prosecution he was not examined.

12. The learned counsel for the appellant then argued that the evidence of all these three eye-witnesses was not relied upon in so far as involvement of accused Soomar in this case was concerned. He was consequently acquitted by the trial Court. The prosecution did not challenge his acquittal, which has attained finality. It is now well-settled that if evidence of eye-witness has been found false or doubtful in respect of acquitted accused, it is necessary for the Court to look after additional strong circumstantial evidence in the nature of corroborative testimony against the accused, who is sought to be convicted upon the testimony of some witnesses whose evidence was not partly acted upon in respect of acquitted accused. In this regard reliance was placed on 1991 SCMR 2220 (Feroze Khan v. Fateh Khan and 2 others) and 1995 SCMR 635 (The State v. Muhammad Shareef). '

13. The learned counsel then referred to the corroborative testimony in the instant case, which was regarding recovery of gun from the appellant. The said gun was produced by the appellant from inside his house in presence of mashir Haji Ghulam Rasool, who was examined as P.W.4 in this case. The learned counsel .argued that the appellant was arrested on 16-8-1988 and the gun allegedly used in the commission of this offence was produced by him on 20-8-1988, more than three days of his arrest. Besides the house from where the gun was produced by him there were other males and'females present in the said house. It is, therefore, contended that the premises from where the recovery was made it was not in exclusive possession of the appellant but it was a joint house. The learned counsel further contended that recovery made three days after the arrest of appellant cannot be said to be result of a voluntary act on the part of the appellant and such evidence is liable to be discarded. In this context he has cited 1978 P.Cr.L.J. 369 (Piaremian v. The State) with relevant observations at page 372 wherein a Division Bench of this Court discarded the evidence of recovery made three days of the arrest of accused as involuntary and a as result of pressure put upon him by the Investigating Police. Similar view was also taken by their Lordships of Hon'ble Supreme Court in 1985 SCMR 160 (Muhammad Tasneem v. The State). The gun allegedly used in the commission of offence as stated above, was recovered on 16-8-1988 but it was sent to the Ballistic Expert on I 1-11-1991 after delay of more than three years. It was, thus, argued by the learned counsel that incriminating crime weapon was sent to Expert after great delay. In the circumstances, the opinion of the Expert cannot be relied upon. It is also nov well settled that crime empty should be immediately sent to fire arms Expert, without waiting for the recovery of weapon of crime. The learned counsel cited PLD 1988 Karachi 521 (Yousuf v. The State) with relevant observation at page 531 and submitted that crime empty recovered before recovery of weapon should be sealed at once and sent to Ballistic Expert even without waiting for weapons in order to minimise chances of manipulation. He relied upon the same authority and contended that inordinate delay in sending weapon to Expert was highly suspected and fatal to the prosecution case because during that time any thing could have happened to these articles. The learned counsel then went on to argue that even the mashir of recovery P.W.4 Haji Ghulam Rasool was a close relative of the complainant. In this cross-examination he admitted that the complainant was his uncle. In this context the learned Counsel cited 1980 SCMR 225 relevant at 229 (Rasool Bakhsh and another v The State) and argued that recovery effected in presence of a mashir, who was a close relate of the deceased was not worthy of reliance. In this authority the Hon'ble Supreme Court was pleased to hold that it was duty of the prosecution to explain as to why they could not get at least one independent witness to act as mashir of recovery.

14. The learned counsel contended that the evidence of recovery was thus fit to be discarded and it could not furnish any corroboration to the ocular testimony. This being the position, the case of the appellant was at par with that of the co-accused, who was acquitted by the trial Court. Consequently, the appellant was also entitled to acquittal.

15. As regards the medical evidence, the learned counsel for the appellant submitted that medical evidence can be used as corroboration to prove that in what manner injuries were caused And by which weapon but not qua-accused. The learned counsel cited 1995 SCMR and referred to pages 127, 599 and 635 of this authority, in support of the above proposition.

16. The evidence of P.W.4 Loung was also commented upon by the learned counsel and it was urged that he too was a close relative of complainant. In view of previous enmity between the parties on account of murder of father of appellant, the evidence of this witness was fit to be discarded.

17. The learned counsel lastly argued that no sickles and grass was recovered from the scene of offence, which fact made the prosecution story highly doubtful. In this regard, he has cited 1982 SCMR (Faqir Muhammad v. Muhammad Ramzan and others) relevant page 43 and particularly referred to last line of page 43 and top of page 44 of this authority. He further submitted that mere mention of names of witnesses in F.I.R. did not constitute corroboration of their ocular evidence against accused and that basing conviction on such evidence without some corroboration was unsafe. He cited PLD 1964 Karachi 437 (Ghano and 4 others v. The State) in this regard. On the effect of F.I.R., which could be said promptly lodged, the learned counsel submitted that it was not sufficient for conviction, if prosecution on analysis of evidence fails to prove its case against the accused. He has placed reliance on PLD 1990 Karachi 314 relevant page 333 (Muhammad Achar v. The State) in this regard.

18. Mr. Ashiq Mehar, learned counsel appearing on behalf of the State, frankly conceded that the prosecution failed to prove its case against the appellant beyond reasonable doubt. He, therefore, submitted that benefit of doubt may be given to the appellant and he may be acquitted.

19. I have carefully considered the arguments advanced by the learned counsel for the appellant and gone through the entire evidence with his assistance. I have also gone through the case law cited by the learned counsel for the appellant. In this case ocular testimony was not made the basis of conviction of accused Soomar, who was acquitted. His acquittal was not challenged by the prosecution. In order to sustain the conviction awarded to the appellant the Court has to look for corroborative evidence, which is not worthy of reliance, in this case. The corroborative evidence is in the nature of recovery of gun at the instance of appellant from a joint house, which was not in his exclusive possession. Besides the recovery was made, three days after the arrest of the appellant and it appears that after the remand of the appellant, which was obtained by the police on 17-8-1988, possibility of third degree methods were used to coerce him cannot be overruled. In the circumstances, the recovery cannot be said to be voluntary and it cannot be relied upon. There is also force in the submission of the learned counsel for the appellant that on account of delay of over three years in sending the gun and crime empty to fire-arm expert, the report of the Expert is of no value. The Crime empty should have been immediately sent to Fire-arm Expert without waiting for recovery of crime weapon which was not done in this case, In view of these circumstances, I am not inclined to accept this piece of evidence against the appellant. I agree with the contention of the learned counsel for the appellant that the evidence of P.W. Loung is also not worthy of reliance and it did not furnish corroboration to the testimony of eye-witnesses. If the evidence regarding recovery is excluded, then the case of the appellant would be at par with the case of acquitted accused Soomar. Besides, the motive though set-up in the F.I.R. was completely abandoned when the prosecution led evidence. It is surprising that none of the prosecution witnesses said any thing about motive in their evidence. On the contrary, the defence suggested to the witnesses in their cross-examination that they falsely deposed against the appellant on account of enmity over murder of his father where for the deceased Hidayatullah was sent up to stand trial but acquitted by the trial. Court.

20. The upshot of the above discussion is that I am of the opinion that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt, the benefit of which must be given to the appellant. I would accordingly, accept this appeal and acquit him.

21. By my short order dated 2-3-1998, 1 acquitted the appellant and allowed the above appeal. These are the detailed reasons for my short order mentioned above. N. H. Q. /A-261 /K Appeal accepted,