1. ' SYED ZAKIR HUSSAIN, J.---The appellants Noor Hassan, Muhammad Moosa and Ali Anwar have filed this Criminal Appeal against the judgment dated 18-3-2008, passed by the learned IVth Additional Sessions Judge, Mirpur Mathelo, in Sessions Case No,39 of 2002 (State v. Noor Hassan and others), based on the Crime No,181 of 2001, lodged with PS Mirpur Mathelo under sections 302/34, 337-H(ii), P.P.C., by the complainant namely Nizamuddin Naich, against the appellants, in the matter of the murder of his brother namely Ghulam Rasool, the deceased, whereby the learned trial court has been pleased to hold them guilty of the offence of the murder, referred to above, in furtherance of their common intention, convicted them all under section 302/34, P.P.C. And sentenced them each to suffer R.I. For 25 years as Tazeer with benefit of section 382-B, Cr.P.C. To one of them namely Noor Hassan. The appellants have prayed for setting aside of the said judgment inter alia on the grounds mentioned in the appeal.
2. ' The facts forming the background of the appeal, briefly stated, are that the complainant lodged the said F.I.R. On 5-10-2001 at 1300 hours stating that about three days back, a quarrel took place between his brother Ghulam Rasool, the deceased and the appellants Noor Hassan over the matter of children; the appellant Noor Hassan and others issued threates to the deceased that they would not spare him; on the fateful day, while in the morning, the deceased had taken his cattle break of two hours and he (the complainant) and his cousin namely Jabbar were on their way to their agricultural lands; the appellants duly armed with guns, came across and shouted with challenge to the deceased over the issue already stated above; the appellant Noor Hassan and Ali Anwar in furtherance of their common intention of causing murder of the deceased, fired from their guns at him; the deceased having received such injuries fell to the ground; the complainant party could not help the deceased due to the threats of the appellants of being harmed in similar manner, in case they would intervene; the appellants also made aerial firing; after a short while when the appellants left the scene, the complainant and his cousin went nearer to the deceased, who had already succumbed to injuries, two in number, one on right side of the chest, the other in between his buttocks.
3. ' The police started investigation, visited place of wardat and secured two empty cartridges from the spot under a memo. Prepared to such effect. The police arrested the appellant Noor Hassan under a memo. Dated .27-11-2001 and also secured out of his possession thereunder, his unlicensed Double Barrel Gun as crime weapon. The police got voluntary confession of the appellant Noor Hassan recorded by Civil Judge and Judicial Magistrate, Daharki, on 27-11-2001, whereby he confessed to have exclusively committed the murder of the deceased with the said gun by having fired it twice at him, for the reasons that the deceased had committed sodomy upon his cousin Bashir Ahmed and when he demanded the deceased to effect a Faisla in that regard (as a matter of tradition of the locality/brothery), he refused and started showing his muscles instead, putting thereby the appellants in public embarrassment. The confession was inculpatory in nature, as the appellant admitted the crime exclusive of other appellants. The police finally submitted the charge sheet against the appellant, Noor Hassan, for the aforesaid offence, for his trial in the Court of law, therefor, accordingly. The police found the case as 'not established' against other appellants, who therefore, were placed in column No, 2 of the challan, but later on, the learned trial Court, inserted/included them in the case, as accused persons, on the application of the complainant party, and thus, they too, began to face the trial along with the appellant Noor Hassan, against a common charge framed against them on the part of the learned trial Court for the murder of the deceased conjointly as reported against, to which they all pleaded 'not guilty' and claimed trial.
4. The learned trial Court thereafter, took down the evidence and concluded the trial by way of the impugned judgment, whereby as already stated above, all the appellants have equally been held responsible to the commission of the crime, they were charged with.
5. ' For the reasons to be recorded later, this Court passed order on 13-4-2010, whereby the appeal was partly allowed for the appellants Muhammad Moosa and Ali Anwar, whose conviction and sentence were set aside and they were thereby accordingly acquitted from the charge of the case, while simultaneously, the appeal was dismissed for the appellant Noor Hassan and thereby the impugned judgment was upheld to such extent only.
6. ' We have heard the learned counsel for the parties, Assistant Prosecutor-General and have perused the relevant record. The record shows that the parties are living in the same vicinity as neighbourers and they are of same caste. Admittedly, a quarrel over the matter of children, took place between the parties, which resulted in the incident in question. The complainant supported the F.I.R. Before the court in his evidence. The case to such story was also supported by his witness namely Abdul Jabbar.. As such, though, by ocular testimony, the case stands supported, but at the same time, it stands belied by the other facts such as the secured two cartridges of .12 bore from the spot when sent under seal cover to the expert together with the secured licensed gun of the appellant Noor Hassan, were found to have stood fired therefrom and that the judicial confession of the appellant Noor Hassan, which carries A no infirmity, seems to have stood unshatteredly proved at trial. The same when read with the expert report to the above effect, makes the appellant Noor Hassan, responsible for the crime exclusive of other appellants. Thus, the case, therefore, could not have exact nexus with the said ocular testimony to the extent that the appellants Ali Anwar and Muhammad Moosa were present on the spot at the relevant time; they possessed guns; they used their weapons respectively by having fired once at the deceased and injured him on his buttocks, and made aerial firing; their accomplice the appellant Noor Hassan had already fired on the vital part i,e, right side chest of the body of the deceased from his Double Barrel Gun which resulted in his death instantaneously and, they all committed the said crime of murder in furtherance of their common intention for the motive as reported against, and hence, the case against the appellant Noor Hassan appears to have been rightly held by the impugned judgment, as proved beyond shadow of any reasonable doubt in the light of the evidence including the ocular testimony referred to above, and circumstantial evidence consisting of judicial confession, bore, and expert opinion in positive thereagainst, and so also, the recovery of the crime weapon, and that of two empty cartridges of .12 postmortem report, which went unchallenged throughout, which successfully established the cause of death of the deceased being of gun shot injuries, two in number. There is no other variation in the record, so far as the case of the appellant Noor Hassan is concerned and therefore, the impugned judgment against him, does not suffer any infirmity. On the contrary, the case of the appellant Ali Anwar seems to have not been proved beyond shadow of any reasonable doubt, for the twofold reasons, firstly, that no crime weapon belonging to him, was secured and no injury of the deceased, is open to be attributed to him, particularly when, two cartridges secured from the spot, are found by the expert to have belonged to the gun secured from the possession of appellant Noor Hassan, and the ocular testimony to the effect that the appellant Ali Anwar made fire shot from his own gun, which hit the deceased on his buttocks or otherwise, being contradictory to the aforesaid position of the expert report and the number of the secured empties coupled with judicial confession of the appellant Noor Hassan, which being produced by the prosecution as evidence, prima facie exonerates and absolves the appellants other than Noor Hassan of vicarious liability or criminal accountability of the charge in question.
7. The case of the appellant Muhammad Moosa is also identical to that of the appellant All Anwar, rather more lighter since he has reportedly made from his gun aerial firing only at the relevant time. In this regard, it is suffice to mention that had there been any aerial firing as is assigned to the appellant Muhammad Moosa, there would have been empty cartridges in extra number on the spot, for being secured like the said two secured cartridges, by the I.O. At the relevant time. In any case, there appears a reasonable doubt warranting acquittal of the appellants Ali Anwar and Muhammad Moosa, in the circumstances of the case. The police prima facie therefore, rightly concluded that there had been no evidence against the appellants Ali Anwar and Muhammad Moosa and submitted such report, but the learned trial court took the matter lightly and without proper appreciation of the reasons given by the police there-against and the record of the prosecution, included them as accused to face the trial together with the appellant Noor Hassan.
8. With the result, these appellants faced and suffered unwarranted agony of trial. In other words, the appellants All Anwar and Muhammad Moosa both are entitled to acquittal from the charge of the case as a matter of benefit of doubt. Legally saying, a single circumstance creating a reasonable doubt as to the guilt of the accused, to the crime he has been charged with, entitles him to acquittal therefrom, in the interest of justice. Reliance can be made to the case of Tarique Pervaiz v.
9. The State reported in 1995 SCM R 1345.
10. ' Accordingly, the appeal is allowed for appellants Muhammad Moosa and Ali Anwar; the impugned judgment is set aside against them in all respects; they are hereby accordingly acquitted from the charge of the case; they are on bail, their bail bonds stand cancelled and sureties dischared. Simultaneously, the appeal, is hereby rejected against the appellant Noor Hassan and the impugned judgment is upheld and maintained against him.
11. ' The above are the reasons for the short order passed on 13-4-2010. 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.