1974 P Cr (PLP)

"(1) One abrasion x ' on the front of right thigh at middle 1/3 rd. (2) One abrasion ' x 1/6' on the front of right thigh one inch above. The injury No. 1. (3) Abrasion ' x 1/8 " on the lateral side of right thigh at middle 1/3 rd. (4) Abrasion ' x 1/6 ' on tote lateral side of right thigh 1 ' above the injury No. 3. (5) Contusion over the front of right little finger." According to him the injuries were simple in nature and appeared to have been caused by some hard and blunt substance. He also expressed that injuries 1 to 4 could also be caused by fail on some rough substance, such as "ground or bushes". On Khamiso, he noticed one scabbed abrasion on the chest `which was simple in nature and appeared to have been caused by some blunt weapon. He again expressed that it could also be caused by a fall on the ground. The same doctor performed autopsy on the body of the deceased. He noticed the following injuries:‑ "(1) 130 pellet wounds of entrance of pea size deep in the chest cavity scattered over the front of the chest above and in between the nipples and also around the left nipple, (2) Oval abrasion " x " on the front of right side of chest 2 ' above and medially to right nipple. (3) 17 pellet wounds scattered on the medial side of the left arm of pea size skin deep at its middle 1/3rd. Which, in his opinion, were caused by the discharge of a firearm and that injury No. 1 was individually sufficient in the ordinary course of nature to cause death. He further opined that the shot was fired from a distance and that death was instantaneous.

5. When called upon to enter defence, the appellant denied his involvement in the crime and pleaded that the witnesses, who had deposed against him are related inter se. Lastly, he denied the production of the pistol.

6. The prosecution examined Khamiso, Moharam, Muhammad Bus and Qasim to furnish direct evidence in the case. While scrutinising the evidence there appear features which leave room for doubt as to the identity of the appellant and also reflect on the‑‑credibility of these witnesses. Over 130 pellet injuries won noticed on the deceased. It could not be the result of one shot as is deposed to by the prosecution witnesses. It is true that the doctor has not spoken of more than one shot, but one cartridge is not likely to contain so many pellets. The crime empty did not match with the weapon recovered at the instance of the appellant. There is, therefore, no assurance of the ocular testimony. In the F. I. R. Khamiso merely stated to have identified Kouro while he gave the name of the appellant on being informed by Moharam that be had identified the appellant. However, in his deposition he stated that he identified Minhoon and that three persons had caused blows to Moharam whereas only: one lacerated injury was found on him. Moharam ascribed this injury to Kouro alone who has been acquitted. Further Khamiso stated that he was given injuries by the companions of the thief who was driving away the bullock but only one scabbed abrasion was noticed which was too insignificant to be caused with a blunt weapon. It could, as is opined by the doctor, be the result of a fall on the ground or by striking against some object. The injuries on Shaman, who has not been examined, are also not consistent with the medical evidence. He is stated to have received gunshot injuries, whereas the doctor stated that they were caused by a blunt weapon. Again Mobaram denied when confronted with his police statement that it was Ali Gohar who was armed with a pistol and it was he who had fired it and that the appellant was armed with a hatchet. Muhammad Bux also stated in his police statement with which he was confronted that it was All Gohar who had fired the pistol. Muhammad Memon, a corroborating witness ascribed a statement to Khamiso in his police statement, with which he was confronted, that it was Ali Gohar who carried a pistol and had fired the shot. All these contradictions stand proved. The witnesses are, therefore, not agreed even as to the culprit who was armed with the pistol. Qasim, who was injured, has not identified any of sue culprits. His evidence, there fore, does not advance the prosecution case any further. The above contradictions indicate that some of the prosecution witnesses have resiled from the earlier version and attributed at the trial the pistol shot to the appellant. The confusion in the context of the contradictions and inconsistencies leaves room for doubt as to whether they had in fact witnessed the occurrence with any certainty. Kbamiso admitted that it was dark night and that he bad identified the appellant on torch light. Whether he had one is doubtful. According to him, he had purchased it 8 or 10 days before the incident, whereas Moharam stated that it was purchased 2 or 3 months before. What was the occasion to purchase it 8 or 10 days earlier is not apparent. He had also not produced it at the time of lodging the F. I. R, It. as stated by him. It was produced the next day at the wardat. In the circumstances, it is plausible that it may have been procured and produced to lend weight to the identification of the appellant.

7. The trial Court has accepted the identification of the appellant while giving the benefit of doubt to Ali Gohar, Ali Hasan and Kouro. His case stands on no different footing. The witnesses have indulged in prevarications to an extent that it is not possible to accept their ipse dixit. Two eye‑witnesses, namely Moharam and Mohammad Bux in their earlier version have attributed the pistol shot to Ali Gohar. It is not possible to reconcile this discrepancy when the case entirely rests on the ocular testimony. The trial Court has resolved the benefit of doubt in favour of the prosecution while convicting the appellant, which is not correct. The learned State counsel in the circumstances has not supported the convictions of the appellant. The prosecution has accordingly failed to establish the guilt of the appellant. We would, therefore, give to him the benefit of doubt and acquit hind. While accepting his appeal we would direct that he shall be released forthwith unless required in some other case. Appeal allowed.