1. ' NADEEM AZHAR SIDDIQI, J.---The above two appeals were heard and decided together by this common judgment.
2. ' Appellant Sahib Khan being aggrieved and dis-satisfied with the judgment, dated 3-8-1999 passed by the learned Additional Sessions Judge, Naushahroferoze in Sessions case No,149 of 1995 Re: State v. Manoo alias Ali Muhammad and others for the offences punishable under sections 302 and 404, P.P.C. Acquitting the respondents Nos. 2 and 3 in the above case has filed he above Criminal Acquittal Appeal with the prayer to convict them in accordance with law, simultaneously appellant Manoo alias Ali Muhammad also aggrieved with conviction and sentencerecorded in the above cited judgment whereby he was convicted and sentenced .To suffer imprisonment for life and to pay fine of Rs.20,000, or in default to suffer R.I. For six months more and also benefit under section 382-B, Cr.P.C. Was extended.
3. ' Succinctly the facts of the case are that on 2-8-1995 at about 2-00 a.m. In the night, complainant party along with inmates were sleeping and on dog's barking they woke up and on the light of the bulb they saw Manoo alias Ali Muhammad armed with pistol, his brother Muhammad Hassan armed with Pistol and his another brother namely Gullan was armed with lathi were standing in the courtyard of the house. Appellant Manoo alias Ali Muhammad abused the brother of complainant Ghulam Rasool by saying that he had restrained him from establishing matrimonial relations with his brother-in-law namely Muhammad Bux Solangi but he did not pay any heed to the same whereupon Ghulam Rasool told him to behave and not to abuse, on which appellant Manoo fired straight upon Ghulam Rasool with his pistol who raised cries and fell down on the cot. Other accused abused and challenged the complainant party not to come near them. The complainant party due to fear remained silent and also while going the accused party took away the licensed gun No, 11816, which was lying on the cot by the side of Ghulam Rasool and other accused while abusing the complainant party and climbing over the wall ran away towards western side. The complainant party saw Ghulam Rasool who had sustained pistol injuries on his stomach near navel and he was bleeding and died. Thereafter complainant lodged the F.I.R. At Police Station. The police investigated the case and arrested the accused on 10-8-1995 and recovered the lathi from the possession of the accused. Appellant Manoo alias Ali Muhammad also produced a country made pistol in which one empty cartridge was lying and thereafter they were sent to face trial.
4. ' The charge was framed against the appellant and the respondents Nos. 2 and 3 to which they pleaded not guilty and claimed to be tried.
5. ' In order to prove the case prosecution examined complainant Sahib Khan who produced F.I.R. As Exh.6-A. P.W.-Ali Muhammad Chutal Exh.7 who produced his statement under section 164, Cr.P.C. As Exh.7-A, P.W. Muhammad Zaman (Exh-8) who produced his 164, Cr.P.C. Statement. Azizullah Mukhtiarkar and FCM Bhiria Exh.10, Dr. Muhammad Hashim Medical Officer Exh.11 who produced postmortem notes Exh.11-A, Mushir Ghulam. Haider Exh.12 who produced mashinama of the place and recovery of blood-stained earth Exh.12-A, in question report Exh.12-B, mashirnama of production of licence of the gun of the deceased Exh.12-C, mashinama of the arrest of the accused Exh.12-D and mashinama of the recovery of Lathi as Exh.12-E and Haji Allah Dino I.O. Exh.13, who produced mashinama of recovery of pistoland empty cartridge Exh.13-A mashirnama of search of gun of the deceased from Rohri Canal report of Criminalistic Division Exh.13-C and report of the Chemical Examiner as Exh.13-D.
6. ' The statement of the appellants and respondents Nos. 2 and 3 accused recorded under section 342, Cr.P.C. While professing their innocence and denying the allegations levelled against them as false. They stated that they have been falsely entangled in the case and the police has foisted the alleged property upon them. Appellant Manoo alias Ali Muhammad and Respondents 2 and 3 in Criminal Acquittal Apeal have not examined themselves on oath nor they examined any witness in their defence.
7. ' The prosecution case consists upon ocular evidence, recoveries, medical evidence and chemical examiner report.
8. ' Learned trial Court after hearing the parties acquitted the respondents Nos. 2 and 3 and convicted and sentenced appellant Manoo alias Ali Muhammad as mentioned in the earlier part of the judgment therefore need not to be repeated.
9. ' Mr. A.M. Mobeen Khan learned counsel for the appellant in Criminal Acquittal Appeal No, 39 of 1999 submits that sufficient evidence is available on record to connect the respondents Nos. 2 and 3 with the alleged offence which was ignored and the findings recorded by the trial Court is perverse.
10. He further submits that the trial Court has failed to appreciate that the Respondents Nos. 2 and 3 in furtherance of their common intention committed the murder of the deceased. He further submits that the same evidence was believed for awarding conviction to one accused and was disbelieved in acquitting the other two accused.
11. ' Mr. M. Mehmood Khan S. Yousifi learned A.A.-G. Has fully supported the judgment and submits that the trial Court was right in convicting Manoo alias Ali Muhammad as sufficient evidence is available on record and acquitting Gullan Khan and Muhammad Hassan against whom no evidence was available on record. He submits that ocular evidence is supported by the medical and circumstantial evidence and the case was fully proved and no malice was established against the police.
12. ' Mr. Maqbool Ahmed Awan learned counsel for the appellant in Cr.J.A. No,61 of 1999 has submitted that the evidence of complainant and P.Ws. Are full of contradiction and on material points they have given different score and the witnesses were interested and, the evidence cannot be relied upon to record the conviction. He further submits that incident took place in the night and mistaken identity of the appellant cannot be overruled. He further submits that there is inconsistency between the ocular and medical evidence.
13. ' Mr. Ubedullah Malano learned counsel for the respondents Nos. 2 and 3 in Criminal Acquittal Appeal No,39 of 1999 has submitted that the respondents Nos. 2 and 3 were falsely implicated in the offence. No role has been assigned to them and no allegation has been made against them that they have actively participated in the alleged crime. He submits that the respondents Nos. 2 and 3 were rightly acquitted in proper appreciation of evidence available on record.
14. ' We have heard learned counsel for the parties and perused the record with the assistance of learned counsel for the parties. P.W.1 Sahib Khan deposed that he identified the accused persons in the light of bulbs and Manoo fired upon his brother with pistol and took away licensed gun of his deceased brother. The allegation against Muhammad Hassan is that he was armed with pistol and standing behind the accused Manoo and accused Gullan was also standing with lathi. In cross- examination he deposed that accused fired upon his brother while putting pistol on his body.
15. Remaining accused also abused and threatened not to come near them. P.W.2 Muhammad Chuttal deposed that he woke-up on the dog barking and found Manoo and Muhammad Hassan armed with pistol and Gullan with lathi standing near deceased Ghulam Rasool. Accused directly fired from his pistol upon Ghulam Rasool, who fell down on the cot and accused took away the licensed gun of deceased. The accused were identified in the light of bulbs. In cross-examination he deposed that there are 2/3 rooms in their house. The accused fired from the distance of about 3 feet. P.W.3 Muhammad Zaman deposed that accused Manoo armed with pistol was standing over the deceased Ghulam Rasool and Muhammad Hassan with Pistol and Gullan were standing over the witnesses including him. Accused. Manoo directly fired upon Ghulam Rasool from his pistol who suffered injury and fell down on the cot. He also deposed that bulb was lightening. In cross- examination he deposed that there are 8 rooms in the their house. Accused fired upon the deceased from the distance of 1 feet only. P.W.4 Azizullah deposed that he recorded 164 Cr.P.C.
16. Statements of Muhammad Chuttal and Muhammad Zaman and produced the same as Exh.7-A and 8-A. P.W.5 Dr. Muhammad Hashim deposed that he has conducted postmortem of the deceased. He deposed , that on external examination of the dead-body' he found lacerated penetrating wounds eight in number on right side of abdotnen in the lumber region in 4" in diameter, measuring about 1 c.m. In diameter, mortus inverted, burning and charring present around the margins (wound of entry). I also ,recovered one pellet from the dead-body of deceased which was sent to the police. Rigor mortum was present. In cross-examination he deposed that the time and duration of death was mentioned by me after knowing about the incident from police.
17. Deceased has sustained injuries from the distance of about 20 feets. Again says within 20 feets.
18. There ispossibility of charring if the injury is sustained within 15 or 20 feets distance. In stomach he has found undigested food, therefore, there is possibility that the deceased has taken night meals about half or one hour before the incident. P.W.6 Ghulam Haider has deposed that police has recovered lathi from Gullan in his presence. P.W.7 Haji Allandino, who deposed that on 10-8-1995 he arrested all the three accused persons. Accused Manoo voluntarily, produced country made pistol recovered from the land of Abdul Rehman Kalhoro. In cross-examination he deposed that mashirnama was prepared in the day time, therefore, fact of electric bulbs was not mentioned in it.
19. He further deposed that witness Muhammad Chuttal and Muhammad Zaman in their 161 statement have deposed that when they woke-up they saw the accused in the courtyard. He fdther deposed that he was informed by the witnesses that they identified the accused on the torch light and the torch was produced before him and that mashirnama of torch was not produced. He also produced report of chemical expert and report of examination of pistol and empty cartridge.
20. ' From the above depositions of the witnesses it is. Apparent that there are material contradictions in their depositions. The witnesses are not consistent on the point of distance of firing and room in the house. The witnesses are also not consistent in giving the time of reaching the police at the place of Vardat. The contradictions in the deposition of the P.Ws. Are material in nature and create doubt with regard to their presence at the place of Vardat. The medical evidence has not supported the ocular evidence. The doctor was not sure with regard to the distance of firing and the time of incident. The doctor also deposed that he found undigested food therefore, there is possibility that the deceased taken night meals about half or one hour before the incident. P.W.2 Muhammad Chutal in his cross-examination has deposed that deceased has taken meal at about 7 or 8 P.M. The time of incident was shown to he 2-00 a.m. (Night). This clearly shows that medical evidence is not in support of ocular evidence. The recovery of pistol and empty was also not proved as the mashirs in whose presence the same were recovered were not examined and without the evidence of mashirs of recovery it cannot be said that recovery was proved. The motive of murder, shown was proposed matrimonial relationship between the deceased and the brother in law of Manoo, which does not furnish as an independent and unimpeachable piece of evidence to corroborate the evidence of eyewitnesses.
21. ' The upshot of the above discussion is that motive for commission of crime was weak, recovery of weapon and empty could not be proved, witnesses are not consistent on the salient features of incident, the medical evidence is not in support of ocular evidence, the witnesses are related to each other and their evidence do not inspireconfidence and all these circumstances create doubt with regard to the involvement of the accused in the commission of the offence. It is now well established principle of law that once a reasonable doubt is created the benefit will go to the accused. It is also well settled principle of law that if single circumstance creates doubt in prudent mind about the guilt of accused he will be entitled to such benefit as of right.
22. ' For the above reasons the Appeal No,39 of 1999 was dismissed and Cr.J.A. No,61 of 1999 was allowed by short order, dated 6-9-2006.