2007 PLP 162 (MLD)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that on 26-1-1995 at 11.00 p.m. the complainant and his son deceased Mouladad left the Otaq of Muhammad Yousif Khaki where they had gone for condolence and reached near their house. They saw appellants Sikandar armed with double barrel gun, Qurban, Rahmatullah, Jan Muhammad and Faisal armed with hatchets standing at a distance of 35 feet away from their house. On seeing the complainant and deceased the appellants abused them and declared that deceased was Karo with Mst. Fatima therefore he would not be spared thereafter the appellant Sikandar fired from his gun which hit on deceased's right thigh and he fell down. He raised cries on which P.Ws. Khuda Bux and Dhani Bux came there. They challenged the accused and then the accused ran away. Leaving behind the P.Ws. at the place of the incident. The complainant went to Police Station and lodged the report at 5.00 a.m. Police after usual investigation challaned the appellants in the Court of law. The learned IInd Addl. Sessions Judge Sukkur tried, convicted the appellants for offence punishable under section 302; P.P.C. read with section 149, P.P.C. sentenced each of them to suffer imprisonment for life and pay compensation of Rs.50,000 to legal heirs of the deceased or in default thereof to suffer R.I. for two years. The appellants were further convicted for offence punishable under section 148, P.P.C. and sentenced each of them to suffer S.-I. for three years and fine of Rs. 2000 or in case of default to suffer S.-I. for six months with benefit of section 382-B, Cr.P.C. under the impugned judgment, dated 30-4-2001. I have heard Advocate for the appellants, A.A.-G. for the State and perused the record of this case very carefully. The latter has not supported the impugned judgment. After going through the evidence with the help of learned Advocate for the appellants, I found the case rests upon only ocular testimony consists of P.W.1, complainant Wahid Bux, P.W.2 Khuda Bux and P.W.3 Dhani Bux. The evidence of complainant reveals that he gave the same details of the incident as mentioned in the earlier part of the judgment therefore need not be repeated. Both the P.Ws. Wahid Bux and Dhani Bux deposed that on the cries when they reached at the place of the incident they saw the appellants running away from the place of the incident and deceased was lying on the ground. They further deposed that on their enquiry the complainant informed them about the incident but the complainant did not state that he informed any facts to the P.Ws. as such the second part of the statements of P.Ws. 2 and 3 comes within the ambit of hearsay therefore, the same are inadmissible in evidence. All the three witnesses are unanimous that the night of the incident was dark, and there was no electricity in their village at the time of the incident. However, the complainant deposed that the night of the incident was 25th of lunar month. In this case the most important factor is whether the P.Ws. were able to identify the appellants in the night which was allegedly 25th lunar month. The complainant in the examination-in-chief stated that when he saw the appellants in the beginning they were about 35 feet away from their house and at the time of the incident they were about 6/7 feet away. The number of the appellants were six as such it is highly improbable that in the night time the complainant would have been able to identify the crowd of persons by showing specific weapons in their hands. Therefore, the chances of error in the identification of the appellant cannot be ruled out. In the case of Bashir v. The State, 1995 SCMR 278 the Hon'ble Supreme Court of Pakistan observed that the chance of error in identification on the moonlight or electric bulb become greatly increased when the identification is based on glimpse in the confusion and pandemonium of the moment, testimony of sense cannot be implicitly relied upon even when the veracity of the witness cannot be challenged. Thus the identification of the appellant in the circumstances of the present case is highly doubtful. As such the learned A.A.-G. has also not supported the impugned judgment. Furthermore according to the complainant the deceased had received injury out side his house and died immediately. As regards to death of the deceased he received injury on his leg therefore, it was not possible that the deceased would have been dead instantaneously. The Medical Officer is also of the view that the deceased could not have died instantaneously but he might have died within one hour as his right legs big vessels were ruptured. As regards the place of receipt of injury the complainant and P.Ws. gave the said place to be in front of the house of the complainant and the body of the deceased was lying at the said place till the arrival of the police. It is surprising to note that when the Investigating Officer came he found the dead-body lying on a cot in the abandoned court-yard of house of Siddiq father of the appellants Sikandar and Qurban. There is no evidence on the record to show that the body of the deceased was removed from the place of incident or shifted to the court-yard of the house of father of two appellants. This aspect of the case also creates doubt on the veracity of ocular testimony and identification of the appellant out side the house of the complainant. From the evidence of Investigating Officer the incident did not take place out side the house of complainant, it took place in the abandoned court-yard of the father of two appellants, unless it is proved that the body was shifted, but the said evidence is lacking in the case. As such the case of prosecution is highly doubtful. Hence the prosecution has failed to prove the case against the appellants. Above are the reasons of my short order, dated 25-8-2006 by which I had allowed the appeal. H.B.T./S-71/K???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.