1. ' MRS. QAISER IQBAL, J.---Appellants were convicted by IIIrd Additional Sessions Judge Karachi West being dissatisfied from the judgment, dated 19-8-2006 whereby they were convicted as under:---
(1) Under section 302(c), P.P.C. To undergo R.I for a term of 25 years.
(2) Under section 436, P.P.C. To undergo R.I. For a term 5 years and pay fine of Rs,25,000 each in lieu of payment of fine suffer R.I. For 3 months.
(3) Under section 435, P.P.C. To undergo R.I. For a term 3 years each.
(4) Under section 148, P.P.C. To undergo R.I. For 3 years.
2. ' The appellants have assailed the impugned judgment by resorting to file appeal.
3. ' The prosecution case unfolded in First Information Report is that on 22-11-2001 at 12-30 a.m. The appellants along with absconding accused outside the house No, i722 Dilawar Mohallah Baldia Town Karachi formed unlawful assembly duly armed with weapons, set on fire the house of the complainant as well as burnt vehicle Nos. KAS-9730 and KAS-9720, a pan cabin and PCO was burnt, the absconding accused Shahid Chand and Saleem Chagha alias Lumba, committed murder of Yaqoob Madha and Shoukat Lala by causing the fire-arm injuries while others had caused lathi injuries to Abbas Madha, Jabbar Madha and Arif Madha later fled from the place of occurrence.
4. ' At the trial charge against the appellants was framed and read over to them to which they pleaded not guilty, claimed to be tried, while the proceeding against the absconding accused was drawn under section 512, Cr.P.C. And proclamations were issued in terms of sections 87 and 88 of Cr.P.C.
5. ' Prosecution in support of the case examined P.W. 1 Muhammad Farooq exhibit 5, P.W.2 Abdul Jabbar Ibrahim exhibit 11, P.W.3, Muhammad Arif exhibit 14, P.W. Javaid exhibit 15, P.W.5 Abbas exhibit 16, P.W.6 Muhammad Anwar exhibit 17, P.W.7 Amna Bibi exhibit 19, P.W.8 Ismail exhibit 20, P.W.9 S-I.P.
6. Ghulam Sarwar exhibit 22, P.W.10 Dr. Aqeel S. Nawaz exhibit 25, P.W.11 A.S-I. Muhammad Taj exhibit 27, P.W.12 Nisar Ali Shah exhibit 34.
7. ' The appellants in their statements recorded under section 342, Cr.P.C. Denied the prosecution case, pleaded innocence.
8. ' Learned Sessions Judge has framed the following points for determination:--- (1), Whether Yaqoob Madha and Shoukat Lala have died unnatural death?
(2) Whether accused persons along with absconding accused were members of unlawful assembly and armed with deadly weapons?
(3) Whether present accused along with absconding accused with their common object have caused murders of Yaqoob Madah and Shoukat Lala?
(4) Whether accused have set pan cabin, PCO and house of complainant party on fire?
(5) Whether accused have set on fire Motor Cycles Nos.KAS-9730 and KAS-9720?
(6) What should the judgment be?
9. ' The trial Court on appraisal of the evidence arrived at the conclusion that appellants have committed the charged offence, convicted them as stated above.
10. ' Before adverting to- the role attributed to the appellants in commission of crime it transpires that post-mortem of the dead body of Yaqoob Madha was conducted by MLO Aqeel S. Nawaz at exhibit 25 and following injuries were found on his person:---
(1) Lacerated penetrating wound 1 c.m. x 0.7 c.m. Over left parietal with blackening of margin, inverted. It was wound of entry.
(2) Perforating wound 3 c.m. x 2 c.m. Over right temporal area just above right ear, margin was inverted. It was wound of exit.
(3) Lacerated penetrating wound of six' x 1 c.m. In diameter over epigastrium and no blackening of margin, margin was inverted. It was a wound of entry.
(4) Perforating wound 2 c.m. x 1 c.m. Over back lumber margin inverted. It was a wound of exit.
11. ' Dr. Opined on the basis of external and internal examination that death was caused by cardio respiratory failure due to acute haemorrhage leading to cardio respiratory failure as a result of fire-arms injuries as is vouchsafe from post-mortem report exhibit 26.
12. ' Dr. Nasir Ali MLO had conducted post-mortem on the dead body of Shoukat Lala and had found following external injuries:---
(1) Lacerated penetrating wound 1 c.m. x 5 c.m. Over right side neck. No blackening of margin was found. It was the wound of entrance.
(2) Perforated wound 2 c.m. x 8 c.m. Over angle of Mandible on left side near ear. It was the wound of exit.
(3) Lacerated penetrating wound ad-measuring 1 c.m. x 5 c.m. Over top of shoulder with no blackening of margin. It was the wound of entry.
(4) Perforated wound admeasuring 1.5 c.m. x 5 c.m. Lumber area of left side. It was the wound of exit.
13. ' On internal and external examination doctor opined that Shoukat Lala died due to injuries, cardio respiratory failure as a result of fire-arm injuries as is vouchsafe from the medical certificate exhibit 35.
14. ' There is no cavil to the effect that Yaqoob Madha and Shoukat Lala met an unnatural death homicidal in nature.
15. ' Prosecution in support of the case relied upon the ocular account of P.W. Muhammad Farooq (complainant), Abdul Jabbar Ibrahim, Abbas Madha, Arif Madha, Javed, Muhammad Anwar, Amna Bibi and Ismail. On appraisal of the evidence it transpires that P.W. Muhammad Farooq is the brother of deceased Yaqoob Madha; he had attributed specific role to the appellants for damaging movable and immovable properties, came to know about the incident from his wife, his testimony is hearsay, police has recorded his statement on 2 to 3 occasions yet the copies were not supplied to the appellants in compliance with the provision of law. It is specifically admitted by him that at the time when the shops were burnt he took shelter in P.S. Baldia Town. His brother Yaqoob Madha was killed on the day of occurrence, he has acted as mashir of place of incident exhibit 7, sketch of place of incident exhibit 8, arrest of the five appellants except Abdul Sattar through memo. Of arrest exhibit 9, on the same day appellant Abdul Sattar was arrested, vide mashirnama of arrest exhibit 10. He specially implicated absconding accused in the commission of the murder of his brother and has attributed roles to the appellants for causing injuries to P. Ws.
16. Abbas Madha, Jabbar Madha and Arif Madha.
17. ' Adverting to the testimony of P.W. Abdul Jabbar Ibrahim brother of deceased Yaqoob, his testimony is also hearsay in connection with the murder of his brother. Police has recorded his statement under section 161, Cr.P.C. After 24 hours of the incident, no explanation has been furnished for such delay, he also came to know about the incident through Hussain's wife, he was not an eye-witness of the murder of Yaqoob Madha.
18. ' P.W. Muhammad Arif came to know about the murder of his brother through his sister-in-law admittedly not an eye-witness of the. Occurrence, he did not sustain any injury as medico legal certificate not produced nor medico legal officer has been examined towards the injuries sustained by him.
19. ' P.W. Javed is an eye-witness of two fold incident; one pertaining to the moveable and immovable properties set on fire by the appellants and about murder of Yaqoob Madha by the absconding accused in the house of Amna Bibi. He has admitted in the cross-examination that the appellants have not committed murder of Yaqoob Madha nor he was in a position to specially pinpoint which one of the appellants had set the shops on fire.
20. ' P.W. Abbas Madha deposed that he came to know about the incident from Muhallah people that the shops were burnt, the appellants were armed with TT Pistols, Churri, dismantled the shop. He came to know of the incident through his sister-in-law and had identified appellants Hanif and Haroon only.
21. ' P.W. Muhammad Anwar is a shopkeeper, his testimony is also hearsay in connection with the first part of the incident relating to the setting on fire of the shops as well as murder of Yaqoob Madha.
22. He had attributed specific role to the appellants about the shops and house set on fire by them did not implicate them in the murder of Yaqoob Madha.
23. ' P.W. Amna Bibi (P .W.1) mother of deceased Shoukat Lala, Ismail (P.W.8) brother of deceased Shoukat Lala reached at the spot after it was over did not implicate anyone in the murder of deceased.
24. ' Mr. Ali Nawaz A. Channa learne defence counsel has contended that the charge exhibit 4 is of much consequence as it relates to the appellants in connection with the forming of unlawful assembly duly armed and setting on fire complainants vehicles, Pan cabin and PCO while absconding accused Shahid Chand and Saleem Chagha alias Lumba have been specifically charged with the murder of Yaqoob Madha and Shoukat Lala. In this view of the matter the entire evidence produced against the appellants pertained to the damages caused to the property of the complainant and it has no concern with the murder of Yaqoob Madha and Shoukat Lala. It is next urged that statement under section 154, Cr.P.C. Of complainant Muhammad Farooq was recorded in Abbasi Shaheed Hospital by P.W. A.S-I. Muhammad Taj juxtaposition to the testimony of P. Ws. Abbas Madha, Arif Madha, Abdul Jabbar Ibrahim, Javed, it is abundantly clear that their testimonies in relation to the first part of the incident are hearsay, contradictory, in nature. P.W.
25. Muhammad Farooq has stated that about 100 to 150 persons were gathered in front of his house while P.W. Abdul Jabbar Ibrahim was given number of the persons collected from the Muhallah between 16 to 17, whereas P.W. Javed deposed 25 to 30 persons were collected from Muhallah. It is next urged that investigating officer S-1. Ghulam Sarwar in the cross-examination candidly pointed out that none of the eyewitness was examined by him during the investigation and the statement of the witnesses produced at trial was hearsay. It appears that crime weapons were not produced, the statements of the appellants are under section 342, Cr.P.C. Are stereotype, two sets of allegations are amalgamated proceeded upon to convict the appellants.
26. ' Mr. Sardar Muhammad Yousuf learned counsel for appellants has also adopted the arguments advanced by Mr. Ali Nawaz A. Channa.
27. ' Learned State Counsel has fairly conceded that on account of the contradictory statements of the prosecution witnesses, the case has become doubtful and the appellants are liable to be acquitted. He has not supported the impugned judgment.
28. ' I have carefully considered the arguments advanced at bar. It transpired that the conviction of the appellants is based upon hearsay and contradictory evidence of the prosecution witnesses in connection with the first part of the incident relating to the damages caused to the moveable and immovable properties belonging to the complainant as well as regarding the murder of Yaqoob Madha. So far as the murder of Shoukat Lala is concerned, his mother P.W. Amna Bibi, brother Ismail have categorically stated that they had no knowledge as to who had committed his murder, thus material witnesses examined by the prosecution in support of the murder of Shoulcat Lala do not prove the case of the prosecution against the appellants therefore the conviction based upon contradictory hearsay, statement of the witnesses cannot be used for the conviction of the appellants. Neither direct evidence nor circumstantial evidence has been produced by the prosecution to prove the guilt of the appellants beyond any shadow of doubt therefore conviction awarded to them cannot be sustained under law.
29. ' In view of the above facts and circumstances, impugned judgment is B hereby set aside. Appeal is allowed. The appellants are in custody directed to be released forthwith if not required in any other case. These are the reasons of the short order, dated 11-10-2007 whereby the appeal was allowed.