JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Cr.Appeal.No.S- 21 of 2008
Cr.Jail. Appeal. No.S- 74 of 2008
Date of hearing: 02.12.2014.
Date of judgment: 02.01.2015.
Appellants: Sada Bux s/o Mohammad and Mukhtiar s/o Mohammad Hassan through Miss Nasira Shaikh, Advocate.
Respondent: The State through Syed Meeral Shah, D.P.G.
Complainant: Meenhal through Mr. Raja Hansraj Naurang, Advocate.
J U D G M E N T
SALAHUDDIN PANHWAR, J:- Through instant appeal(s), arising from same judgment, appellants Sada Bux and Mukhtiar have challenged the judgment dated 18.03.2008, whereby present appellants were convicted and sentenced to undergo R.I for life and to pay fine of Rs.100,000/- each. In default of payment of fine, they shall undergo R.I. for one year. The fine, if recovered, be paid to the legal heirs of deceased Ghulam Hussain as compensation. However, by the same judgment co-accused Akber Ali, Muhammad Hassan, Qambar Ali, Mumtaz and Munawar Ali were acquitted by the trial Court.
2. Relevant facts of the prosecution case are that on 21.07.1998 at 5-30 P.M, complainant Meenhal appeared at P.S. Samaro and lodged his report, stating therein that today he, his two sons Hasil and Ghulam Hussain, Laung and Anwar came at Saleh Bhambhro town when at about 3-30 P.M, they reached infront of the shop of Hiro Oad where accused persons namely Akbar Ali armed with hatchet, Muhammad with lathi, Kamber with hatchet, Munawar, Mumtaz and Muhammad Hassan with lathis got up from shop of Akbar and abused complainant party by saying that today they have given chance and thus they will not spare them. Akbar inflicted hatchet injury to P.W. Hasil, accused Kamber inflicted hatchet injury to PW Anwar on head, accused Munawar gave lathi blow to PW Laung, accused Mumtaz Ali gave lathi blow to complainant Meenhal, accused Muhammad Hassan gave lathi blows to PW Hasil. In the incident accused party had also received injuries. Thereafter, at about 3-45 P.M time deceased Ghulam Hussain (son of complainant) passed infront of the shop of Hiro Oad, at that time accused Sada Bux armed with S.B. gun, accused Sikandar armed with revolver and accused Mukhtiar armed with gun came there from railway station and challenged Ghulam Hussain that today they will not spare him; they directly fired from their respective weapons upon Ghulam Hussain which hit him on his knee and on groin area. Ghulam Hussain due to injuries fell down and died on the spot; thereafter accused ran away. Complainant took injured and dead body to RHC Samaro and then appeared at P.S. Samaro and lodged the report. Motive of the incident was that accused party had moved false applications against the complainant party one month prior to incident for which both parties had settled their dispute on Holy Quran.
3. After usual investigation, challan was submitted and accused were sent up to face the trial.
4. Charge was framed at Ex.2 to which accused did not plead guilty and claimed to be tried vide pleas at Ex.3 to 10.
5. In order to prove its case, the prosecution examined complainant Meenhal at Ex.17, he produced FIR at Ex.17/A; PW Muhammad Hasil at Ex.18; PW Anwar at Ex.19; PW Wali Muhammad and Abdul Ghafoor were given by learned D.D.P.P vide statement at Ex.21 and 23; PW Dr. Kanwar Irshad at Ex.24, he produced final medical certificate of injured persons as well as postmortem report of deceased Gul Hassan at Ex.24-A to 24-I; PW PC Muhammad Saleem at Ex.25, he produced mashirnama of arrest of accused Moulvi Muhammad and others at Ex.25-A; PW SIP Wali Muhammad Rajar was given up by learned DDA vide statement at Ex.26; Mashir Muhammad Ismail at Ex.27, he produced mashirnama of clothes of dead body, danishnama, inquest report, mashirnama of injuries, mashirnama of clothes of deceased, copy of letter issued to Mukhtiarkar and photocopy of FIR of Crime No.36/1998 at Ex.29-A to 29-C; PWs Soomar, Razak and Mansoor were given up by learned DDA vide statement at Ex.30; PW SIP Muhammad Manthar Bhayo was examined at Ex.32. Thereafter, learned DDA closed the side of prosecution vide statement at Ex.33.
6. Statements of accused persons u/s 342 Cr.P.C. were recorded at Ex.34 to 41, to which they denied the allegations leveled against them by the prosecution. They did not examine themselves on Oath nor adduce any evidence in their defence.
7. Thereafter, learned trial Court after hearing the learned counsel for respective parties, convicted and sentenced appellants as mentioned above whereas co-accused Akbar Ali, Muhammad Hassan, Kamber Ali, Mumtaz Ali and Munawar Ali were acquitted u/s 265-H (i) Cr.P.C. by giving them benefit of doubt.
8. Learned counsel for appellants inter alia contends that case against the appellants / convicts was full of doubts; on same set of evidence the co-accused persons have been acquitted hence believing same set of evidence for convicting the appellants is not within four corners of Safe Criminal Administration of Justice; medical evidence was not corroborating the ocular account; motive was not worth believing; appellant Mukhtiar Ahmed was acquitted from charge of off shoot case registered under section 13-d Arms Ordinance hence the benefit thereof was also requiring to be extended to the appellants / accused; alleged place of incident was thickly populated place but except interested and related witnesses none was examined. In support of his contentions, he has placed reliance on the case laws, reported as 1995 SCMR 127, 2008 SCMR 95, 2006 SCMR 1707, 1993 SCMR 1602, PLD 2004 SC 663, PLD 2007 Lah. 606, 2005 YLR 1128, 2001 YLR 1392, 1997 P Cr.LJ 1646, 2006 P Cr.L.J 84, 2001 P.Cr.LJ 211, 2013 P Cr.L.J 153, 1994 P Cr.L.J 331, 2013 P Cr.L.J 323, 1998 P Cr.L.J 63, 2009 P Cr.L.J 506, 2009 P Cr.L.J 43, 2001 P Cr.L.J 1682, 1995 MLD 1532, 2005 MLD 888 and 1995 NLR 474.
9. On the other hand, the learned State Counsel, duly assisted by learned counsel for the complainant, argued that prosecution successfully established the charge against the appellants / convicts; the charge against the appellants / convicts was also supported by medical evidence; mere acquittal of co-appellant Mukhtiar from charge of off-shoot case u/s 13-d Arms Ordinance is not of any help for insisting acquittal in main charge case. The judgment is legal and well reasoned hence is not open for any exception.
10. I have carefully gone through the entire evidence and considered the submissions made at the bar.
11. At the very outset, I can safely say that proving of un-natural death is never sufficient to convict an accused unless and until through ocular account the allegation of causing murder is established. The status of the medical evidence in criminal administration of justice is nothing more than that of ‘a corroborative piece of evidence’ which could, at the most, help prosecution to corroborate ocular account to extent of seat of injury, nature of injury and kind of weapon, used in commission of the offence but it cannot connect the accused with commission of offence. Reliance, if any, can well be made to the case law reported as 2009 SCMR 985.
12. Having said so, the scanning of the available record shows that matter was reported as single incident but, in fact, it speaks about two incident (s) which are:
i) On 21.7.98 at 15.30 hours accused persons (all acquitted co-accused) armed with hatchets and lathis caused injuries to PW Hasil, Anwar, Loung and complainant Meenhal;
ii) On same date at 3.45 p.m accused Sada Bux and Mukhtiar (both appellants/convicts), armed with gun, at instigation of accused Sikander fired at deceased Ghulam Hussain which he received on his right knee and neck and succumbed to injuries;
This fact was never disputed and even was acknowledged by the learned trial Court Judge while recording the judgment, impugned which is reproduced as:-
Para-2 of page-11 of trial court judgment
‘Admittedly, thee are two parts of incident. One part of the incident occurred at 03.30 P.M in which the accused persons and complainant party had received the hatchet and lathi injuries. While the complainant party was still at the place of incident, when accused Sada Bux armed with shot gun and Mukhtiar armed with shot gun came at the spot, who directly fired at deceased Ghulam Hussain, with the result he lost his life.’
The incident was, thus, undisputedly one of two parts and the set of the witnesses to prove both the parts thereof was also one and same. In both cases the ocular account, medical evidence and mashirs of recovery(if any) were same. The injuries on person of the injured witnesses of first part of the incident also came through the same medical officer who conducted the post mortem. The evidence in respect of first part of the incident was found not sufficient to hold the conviction against the accused persons of the first part of the incident. It is also a matter of record that the accused persons of the first part of the incident have been acquitted by the learned trial court judge while disbelieving the evidence of the same set of evidence while on the same set of evidence the present appellants have been convicted who were alleged to have caused second part of the incident. In such like eventuality the legal conscious demands extra and undeniable direct corroboration or circumstances which could convict on such set of evidence because the principle, otherwise, is to extend benefit of such position.
13. In above legal position and fact, I would like to examine the evidence brought on record by the prosecution to examine whether there was any other circumstance or direct corroboration against the appellants or otherwise which could also stand well with test of reasoning and logic.
To prove ocular account of both the parts of the incident the prosecution examined the PW-1 complainant Meenhal, PW-2 Muhammad Hasul, PW-3 Anwar and PW-4 Loung. These all witnesses have also claimed to have been injured during first part of the incident as is evident from relevant portions of their examination-in-chief (s) which is referred hereunder:-
PW-1 Meenhal(complainant)
‘…..The accused Akber challenged us saying that we would not be spared. Thereafter, he inflicted sharp sided hatchet injury to my son Hasul, which he received on right arm. Accused Muhammad Hassan inflicted lathi blow to Hasul on his hand. Accused Mumtaz caused me lath blow on my head. Accused Qamber also caused hatchet injury to PW Anwar on his head. Another accused whose name I do not remember at present caused lathi blow on the head of PW Loung’
PW-2 Muhammad Hasul.
‘…..the accused Akber abused me and caused me hatchet injury on my left arm. Accused Qamber inflicted hatchet blow on the head of Anwar.The Munawar @ Mehmood gave lathi blow on the head of Loung. Accused Mumtaz also gave lathi blow to my father Meenhal on his head.
PW-3 Anwar
‘…..Thereafter accused Akber abused and caused hatchet injury to PW Hasil, accused Qamber caused blunt sided hatchet blow on my head, accused Munawar caused lathi blow to PW Loung, accused Mumtaz gave lathi blow to complainant Meenhal, accused Hassan also gave lathi blow to PW Hasil.
PW-4 Loung
‘…..Thereafter Akber instigated the other to attack upon us. Thereafter, accused Akber caused hatchet blow to PW Hasil, Qamber Ali gave hatchet blow to PW Anwar, accused Munawar caused lathi blow on my head, accused Mumtaz caused lathi injury to complainant Meenhal.
The above portion (s) of examination-in-chief (s) of above witnesses leave nothing ambiguous that they claim no participation of the present appellants / convicts in first part of the incident (said to have happened at 3.30 p.m) and they are claiming to have received specific injuries at the hands of accused persons of first part (who all have been acquitted and their acquittal is not challenged).
14. Since, it is now well established principle of law that injuries on person is not sufficient to take the words of such person as ‘truth’ because the injuries, at the most, could be indicative of presence but cannot stamp him as a truthful witness. I am clear in my such view with the case of ‘Amin Ali vs State (2011 SCMR 323), 1981 SCMR 795, case of Mehmood Hayat vs. State (1996 SCMR 1411) and 2007 SCMR 670.
These witnesses although not claimed to be armed with any weapon but admitted that :-
PW-1 Meenhal(complainant) in his cross
‘The accused had also received injuries during the incident’
PW-2 Muhammad Hasul in his cross
‘It is correct to suggest that accused Moulvi Muhammad, Akber and Muhammad Hassan received injuries at our hands.
PW-3 Anwar in his cross
‘It is correct to suggest that during the incident accused had also received injuries’
‘It is correct to suggest that during the incident accused Munawar, Moulvi Muhammad and Muhammad Hassan had received serious injuries’
This prima facie shows that these witnesses had not come with full and complete truth therefore , they had brought their credibility under serious clouds. This was also found by the learned trial court judge while acquitting all the accused persons of the first part of the incident.
15. However, let’s proceed further in search of circumstances and direct corroboration which could justify conviction of the appellants on evidence of set of witnesses who were disbelieved to extent of first part of the incident. Out of these witnesses, the PW injured Loung specifically admitted in his examination and cross examination that:-
‘…We fell down and went unconscious (in his examination-in-chief)
‘As I had lost my conscious, therefore, I did not see whether accused Anwar, Moulvi Muhammad and Muhammad Hassan were also seriously injured during the incident. I had regained my consciousness after about one hour’(in his cross-examination)
In existence of such unambiguous admissions of the PW injured Loung his evidence for second part of the incident was / is of no help for the prosecution to prove second part of the incident which happened after 15 minutes of first incident i.e at 3.45 p.m.
Let’s examine the evidence of other three witnesses of ocular evidence. At this juncture one thing is required to be appreciated which was entirely ignored by the learned trial court judge while awarding conviction to the present appellants that a unharmed man is always in a better position to view and watch in comparison to that who has received injuries on vital part (s), even if with lathi. The injuries on person(s) of these witnesses is described by medical officer as:-
PW / COMPLAINANT MEENHAL
Injuries :-
i) Lacerated wound 3 cm in length I cm in depth and I cm in width on left side of head (fronto-Parietal)
ii) Lacerated wound 3.5 cm in length 1.5 cm in depth and I cm in width on right side of head (fronto-parietal)
PW Muhammad Hasul
Injuries :-
i) lacerated wound 5 cm in length 1.5 cm in depth 1 cm in width on head
ii) Incised wound 3 cm in length 1 cm in width ½ cm in depth on left fore-arm;
PW Anwar
Injuries :-
i) Lacerated wound 5 cm in length 1.5 cm in depth and 1 cm in width on right side of head(parietal region)
All the above injured witnesses had received injuries on their vital part i.e head and the description of the injuries speak themselves of the shock which the injured would have received having received such injuries on their heads. It always be kept in view that first part of their narration was disbelieved by the learned trial court and on its being not challenged attained finality. However, these witnesses despite receiving above injuries describe the second part of the incident which is referred hereunder:-
PW-1 Meenhal(complainant)
‘ ..Thereafter, at about 3.45 P.M , were still present at the shop of Haroo Oad when accused Sikander armed with revolver, Sada Bux armed with gun and Mukhtiar Ali also armed with gun, came there. At that time my son deceased Ghulam Hussain passed through the shop of Haroo Oad, when the above accused intercepted him. Accused Sada Bux fired from his gun at the deceased which he received on his right knee and accused Mukhtiar fired with his gun at the deceased which he received at his abdomen. The deceased after receiving injuries fell down.
PW-2 Muhammad Hasul.
‘…..Thereafter, at about 3.45 p.m my brother Ghulam Hussain was passing through the shop of Haroo Oad when the accused Sikander armed with revolver, accused Sada Bux and Mukhtiar both armed with guns fired at him. The fire made by accused Sikander at deceased Ghulam Hussain missed, while the fire made by accused Sada Bux from his gun hit him on his knee and the fire of accused Mukhtiar hit the abdomen of the deceased. The injured Ghulam Hussain died after struggling for life due to injuries’
PW-3 Anwar
‘…..It was about 3.45 P.M. Accused Sikander instigated the other to kill Ghulam Hussain. Thereupon accused Sikander fired from his revolver at Ghulam Hussain which missed, accused Sada Bux fired at Ghulam fired from his gun which hit right knee of Ghulam Hussain, while the gun shot fired by accused Mukhtiar hit the abdomen of deceased Ghulam Hussain. He fell down and died on the spot due to injuries.
These portions make it clear that these witnesses do not claim to be on any mistake with regard to role (s) assigned to each of the accused persons of the second part of the incident so also with regard to seating of the injuries on person of the deceased though they had received serious injuries on their vital part i.e head hence such narration was never logical and believable one to a prudent mind. These witnesses have categorically claimed fire-shot injuries by appellants as one each.
Besides, it would be pertinent to examine whether such stand of these witnesses find corroboration from other pieces of evidence. Needless to mention here that the ocular account with regard to injuries could best be corroborated with medical evidence. For this, let’s see the post mortem report and medical evidence, so brought on record to corroborate ocular account.
EXTERNAL INJURIES (Per post mortem report)
1. Lacerated oval shaped wound 2.5 cm x 2.5 cm on middle of right thigh on front side (wound of entry)
2. Lacerated oval shaped wound 2.5 cm x 2.5 cm on middle of rt thigh front side 4 cm below injury No.1(wound of entry)
3. Lacerated oval shaped wound 2 cm x 2 cm on left side of penis between penis and left thigh;
4. lacerated oval shaped wound 2 cm x 2 cm on middle of right thigh back side (wound of exit)
5. lacerated oval shaped wound 2 cm x 2 cm on back of right thigh 7 cm below injury no.4 (wound of exit)
6. lacerated oval shaped wound 2 cm x 2 cm on left buttock (wound of exit)
The above portion of the post mortem shows that there were three fire arm injuries and none of them was at the abdomen while the witnesses specifically claim two injuries. Even per mashirnama of sirzamin (Ex.27/F) only two empties of cartridges were secured. This also brings clouds of doubt about this aspect of the incident.
16. Further, the complainant narrates facts after second part of incident till lodgment of the FIR as:-
‘..Being scared of weapons, we could not go near the deceased. However, when the accused left the place of occurrence we went near the deceased and then arranged a vehicle put him there for taking him to hospital, but on the way he succumbed to the injuries. I left the dead body at RHC Samaro, alongwith the injured witnesses Loung and others had also come to the hospital. Leaving the injured witnesses and other village people at hospital I went to P.S Samaro and lodged report’
This prima facie shows that at time of arrival of the injured and dead body at the hospital there was no F.I.R which, per FIR itself recorded at 1730 hours, but the medical examination of all injured and post mortem were under one and same letter of the police (Ex.No.24/H) which contains the Crime number. Such examination was started at 4.00 p.m. This could only be possible if only crime number (serial of 154 Cr.PC book) is used by the police while keeping the FIR book pending for recording on arrival of the complainant. This also brings a cloud over such episode of the incident.
The mashirnama of the sirzamin shows recovery of empties near from the shop / cabin of Herchand Oadh while securing of blood stained earth near from cabin of Jumma Oadh although per complainant Meenhal the appellants had come at shop/ cabin of Haroo (Herchand) when deceased passed through such cabin/shop hence recovery of empties and securing of blood stained should have been close to each other which is not so.
17. The prosecution also did not establish the recovery of crime weapon against the appellants as recovery, effected from appellant Mukhtiar, was not believed and case crime against him ended in acquittal while there was no recovery from appellant Sada Bux.
18. Moreover, the prosecution does not justify any reason or motive for initiation of the second part of the incident i.e particular targeting by appellants (who were also not part of first part of incident) to the deceased Ghulam Hussain who, undisputedly was not in screen in first part of the incident. Further, the complainant party was admittedly resident of a place located at a distance of 2 and 2 ½ K.Ms away from place of incident as is evident from cross of complainant Meenhal that:
‘It is correct to suggest that at the time of incident we were living in village Muhammad Hassan Norar adjacent to Saleh Bhambhro, about 2 and 2 ½ Kilometer away from Saleh Bhambhro’.
Thus surprise appearance of the deceased Ghulam Hussain just after incident which too in a manner of not having any notice or knowledge of first part of incident wherein persons from either sides received serious injuries, was not logical. The prosecution does not claim any altercation between appellants and deceased (the persons involved in second part of the incident) nor it is alleged that deceased was armed with any weapon or was suspected by appellants to cause an harm to them therefore, targeting deceased appear to be without any motive or consideration. The motive regarding matter of theft, though was pleaded against the appellants, but was never proved rather it was claimed by complainant party that same stood resolved on Holy Quran. Thus in absence of any direct motive or reason the second part of the incident was also appearing to be result of concealment of facts or least not full truth hence the benefit whereof was also requiring to be extended in favour of appellants. Reliance is placed on the case of Noor Muhammad vs. State (2010 SCMR 97) and at page 101 thereof it has been observed as under:-
“Thus, the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1997 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali vs. The State (1971 SCMR 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah vs. State (PLD 1976 SC 629) it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story’.
19. Further, it is also a matter of record that place of incident is, undisputedly, a market hence not bringing the most natural witnesses into witness box also allows to have an adverse inference against the party who was hoped to bring such natural and material witness. The record also shows that two witnesses namely Wali Muhammad and Abdul Ghafoor were not claimed to be in company of the complainant party in first part of the incident. These witnesses were not examined by the prosecution but were given up under plea of having been won over by the accused persons. This plea is not legally justified to give up a witness although it is a prerogative of prosecution to examine witnesses which it wants but if evidence of a witness is material he / she should be brought into witness box because it is the Court to judge evidence of witness and not the party itself. This aspect was also not appreciated by the learned trial court judge while convicting the appellants and acquitting other co-accused persons.
20. The Haroo Oadh near whose shops whole incident is claimed to have happened was not alleged to have been won over by prosecution nor any ill will was alleged against him rather the prosecution shows otherwise by making him the second mashir of the mashirnama (s), so prepared during course of investigation. He was not examined although he was the independent and natural witness therefore, the attitude of the prosecution in not bringing an eye witness as an eye-witness but as second mashir also shows that such natural evidence was intentionally attempted to be avoided which the prosecution did. Further it is surfaced that shop of Amir Bux Khaskheli was adjacent to Haroo Oad but it is manifest that prosecution failed to examine him as witness. This also leads to an adverse presumption against the prosecution within permissible object of Article 129(g) of Qanun-e-Shahdat Order, 1984.
21. The law is very much clear regarding legal proposition that prosecution has to prove its case beyond shadow of doubt and once the prosecution fails then the admission of the accused even cannot hold the conviction. Reference can be made to the case of Zhar Iqbal v. State (2013 SCMR 383) wherein honourable Supreme Court held that:
It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of WaqarAhmed v. Shoukat Ali & others (2006 SCMR 1139).The law is equally settled that the statement of an accused person recorded under section 342 Cr.PC is to be accepted or rejected in its entirety and where the prosecution’s evidence is found to be reliable and the exculpatory part of the accused person’s statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person’s statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) , Muhammad Tashfeen & others v. The State & others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796).
22. The perusal of the statement of the appellants, recorded under section 342 Cr.PC shows that they never claimed to be present at spot nor took the plea of self-defence. The relevant portion is referred hereunder:-
SADA BUX
I have been falsely involved in this matter by the complainant due to my relationship with the co-accused. I pray for justice.
MUKHTIAR
I am innocent. I have been falsely involved in this case by complainant party due to my relationship with the co-accused. I have been acquitted by J.M Samaro in Crime No.36/98 of P.S. Samaro for offence u/s 13/E of the Arms Ordinance. I produce the copy of judgment as Ex.41/A. I have not committed any offence. I pray for justice.
The above position makes it clear that the appellants had never taken the plea of self-defence , therefore, the learned trial Court Judge was not legally justified in considering the case from such aspect. The prosecution was never absolved from its legal obligation and duty to have proved the case against the appellants beyond shadow of doubt hence the learned trial Court was not legally justified in convicting the appellants on same set of evidence particularly in absence of some other undeniable direct corroboration, particularly when the record reflects that:-
i) no motive for second part of the incident;
ii) no independent evidence to prove second part of incident despite availability;
iii) presence of the appellants was not proved particularly when undeniably present accused were acquitted;
iv) non-examination of independent and natural witnesses and giving up of listed witnesses on plea of their being won over;
v) natural presence / arrival of deceased at place of incident after first part of incident as he (deceased); &
vi) if the deceased was available at place of incident then his non-participation in first part of incident which logically a blood-relation cannot avoid seeing his own blood-relation involved in a fighting;
vii) concealing of injuries, received by accused side at hands of the complainant party;
viii) medical evidence does not corroborate ocular account to extent of number of shots and place of seating;
ix) believing the words of persons, having serious injuries on their vital parts i. head, whose words were not believed regarding incident happened when there was no such shock or injury;
x) letting-off one of the specifically nominated accused Sikander of second part of incident by police;
xi) whether injuries on person of the injured were result of a single fire shot of gun or of different fire shots of guns when injuries were claimed to be result of ‘pellets’ ;
xii) no distinction of alleged recovered crime empties to support firing by two different guns;
All these circumstances are the one which help the appellants and not the prosecution but these were not considered appreciated properly by the learned trial Court Judge while convicting the appellants. The settled principle of law has been that where two probabilities are possible then the one favouring to the accused has to be taken in consideration else the principle of ‘benefit of doubt’ shall fail.
23. In view of above discussion, I am clear in view that the prosecution failed in bringing any other direct corroborative material to prove the charge of second part against the appellants hence the conviction of the appellants on evidence of same set of evidence which were not believed for all accused persons of first part of the incident was not legal one. Since it is also well settled principle of law that no conviction could rest when ocular account fails therefore, discussion towards other pieces of evidence is not necessary. (2007 SCMR 1427).
24. Accordingly, the appeal is accepted. In consequence whereof the judgment of learned trial court judge to the extent of conviction of appellants is hereby set-aside and thus the appellants are directed to be released, forthwith, if no more required in any other case crime.
JUDGE
Tufail