2013 P Cr (PLP)

SALMAN HAMID, J.

Abdul Wahid son of Karim Bux (the Appellant) through this Criminal Acquittal Appeal has impugned the Judgment dated 22-2-2011, handed down by the II-Additional Sessions Judge Karachi Central (II- ASJ) in Sessions Case No.279 of 2005 (State v. Umar - under section 302, P.P.C., F.I.R. No.244 of 2005, PS Tamuria) (Sessions Case) whereby the II-ASJ under section 265-H(i), Cr.P.C. acquitted accused Muhammad Umer, son of Faiz Muhammad, (Umer). It was asserted that the II-ASJ did not look into the evidence minutely and therefore came to the wrong conclusion that the prosecution story was doubtful. It was also stated that the II-ASJ did not consider the evidence of P.W.1 to P.W.5 with magnanimity and got impressed merely by the fact that such P.Ws. being relatives of the Appellant deposed against Umar and were interested witnesses. It was also implored that the evidence of State witnesses was also not looked into properly and was discarded without any reasoning. Under such circumstances, it was argued that the impugned judgment is not sustainable and acquittal of Umer be set aside and that the police concerned be ordered to arrest Umer for re-trial in the interest of justice and equity.

2. I have gone through the file and the Judgment and noted that the II-ASJ thrashed out the evidence of each of the witnesses in quite detail and minutely and came to the conclusion that all the P.Ws. stated categorically that Umer had no motive and also stated that they did not actually see Umer firing at deceased, Abdul Wahab and that some of the prosecution witnesses evidence was full of inconsistencies (P.W.5, Rahim Bux and P.W.10 Haji Mehmood) and there was no corroborative evidence of independent witnesses and/or witnesses other than relatives to prove that Umer actually shot at deceased Abdul Wahab despite the fact that P.W.5 Rahim Bux claimed that at the time of incident one Yaqoob and Umer Brohi were sitting with him and suddenly P.W.5 (Rahim Bux) heard fire shots and saw that Umer fired at deceased Abdul Wahab but Yaqoob and Umer Brohi, the witnesses of firing did not come forward and deposed. It is also pertinent to note that all the prosecution witnesses who were relatives of the appellant and/or deceased Abdul Wahab deposed that they heard the fire shots when they were sitting elsewhere and at the same time they also stated that they saw Umer shooting at deceased Abdul Wahab, which deposition by itself shows that such was not possible. Besides such evidence it also came on record that the recovered pistol and, a bullet after 20 days of incident was admittedly not sealed on spot as required under the law which fact was also admitted by State witnesses and also the fact that pistol of the incident was not sent to FSL Department and that the Ballistic Expert report, which was one of the most important pieces of evidence to prove the case not produced. Therefore the presumption was that such report was never obtained and that the pistol that was recovered and the empty thereof was not sent to FSL Department to show that such was fired from the pistol or even that the pistol was in working condition or otherwise.

3. It also came on record/evidence that even the very weapon and its recovery was not clear when P.W.11, S.I. Muhammad Ashraf admitted in his cross-examination that as per report of I.O. recovered weapon was shown as .30 bore pistol and that there was no sketch of bullet(s). It also came on record that the case property was produced in court in broken condition.

4. In a murder case where it is alleged that the fatality occurred because of firing and/or fire shot and that such weapon and the bullet or empties are recovered, it becomes essential, rather mandatory, that ballistic expert report is obtained inasmuch as there can be no better evidence than the Ballistic Report which would conclusively and scientifically show if the bullet and/or empties those were used in respect of murder of a person were in fact and indeed fired from such weapon or otherwise and such scientific evidence could further be corroborated through evidence of other witnesses to reach to just conclusion of the case and to ensure that no one suffers for want of or lack of evidence and/or is sent to serve time or condemned to gallows. It is unfortunate to note that in the case in hand despite recovery of pistol, bullet and the empties, the most crucial evidence was not obtained, the benefit of which must and should go to Umer and to none else inasmuch as every piece of evidence is to be considered on its own merits and that the evidence has to be appreciated in totality. It is also well-established that culpability of the accused depends upon the nature of evidence brought against such person and only if the prosecution succeeds on the basis of such evidence, the conviction and sentence would sustain and not otherwise. But if, however, the evidence is not satisfactory and full of doubts, the same is deemed to be contradictory and destructive and under such circumstances the benefit should always go to the accused person entailing his acquittal. It goes without saying that the benefit of doubt always goes to the accused and that it is not necessary that there must always be circumstances more than one to create doubt. Even a single circumstance which creates doubt should be given benefit to the accused. Mere number of witnesses is not the deciding factor; it is the quality and worth of evidence given by the witnesses which matters.

5. Analysis of the evidence that was brought on record would clearly show that there was not even a single witness who could explain the motive behind the murder of deceased Abdul Wahab and the same remain unclear and mysterious. This evidence though on its own was shattering enough, was fortified to the advantage of Umer when the prosecution failed to produce evidence and/or the Ballistic expert report to show that the fires were shot on Abdul Wahab from the pistol recovered. Not only this even the recovery pistol and bullet were full of violations and contradictions inasmuch as it is clear from the evidence of the State witness (P.W.11, Muhammad Ashraf) that the weapon was not sealed at site and when produced in court was in broken condition and even the weapon was changed. Under the circumstances, tampering and/or change of weapon cannot be ruled out. All these factors made the II-ASJ pass the impugned Judgment which require no interference of this court and therefore this appeal must fail and is hereby dismissed in limine. MWA/A-30/K Appeal dismissed.