MOULA BUX Versus STATE
1. Present appellant has called in question the impugned judgment, dated 8-9-1998 passed by the Additional Sessions Judge Ratodero in Sessions Case No.54 of 1993 whereby the appellant has been convicted and sentenced to suffer life imprisonment whereas co-accused Ghulam Qadir and Jhangal alias Ali Gohar have been acquitted on the same set of evidence. Benefit of section 382-B, Cr.P.C. has been accorded to the present appellant. Hence this appeal.
2. Brief facts of the case are that on 28-11-1992 the complainant lodged report with Ratodero Police that complainant and P.Ws. Iqbal and Shaman were standing at the shop of Bashir Bhutto, talking with each other. Meanwhile they saw brother of complainant Ali Khan, returning from his land to his house and when he reached in the common street nearby the complainant and witnesses, accused Moula Bux, Ghulam Qadir, Jhangal alias Ali Gul and Haji Parial appeared there, accused Moula Bux and Ghulam Qadir were armed with guns and remaining two were armed with hatchets, they all, the four challenged Ali Khan that he would be finished and killed today and saying so accused Moula Bux fired at him which hit him and he fell down raising cry, the complainant end witnesses challenged the accused not to kill the man, but the accused also challenged the complainant party not to go near them else they would also be done to death. Thereafter accused Ghulam Qadir fired in the air with his gun, and after that all the four accused went away to the east with their respective weapons. On above firing and cries many persons came and saw Ali Khan lying dead with gunshot injury on his chest. The motive of the incident mentioned is that about three years back, the wife of Moula Bux was suspected with Dilshad Chano, the relative of complainant; Moula Bux had also taken such compensation from Dilshad. About 4/5 days prior to this incident Moula Bux had warned Ali Khan that he should not allow Dilshad to reside in their common enclosure and Ali Khan should get Dilshad shifted from there, but Ali Khan had refused to' do so, however, Ali Khan had complained about Moula Bux to his Nekmard Kamil Khan, who had consoled Ali Khan that he would admonish Moula Bux, hence the above offence.
3. Formal charge was framed against appellant/accused on 18th January, 1996 as Exh.6, in which accused pleaded "not guilty" and such pleas were recorded as Exhs.7 to 9, in which they claimed for trial and in order to prove the case prosecution examined Medical Officer Dr. Imdad Ali as Exh.10 who produced post-mortem report of deceased as Exh.11; Complainant Jan Muhammad was examined as Exh.12 who produced copy of F.I.R as Exh.13, P.W Muhammad Iqbal examined as Exh.14 who also produced 164, Cr.P.C statement as Exh.15; P. W. Shaman as Exh.16 who produced his 164, Cr.P.C statement as Exh.17; Mashir Muhammad Parial examined as Exh.18 who produced Mashirnama of place of Vardat as Exh.19, inquest report of deceased Ali Khan as Exh.20, Mashirnama of.arrest and recovery of hatchet from accused Jhangal alias Ali Gul as Exh.21, Mashirnama of arrest and recovery of gun from accused Moula Bux as Exh.22, S.H.O Allah Warayo examined as Exh.23; Investigating Officer Ghulam Abbas examined as Exh.24 who produced further statement of complainant as Exh.25 P.C Sardar Ali, Corpse bearer was given vide Exh.26 and the learned D.D.A closed the side of the prosecution vide statement Exh.27.
4. The statement of accused under section 342, Cr.P.C was recorded in the trial Court, wherein the accused pleaded innocence and they further stated that the gun and hatchet have been foisted upon them and that they have been implicated due to enmity with one Mahkumuddin.
5. The learned trial Court formulated the points for determination as under:-
6. "(1) Whether deceased Ali Khan died unnatural death?"
7. "(2) Whether prosecution proved the case against accused?"
8. "(3) What offence if any?"
9. Having gone through the material available on record and the evidence adduced by the prosecution the learned trial Court passed the judgment in terms as stated above.
10. I have considered the arguments rendered by learned counsel for the parties and have gone through the evidence adduced by the prosecution through their assistance.
11. The ocular evidence is being furnished by the prosecution by complainant Ali Khan, P.W. Iqbal and P.W. Shaman who are closely related to deceased, Ali Khan. Prosecution is also relying on another piece of recovery viz. gun from appellant Moula Bux on 28-12-1992 alongwith live cartridges. The prosecution is also relying on motive. I have examined very carefully the ocular evidence furnished by complainant Ali Jan, P.W. Iqbal and P.W. Shaman. Admittedly the place of occurrence is thickly populated area and no other independent witness has been associated by the police although it is a claim of the prosecution that so many people were attracted when incident took place and yet Investigating Officer has not examined any witness from the locality knowingly that it is a murder case where capital punishment is in store for accused. I have also examined the ocular evidence of P.W. Iqbal who has not supported the case of prosecution although it is a claim of the prosecution that P.W. lqbal was also available alongwith complainant Ali Jan and P.W. Shaman and yet he has not supported the contentions of the complainant. Since one of the eye-witnesses has not supported the version of the prosecution too, inference can be drawn either the complainant Ali Jan and P. W. Shaman are not submitting the clear episode of the incident before the trial Court and are suppressing the material facts of the case and/or P.W. Iqbal who has not supported the prosecution case is speaking lie before the trial Court. The evidence of the witness who claims to have seen the incident is to be weighed in the scale of justice as it is being deposed by him. The basic requirement before the trial Court is to see whether the witness is honest or dishonest and it is not the requirement before the trial Court to see whether the witness is interested, disinterested or hostile. In the present case one of the witnesses P.W. Iqbal by not supporting the prosecution's case has cut the root of the prosecution's case and the presence of the complainant Ali Jan and P.W. Shaman becomes doubtful at the place of occurrence and it can be assessed from the trend of the examination P.W. Iqbal that the P.W. Shaman and complainant Ali Jan are not speaking the truth before the trial Court or P.W. Iqbal has not given the clear picture of the episode. Be that as it may, the adverse inference can be drawn against the prosecution and in that event the benefit of doubt goes to the accused. Reliance can be placed on 1979 SCMR 214 and 215 wherein the Honorable Supreme Court has held that the, fundamental requirement before the trial Court is to see whether the witness is honest or dishonest and not to see whether the witness is interested or disinterested or hostile. In the instant case, the witnesses arc not speaking the truth before the trial Court and thus no reliance can be placed on their evidence and their evidence is not inspiring confidence. The evidence of complainant who is the eye-witness has stated before the trial Court that deceased sustained fire-arm injuries on the left side of his chest whereas his further statement has been recorded by police under section 161, Cr.P.C after the post mortem of the deceased wherein he has improved and has given summersault by saying that the injury sustained by deceased Ali Khan is on the right side of his chest and thus the prosecution has presented the case of the complainant with improvement and in that event the ocular testimony being furnished by complainant is to be viewed with suspicion and such evidence cannot be relied upon.
12. As far as the recovery is concerned, admittedly the present appellant has been arrested on 14-12-1992 and he has produced gun alongwith one live cartridge and four empty cartridges from the heap of paddy crop which is not in exclusive possession of the present appellant and recovery has been effected from his possession on 28-12-1992 and there is delay of 14 days which is not being explained by the prosecution and thereafter Mashir of recovery Muhammad Paryal has not stated before the trial Court that the same gun recovered from the appellant was sealed at the spot. It has been noted by me with deep concern that the gun, one live cartridge and four empty cartridges have not been sent to the Ballistic Expert and such report is not available with the prosecution. Moreover, the empties have not been recovered from the place of occurrence and this has not been rebutted by Mr. Muhammad Ismail Bhutto, Advocate for the State and thus piece of recovery against the present appellant is to be viewed with suspicion and in that event the benefit of doubt goes to the appellant.
13. As far as the motive is concerned, it has been held by the superior Courts that it is a double edged weapon which cuts both the ways. I have also taken into consideration the statements of two witnesses namely and respectively P.W. Iqbal and P.W. Shaman under section 164, Cr.P.C and the same have not been recorded in accordance with the mandatory provisions of section 265(J), Cr.P.C and such statements under section 164, Cr.P.C are exposed to criticism when no compliance has been made by sending notice to the accused before recording the statements of the witnesses under section 164, Cr.P.C. It has been admitted by Investigating Officer that no such notice was given to the accused before recording statements of the witnesses under section 164, Cr.P.C. In that event I am being fortified by a case reported in PLD 1982 Karachi 975 wherein Division Bench of this Court comprising Mr. Justice Abdul Hayee Qureshi and Mr. Justice Ajmal Mian have held that there is non-compliance of the mandatory provisions of section 265(J), Cr.P.C. the statements of the witnesses under section 164, Cr.P.C. are exposed to criticism and cannot be relied upon. I have also taken into consideration the impugned judgment with jade and critical eye that the judgment is contained on seven (7) pages and the learned Judge has not taken into consideration the entire evidence of the prosecution witnesses and the judgment appears to have been passed in slipshod manner by the learned Judge and has not been written in accordance with the strict mandatory provisions of section 367, Cr.P.C and inference can be drawn that the evidence of the prosecution has not been evaluated by the learned Presiding Officer in the scale of justice and in that event the benefit of doubt goes to the appellant.
14. On the other hand, Mr. Muhammad Ismail Bhutto, Advocate for Addl. A.-G. for the State has not supported the impugned judgment on the ground that the recovery is not being proved which is belated one and there is improvement on the part of complainant over the question of ocular evidence and medical evidence and there is inconsistency in between the medical evidence and the ocular evidence. He has further conceded that one of the eye-witnesses P. W. Iqbal has `not supported the case of prosecution. He has further conceded that Mashir of recovery namely Muhammad Paryal has not said anywhere that the said gun and one live cartridge and four empty cartridges were sent to Ballistic Expert and there is no such report available with him nor with the file. He has further conceded that the judgment has not been written in accordance with the strict mandatory provisions of section 367, Cr.P.C. As far as motive is concerned he has conceded that it is a double edged weapon which cuts both the ways and has stated that it is a case of doubt and when doubt creates in the prudent mind of a person, the benefit of doubt is to be given to the accused not as a matter of grace but as a matter of right and he has placed reliance on 1995 SCMR 1345.
15. After taking into consideration the entire evidence, the impugned judgment and the arguments rendered by learned counsel for the parties, I see there is benefit of doubt against the present appellant and the another peculiar thing has been noted by me that the co-accused who are said to have taken specific and active role during the commission of the offence have been acquitted by the trial Court on the same set of evidence.
16. Upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant and accordingly I give him benefit of doubt. Conviction and sentence are set aside. In result the appeal is allowed. The appellant shall be released forthwith if not required in any other crime.
17. H.B.T./M-213/K Appeal allowed.