' KHADIM HUSSAIN M. SHAIKH, J.--- Through this appeal the appellants have called in question the judgment dated 16-8-2007 passed by the learned Court of Sessions Judge, Kamber Shandadkot, in Sessions Case No,138 of 2005 re: St. v. Gul Hassan and another for offences under sections 302, 34, P.P.C. Based upon F.I.R. No,11 of 1997 of Police Station Shandadkot, whereby the appellants were convicted under section 302(b)/34, P.P.C. And were sentenced to suffer imprisonment for life and pay compensation of Rs,3,00,000 to the legal heirs of deceased and in case of default thereof the appellants were to undergo R.I. For six months more. They were however extended benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the case are that, on 12-2-1997, A.S.-I. Muhammad Ashraf Lashari of Police Station Shandadkot lodged F.I.R. At said Police Station Shandadkot, at 1400 hours mainly stating therein that on that date in the morning time he along with his subordinate staff left police station vide Daily Diary Entry No,11 at 1205 hours for patrolling and while on patrolling duty he and his subordinate staff, namely, H.C. Muhammad Malook, P.C. Sikander Ali and P.C. Bongul Khan reached in Shahi Bazar, near Haji Khan Market, at about 1230 hours, when they heard fire-arm reports, which attracted them to that place of firing where they found one person lying injured who disclosed his name as Peeral son of Ali Nawaz Magsi resident of Patt Feeder Balochistan, and he further disclosed that accused Gul Hassan son of Ghulam Qadir Magsi and Ali Gul son of Ghulam Magsi who were armed with rifles had fired at him for taking revenge of old enmity. The police party found that he had received fire-arm injuries at his left upper arm, chest and he was bleeding. Thereafter, the complainant party delivered the injured to Incharge City Patrolling H.C. Muhammad Moosa, who along with his subordinates came there injured Peeral was allegedly taken to the hospital for his treatment, it is alleged that injured Peeral later on died. Thereafter the above F.I.R. Was lodged at Police Station Shandadkot by A.S.-I. Muhammad Ashraf Lashari.
3. Appellant Gul Hassan was arrested and after investigation he was sent up with the challan, wherein Ali Gul was shown as absconder. Afterwards Ali Gul was also arrested and he was sent up with the subsequent challan.
4. At trial prosecution examined Tapedar Asif Hussain, who produced sketch of Vardat Dr. Aziz Ahmed, he produced the postmortem report of deceased Peeral, complainant A.S.-I. Muhammad Ashraf Lashari, he produced Mashirnama of arrest etc. Of appellant Gul Hassan, inquest report F.I.R.
And Mashirnama of place of incident, H.C.
Muhammad Malook P.C. Sikandar Ali D.S.P. Abdul Jabbar Bijarani and then prosecution closed its side.
5. The statements of the appellants were recorded under section 342, Cr.P.C. Wherein they denied all the allegations levelled against them and claimed their false implication and innocence.
Appellant Gul Hassan further stated in his statement that he had been arrested two days prior to this incident and the complainant A.S.-I. Muhammad Ashraf Lashari foisted upon him his licensed rifle taken from his house. Both the appellants did not examine themselves on oath, nor led any evidence in defence.
6. On completion of trial, the learned trial Court found the appellants guilty and convicted and sentenced them as disclosed in para.1 (supra), vide judgment dated 16-8-2007.
7. The appellants being dissatisfied with the said judgment, dated 16-8-2007, have filed the present appeal.
8. The learned Advocate for the appellants has mainly contended that both the appellants are innocent, that the appellant Gul Hassan was already in custody with the police of Police Station Shandadkot prior to the lodgment of this F.I.R., that the incident was an unwitnessed one, that no independent person was cited as witness though incident took place in Shahi Bazar in Shandadkot Town, that there are material contradictions in the evidence led by the prosecution, and that entire case is based on alleged dying declaration of deceased Peeral allegedly made by him before the police i.e. Complainant A.S.-I. Muhammad Ashraf Lashari and his subordinate staff, though on receiving injuries found on his corpse deceased Peeral could not be in a position to give dying declaration he prays for acquittal of the appellants.
9. Learned State Counsel has conceded to the arguments advanced by the learned counsel for the appellants and has not supported the impugned judgment, stating that deceased Peeral after receiving the injuries had died instantaneously as is reflected from the post-mortem report, therefore, he was not capable to record his dying declaration as claimed by the prosecution.
10. It is an established proposition of criminal law that prosecution is duty bound to establish charge against accused beyond shadow of doubt, that evidence produced in support of the charge must be confidence inspiring that there should not be any inconsistency between the direct and circumstantial evidence of the case and that the prosecution version should not admit of any other hypothesis favourable to the accused. Keeping in view the same yardstick in mind, I have to analyze the evidence produced in the case to determine guilt and innocence of the appellant.
11. The complainant made a dishonest and vain attempt to make improvements during evidence by stating in his examination-in-chief that when they rushed to the place of incident they saw two persons armed with rifles running.Away although it is nowhere mentioned in the F.I.R. When confronted with the contents of the F.I.R. The complainant has admitted in the cross-examination that it is fact that I had not stated in my F.I.R. That when I reached at the place of Vardat two persons were running away. Moreover, all the other prosecution witnesses stated in their statements that when they reached the place of incident they had not seen any culprit running away from the place of incident. Complainant and all other prosecution witnesses examined by the prosecution have stated in their cross-examination that shops were open and so many private persons were available at the time of incident. The complainant further stated that he had prepared the inquest report with his own hand and that he had lodged the F.I.R. After preparation of inquest report. A perusal of inquest report produced by prosecution at Exh.13-B reflects that it was prepared at 1-30 p.m. On 12-2-2007, wherein F.I.R. No,11 of 1997, is mentioned though the F.I.R.
Produced as Exh.13-C was lodged on 12-2-1997, at 2-00 p.m. That is to say after half an hour after the preparation of inquest report.
12. Admittedly, the complainant and all other P. Ws. Reached at the place of Vardat after the incident and nobody among, them is eye-witness of the occurrence. It is also an admitted position that so many shops were open and so many private persons were available at the time of C incident but no independent person was taken from public to become witness and/or even as Mashir in this case. Apart from the above there are also other noticeable contradictions and improvements made during the trial.
13. In order to appreciate the main contention of the counsel for the parties regarding dying declaration allegedly made by deceased Peeral before the police as claimed by the prosecution, it would be appropriate to reproduce the evidence of Dr. Aziz Ahmed who conducted autopsy of dead body of deceased Peeral. The deposition of Dr. Aziz Ahmed reads as under:--- "On 12-2-1997, I was Medical Officer at Taluka Hospital, Shandadkot. On same date I received the dead body of deceased Peeral son of Ali Nawaz Magsi, through P.C. Karim Bux of Police Station Shandadkot for post-mortem examination and report. The dead body was identified by A.S.-I.
Muhammad Ashraf Lashari of Police Station Shandadkot. The dead body was of a male, Muslim aged about 48 years of average built. The post-mortem rigor mortis present. The post-mortem staining also present. I started post-mortem on 12-2-1997, at 4-00 p.m. And finished the same at 5- 00.p.m. On the same date: On external examination I found the following injuries on the dead body of deceased Peeral Magsi.
(1) One wound of entrance on the left side of chest near the nipple with inverted margin 1-1/2 c.m. In diameter circular shape.
(2) One wound of exit 5 c.m. In diameter on the right side back of chest with irregular averted margin.
(3) One wound of entrance 1-1/.2 c.m. In diameter on posterior aspect of left upper arm with inverted margin.
(4) One wound of exit 4 x 2 c.m. On the anterior aspect of left upper arm with averted margin.
' On internal examination, I found the following damages:--- ' Walls of thorax ruptured, lungs ruptured, heart and pericardiam also ruptured, 6th rib on left side and 9th rib on right side fractured, left humerus also fractured. Stomach contains semi-digested food particles.
' From the external as well as internal examination of the dead body of deceased Peeral Magsi, I am of the opinion that the death has occurred due to shock and heamorrhage. The injury No,1 individually and all collectively was sufficient to cause death in ordinary course of nature. The injuries were ante-mortem in nature and caused by fire-arm. The time between injuries and death was instantaneously and the time between death and post-mortem was about five hours."
14. The prosecution version in the F.I.R. And at the trial was that when police party reached the place of incident they found one person lying injured who on enquiry disclosed his name as Peeral son of Ali Nawaz Magsi, resident of Patt Feeder Balochistan and that the said injured allegedly made dying declaration before the police party giving the names with parentage and addresses of the accused and the weapons allegedly carried by them with roles and motive and that Peeral (deceased) being in injured condition was taken to the hospital and latter he died. Manifestly the learned trial Court seems to have been greatly influenced in arriving its conclusion by the fact that deceased Peeral had made dying declaration as claimed by the prosecution. The learned trial Court lost sight of the fact that medical evidence is contra to the aforesaid version of the prosecution Dr. Aziz Ahmed who conducted autopsy of corpse of deceased Peeral has categorically stated in his statement, which is also reflected from the post-mortem report produced as Exh.7-A that deceased had injuries having walls of thorax ruptured, lung ruptured, heart and pericardium also ruptured and that the time between the injuries and death was instantaneous.
15. The fact that the death of the deceased had occurred instantaneously also appeals to a prudent mind for a simple reason that the deceased had sustained above injuries rupturing his organs especially when his heart was ruptured he could not be in a position to give alleged dying declaration and he would have died on receiving such injuries. Thus, the version of the prosecution that they found Peeral (deceased) in injured condition and he disclosed his name with parentage and then he disclosed names of accused with parentage, addresses, descriptions of the weapons allegedly carried by them with roles assigned to them and so also the motive, is untenable which creates doubt in the prosecution case.
' In case of Muhammad Aslam v. The Crown 1969 SCM R 4261, the deceased Sardar Khatoon had allegedly shouted out the name of her assailant (appellant) but the Medical Officer who conducted autopsy of dead body of deceased Mst. Sardar Khatoon had given evidence to the effect that death was due to shock and haemorrhage as a result of bullet wound in the heart and right lung ... That in the present case death must be instantaneous. The apex Court allowed the appeal and set aside the conviction and sentence of the appellant and directed his release forthwith with the observations that the evidence of the doctor, quoted above makes it very doubtful that after the injury to the heart the victim could be in a position to shout out as stated by P.W.12 Mst. Zainab. The prosecution evidence in the circumstances seems to us to be 'scanty and not such as can sustain the conviction of the appellant.
16. In view of what has been discussed above I am of the considered opinion that the prosecution has failed to prove the charge against the appellants Gul Hassan and Ali Gul beyond any shadow of doubt, therefore, this appeal was allowed and the impugned judgment dated 16-8-2007 passed by learned Court of Sessions Judge, KamberShandadkot in Sessions Case No,138 of 2005 based on F.I.R. No,11 of 1997 Police Station Shandadkot, under section 302, 34, P.P.C. Was set aside and the said appellants were acquitted and they were directed to be released forthwith, if they were not required in any other case, vide short order dated 26-5-2009 and these are the reasons for the same.