' ZAFAR AHMED KHAN SHERWANI, J.---This is a jail appeal against the judgment dated 7-6-2005 passed by learned Judge, Special Court for STA, Shikarpur whereby the appellant was convicted and sentenced as under:--
(1) Under section 302, P.P.C. Imprisonment for 25 years.
(2) Under section 460, P.P.C. Imprisonment for life and to pay fine of Rs,50,000 in default of payment of fine to undergo S.I. For six months.
(3) Under section 337-A (ii), P.P.C. Imprisonment for five years as Tazir and Arsh being 5% of Diyat amount payable to the injured.
(4) Under section 337-F(v), P.P.C. Imprisonment for five years as Tazir and Arsh being 10% of the Diyat amount payable to injured Abdul Rehman. If the amount of Arsh is recovered which is to be paid in instalment during the period of three years and in case he fails he is to be kept in jail and to be dealt within the same manner as if sentence of simple imprisonment has been granted till the amount is paid.
' All the sentences are to run concurrently with the benefit of section 382-B, Cr.P.C.
2. The facts leading to this appeal are that it was alleged by the complainant Sultan Ahmed in his F.I.R. Bearing Crime No,24 of 2000 lodged at police Station Jagan at Humayoon on 8-4-2000 at 12- 00 noon that he married with one Mst. Soni the daughter of Muhammad Hussain in consideration of Rs,75,000 but her brother Sikandar was annoyed and had threatened that he would not leave both the spouses alive. On the day of this incident at 6-00 a.m. The complainant along with his sister Mst. Umedan and her husband Abdul Rehman and brother Abdul Sattar as well as Abdullah were in their house, accused Abdul Rehman armed with Kalashnikov, the said brother of his wife, Sikandar and the appellant Khadim Hussain with other accomplices nominated in the F.I.R. Armed with Rifles entered in his house and challenged that since he had married with Mst. Soni, therefore, he would not be left alive and they attacked by firing directly on them to commit their murder. His sister, her husband and their son Shahmir received injuries and fell down. The other inmates of the house took shelter. Thereafter the culprits decamped raising slogans. The husband of the sister was lying on the ground inside the house having fire-arm injuries on the left side of his mouth and was unconscious. Similarly, Mst. Umedan who had received injuries on the left side of her chest and other parts of the body was also lying injured and then died. His nephew Shahmir also received injuries on his back side of waist through and through from front side also met with the same fate.
The complainant leaving some persons at the dead bodies brought the injured Abdul Rehman at Civil Hospital, and then lodged the F.I.R. On the advice of his nekmard, namely, Tamur Khan Pathan.
3. After usual investigation, the appellant was tried by the learned Special Court where the prosecution examined all the material witnesses in support of the charge including the complainant, the injured witness Abdul Rehman so also the Medical Officer and the Investigation Officer who also produced the relevant documents in support of the charge. The appellant was also examined under section 342, Cr.P.C. In which he denied the evidence brought on the record and produced an extract of Entry No,13 relating to his arrest from Sibi, as Exh.22-A and then examined HC Abdul Hague Zarkoon of P.S. Sibi, Saddar in support of the entry. After hearing the learned counsel for the appellant and the learned Special Prosecutor, the learned trial Court found the appellant guilty of the commission of the above offences and therefore convicted and sentenced him as aforementioned.
4. We have heard the learned counsel for the appellant and the learned Asstt: A.G. For the State and perused the record.
5. It was contended on behalf of the appellant that the prosecution has failed to prove the commission of the offence beyond reasonable doubt on the grounds, inter alia, the presence of the appellant at the place of the incident was not proved, motive behind the brutal double murder also remained shrouded in the mystery, recovery of the crime weapon has neither been proved nor its ,nexus was shown with the crime of murder and the weapon secured by the police to connect the appellant with the commission of the offence was not sent to the Forensic Science Laboratory in order to prove the empties secured from the place of incident were of the bullets which were fired from the same. With regard to motive, he elaborated that as per prosecution, co-accused Sikandar who wanted to kill the complainant as he had threatened so but in spite of his alleged presence at the spot at the time of incident not a single bullet was fired on him and remained unhurt. He also referred the statements of the injured witness, namely Abdul Rehman in which he deposed that after receiving the injuries he became unconscious therefore the question with regard to identity of the appellant through him cannot be safely believed. He therefore, prayed that the impugned judgment of conviction and sentence may be set aside and the appellant be acquitted.
6. On the other hand the learned A.A-G. Submitted that the prosecution has successfully proved the charge against the appellant beyond reasonable doubt through natural and credible witnesses and if there are any contradictions in their statements the same are of minor nature which can be ignored in the circumstances. He therefore, prayed that the appeal may be dismissed and the conviction and sentence awarded to the appellant be maintained.
7. We have carefully considered the above arguments in the light of the record.
8. As per case of the prosecution, in all 12 culprits including the appellant had entered in the house of the complainant. Some of them were empty handed whereas some were armed with weapons such as, Kalashnikov, Rifles, guns and hatchets while the appellant was armed with an assault Rifle and they attacked the complainant party at about 6-00 a.m. And killed by firing (his sister) Mst.
Umedan, her son Shahmir and injured her husband Abdul Sattar. The incident was witnessed by the complainant, his brothers Abdul Sattar and Abdul Ghani. The motive behind this incident was that complainant had married with Mst. Soni who was previously married to the absconding accused Abdul Rehman, on account of which, her brother Sikandar was annoyed and had threatened him for the dire consequences.
9. To prove this story, the prosecution examined the complainant, P.W. Abdul Sattar and P.W. Abdul Rehman (the injured) to bring ocular account of the incident on the record.
10. On perusal of the evidence of the star witness P.W. Abdul Rehman (the injured) it is evident that he has deposed in clear terms that the complainant, P.W. Abdul Sattar as well as one Abdul Ghani arrived at the place of the incident from their respective houses when the culprits had fired upon him, on his wife and the son who had died at the spot. Although, the complainant and P.W. Abdul Sattar have deposed that they were present at the place of the incident and witnessed the entire episode of firing by the accused but since the star witness did not corroborate them in this regard, therefore, they require further corroboration specially when both remained unhurt therefore, their presence remained doubtful. Had the complainant present there, the culprits would not have left him alive because he was their main target on account of his marriage with Mst. Soni, the ex wife of absconding accused Abdul Rehman, therefore, it is not safe to believe.
11. Coming to the evidence of the injured witness Abdul Rehman, no doubt his sole testimony can be sufficient for the conviction of the appellant and admittedly he had no direct enmity with the brother of the wife of the complainant Mst. Soni but he appears to have become target on account of the relationship with the complainant, therefore, during the incident, his wife and son were murdered, but the important factor is still the identity of the appellant through him. Admittedly, twelve culprits had participated in the commission of the offence at about 6-00 a.m. There is no evidence that the appellant was previously known to him, therefore, his identity through him also requires corroboration. His name was given in the F.I.R. By the complainant and he at the most he corroborated him when he was examined under section 161, Cr.P.C. After eleven days. In these circumstances, it was the duty of the prosecution at least to hold an identification test before some Judicial Officer immediately after recording arrest in order to confirm his identity through him but that was never done for the reasons best known to it. The arrest of the appellant and the recovery of the Rifle on his pointation was also not supported by both the private witnesses when they were examined to prove these facts. Even otherwise neither the Rifle nor the empties secured from the place of the incident were sent to the Forensic Science Laboratory for certification that both match with each other, therefore, the recovery of Rifle on his pointation even if proved on the basis of evidence of the Investigating Officer will still have no nexus with the commission of these offences by the appellant.
12. In view of the above facts and circumstances, such type of evidence of the injured witness cannot be sufficient to hold that the prosecution has discharged its burden of proof the commission of the offence by the appellant beyond reasonable doubt but the learned trial Court convicted and sentenced him on such weak piece of evidence which cannot be approved by us in appeal.
13. In view of the above, the impugned judgment is untenable under the law and the same is set aside. The appeal is, therefore, allowed and the appellant is acquitted giving benefit of doubt. He be released forthwith if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.