2006 PLP 3200 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts leading to the present appeal are that on 16-8-1994 at 3-00 a.m. in the night the complainant Ghulam Shabir, his brothers P.W.2, Muhammad Hashim and .deceased Muhammad Qasim were sleeping in his house situated in Murad Shah Colony, New Pind, Sukkur when they woke up on some noise and found the appellant Allah Jurio and absconding accused Rabban armed with mousers, absconding accused Ghulab armed with SBBL Gun, accused Sajan with 7mm rifle and Afzal with hatchet present in the house. The complainant and prosecution witnesses saw the culprits on electric bulb light which was lighting in the house. Absconding accused Sajan was standing over the cot of the complainant whereas appellant Jurio, absconding accused Raban and Gulab were standing at the cot of the deceased and absconding accused Afzal was standing at the door of the house with torch. Thereafter the appellant and absconding accused Raban fired from their mousers at the deceased. The fire hit on his forehead, cheek, neck and chest. The accused declared that they had committed the murder of Karo, in the meanwhile absconding accused Gulab also fired from his gun at the deceased which hit him and then the culprits ran away. The motive of the incident has been shown that about 14 months prior to the incident the appellant Allah Jurio and Raban committed the murder of their aunt Mst. Shabana as she was declared Kari with the deceased. The complainant asked P.W. Hashim to bring their friend Abdul Fattah. After his arrival the complainant leaving the P.Ws. at the scene of incident went to the police station, B-Section, Sukkur, where he lodged the report at 6-30 a.m. The police after usual investigation, challaned the appellant in the Court showing the absconding accused as absconders. The learned IIIrd Additional Sessions Judge tried the appellant and convicted him for offence punishable under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life and pay compensation of Rs.50,000 to the legal heirs of deceased or in default thereof to suffer R.I. for six months with benefit of section 382-B, Cr.P.C. under the impugned judgment dated 28-10-2004. I have heard the Advocate for the appellant, Assistant Advocate-General for the State and perused the record of this case very carefully. Learned counsel for the appellant has stated that there is delay in lodging the F.I.R.; that the ocular testimony consists of two witnesses but their evidence is unreliable as they were not present at the scene of incident; that the source of light on which the alleged identification of the culprits was made has not been supported by the Investigating Officer; that the evidence of the witnesses is full of contradictions, discrepancies and that the oral evidence is in conflict with the medical evidence. Conversely, learned Asstt. A.G. has stated that the ocular testimony consists of two witnesses, is confidence-inspiring; that there is no conflict between medical and oral evidence. However, he has admitted that the Investigating Officer has not supported the source of light at the scene of incident as alleged by the prosecution witnesses. He has supported the impugned judgment. I have given due consideration to the arguments, gone through the evidence with the help of learned counsel for the appellant and found that the case of prosecution rests upon ocular testimony that consists of two prosecution witnesses viz. P.W.4 complainant Ghulam Shabir and P.W.2, Muhammad Hashim. Their evidence reveals that they gave the same details of incident as mentioned in the earlier part of the judgment; therefore, need not be repeated. Both the witnesses are unanimous that the appellant was armed with mouser. He fired at the deceased which hit him and they identified the appellant on the electric bulb light. As regards the source of light, the Investigating Officer, S.I.P. Mushtaq Ahmed in 'his statement Exh.17 deposed that he had not seen any electric bulb installed around the place of incident. Thus from the said statement it is clear that the statement of prosecution witnesses with regard to the source of light has neither been supported or corroborated but on the contrary it has been falsified. As such a doubt has been created as to whether there was electric bulb lighting at the place and time of the incident. It is well-settled principle of law that every doubt appearing in the evidence is required to be extended in favour of the accused. In such circumstances, the mistaken identity of the culprits cannot be ruled out. It is further pointed out that both the witnesses stated that appellant Jurio, co-accused Raban fired from their mousers at the deceased which hit him on his forehead, cheek, chest and neck whereas absconding accused, Gulab also fired from his gun at the deceased. Thus, the deceased should have been some injuries caused by mousers which contained bullets. In order to ascertain the above position, the evidence of Medical Officer is required to be examined. P.W.3 Dr. Iqbal Ahmed after examining the dead body found the following injuries:-- (1) One lacerated punctured wound of entrance of right medial side of (supra), clanicular fossa chest inverted margins, circular in shape, no blackening, charring present, measuring about 1 c.m. in diameter with 1-1/2 c.m. depth and recovered one pellet from wound of fire-arm. (2) One lacerated wound on right mandibular surface of face irregular margins wedge share measuring about 4-1/2 x t x 1 c.m. (3) One lacerated punctured wound of entry of fire-arm at right side cheek, inverted margins, circular in shape, no blackening, charring present, measuring about 1 c.m. in diameter. (4) One lacerated punctured wound of entry of fire-arm at right side forehead skull, inverted margins circular in shape, no blackening and charring present, measuring about 1 c.m. in diameter. (5) One lacerated punctured wound of exit of fire-arm at left temporal region of skull, averted margins irregular in shape no blackening and charring present, measuring about 3-1/2 c.m. in diameter, brain matter came out from the cavity. (6) One lacerated punctured wound of exit fire-arm at occipital region of skull, averted margins, irregular in shape, no blackening and charring present, measuring about 4 c.m. in diameter, brain matter came out from cavity. In the cross-examination, he admitted that one pellet from each Injuries Nos.1, 3 and 4 was secured; therefore, the said injuries were caused by fire-arm weapon such as gun. The Injury No.2 was caused by hard and blunt substance or fall on the ground. None of the witnesses deposed that any of the assailants caused any injury with hard and blunt substance or that the deceased had fallen on the ground. The Injuries Nos.5 and 6 are the exit wounds. From the above evidence it is clear that deceased had received gunshot injuries. He did not receive any bullet injury caused by a mouser. Therefore, there is conflict between medical and oral c evidence. This conflict appears to be because of the fact that the night of incident was dark and the witnesses were not able to see the assailants armed with respective weapons and firing at the deceased. There are also material discrepancies in the evidence. For example; the P.W.2, Ghulam Shabir deposed that the police arrived at the place of incident at 3-30 a.m. in the night and recorded their statements but the same has been falsified by the Investigating Officer as he deposed that he reached at the place of incident at 7-00 a.m. in the morning but did not record the statement of prosecution witnesses at the place of incident as he recorded their statements on the next day. From the evidence there appears enmity between the parties over the earlier murder; therefore, the false implication of the appellant cannot be ruled out. After considering the material available on the record, I am of the considered view that the case of prosecution is highly doubtful against the appellant; therefore, he is entitled to the benefit of doubt which was accordingly granted to him while passing short order dated 15-8-2006 by which I had allowed the appeal. These are the reasons of the said short order. S.M.B./A-111/K Appeal allowe