P L D 2004 Karachi 8 (PLP)

(5) Ziaullah v. The State (1993 SCMR 155). (6) Rab Rakhio v. The State (1992 SCMR 793). (7) Mansha v. The State (2001 PCr.LJ 1590). (8) Habib-ur-Rehman v. The State (PLD 1994 Pesh. 126). (9) Mir Hassan v. The State (1999 SCMR 1418). (10) Mehrban v. Haji Abdul Hamid @ Majid (PLD 1983 SC 117) (11) Ghous Muhammad v. The State (1971 PCr.LJ 108). (12) Mujahid Hussain v. The State (1995 SCMR 1573). (13) Mansha v, The State (1994 PCr.LJ 935) In support of his arguments, learned counsel for the appellants has relied on various case-laws. In the case of Amir Bux v. The State 1990 PCr.LJ 1765 where it was held that it is duty of prosecution to prove the motive and where it fails, the prosecution suffer and evidence of P.Ws. should be examined cautiously. The prosecution evidence being shaky and infirm does not inspire confidence and neither strong nor sufficient to prove offence beyond reasonable doubt. Recovery of gun was also not proved as the incriminating articles were not sent to the Ballistic Expert for examination and opinion. In the circumstances, death sentence was not confirmed and the appellants were acquitted. In the case of Mehmood Ahmed and 3 others v. The State (1995 SCMR 127), the delay of two hour's in lodging the F.I.R. in particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might implicate. Non explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence. The accused were acquitted in the circumstances. In the case of Muhammad Iqbal v. The State (1984 SCMR 930) where the conviction resting only on tainted ocular testimony of three witnesses standing was belied in all essential respects. It was held that ipsi dixit of such witnesses could not be accepted without independent corroboration in wake of false implication of many others already acquitted and that prosecution had failed to establish guilt of accused beyond doubt. In the circumstances appeal was accepted and the appellant was acquitted. In the case of Mehrban v. Abdul Humid alia Majid and 8 others (PLD 1993 SC 117), it was held that when ocular testimony be not of unimpeachable character, medical evidence alone does not furnish required corroboration to connect accused with crime. Investigating Officer did not send pellets recovered from bodies of deceased to Ballistic Expert for examination and opinion and on other hand making efforts to secure evidence of existence of weapons being combination of shot gun and rifle hence it was held that honesty of investigation being reflected upon, Court to be on guard to scrutinize ocular testimony with greater caution. Learned counsel has pointed out that in the case in hand, the incident occurred on 26-7-1997 and the appellants were arrested on 9-4-1997 and the alleged recovery was effected on 21-4-1997. On the question of recovery of crime weapon after sufficient delay from the date of the arrest of the appellants, he has relied on the case of Mujahid Hussain v. The State (1995 SCMR 1673), where Full Bench of Honourable Supreme Court while deciding several issues observed that on the issue of recovery of incriminating articles, the appellant was shown as an absconder and he had full opportunity to get rid of articles which could incriminate him and he would not keep the articles in his house, until he was arrested. They further observed that he had ample opportunity of removing these incriminating articles. Ultimately, considering all aspects of the case, the, Supreme Court held that the prosecution had failed to establish its case beyond reasonable doubt. The appeal was allowed and the appellant was set free. In the case of Mansha v. The State (1994 PCr.LJ 935), learned Single Judge came to the conclusion that eye-witnesses were related to and had made contradictory statements. There was no corroboration of the eye-witness and hence the same evidence could not be relied upon. In the case of Ghous Muhammad v. The State (1971 PCr.LJ 108), a Full Bench of Lahore High Court had observed that witnesses explaining injury had attributed a blow with Danda but no Danda was found at the spot. No satisfactory explanation for injury on the person of accused was given. The motive was not proved and there was a colossal delay in sending the hatchet for Chemical, Analyser giving rise to suspicion and genuineness of investigation. Accused in such circumstances was granted benefit of doubt. In the case of Habib-ur-Rehman and another v. The State (PLD 1994 Pesh. 126), where it was held that in the mitigating circumstances, it was not possible to determine as to which of the injuries caused to the deceased proved fatal and who out of the two accused caused said injuries. In the case of Mir Hassan v. The State (1999 SCMR 1418), where it was held that the judicial notice could be taken of the tendency among the people to involve more persons related to the accused in the case and under these circumstances accused were acquitted extending benefit of doubt. Mr. Ali Azhar Tunio, learned Asstt. A.-G. appearing on behalf of the State has supported the impugned judgment. I have carefully considered the arguments advanced by the learned counsel for the appellants and learned Asstt. A.-G. appearing on behalf of the State and the case-law relied upon by the parties in support, of their arguments. I have also gone through the impugned judgment and the material placed before me. It is case of the complainant in the F.I.R. that on the day of incident at 9-00 a.m., in the street, close to the house of accused Sobho they came across with accused Muhammad Mureed and Piaro, Haji Nazir, Sobho and Badar who were .armed with guns and pistol. As soon as complainant made inquiry as to why Sobho had beaten Mst. Zarina, on the instigation of accused Muhammad Mureed accused Sobho and Piaro fired from their respective guns at Abdul Raheem and Photo. Receiving the fire-arm injuries on various parts of body, both fell down. The villagers came running on fire reports on which accused left the scene towards their houses. Abdul Raheem and Photo were found dead. Case was registered and all of five accused were arrested on 9-4-1997 and the case was challaned in the Court of law where on the same set of evidence, accused Muhammad Mureed and Haji Nazir were acquitted and rest of three were convicted, for life imprisonment. The prosecution case suffers from various defects. From the record it appears that the F.I.R. was lodges after delay of two hours while the fact remains that the Police Station concerned was at the distance of 4/5 k.ms. Admittedly all the three eye witnesses of the occurrence are interested and closely related inter se hence their version needed independent corroboration for recording major punishment. There is contradiction with regard to the timing of occurrence and distance from which the deceased were fired at. In the evidence complainant deposed that incident lasted for five minutes while P.W. Shaman said that within three minutes the attack was over. The ocular version came from complainant, in his evidence, that the deceased were fired at from the distance of 5/8 feet while the Medical Officer has opined that deceased were fired at from the distance of 30/100 feet.-I have also noted that date of arrest of the accused is disputed as the Mashirnama of arrest shows that accused were arrested on 9-4-1997 while, as per statement of Investigating Officer Ali Nawaz at Exh.22 he arrested accused on 21-4-1997; he further stated that judicial confession of accused were recorded on 22-4-1997 but the same are not brought on record neither the learned Judicial Magistrate has been examined. In hiss statement, there is no mention regarding recovery of crime weapons from the accused at the time of arrest. It is admitted position that weapons allegedly recovered were not sent to Ballistic Expert for opinion hence it could not be proved that whether the crime weapons were in working condition or not. In this regard statement of S.H.O. Muhammad Umar hash also come on record as Exh.19 to the extent that neither the case property has been sent to the Ballistic Expert nor to the Chemical Analyser-hence there is no Ballistic Expert Report on the record to produce. Both the Mashirs are police personnel which is violation of section 103, Cr.P.C. I have also taken careful note of evidence wherein the P.W. Shaman has 'given contradictory statement to the other two P.Ws. namely complainant and P.W. Muhammad Azeem. P.W Shaman has assigned not only specific role against accused but also that accused Sobho repeated second fire. The other two P.Ws. have not deposed specifically, they have not mentioned that anybody had repeated second fire. Even in the F.I.R. there appears only general allegations against accused Sobho and Piaro of causing fire arm injuries at Abdul Raheem and Photo. I have also noted that the statement of P.Ws. Muhammad Azeem and Shaman were recorded on the next day of incident which is supported by statement of Police Inspector Allahdino as Exh.16. I have also gone through the statement, of accused where they have denied the charges and claimed that there already exists enmity of complainant party with some other persons namely Hazoor Bux, Abbas and Naban all Chandia by caste residents of same Village Banghi and F.I.R. is also on the record vide Crime No. 142 of 1993. The accused further insisted that this incident may be result of that enmity. Besides all these defects, it is very surprising to me that the whole family is dragged into this case as accused Muhammad Mureed happens to be father of rest of accused Sobho, Piaro, Badar and Haji Nazir. On perusal of impugned judgment it appears that learned trial Judge has passed the judgment after discussing three points at length i.e.

1. Recoveries,

2. Ocular testimony and

3. Motive. Out of these three points, learned trial Judge has discarded the points Nos. 1 and

3. As regards the point No. 1 motive is concerned, learned trial Judge has given his finding in clear terms as under: "For motive it is said that Mst. Zarina was sister of deceased Abdul Raheem. She was married to accused Sobho, who had caused beating to Mst. Zarina and that the complainant party was going to accused for clarification when two murders were committed by the accused. I am absolutely not convinced by this motive. This is weak and meager motive and for this type of motive there should be no two murders." As regards the point No. 3 i.e. recoveries is concerned learned trial Judge has discussed at length that there is recovery of gun from accused Sobho and pistol from accused Badar which were effected by S.I.P. Ali Nawaz Khaskheli and witnessed by H.C. Ghulam Mustafa and, P.C. Ghulam Shabir. S.I.P. Ali Nawaz examined, at Exh.22 does not state about the recovery of crime weapon and merely talks about the arrest of accused person while HC Ghulam Mustafa supported the recoveries. Learned trial Judge on this point has himself come to the conclusion as under: "Anyway S.I.P. Ali Nawaz does not talk of recovery. There is sole word of Ghulam Mustafa with regard to the recoveries. Further that the gun and pistol were not sent to the Ballistic Expert as deposed by Muhammad Umar, S.H.O., Police Station Mehar. He is examined at Exh.

19. He stated that he had come to attend the Court in lieu of letter calling upon for production of the ballistic and chemical report but the same could not be produced as not sent to Ballistic Expert by Investigating Officer and W.H.C. of the relevant time. Recoveries in the circumstances are of no avail ...." It appears that the conviction is based solely on the basis or ocular testimony. Admittedly the ocular testimony comes from the interested and closely related witnesses. In view of the above discussion and the case-laws relied upon, am convinced that the reliance by the trial Court on the ocular testimony alone to justify conviction is against well settled principles of law. If motive and recoveries have not been adequately proved and in the absence of any corroboratory evidence the passing of such a sentence is incorrect. If indeed the prosecution has failed to place on record independent evidence then the reliance on the evidence available would not be sufficient to warrant conviction. In the present case several persons had been arrested for committing an offence and in the impugned judgment the learned trial Court has acquitted some persons and convicted others on the same set of evidence. This is unwarranted, specially in view of the fact that against the convicted persons there is no direct corroboratory evidence available. In view of the above, the prosecution has failed to prove the case beyond any reasonable doubt, I therefore, give benefit or, doubt to the appellants/accused and set aside the conviction and sentence awarded to them by the impugned judgment. The accused be released forthwith unless required in any other case. N.H.Q./S-334/K Appeal accepted.