2003 PLP 930 (YLR)

5. Next learned counsel has referred to the deposition of eye-witness Usman who has corroborated the complainant but only nominated the appellant/accused Abbas and co-accused Ali Hassan and Ali Khan as having murdered the deceased with Dunda and Patti blows. However, this again contradicts the F.I.R. in which other persons have been nominated. Again in the 164, Cr.P.C. statement of this witness the appellant is said to be empty-handed.

6. Learned counsel has referred to the examination of the other eye-witness P.W.4, Suleman, who has also corroborated the complainant but says the Police reached the place of incident at 11-00 p.m. on the same night. This per learned counsel is contradictory to the deposition of the I.O. who says that the police party reached the place of incident in the next morning at around 4-30 a.m. after the F.I.R. was lodged at 4-00 a.m.

7. Next learned counsel has referred to the deposition of Rab Dino who was the Mushir, per P.W. Suleman the said Rab Dino was with the complainant party at the time of incident but Rab Dino says that the Police had picked him up from his village in order to prepare the Mushirnama. So also learned counsel has submitted , that there are corrections in the Mushimama viz. as to the date and time as well as in the Inquest Report, which casts further doubt on the prosecution version of the incident. Finally, learned counsel has referred to the deposition of P.W. Mumtaz Ali, Tappedar, who prepared the sketch of the place of incident and who has admitted in cross-examination that village Kamal Khan is only 150 feet away there from and has 300 to 400 houses.

8. In view of the foregoing contradictions in the prosecution version and the admitted enmity between the parties as well as failure to examine independent witnesses learned counsel has submitted that the prosecution has miserably failed to establish its case beyond any shadow of doubt, in view of which the impugned judgment shoud be set aside and the appellant accused acquitted. Learned counsel has relied upon Ata Muhammad v. The State (1995 SCMR 599), Inamuddin v. The State (1991 NLR 656) Ghulam Qasim v. The State (1999 PCr.LJ 1652), Muhammad Achar v. The State (1991 PCr.LJ 522), Riaz Ahmed v. The State (1994 PCr.LJ 1044) ad Ghulam Nabi v. The State (2001 PCr.LJ 1859).

9. The learned counsel for the State has not opposed the submissions of Mr. Solangi and accordingly agreed that the impugned judgment should be set aside.

10. I have heard both the learned counsel and my conclusions are as follows.

11. It would be seen that the pieces of evidence available on the record consist of firstly, the ocular account, secondly the medical evidence and thirdly the recoveries. As far as the ocular account is concerned there are some contradictions, the foremost being the time of lodging of the F.I.R. since per tile complainant Ali Bux he had reached Police Station Bhan Saeedabad at about 9-00 or 10-00 p.m., on 3-8-1989 when the F.I.R. was registered whereas the F.I.R. itself certifies that the time of registration was at 04-00 hours on 4-8-1989.. The contents of the F.I.R. have. been corroborated by the 1.0. P.W. Adam Khan who was the then S.H.O. of Police Station Bhan Saeedabad. Secondly, it would be noted that the time of arrival of the police at the place of inicdent has been given by P.W. Suleman as around 11-00 p.m. of the same night whereas according. to the investigating Officer. P.W. Adam Khan he had arrived there at around 04-30 hours a.m. on 4-4-1989. Yet again this has been contradicted by the Medical Officer Dr. Mukhtar who has deposed that he received the dead bodies of the deceased at 04-30 hours on the morning of 4-8-1989.

12. Secondly, it would be noted that in the F.I.R. itself besides the present appellant and co-accused Ali Khan and Ali Hassan; Rahim, Peero and Usman have also been nominated, however, in the deposition of the eye-witnesses all are consistent to the effect that only the present appellant viz. Abbas alongwith with co-accused Ali Hassan and Ali Khan were present at the scene of the incident and had caused the murder of the deceased. The eye-witnesses have also testified that the names of the other co-accused aforementioned as per the F.I.R. had been added by the police on their own account. The version of the eye-witnesses has been corroborated by P.W. Usman in his 164, Cr.P.C. statement Exh.8/A but the present appellant has been' shown to be unarmed. Again it has come on the record that Rahim. Peero and Usman were' dropped by the eye-witnesses during investigation.

13. It would next be seen that the motive as given in the F.I.R. is enmity in between the parties inasmuch as the accused party had held the relations of Jurio and Photo viz. Jalal Khan as having committed the murder of Yousuf Lund. However, while the a complainant has corroborated the motive as contained in the F.I.R., in his deposition P.W. Usman has deposed that Yousuf Lund had been killed by Moosa Khoso and Nazar Muhammad Khoso, again, the version of the complainant as regards the moive has been supported by P.W. Suleman who has deposed that Jalal Khoso had been nominated by the accused party as having killed the brother of appellant Abbas viz. Yousuf Lund. Finally, would be seen that in the F.I.R. itself it h recorded that the entire complainant party had been accosted by the accused party at the place of incident whereas per the' deposition of eye-witnesses they have testified that the deceased were walking about 50 paces ahead of the other eye-witnesses-

14. As far as the medical evidence is concerend, it has been testified by P.W.3 Dr. Mukhtar who has carried out the post-mortem of the two deceased and produced such report as Exh.9-D that the deceased had received injuries on their heads with hard and blunt substnaces such as a Lathi, Btindi or Dunda and that the time between the death and post mortem was about 12 to 13 hours. Consequently, this piece of evidence would corroborate the ocular version and also the fact that the incident took place at about 7-00 p.m. on the evening of 3-8-1989.

15. As far as the medical evidence is concerned again this would corroborate the ocular version since as per P.W. Rab Dino who had been made a Mushir by the Police, alongwith co-Mushir Bachal, he had seen the dead Bodies of the two deceased as well as two Bundies and one Patti which were blood stained and lying near the dead bodies. Some blood stains were also noted on the earth around the dead bodies. He has testified also that the police has secured the Bundies and Patti as well blood-stained earth and sealed the same and had prepared the Mushirnama, which was produced as Exh.l l /A. The Police had prepared the Inquest Report of both the dead bodies which was produced by the witness as Exhs.11/B and 11/C. All Exhibits bear the signatures of the witness.

16. However, having observed as much, in my view, the corroboration of the ocular version by way of the medical report and recoveries is not sufficient in the circumstances of the case when admittedly the recoveries in question were not made either from the appellant/accused or at his instance but were seen to be lying at the place of incident. The contradictions in the ocular account have already been observed in the foregoing paras. The major one being that one of the eye witnesses viz. P.W. Usman has deposed in Court that the appellant as well as co-accused Ali Khan and Ali Hassan were armed with the weapons of offences in question, but in his 164, Cr.P.C. statement (Exh. 8/A) the appellant has been shown as being unarmed. This Court cannot lose sight of this major contradiction although it may be that the other contradictions are perhaps -minor ones viz. the time of the lodging of the F.I.R. as well as time of arrival of the police at the scene. Secondly, it would be seen that in the F.I.R. itself three other persons have been nominated, besides the appellant Ali Khan Usman. All the eye-witnesses have deposed in Court that the names of the latter three were added at the behest of the police and they were never nominated by them in the F.I.R. This version also appears to be untruthful in view of the fact that the latter three persons were dropped by the complainant pare, during the course of investigation.

17. Next it would be seen that all the eye-witnesses are related inter se and in the background of enmity between the parties, independent corroboration is very necessary as these witnesses were also chance witnesses. Such incident corroboration is not forthcoming all because the prosecution failed to examine the natural witnesses who were admittedly available, as the scene of the crime was only a short distance away from a' village, which contained 200-300 houses and so also a hotel was situated there. In this respect, reference can be made to State v Muhammad Shareef (1995 SCMR 635) wherein the Honourable Supreme Court has laid down that enmity as a motive is always double-edged weapon and can be established for the purposes of commission of the offence and for false implication as well and also that the appraisal of evidence given by a chance witness has to be explained beyond any shadow of doubt by the prosecution Similarly, the same pronouncement was made in the case of Ata Muhammad v, The Stat: (1995 SCMR 599) wherein it was further held that enmity being a double-edged weapon, the benefit thereof should go to the accused rather than the prosecution as the accused is the favourite child of the law.

18. Finally, it would be seen that admittedly the incident occurred at about sunset in failing light. Per the prosecution version the deceased were walking about 50 paces ahead of the eye-witnesses which would be about 75 feet. In my view, it would be difficult to recognize the assailants who attacked and murdered the deceased at this distance at about sunsent time. So also it would be seen that quite strangely the complainant party did not come to the rescue of the deceased at all but instead fled away and neither was any rescue effort mounted by the nearby villagers. This further compounds the difficulty of the complainant party in recognizing the accused in the heat of the moment when the attack was being perpetuated upon the deceased. In this connection also it would be seen that there is a further contradiction since per the F.I.R., the complainant party alongwith the deceased were together when the attack ensued upon the deceased, which has been corroborated by P.W. Usman in his 164 Cr.P.C. statement; however, as per the deposition of all the witnesses in Court, the deceased were walking, about 50 paces ahead of the others. In Sajjad Hussain v. The State (1997 SCMR 174) the Honourable Supreme Court has laid down the criteria as to the identification of accused in a dark night in the light of an electric bulb or lantern viz. the availability of sufficient light, the opportunity available to the witnesses to have a close look or a dialogue with the accused, the intimacy of the accused with the witness, the availability of an unobstructed view of the accused to the witness at the time of commission of crime. Considering the foregoing observations of the Honourable Supreme Court and the facts and circumstances of the case, in my view, it would be difficult for the eye-witnesses to recognize the appellant as well as the others accused in failing light particularly as they E had fled away from the scene of the crime.

19. For all the foregoing reasons, in my opinion, the prosecution has failed to establish its case against the appellant beyond any shadow of doubt. Consequently, the impugned judgment is set aside and the appellant is acquitted. He shall be released forthwith unless he is required in any other case. Appeal is disposed of. H.B.T./A-401/K Appeal accepted.