1. ' AMIR HANI MUSLIM J.---Through this Criminal Appeal, the Appellant has impugned the judgment passed by learned 1st Addl. Session Judge Ghotki convicting him under section 302, P.P.C. And awarded death penalty.
2. ' The facts they appear from the record are that the complainant Haji Allandino lodged F.I.R.
3. No,68/1995 with Police Station Khanpur Mahar on 26-9-1995 against the Appellant stating therein that the Appellant who is son of the complainant had killed Mst. Ashran wife of Haji Faiz Muhammad (brother of the Appellant) by firing at her and also injured the complainant by fire arm. The record reveals that after the F.I.R. Was lodged the Appellant was arrested on 14-10-1995, whereafter the Appellant was challaned and charge against the Appellant was framed under section 302, P.P.C. In the intervening period one Muhammad Murad, the father of the deceased Mst.
4. Ashran also lodged private complaint against the Appellant, Allah Dino (complainant in Crime No,68/1995) and Noor Muhammad. The ptivate complaint and the State case proceeded together and the Appellant along with the other co-accused was acquitted in the private complaint filed by Muhammad Murad father of deceased in respect of the same incident however the Appellant was convicted in the Crime No,68 of 1995 of the same incident by the impugned judgment. Both the judgments were announced by the trial court on the same day.
5. ' It has been contended by the learned counsel for the Appellant that there was no evidence against the Appellant to connect him with the alleged offence. His next contention was that once the learned trial Court has acquitted the Appellant along with other co-accused in the private complaint filed by Muhammad Murad Father of the deceased, in respect of the same incident, he could not have convicted the Appellant in the State case. His further submission was that the learned trial court while awarding the sentence to the Appellant has misread the medical evidence which ex facie was contradictory to the prosecution story.
6. ' As against this the learned A.A.-G. Has supported the impugned judgment on the ground that the prosecution witnesses who deposed were examined under section 164, Cr.P.0 and the medical evidence corroborates the ocular evidence.
7. ' We have heard the learned counsel and have examined the record.
8. ' In the F.I.R. The complainant namely Allandino has .Stated that on the night of the incident he, his son Faiz Muhammad and Rahmatuallah beside the accused and the deceased wife of Faiz Muhammad were in the house when he woke up on hearing the gun-shot and when he came out with his sons he found that Mst. Ashran was lying in the courtyard and he also received injury of fire arm on his right leg. He however in his deposition has stated that he did not see the person who has fired at the deceased or at him. He has disputed the contents of the F.I.R. In his testimony before the trial Court by stating that he was never read over the contents of the F.I.R. By the police.
9. He further denied that he has nominated the Appellant in Crime No,68/1995. He was declared hostile and was permitted cross-examination by the Deputy District Attorney. The other two eye- witnesses namely Faiz Muhammad and Rahmatullah have also testified that they were sleeping in the house with their father, Appellant and the deceased and they woke up on the cries of their father. They found that their father was injured and the deceased Mst. Ashran was lying dead. They also disputed that they have seen the Appellant committing the murder of the deceased. Both these witnesses have disputed the authenticity of their statements recorded under section 164, Cr.P.0 by the Mukhtiarkar. They have testified that the police has taken their signatures on the blank papers and they had never appeared before the Mukhtiarkar/Magistrate for the purpose of recording statement under section 164. Besides aforesaid three prosecution witnesses P.W. Anwar Ali and Muhammad Alam were examined, who were the mashirs of recovery of the gun and arrest of the Appellant. Even these mashirs have not supported the prosecution story and have deposed in court that recovery from the Appellant was never effected in their presence.
10. ' Besides the other formal witnesses the Medical Officer namely Dr. Syed Fakeer Hussain Shah who has conducted the post-mortem of the deceased was examined. He has produced the post- mortem. According to the post-mortem report the deceased had five gun-shot injuries on her person. In his deposition he has further stated that on 26-9-1995 he was the Medical Officer Taluka Hospital Ghotki and around 6-30 a.m. The dead body of the deceased Mst. Ashran was brought before him through P.C. Zulfiqar Ali of Police Station Ghotki and he started post-mortem examination at 6-45 a.m. And finished at 8-00 on the same date. He has further deposed that the time between the injuries and the death was instantaneous and the time between the death and post-mortem was 24 hours.
11. From the perusal of the impugned judgment we have noticed that the learned Judge has passed the impugned judgment on relying upon the circumstantial evidence and medical evidence. In the face of the ocular evidence produced in the case based on the prosecution witnesses, who were declared hostile, the circumstantial evidence in the given situation was insufficient to connect the Appellant with the alleged offence besides the fact that reliance on such circumstantial evidence was a dangerous precedent. As far as the medical evidence is concerned, it totally belies the prosecution story as in the F.I.R. It has been alleged that the Appellant has fired two gun-shots, one on the deceased which made her fell down whereas the other gun-shot was received by the complainant on his left knee, thereafter he left from the house. The post-mortem report shows that there were five injuries of fire-arm on the person of the deceased. There is no explanation a to how the deceased received five injuries on her person when there was only one gun-shot fired by the Appellant. Additionally the F.I.R. Was lodged on 26-9-1995 at 0200 hours with Police Station Khanpur Mahar and the time of incident mentioned in it was 1-00 a.m. According to the Doctor the post- mortem was conducted by him on 26-9-1995 at 6-30 a.m. And he opined that deceased died 24 hours before the time of conducting post-mortem. If this medical evidence is believed it would mean that the deceased was not killed at 1.00 a.m on 26-9-1995 and instead was killed on 25-9- 1995 at 6-30 a.m. The prosecution story in the face of this medical evidence F which the trial Court has believed, is not confidence-inspiring. The statements of Faiz Muhammad and Rahmatulla who were alleged to have been recorded 164, Cr.P.C. Statements by the Mukhtiarkar/FCM Khan 'Garah do not have any evidentiary value as the Mukhtiarkar who recorded such statements has failed to take the required steps provided under section 164, Cr.P.C. Before recording them and therefore such statements would not have any evidentiary value. The maxim `falsus in uno falsus in omnibus' relied upon in the impugned judgment is not attracted to the case in hand. Mere injury to the complainant in no way would lead to conviction of the Appellant as the complainant has not G disputed that he was not present nor he has denied to have received the gun shot but in his deposition, he has stated that he could not identify the person who has fired at the deceased and on him.
12. ' The learned Judge apparently has passed the impugned judgment on the assumption of facts which were not on record. The law requires the prosecution to prove the case against the accused beyond reasonable doubt and the courts while deciding criminal cases have to assess the evidence available on record produced by the prosecution and if there is one dent in the prosecution story it should give its benefit to the accused. The trial Court in the present case has overlooked this elementary principle of criminal justice while awarding sentence.
13. ' The deposition of the Investigating Officer has further damaged the case of the prosecution as he has deposed that he had recovered only two empty cartridges from the place of wardat whereas the gun-shot injuries on the person of the deceased were five in number. It is unexplained as to how the deceased received more than one gun-shot injury. If the medical evidence is believed that the deceased died 24 hours before the time of post-mortem then the entire prosecution story as given in the F.I.R. Is belied as the time of death mentioned in the F.I.R was 1-00 a.m. Which suggests that the incident was unwitnessed.
14. ' The trial Court has also overlooked the procedure provided in law that a private complaint has to proceed first and thereafter a State case is to be tried. In the instant case the trial Court had proceeded with the private complaint and the State case simultaneously and while acquitting the Appellant in the private complaint has convicted the Appellant for the same incident in the State case which was unusual. The grounds mentioned by the learned trial Court in awarding the sentence to the Appellant by the impugned judgment are not plausible. For the reasons stated hereinabove, we by our short order passed on 16-2-2006 had allowed the appeal and had ordered the release of the Appellant forthwith if he was not required in any other case.