ORDER SHEET

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH HYDERABAD CIRCUIT.

Cr.Jail. Appeal No.S-200 of 2006

For Regular Hearing.

Gamoon and others …..………………………………..Appellants.

Versus.

The State …………………………………………….…Respondent.

Date of hearing: 15. 04.2011 & 3.6.2011.

Mr. Nisar Ahmed Unar and Miss Nasira Shaikh, Advocates for the

Appellants.

Syed Meeral Shah, D.P.G. for the State

JUDGMENT

Muhammad Ali Mazhar, J- This Jail Appeal has been brought by the appellants to challenge their conviction and sentence of life imprisonment awarded to them in Session Case No.252/2000, vide Judgment dated 11.8.2006, passed by learned IInd Additional Sessions Judge, Badin under Section 302 (b) PPC.

1. The facts forming the background of the case are that on 4.11.2000, complainant Meenh Wassayo appeared at Police Station Badin and stated that deceased Lakhadino was his brother and working as Constable in the police department. About two years ago they had purchased land from Dr. Abdul Aziz Memon on which accused Basar and Gamoon were annoyed. It was further alleged that one day prior to the F.I.R., deceased Lakhadino came to the house and in the morning, he left for Badin and at about 6.30 a.m when he reached near paddy crop, complainant heard the cries on which he along with Ramzan and Bilawal went there and found the accused Gamoon armed with hatchet while accused Khameso, Natho and Basar with lathies. Accused Gamoon caused hatchet blows and remaining accused caused lathi blows to the deceased Lakhadino and when complainant party gave hakals, accused left the place of incident. They found that Lakhadino had sustained injuries on head and other parts of the body and they took him to Civil Hospital Badin and thereafter, complainant appeared at P.S and lodged the report.

2. The police arrested all the accused and during investigation on 5.11.2000, the I.O had received a telephonic message from the Hospital that injured Lakhadino has expired. After completing all the usual formalities, challan was submitted in the court. On 22.1.2003, a formal charge was framed against all the four accused to which they pleaded not guilty and claimed to be tried.

3. The prosecution in order to substantiate the charge against the accused, examined PW-1, Complainant Meenh Wassay, PW-2, Ramzan, PW-3, Mashir Ali Bukhsh, PW-4, Investigating Officer Fazal Rahim, PW-5, Ali Nawaz, PW-6, SIP Muhammad Ayoub and PW-7, Medical Officer Dr. Muhammad Aslam.

4. The statement of accused was recorded under Section 342 Cr.P.C in which the appellants had claimed to be innocent and denied the prosecution allegations.

5. The PW-1 Meenho Wassayo (Ex.8), deposed in his testimony that the deceased Lakhadino was his brother, he was in police service. On the day of incident his brother had come in the village and on the next morning he was proceeding to his official duty where he was posted. It was about 6-30 A.M. complainant was available in his house, meanwhile he heard the cries towards Eastern side of the house. He rushed towards the place of incident along with his mother Mst. Rani and saw accused Gamoon armed with hatchet, co-accused Basar, Khameso and Natho were armed with lathis. He raised the cries not to kill the deceased. Accused Gamoon had caused sharp side hatchet blow to deceased on his head. Remaining co-accused had caused lathi injuries on his bodies. The complainant’s mother Mst.Rani, Ramzan and Bilawal had also seen the incident. Thereafter, all accused ran away. The PW produced original FIR vide Ex. 9. He further deposed that the incident had taken place because of dispute over the agricultural land between him and the accused because he had purchased aforesaid agricultural land from Dr. Abdul Aziz Memon which annoyed the accused persons. In the cross examination, he admitted that P.W Ramzan is his cousin and P.W Bilawal is also his Maasat (cousin) as well as P.W Ali Bux. There are twenty houses in his village. He admitted to have stated in the F.I.R. that the incident was also witnessed by his mother Mst. Rani. Police had not mentioned the name of his mother as a witness of the incident. None has come from the village except the P.Ws. He admitted that the police had let of three accused namely Basar, Khameso and Natho and only challaned accused Gamoon.

6. The PW-2 Ramzan (Ex.10) deposed in his testimony that he knows the complainant as well as the accused and the deceased Lakhadino. On the day of incident, he was in his house where he heard the cries of deceased Lakhadino and rushed to the place of incident. The complainant was already available at the place of incident. He had seen the accused Gamoon armed with hatchet, Basar, Khameso and Natho were armed with lathis. He had also seen the accused Gamoon causing hatchet injury with sharp side to deceased Lakhadino and remaining accused were causing lathi injuries to the deceased. P.W Bilawal had also seen the incident. In the cross examination, the witness admitted that deceased Lakhadino was his brother-in-law. He further deposed that there are about 10 houses in village Haji Chang where the incident took place. Accused Gamoon had caused hatchet blow to deceased in his presence with sharp side of the hatchet on his head. He had also admitted that there was no blood found at the place of vardat when the police inspected the place of vardat. He further deposed that none had seen the incident except the P.Ws. the witness further stated that he does not know that there was any dispute over agricultural land purchased by the complainant from Dr. Abdul Aziz Memon which annoyed the accused persons. The witness admitted that in his statement recorded under section 161 Cr.P.C. he stated that about two years back my brother in law had purchased 2-00 acres of land from Dr. Abdul Aziz Memon and therefore my relative Gamoon and others were not on good terms.

7. On 15.11.2003, D.A had filed a statement in Court in which he stated that as per instructions of advocate for the complainant I give up P.W Bilawal.

8. The PW-3 Ali Bux (Ex.14) had deposed that he knows the accused persons as well as complainant. Police made him mashir of the case and co-mashir was Soomar. Police prepared mashirnama of injuries which he produced as Ex.15. The police had also visited the place of incident in his presence. Police prepared mashirnama which he produced as Ex.16. Police had also prepared mashirnama of dead body of deceased in his presence which he produced as Ex.17. Police had also prepared the Danishitnama of dead body in his presence which he produced as Ex.18. The police also secured the clothes of deceased in his presence and prepared mashirnama of securing the clothes which he produced as Ex. 19. Police arrested the accused Khameso, Gamoon, Basar and Natho in his presence. Police had also prepared mashirnama of arrest which he produced as Ex.20. Police had also secured hatchet from accused Gamoon in his presence. The co-mashir was Soomar. Police prepared mashirnama of recovery which he produced as Ex.21. In the cross examination, he deposed that complainant is his maternal nephew and the deceased was also his maternal nephew. He had reached at the place of wardat at 12:00 noon. Police reached at the place of incident at 12:30. There were about 8 to 15 persons available at the place of wardat when

police arrived there, where after the witness along with police went to the Civil Hospital. In the cross examination conducted by the advocate for pauper accused Gamoon and Khameso, the witness deposed that the co-mashir Soomar is also maternal nephew and residing adjacent to his house. He further deposed that there are about 20 houses in the village and about 3/4 Kiryana shops at the Mori from where accused persons were arrested except him and the accused persons, they were also four or five persons available at the time when police arrived at the Mori and arrested the accused persons. The co-mashir Soomar was called by the police themselves through some boys standing at the Mori. Police secured the hatchet from accused Gamoon at the time of his arrest from the shop where hatchet was lying inside his shop.

9. The PW-4 Fazal Raheem (Ex.22) had deposed that on 18.11.2000, he was posted as Sub-Inspector at P.S Badin. On 20.11.2000, he recovered hatchet from accused Gamoon. No any recovery was effected from any other co-accused. He prepared mashirnama of recovery of hatchet in presence of mashir Ali Bux and Soomar. He recorded the statement of P.W Sharif, Abdullah and Younis as well as Allah Bachayo and Ramzan. On 28.11.2000, he recorded the statement of defence witness Allah Bachayo and Haji. Thereafter, statements of prosecution witnesses as well as defence witnesses were recorded under Section 164 Cr.P.C before the Judicial Magistrate on 29.11.2000. The prima facie allegations were against the accused Gamoon, hence he was challaned while other three accused were kept in Column No.2 of the challan sheet due to lack of evidence against them during investigation. He had produced the report of Chemical Examiner as Ex.23. In the cross examination, the I.O admitted that it is correct to suggest that as per his investigation accused Basar, Natho and Khameso were innocent. he further admitted that the prosecution witnesses as well as defence witnesses in their 164 Cr.P.C statements had not implicated the accused Basar, Natho and Khameso. In the cross examination conducted by the advocate of pauper accused Gamoon and Khameso, the witness stated that the recovery of hatchet was effected from accused Gamoon and the village was consisting upon five or six houses. The accused had produced the hatchet from the bushes which were adjacent to his house. Both recovery mashirs Ali Bux and Soomar were already in the above village. Complainant was also available in the house when he recovered the hatchet from accused. There was no any other person available at the time of recovery of hatchet excepting aforesaid mashirs.

10. The PW-5, Ali Nawaz Tapedar (Ex.24) deposed that on 30.7.2004, he had prepared the sketch of the vardat. The place of incident of this case is Deh Kamaro and it is adjacent to the village of Memons. He produced the sketch as Ex.25. The witness stated in the cross examination that all the points drawn by him in the sketch does not mention the location of houses of the complainant and P.Ws Ramzan and Bilawal. He admitted that that the house of complainant and P.W Ramzan and Bilawal are far away from the place of incident.

11. The PW-6 Muhammad Ayoub (Ex.26) deposed that on 4.11.2000, he was posted as ASI/Duty officer at P.S Badin. The complainant came to PS and the witness had lodged the FIR verbatim. He noted the injuries and prepared mashirnama in presence of mashir Ali Bux and Soomaro and obtained their signatures on the mashirnama. He proceeded to the place of incident and prepared mashirnama in presence of mashirs. He had also recorded the statements of P.Ws Ramzan and Bilawal under Section 161 Cr.P.C. In the cross examination, he admitted that the complainant has not stated in the F.I.R. who caused lathi or hatchet injuries to the injured Lakhadino. He further testified that the place of incident is at the distance of 4/5 acres away from the house of complainant. He admitted that that there was no blood at the place of incident.

12. On 5.1.2006, the D.A, further give up the prosecution witness namely P.C Wahid Bux. The P.W-7, Dr. Muhammad Aslam (Ex.29), deposed that on 4.11.2000, he was posted as Medical Officer, Civil Hospital Badin. He examined the injured Lakhadino and found the following injuries on his person:-

1. A vertical lacerated wound on the left side of head at the anterio frontal region measuring 5.5 C.M x 1 CM x bone expose.

2. Vertical bruise with swelling on the right side of back of chest at the angle of left scapula measuring 11.5 CM x 2.5 C.M

3. Vertical bruise with swelling on the right shoulder region measuring 12 CM x 2 CM.

4. Transverse bruise with slight swelling on the upper portion of left buttock measuring 4 CM x 1 CM.

5. Oblique bruise with slight swelling 6 CM x 2 C.M on the lateral side of left buttock.

6. Oblique bruise with diffuse swelling on the left buttock medial to injury No.5 measuring 6 CM x 2 CM.

7. Abrasion measuring 2.5 CM x 1 CM on the posterior side of right sacroiliac junction.

8. Abrasion 1 CM x 1 CM proximal to injury No.7.

9. Transverse bruise measuring 12.5 CM x 2 CM on the right buttock.

He found a lacerated injury at the frontal region on left side beneath that some blood found, corresponding to injury No.1. According to him, after separating the scalp flap fracture of left frontal and parietal bones were seen beneath the injury corresponding to injury No.1. There was also laceration on brain with hemorrhage limited to small area was seen on the left side on localized area just beneath the injury corresponding to injury No.1, while other remaining organs were found healthy except right acromion bone which was fractured at its tip corresponding to injury No.3. In his opinion, the deceased died due to intracranial hemorrhage and shock due to Injury No.1 which was individually sufficient to cause death in ordinary course of life. As regards the kind of weapon, he deposed that it was hard and blunt substance.

13. The statement of appellants was recorded under Section 342 Cr.P.C. Appellant Gamoon in his statement stated that the case is false and managed by complainant party due to enmity but he did not examine himself on oath nor led any evidence in his defence. Appellant Khameso also did not examine himself on oath nor led any evidence in defence. Appellant Natho examined himself on oath and he also stated to lead evidence in his defence and suggested names of witnesses and the appellant Basar did not examine himself on oath but he had also suggested the name of witness to lead evidence. The appellant Natho in his statement on oath stated that on the day of incident he was available in his house. Co-accused Basar and Khameso were not with him at that time. He further stated that during investigation, he, Basar, and Khameso were let off by the police. In the cross examination he denied the suggestion that he along with co-accused Khameso and Basar caused blows with lathi and committed the murder of deceased Lakhadino. He further denied the suggestion that in connivance of the I.O of the case statement under section 164 Cr.P.C. was managed and on that basis Natho and two other accused were let off by the police.

14. On 8^th April 2011, both the learned counsel appearing for the appellants argued that this appeal is pending since 2006 and according to the Jail Roll submitted in this court on 6^th April 2011, all the appellants have already served substantive portion of their sentence of 10 years, 4 months and 23 days and also earned remission for 6 years, 4 months and 27 days and after including the remission earned, the un-expired portion of sentence is 8 years, 8 months and 10 days with fine. Due to long pendency of appeal since 2006 and somewhat a frustration, both the learned counsel urged that the appellants may be released on the basis of sentence already undergone and sought time to address the court on this point.

15. According to Rule 140 of Pakistan Prison Rules 1978, it is clear that imprisonment for life means twenty five years rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment. For the convenience, Rule 140 of Pakistan Prison Rules 1978 is reproduced as under:-

“Rule 140---(i) Imprisonment for life will mean twenty-five years’ rigorous imprisonment and every lifer prisoner shall undergo a minimum of fifteen years substantive imprisonment.

(ii) The case of all prisoners sentenced to imprisonment for life shall be referred to Government, through the Inspector General, after they have served fifteen years substantive imprisonment for consideration with reference to section 401 of the Code of Criminal Procedure.

(iii) The cases of all prisoners sentenced to cumulative periods of imprisonment aggregating twenty-five years or more shall be submitted to Government, through the Inspector General, when they have served fifteen years substantive sentence for orders of the Government.

16. Since, the portion of substantive sentence served by the appellants was less than fifteen years, therefore, keeping in view Rule 140 of Pakistan Prison Rules 1978, I was not inclined to order the release of the appellants on the sentence already undergone and re-fixed the matter for hearing and called upon the learned advocates to argue the case on merits.

17. The learned counsel for the appellant argued that there are glaring contradictions and discrepancies in the evidence of the testimony of prosecution witnesses which shows that the prosecution has failed to prove the guilt of the appellants beyond any reasonable doubt. They further argued that the eye witnesses are interested and relative to the deceased, therefore, their testimony is not inspiring confidence. It was further averred that except the appellant Gamoon, all other appellants were let off by the police and their names were placed in Column No.2 of the challan but learned Trial Court declined to accept the recommendation and tried the case against them also. It was further averred that it is a matter of record that no material evidence has come on record to connect the appellants. Finally the learned counsel for the appellants argued that all the appellants deserve acquittal as prosecution has failed to prove their guilt by trustworthy testimony. In support of their contention, the learned counsel for the appellants relied upon the following case law:-

1. 1997 SCMR 1076, (Umar Hayat v. State). In this case. It was held that eye witness being admittedly related inter se and with the deceased, their evidence needed corroboration which was lacking. Motive for the occurrence was not proved. Torch on the basis of which the accused were identified was not produced before the police. Sotas being not blood stained their recovery was of no consequences.

2. 1987 P.Cr.L.J 1364, (Amir Bux vs. State). It was held in this case that complainant stating in the FIR about his having seen the accused inflicting injuries to deceased but at the trial stating to have seen accused standing at spot armed with pistol and hatchet and deceased lying dead with many injuries on his person.

3. PLD 1982 Karachi 975, (Abdul Hakeem vs. State). In this case, it was held that eye witness interested in inimical towards accused. Testimony of such witness suffering from inherent weaknesses and improbabilities and remaining uncorroborated. Presence of eye witness at spot of occurrence doubtful.

4. 2008 SCMR 95 (Liaquat Ali vs. State). In this case, it was held that the prosecution witness who was first cousin and brother in law of deceased claimed to have seen the occurrence from a distance of 30 feet. Two other witnesses were also attracted to the spot but none had rescued deceased and accused had free hand to inflict as many as nine injuries on the persons of deceased. Accused was allegedly a single assailant and if said witnesses were there at the spot they could have easily overpowered the accused.

5. 1991 P.Cr.L.J 761 (Muhammad vs. State). In this matter, it was held that recovery of lathis could not be used as corroboration of ocular evidence as the same were not blood stained. Ocular evidence was interested, inimical, contradictory and unreliable and the same was not corroborated by any other source.

6. PLD 2001 SC 378, (Muhammad Yaqoob vs. State). The honorable Supreme Court dilated upon the provisions as contained in section 34 PPC and held that it is neither punitive section nor does enact a rule of evidence but mainly relates to the concept of joint liability, it simply means that if two or more persons intentionally commit an offence jointly which amounts to as if each of them had committed it individually and they will have to share the consequences jointly subject to the condition that at the time of commission of offence each of them remained present (a mere presence at the spot would not be ipso factor sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of intention) and the offence was committed with common intention which presupposes prior concert. It must be proved that the offence was committed in concert pursuant to the prearranged plan. It was held a few decades earlier by this Court which still holds the fields that “it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.

7. 1993 SCMR 2236 (Anil Phukan v. State of Assam). In this case the supreme court of India has held that where the alleged single eye-witness being a close relative of deceased was an interested witness and though alleged to be present at place of occurrence but did not attempt to save deceased and also his statement about time of occurrence was contradictory to medical evidence, the testimony of said eye-witness could not be relied upon for conviction of accused. Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant of his relative and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and, therefore, it would not be safe to accept his evidence without some independent corroboration, direct or circumstantial.

8. 1998 SCMR 279 (Muhammad Ashraf & 2 others v. The State). In this case the hon’ble Supreme Court has held that Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. Medical evidence can hardly serve as a piece of corroboration to the interested ocular testimony where involvement of accused in the case is itself in doubt on account of ocular testimony having been furnished by witness inimical to him.

9. 1993 SCMR 417 (Ashiq Hussain v. The State). In this case the hon’ble Supreme Court has held that ocular version was not consistent with medical evidence. Eyewitnesses were not reliable and their presence at the spot was doubtful. Recovery of gun from accused after 13 days of his arrest and matching of pieces of butt recovered from the spot with the said gun was highly doubtful. Evidence of motive was not satisfactory. Defence plea, even if not proved, was sufficient to cast doubt on the credibility of the prosecution case which was even otherwise was also doubtful. Accused was acquitted on benefit of doubt in circumstances.

18. The learned DPP argued that the testimony of eye witnesses is inspiring confidence and there evidence is also in line with the medical evidence. The doctor who conducted the post mortem has deposed the nature of injuries and he further deposed that the death had occurred due to hemorrhage and shock due to injury No.1 individually and collectively all and injury No.1 was sufficient to cause death in ordinary course of life. However, he argued that the ocular evidence of lathi blows is not supported by medical evidence and the appellant Khameso, Natho and Basar were let off by the I.O and their names were placed in Column No.2 of the challan. The I.O recorded statements of P.W Sharif, Abdullah and Younis during investigation and also recorded the statement of defence witnesses Allah Bachayo and Haji and on the basis of their statements the names of appellant Khameso Natho and Basar were kept in Column No.2 and he is of the view that even in the evidence no trustworthy testimony has brought on record which may show that the death of deceased was occurred due to lathi blows therefore, he has no objection if except the appeal of Gamoon, the appeal of other three appellants Khameso, Natho and Basar is accepted and they are acquitted.

19. After hearing the pros and cons, I am of the view that the evidence of interested witness is not fatal unless the evidence of interested witnesses who are the relatives of the deceased is not inspiring confidence. If the ocular evidence is found trustworthy and inspiring confidence, the same cannot be discarded merely for the reason that the witnesses are interested or related interse. It is settled law that mere relationship of a witness would not mean that the witness was interested and his testimony was not liable to be believed when the same is found reliable, trustworthy and confidence inspiring on the material points. Reference can be made to 2002 SCMR 1586. In another judgment reported in PLJ 1997 SC 1144, the honourable Supreme Court held that mere fact of relationship does not necessarily render a witness’ account of occurrence subject to doubt. Interested witness means a witness who had a motive for falsely implicating an accused person. In another judgment reported in 2006 SCMR 456, it was held that the ocular straight forward and consistent testimony furnished by the complainant was found to be trustworthy. The statement of witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without corroboration but if these elements are missing then statement of a pious man may be rejected without second thought. Reference can be made to 1995 SCMR 1627. It is also a well settled principle that all piece of evidence should be so linked that it should give picture of complete chain, one corner of which should touch neck of deceased and other corner to neck of accused. Failure of one link destroys entire chain.

20. The evidence adduced in this case leads to the conclusion that the complainant in his testimony deposed that the accused Gamoon had caused sharp side hatchet blow to deceased on his head and remaining co-accused had caused lathi injuries on his body. The next eye witness Ramzan has also stated that Gamoon was causing hatchet injury with sharp side to deceased and all three accused were causing lathi injuries to the deceased, There are only two eye witnesses appeared in Court one is the complainant and another is Ramzan. The complainant stated in his testimony that he rushed towards the place of incident along with his mother Mst. Rani and saw the accused persons causing hatchet blows and lathi injuries on the deceased. The complainant has also stated that accused Gamoon had caused sharp side hatchet blow to the deceased on his head while remaining accused caused lathi injuries on his body. He further stated that his mother Rani Ramzan and Bilawal had also seen the incident. It is worthwhile to note that according to ocular account four persons reached at the place of incident including the mother but the three male persons i.e the complainant, Ramzan and Bilawal did not try to overpower the assailants and no efforts were made by them to save the victim and in their presence, the assailants injured the victim and went away safely without any resistance which looks very unnatural, especially in the circumstances when, the assailants were simply equipped with one hatchet and lathies. In the similar circumstances, the honorable supreme court in the murder case, reported in 2009 SCMR 237, held that according to prosecution case at the relevant time three prosecution witnesses were present but they did not try to save their father. According to the judgment supra, the honouranble supreme court held that it does not sound to be natural that real sons would allow the assailants to kill their father in their presence as silent spectators, so their presence at the scene of occurrence at the relevant time was doubtful.

21. It is also strange to note that except these four persons, no other independent witness heard the cries and came out from his house while between the place of incident and the house of complainant many other houses were situated but no one heard the cries of the victim except the complaint whose house was faraway from the place of incident. The complainant in his evidence had shown the motive that the incident took place because of dispute over agricultural land between him and accused because the complainant had purchased the agricultural land from Dr. Abdul Aziz which annoyed the accused persons. In order to prove the motive nothing had been produced by the prosecution side including any independent witness to show that there was any dispute between the complainant, deceased and the accused persons due to purchase of agricultural land by the complainant. It is also an important aspect to note that two other witnesses Mst. Rani, the mother of complainant and the deceased and another eye witness Bilawal were never produced in Court for evidence. It is also an admitted fact that P.W Ramzan is the cousin of the complainant and P.W Bilawal is the Masat as well as P.W Ali Bux. It is also an admitted fact in the cross examination of the complainant that there were 20 houses in the village Haji Khan but none had come from the village except the P.Ws. The next eye witness Ramzan stated that on the day of incident he was available in his house where he heard the cries of the deceased Lakhadino and he rushed towards the place of incident and the complainant was already present there and P.W Ramzan saw that Gamoon armed with hatchet, Basar, Khameso, Natho were armed with lathis and then P.W Ramzan saw that accused Gamoon was causing hatchet injury with the sharp side to deceased and all three accused were causing lathi injuries to the deceased. The P.W Ramzan further stated that Bilawal had also seen the incident. In his cross examination P.W Ramzan said that deceased was his brother in law. In his examination in chief he stated that after hearing the cries he rushed to the place of incident where complainant was already available but in his cross examination he stated that he followed the complainant to the place of vardat when he heard the cries. He further stated that Gamoon had caused hatchet blows to the deceased with sharp side of the hatchet on his head. He further admitted that there was no blood available on the place of wardat when the police inspected the place of wardat. He further admitted in his cross examination that none had seen the incident except the prosecution witnesses while in his cross examination he further admitted that there are about 10 houses in the village Haji Chang where the incident took place. The P.W Ramzan further admitted in his cross examination that he does not know that there is any dispute over agricultural land purchased by the complainant from Dr. Abdul Aziz Memon on which the accused persons were annoyed. He was shown his statement recorded under section 161 Cr.P.C. to which he admitted that he stated in his 161 Cr.P.C. statement that about two years back his brother in law had purchased 02 acres land from Dr. Abdul Aziz Memon, therefore, Gamoon and others were not on good terms. The honorable supreme court in its judgment reported in 2010 SCMR 97, held that when motive is alleged but not proved, then ocular evidence is required to be scrutinized with great caution. Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence. It was further held in 2009 SCMR 916 that motive cuts both ways. If enmity persuades a person to commit a crime, then it is also sufficient to falsely implicate some person from the other side.

22. The next P.W Ali Bux mashir of the case admitted in his cross examination that complainant is his maternal nephew and the deceased was also his maternal nephew. The distance between his house and the place of wardat is about 01 furlong. He further admitted that the co-mashir Soomar is also his maternal nephew. In his cross examination, he stated that there are about 20 houses in village Haji Khan Chang and three or four Kiryana shops at the Mori from where the accused persons were arrested. He further admitted that except himself and accused persons they were also four or five persons available at the time when police arrived at the Mori and arrested the accused persons. The co-mashir Soomar was called by the police through some boys standing at the Mori. The statement of this P.W shows that there were other independent witnesses available at the site but the police made the mashir and co-mashir which were closely related to the complainant. The witness further admitted in his cross examination that police secured hatchet from accused Gamoon at the time of his arrest from the shop where hatchet was lying inside. No other person arrived at the time when the police remained at Mori for one hour while I.O in his cross examination deposed that the recovery of hatchet was affected from accused Gamoon who produced the hatchet from the bushes which were adjacent to his house. Both the recovery mashirs namely Ali Bux and Soomar were already in the above village and the complainant was also available in the house when he recovered the hatchet from accused. This is a glaring contradiction and discrepancy between the testimony of I.O and mashir Ali Bux who stated that hatchet was recovered from the shop while I.O deposed that it was recovered from the bushes adjacent to the house of Gamoon. I.O further stated that at the time of recovery no person was available excepting aforesaid mashirs, while Ali Bux in his deposition stated that except himself and the accused persons, there were also four or five persons available at the time when the police arrived at Mori.

23. The I.O of the case stated that he recorded the statement of P.W Sharif and Abdullah, Uris and he had also recorded the statement of defence witnesses Allah Bachayo and Haji, thereafter the statement of prosecution witnesses as well as defence witnesses were recorded under section 164 before the Judicial Magistrate, whereafter, only Gamoon was challaned and other co-accused were kept in Column No.2 of the challan due to lack of evidence against them during investigation. In his cross examination he admitted that the prosecution witnesses as well as defence witnesses in their 164 Cr.P.C. statement had not implicated accused Basar, Natho and Khameso. The P.W Ali Nawaz who prepared the sketch on 30.7.2004 admitted the suggestion that all the points drawn by him in the sketch does not mention the location of the houses of complainant and P.W Ramzan and Bilawal. He further admitted that the house of the complainant, P.W Ramzan and Bilawal were far away from the place of incident. The P.W Muhammad Ayoub who lodged the FIR admitted in his cross examination that the complainant had not stated in the FIR who caused lathi or hatchet injuries to Lakhadino. He further deposed that the place of incident is at the distance of 4/5 acres away from the house of complainant. He admitted the suggestion that there was no blood at the place of incident. According to this witness the place of incident was 4/5 acres away from the house of complainant which makes the statement of complainant doubtful that he heard the cries of his brother from the place of incident. P.W, Dr. Aslam who conducted the post mortem stated that the deceased sustained nine injuries and the kind of weapon was hard and blunt substance while in the ocular testimony of both the eye witnesses they have clearly stated that appellant Gamoon caused injuries to the deceased from sharp side hatchet blow on the head of the deceased. Even in the cross examination the complainant denied the suggestion that deceased had received no sharp side hatchet injury on head but the deposition of doctors speaks contrary. The ocular version was not consistent with medical evidence. The trial court has ignored this material aspect while passing the impugned judgment. The offence was committed on 4.11.2000 but according to the report of chemical examiner, the clothes of the deceased along with hatchet were sent for examination on 5.12.2000 and report was compiled on 31.1.2001 after considerable delay. Specific charge regarding the motive and sharp side hatchet injury was framed but neither the motive was proved nor sharp side hatchet injury was sustained by the deceased as per postmortem report. The learned trial court in the impugned judgment fully concurred the view of defence counsel that recovery can not be used being a weak type of evidence. The learned trial court further observed that the recovery was made on the date of arrest according to mashir but the mashirnama shows that recovery was made on 26.1.2000 after 13 days of the arrest of accused. The trial court itself held that this piece of evidence can not be relied upon. No logical finding were given by the trial court on the important aspect of the case whether the prosecution succeeded or failed to prove the motive.

24. The testimony of eyewitnesses is not reliable and their presence at the spot is doubtful. The honorable supreme court in its judgment reported in 2010 SCMR 1592 has held that onus rests upon the prosecution to prove the case beyond a reasonable doubt and it never shifts upon the accused, except in the cases falling under Art. 121 of the Qanun-e-Shahadat, 1984, and during the entire proceedings the accused is presumed to be innocent. Both the expressions viz. "proof beyond a reasonable doubt" and "presumption of innocence" are to be read together as a unit. Prosecution cannot take benefit of the weaknesses of the defence, as it is duty bound to prove its case on the evidence produced before the court beyond a reasonable doubt. When from the evidence two interpretations are possible, one favoring the prosecution and the other favoring the accused then the interpretation or theory favorable to the accused is to be accepted. In another judgment reported in 2008 SCMR 1221, it was held that for the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. It was also laid down in the judgment reported in 2008 SCMR 1086 that accused is the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. So far as the sentence is concerned, the honorable Supreme Court held in 2007 SCMR 525 that question of sentence demands utmost care on the part of court dealing with life and liberties of people. Accused persons are also entitled to extenuating benefit of doubt on the question of sentence.

25. In view of the above discussion, the prosecution case as to the veracity and credibility of the eye witnesses is full of doubts, the benefit of which must go to the appellants. Consequently, the appeal is allowed, the impugned judgment is set aside and the appellants are acquitted of the charge against them. They shall be set free immediately, if not required in any other case.

Hyderabad

Dated.19.7.2011 Judge