1. JUDGMENT IMAM BUX BALOCH, J.---Appellants Ali Nawaz, Khawand Bux and Qabool, all by caste Mazari, have assailed the judgment, dated 22-8-2009, passed by the learned Additional Sessions Judge, Kashmore in Sessions Case No.92 of 2001, registered vide Crime No. 86 of 1998 at Police Station Kandhkot, for offences falling under sections 302, 506/2, 201, 34, P.P.C., whereby the appellants were convicted under section 302(b), P.P.C. Read with section 34, P.P.C. To suffer imprisonment for life, they were further convicted under section 201, P.P.C. Read with section 34, P.P.C. To suffer R.I. For two years and shall also pay fine of Rs.20,000 each, in case of default in payment of fine amount they shall suffer six months' S.I., they were further convicted under section 506/2 read with section 31, P.P.C. To suffer R.I. For two years and to pay fine of Rs.10,000 each and in case of failure to pay such fine they shall suffer S.I. For three months more. It was ordered by the learned trial Court that the fine amount, if recovered, shall be paid to legal heirs of deceased Nazir Ahmed. The benefit of section 382-B, Cr.P.C. Was also extended to them. It was also ordered by the learned trial Court that all the sentences shall run concurrently.
2. The prosecution case, according to the F.I.R., is that complainant Allahyar lodged his report with Gaddu Police Station on 12-11-1998, at 1710 hours, stating therein that he is residing with his sister's husband Miran Mazari in one house. Miran has four sons, out of them one Nazir is young aged about 26 years and three remaining sons are minors. On 11-11-1998, at sunset time, accused Ali Nawaz, who is relative of Nazir Ahmed, came in the house of complainant and called him outside of the house, to which complainant along with his nephew Nazir Ahmed came out of the house and met with Ali Nawaz, who sought permission from complainant for Nazir Ahmed to have meal with him. Deceased Nazir Ahmed was allowed and thereafter accused Ali Nawaz proceeded along with Nazir Ahmed to his house. Nazir Ahmed did not return back till late night, hence complainant along with his another nephew Rasheed Ahmed and his sister's husband Miran went to the house of accused Ali Nawaz to enquire about Nazir Ahmed early in the morning at about 6-00 a.m., at 12-11- 1998. When they reached near the house of accused Ali Nawaz, they heard cries of 'Kam, Karo', the complainant party rushed inside the house and saw accused Qabool, Khawand, armed with guns, Ali Nawaz, Lakhoo, having hatchets, fighting with deceased Nazir Ahmed. They gave 'hakals' but in their presence accused Qaboolo and Khawand fired with their guns at Nazir Ahmed, which hit him, who fell down. Accused Ali Nawaz and Lakhoo started causing hatchet blows to Nazir Ahmed, who succumbed to the injuries on the spot. Complainant party raised cries, but accused extended threats to the complainant party, not to go near to them else they will be murdered, as they have declared Nazir Ahmed as Karo. As the complainant party was empty-handed and due to fear hide themselves in the 'Lace' cluster, from where they observed that accused persons after taking dead body of Nazir Ahmed thrown the same in River Indus, which is just in front of the house of accused persons. The complainant party went to the place where the dead body of Nazir Ahmed was thrown in the River Indus, but they could not see the dead body.
3. After that complainant party went to their on village, took their relatives and went to the River Indus to search the dead body, but could not succeed. Then the complainant went to police station and lodged the F.I.R. After registration of F.I.R., the police after usual investigation submitted challan in the Court of law against the accused/appellants.
4. Charge was framed against the accused/appellants on 1-6-2004, to which they denied and pleaded trial.
5. During trial, prosecution examined complainant Allahyar as P.W.1 at Exh.8, he has produced copy of F.I.R. At Exh.8/A; Miran as P.W.2 at Exh.9, he has produced his 164, Cr.P.C. Statement at Exh.9/A, Rasheed Ahmed as P.W.3 at Exh.10, he has produced his 164, Cr.P.0 statement at Exh.10/A, Allah Dito as P.W.4 at Exh.11, he has produced mashirnama of wardat at Exh.1111/A, mashirnama of visiting the place of throwing the dead body in the River Indus at Exh.11/B, mashirnama of arrest of appellants at Exh. 11/C, mashirnama of recovery gun from accused/appellant Qaboolo at Exh.l1/D, mashirnama of recover of hatchet from appellant/accused Ali Nawaz at Exh.11/E, Abdul Razak as P.W.5 at Exh.12, who is Investigating Officer of the case. After that the prosecution closed its side vide Exh.13. After concluding the trial, the statements of accused/appellants under section 342, Cr.P.C. Were recorded at Exhs.14 to 16. After hearing the parties, the impugned judgment was passed by the learned trial Court.
6. I have heard Mr. Asif Ali Abdul Razak Soomro, learned counsel for the appellants, Mr. Faiz Muhammad Larik, learned counsel for the complainant and Mr. Altaf Hussain Surahio, learned State Counsel...
7. At the very outset, Mr. Altaf Husain Surahio, learned State counsel, did not support the impugned judgment, on the ground that during the course of investigation the dead body of deceased Nazir Ahmed had not been recovered, hence there is no medical evidence to support the ocular evidence furnished by the prosecution. Mr. Surahio very frankly conceded that the prosecution has failed to establish the guilt of the appellants beyond any shadow of reasonable doubt and he further argued that the benefit of doubt must be extended in favour of the appellants.
8. Mr. Asif Ali Abdul Razak Soomro, learned counsel for the appellants, argued that the learned State Counsel rightly did not support the impugned judgment. He argued that ocular evidence furnished by the interested witnesses is having no corroboration by any independent source and in absence of medical evidence, the evidence of interested and related witnesses would not be sufficient to base conviction in a case involving capital punishment.
9. Mr. Faiz Muhammad Larik, learned counsel for the complainant, argued that the ocular evidence is furnished by the witnesses, who were present at the time of incident. Though they were related to the deceased, but mere relationship with the deceased is not sufficient to discard the ocular evidence. He further argued that as the appellants had thrown out the dead body of Nazir Ahmed in Indus River and the same was not recovered though efforts had been made by the complainant party for its recovery, but they could not succeed. He further argued that the specific role is assigned against the appellants and there is no previous enmity between the parties, and there was a motive to do away with deceased Nazir Ahmed by the appellants as there was allegation of `Karap' against deceased Nazir Ahmed. He admitted that the dead body was not recovered, but he argued that in absence of recovery of dead body the ocular evidence could not be brushed aside easily.
10. I have considered the submissions advanced at the bar and with the assistance of learned counsel for the parties examined the evidence collected by the prosecution.
11. Complainant Allahyar stated in his evidence that six years back while he along with Miran and Rasheed Ahmed were available in the house, when appellant/accused Ali Nawaz, came and asked them that he has arranged for a meal for Nazir Ahmed, therefore, he may be permitted to accompany with him. He was permitted, but deceased Nazir Ahmed did not return for whole night and on the morning he along with Miran and Ali Nazir Ahmed went to the house of accused Nawaz and when they reached in the house of Ali Nawaz, they heard cries, they saw that accused Khawand Bux had fired at Nazir Ahmed in their presence and accused Qabool had also fired at Nazir Ahmed. Lakhoo and Ali Nawaz also caused hatchet blows to deceased Nazir Ahmed. He further stated that the accused party had also issued threats to them. Thereafter, due to fear they took shelter of 'Laee' trees and they saw that dead body of deceased Nazir Ahmed was thrown in Indus River by the appellants/accused. He further stated that they searched for the dead body in Indus River, but could not succeed and then he went to Police Station Guddu and lodged F.I.R. He further stated that police visited place of wardat in presence of Allah Dito and Ganhwar their on and he further stated that police had also secured blood-stained earth and sealed the same.
12. In cross-examination he admitted that mashir Allah Dito is residing on the other side of River Indus in Deh Pir Bux. He admitted that prior to this incident none had declared deceased as Karo. He admitted that one Paroo was murdered, who was known to him and such F.I.R. Was registered against deceased Nazir Ahmed and others, but subsequently deceased Nazir Ahincd was acquitted, hence all the relative of said Paroo had shifted from that area. Lie admitted that the houses of appellants/accused are at the distance of about one kilometer from their houses. He denied the suggestion that the houses of appellants/accused are situated at a distance of 2/3 houses from their houses. He admitted that they had heard cries outside the house at the distance of about 20/25 paces. He denied the suggestion that a "SANG" was due against complainant, for which they have dispute, therefore, they have been involved by the appellants/ accused in a false case.
13. P.W:2 Miran, who is father of deceased Nazir Ahmed, stated the same facts as stated by the complainant. In cross-examination he admitted that- his 164, Cr.P.C. Statement was recorded after about 2 months of the incident. He further stated that when his statement under section 164, Cr.P.C.
14. Was recorded by the Magistrate, other persons were also present in the 'Court and P.W. Rasheed Ahmed was also available at that time, so also the complainant. He admitted that one Yaroo Mazari is known to him. He denied that he did not know Yaroo Mazzari was murdered and his deceased son was involved in the case. He stated that the houses of accused/appellants are situated at the distance of 150 paces from their houses. He admitted that prior to the incident it was not declared by accused/appellants that his son Nazir Ahmed is `Karo' and he was unaware about the allegation of `Karap' against his deceased son Nazir Ahmed. He admitted that the police had not visited the place of wardat in their presence. He denied the suggestion that one "SANG" was due against the accused Ali Nawaz and on his refusal complainant had lodged false F.I.R. He admitted that mashir Allah Dito was residing on the other side of Indus River. He admitted that after consultation with each other the F.I.R. Was lodged at 5-00 p.m. By the complainant.
15. P.W.3 Rasheed Ahmed, who is nephew of complainant and P.W Miran and cousin (Puphat) of deceased Nazir Ahmed, stated that when Ali Nawaz came to the house of complainant for taking deceased Nazir Ahmed to his house, he was not present there and he was informed by the complainant after his return back in the evening about Nazir Ahmed and on the second morning he along with complainant and P.W Miran went to the house of accused Ali Nawaz and he along with P.W. Miran and complainant Allahyar had seen the incident. He has supported the version of complainant and P.W. Miran about the incident. In cross-examination he stated that Paroo Lakhani Mazari was not known to him, but he admitted the suggestion that in murder case of Paroo Mazari deceased Nazir Ahmed was involved and subsequently he was acquitted from that case. Again said he was prior to acquittal murdered. He admitted that the houses of appellants/accused are situated at the distance of about one kilometer from their houses. He further stated that he was only informed by the complainant in the morning. He admitted that after they returned to their house, they consulted to each other, hence lastly complainant went to police station for lodgment of F.I.R. He denied the suggestion that one "SANG" was outstanding against Ali Nawaz and on his refusal complainant had lodged false F.I.R.
16. P.W.4 is Allah Dito, who is mashir of place of incident, arrest of appellants and recovery of gun and hatchet from the appellants, so also mashir of place where dead body of deceased Nazir Ahmed was allegedly thrown in the Indus River. He admitted that his village is situated about two kilometers from the place of wardat. He admitted that he was picked by the police while going to place of wardat at the distance of about 2/3 miles away from the place of wardat. He stated that he was called by the S.H.O. Of Police Station Guddu from the shop of one Noor Muhammad, where he was standing and that place is situated at the distance of about one kilometer away from place of wardat. He further stated that it was 9-00 or 9-30 a.m. When called him at Police Station Guddu.
17. He admitted that his village is situated at a distance of 516 kilometers away from Guddu City.
18. P.W.5 Abdul Razak is Investigating Officer. He stated that on 12-11-1998 complainant Allahyar came at police station at 1710 hours for lodgment of report and he recorded his report accordingly. He further stated, that he visited the place of wardat on same date and prepared such mashirnama in presence of mashirs, but he does not remember their names. He further stated that he secured blood-stained earth from the place of wardat and sealed the same. Further stated that he recorded statements under section 161, Cr.P.0 of eye-witnesses Miran and Rasheed. The dead body of deceased Nazir Ahmed was not recovered. He further stated that he arrested the accused/ appellants. He further stated that accused Qabool produced SBBL gun from 'Pale grass and accused Ali Nawaz produced a hatchet before him.
19. In cross-examination he admitted that houses of complainant party are situated at the distance of 20/25 paces away from the houses of accused party, so also mashir Allah Dito and Ganhwar. He admitted that in the village of accused 10 other houses are situated. He denied the suggestion that the mashir and witnesses along with complainant are residing four kilometers away from the houses of accused party.
20. I have minutely perused the evidence available on record and have appreciated the same.
21. The ocular evidence is full of discrepancies and exaggerations. Complainant in his evidence admitted that one Paroo Mazari was murdered and deceased Nazir Ahmed was challaned in that case, but subsequently he was acquitted and the relatives of Paroo Mazari had shifted from that area, whereas Miran, who is father of deceased Nazir Ahmed, stated that he did not know whether Paroo Mazari was murdered and his son deceased Nazir was involved in that murder case. P.W Miran stated that appellants are residing at a distance of 150 paces away from their houses, whereas Rasheed Ahmed stated that the houses of accused are situated at the distance of about one kilometer from their houses, while mashir Allah Dito, who was residing on the other side of Indus River at a distance of about 4/5 miles away from the place of wardat, whereas I.O. Abdul Razak stated that the houses of complainant are situated at a distance of about 20/25 paces away from the houses of accused. P.W. Rasheed stated that Paroo Lakhani was not known to him, but he admitted that in murder case of Paroo Lakhani Mazari deceased Nazir Ahmad was involved and subsequently he was acquitted. This witness also stated that the houses of accused are situated at a distance of about one kilometer from their houses. The ocular evidence and B the circumstantial evidence are full of discrepancies. In a case where capital punishment is involved, the evidence should come through unimpeachable source, which C is lacking in the case in hand.
22. All the three witnesses are residing in one house and are closely related to each other. Admittedly, other houses were also situated in the village of the accused, but no independent D witness was cited by the prosecution to corroborate the interested and related evidence. Admittedly, the dead body of deceased Nazir Ahmed was not recovered and according to the prosecution case blood- stained earth was taken from the place of incident, but the chemical report has not been produced to establish that the, blood-stained earth contained human blood. The recoveries allegedly effected from the appellants/accused were not sent to chemical examiner/Ballistics Expert to connect the appellants with the commission of crime. Circumstantial evidence .And medical evidence are missing in the case in hand. The appellants cannot be punished only on the evidence, which had come from related and interested witnesses.
23. For the foregoing reasons this appeal was allowed by my short order, dated 24-9-2010, whereby the conviction and sentence awarded to the appellants by the learned trial Court was set aside and the appellants have been acquitted, and these are the reasons in support of said short order.