1. ' KHAWAJA NAVEED AHMED, J.--- In this case, three accused persons, namely, (1) Manthar son of Jurio Khoso, (2) Mumtaz son of Jurio Khoso and (3) Dado alias Din Muhammad son of Allah Rakhio Khoso, were charged by the learned II-Additional Sessions Judge, Jacobabad, as under:--- "I, Ghulam Ali A. Samtio, lInd Additional Sessions Judge, Jacobabad, do hereby charge you:-
(1) Manthar son of Jurio Khoso,
(2) Mumtaz son of Jurio Khoso,
(3) Dado alias Din Muhammad son of Allah Rakhio Khoso as follows:--- ' That you on 10-8-1999 at about 0900 hours at/near abandoned bridge of Kilch Shakh Deh Drib Morio, Taluka Garhi Khairo along with absconding accused Yakoob son of Arz Muhammad Khoso duly armed with guns and in furtherance of your common intention committed Qatl-i-Amd of deceased Ghulam Hyder son of Ballach Khoso by causing him fire-arm injuries and thereby you committed an offence punishable under section 302, P.P.C. Read with section 34, P.P.0 and within the cognizance of this Court; And I hereby direct that you be tried by this Court on the aforesaid charge. Dated this 7th day of October, 2000."
2. ' The accused had pleaded 'not guilty' to the charge and claimed trial. The prosecution had examined Medical Officer Dr. Imdad Hussain, Tapedar Bashir Ahmed, complainant Ali Akbar, P.W.
3. Muhammad Qasim and Mashir Bahadur. The Investigating Officer Manzoor Hussain Shah of this case was not examined due to his death and in his place P.C. Qurban Ali was examined, who had identified the signature of Investigating Officer Manzoor Hussain Shah on various papers, which were exhibited in this case. S.H.O. Mumtaz Ali Gopang, who was S.H.O. Of the area at the relevant time and had arrested the accused and had made recovery of gun from Manthar, has also not been examined by the prosecution. From the perusal of paper book of this case one gets an impression that prosecution was not interested in perusing this case seriously. The deceased had two wounds of entry of cartridges, which is 4 c.m. On the left side of chest close to the ear area, while the other injury of entry is just below nipple with inverted margins. There is one exit wound.
4. Scalp, skull fractured. Memberance, brain ruptured, left thoracic wall ruptured, 9th and 6th ribs left side fractured. Left pleurae, left lung, pericardium and heart, cereberal and cardiac blood vessels were ruptured and disorganized, remaining all other organs were intact and healthy. Stomach contains digested food. The nature of seat of injuries shown on the medical certificate has not been corroborated by the evidence of star eye-witness Ali Akbar. This witness, who is also complainant and brother of deceased Ghulam Hyder, has assigned the role of holding gun to Mumtaz, Manthar, Dado and Yakoob and in his evidence he assigns the role of direct firing upon the deceased by Mumtaz. In F.I.R, he has assigned the role of firing to Mumtaz and Manthar, while at evidence stage he had extended concession to Manthar and role of firing has been confined to Mumtaz alone.
5. ' The learned counsel while arguing this case has stated that certain improvements have been made by the prosecution witnesses in this case at the trial stage in order to pick and choose the accused of their choice for their conviction. He argues that the gun has been recovered from Manthar, the empties which were secured from the place of incident, have been matched with the gun. The report is positive. In spite of that no allegation of firing has been made against Manthar at the trial stage and he has been rightly acquitted by the trial Court. The learned advocate has vehemently argued that role of firing has been assigned to Mumtaz. Motive of Karo has also been attributed to Mumtaz, stating that Ilakal' was given to deceased Ghulam Hyder that he is `Karo' with the wife of Mumtaz. In spite of that no recovery has been shown to have been made from Mumtaz.
6. Mr. Jatoi states that this .Is a case of substitution of accused. Mr. Nisar Ahmed G. Abro, learned State Counsel, states that the learned trial Court has rightly convicted the accused and the appeal is liable to be dismissed. No doubt murder has taken place, empties and gun have been recovered, positive report is on the record, but the person from whom all these things have been recovered has not been attributed any injury to deceased. The person against whom ocular evidence has been led, no corroborative piece of evidence has been attributed to him. Certain important witnesses have not been examined at trial stage. Prosecution has pursued the case halfheartedly.
7. It appears from perusal of entire paper book that neither there was some underhand compromise between the parties or the accused was so influential that witnesses wanted to extend concession to him.
8. ' Be that as it may, as far as present evidence in hand is concerned, it is not sufficient to record conviction against the appellant; I extend benefit of doubt to the appellant and set aside his conviction and sentence and order his acquittal. He shall be released forthwith, if not required in any other case.