1. ' IMAM BUX BALOCH, J.---The appellants, through this appeal have assailed judgment dated 29th September, 2009, passed by learned 1st Additional Sessions Judge, Shikarpur, whereby convicting the appellants under section 302(b), P.P.C. To undergo R.I. For life. However, benefit of section 382-B, Cr.P.C. Was extended in favour of appellants.
2. ' The brief facts of the prosecution case are that on 29-5-2000, complainant Haji Amir Bux lodged F.I.R., with Police Station Naper Kot, alleging therein that Karim Bux Jafferi and others levelled allegations of "Karap" against his nephew Mir Muhammad and demanded "fasila" and on refusal they got annoyed. On the above said date at 6-15 p.m. When the complainant along with his sons and nephew Hafiz Naseeruddin proceeded towards watercourse, accused Hazaro, Peroz with kalashnikoves, Ali Bux, Bhagio, Chakar, Gul Bahar, Karimore and Karim Bux, emerged from the said watercourse. Accused Karim Bux while abusing asked complainant party that today they would be killed, as they have refused for "fasila" and instigated rest of accused not to spare, on which accused Hazaro fired from his kalashnikov directly at son of complainant Abdul Subhan, who raised cry and fell down. The other accused fired from their respective weapons upon complainant party, but they did not sustain any injury. After departure of accused, the complainant found his son Abdul Subhan dead having injury on his forehead and the blood was oozing from the said injury. Then complainant leaving witnesses over dead body went to Police Station and lodged such report.
3. ' After usual investigation, the appellants along with co-accused Peroz were challaned showing accused Karimore, Ali Bux and Karim Bux as absconding. However, during trial co-accused Peroz died and proceedings against him were abated. The case was entrusted to learned 1st Additional Sessions Judge, Shikarpur. After completion the formalities the charge was framed vide Exh.5 to which the appellants and absconding accused Hazaro did not plead guilty and claimed trial. At trial, the prosecution examined complainant Haji Amir Bux as P.W.1, at Exh.11, he has produced F.I.R.
4. As Exh.l1-A P.W.2 Ghulam Rabbani at Exh.12.P.W.3 Muhammad Saleh was examined at Exh.14, he has produced mashirnama of arrest and recovery at Exh.14-A, P.W.4 Abdul Rahim at Exh.15, he is mashir of place of vardat, inspection of dead body and recovery of empties. He has produced such mashirnama as Exh.15-A, inquest report as Exh.15-B, P.W.5 A.S.-I. Abdul Qadir was examined at Exh.16, he has produced Ballistic Expert's report at Exh.16-A, Dr. Muhammad Hassan was examined as P.W.6, at Exh.18, he has produced postmortem report at Exh. 18-A. Then the statements of appellants along with co-accused Hazaro were recorded under section 342, Cr.P.C., and the accused intended to examine themselves on oath under section 340(2), Cr.P.C., but subsequently the learned defence counsel filed statement that he does not want to examine the appellants/accused on oath. Co-accused Hazaro jumped the bail and absconded himself and his case was kept on dormant file. After hearing the parties the learned trial Court convicted the appellants as stated above.
5. ' We have heard Mr. Asif Ali Abdul Razak Soomro learned counsel for appellants. Mr. Faiq Ali Pathan learned Advocate for complainant, and Mr. Musab Baleegh Dhamraho, learned State Counsel and with their assistance we have scanned the entire record.
6. ' Learned counsel for the appellants contended that ocular evidence is consist of complainant Haji Amir Bux, Ghulam Rabbani, and Haji Naseeruddin but the prosecution has examined only complainant and his son Ghulam Rabbani. He further contended that ocular evidence clearly indicates that it was accused Hazaro who fired upon deceased Abdul Subhan. He contended that from the ocular evidence no role is attributed against the appellants. He further contended that it is stated in the evidence of both P.Ws., Haji Amir Bux and Ghulam Rabbani that accused Hazaro fired from kalashnikov at deceased Abdul Subhan. He further contended that prosecution has miserably failed to establish its case against the appellants beyond any shadow of doubt. Learned counsel has further contended that learned trial Court has not appreciated the evidence brought on record by the prosecution in its true perspective and conviction has been awarded merely on the basis of extraneous consideration having no nexus whatsoever with the evidence which has come on record. He has relied upon case of Muhammad Shafi and 7 others v. The State (1974 SCMR 263), Noor Ahmed and others v. The State (PLD 2005 Karachi 177), Faryad Ali v. The State (2008 SCMR 1086), Hassanuddin v. Muhammad Mushtaq and 2 others (1978 SCMR 49); Abdul Khalique v. The State (2006 SC 1896), Zahid Emran and others v. The State (PLD 2006 SC 109), Nallamestty Yanadaich v. The State (1994 SCMR 588).
7. ' Mr. Faiq Ali Pathan, learned Advocate for complainant contended that prosecution has succeeded to bring whom guilt of the appellants beyond any shadow of doubt. Ocular evidence is in conformity with the medical evidence. It is next contended that by him that the appellants have shared common intention with the absconding accused Hazaro and that the appellants have facilitated the commission of alleged offence. It is further contended by learned counsel for complainant that during course of investigation appellant Bhagio produced gun. It is next contended that the prosecution has established the case against appellants by producing cogent and -trustworthy evidence. He strongly supported the impugned judgment. Learned counsel relied upon case of the State v. Moula Bakhsh alias Moulak (2005 PCr.LJ 794 (Quetta)).
8. ' Learned counsel appearing for the State supported the contention raised by learned counsel for complainant and contended that prosecution has established its case by producing cogent and inspiring-confidence evidence in shape of ocular as well as circumstantial evidence and medical evidence.
9. ' We have considered the submissions advanced at the bar and with the assistance of the learned counsel for parties have scanned the entire evidence.
10. ' P.W.1. Haji Amir Bux deposed that his son Abdul Subhan was a teacher. On the day of incident he along with his son Abdul Subhan, another son Ghulam Rabbani and his nephew Naseeruddin were going towards their lands for looking after watercourse, when at 6-15 hours, they reached near Pir Channel Shakh, all of a sudden eight persons emerged there, they were Hazaro, Peroz armed with kalashnikoves, Karim Bux, Bhagio, Ali Bux, Chakar, Gul Bahar and Karimore armed with guns. Karim Bux gave hakal to them and declared that since they have refused to pay the compensation of "Karap", therefore, they will not be spared. On the instigation of Karim Bux, accused Hazaro fired upon deceased Abdul Subhan, who fell down and other accused fired but missed. He further deposed that he noticed that his son Abdul Subhan succumbed to the injury at the spot. He further deposed that the motive was that there was allegation of "Karap" against his nephew Mir Muhammad. He was cross-examined at length. He admitted that Abdul Rehman is his caste fellow: co-mashir Hidayatullah is his nephews and mashirs Wahid Bux and Muhammad Saleh are his nephews. He further stated that his deceased son was a teacher and at the time of alleged incident he was posted in G.H.S. Pir Bux Shujrah, which was three kilometers away from his village.
11. He also admitted that on the day of incident his son performed his duties. He admitted that he has "Haris" for cultivation of his lands and at the time of incident the said land was cultivated by his "Haris" Khairo Nindwani. The place of incident is situated in that land. He also admitted that his deceased son was having landed property, which was cultivated by other "Haris". He also admitted that so many peoples belonging to Jafferi community had come at the place of incident but he did not give the names. He stated that accused were in western side and he admitted that his deceased son was on northern side. He admitted that accused made 2/3 fire shots upon them. He admitted that fire shots were made by each accused. He admitted that Dr. Muhammad Hassan is his relative, who has conducted postmortem upon dead body of deceased. He admitted that "Karap" allegation was against his nephew Mir Muhammad, not against his deceased son. He denied the suggestion that Jafferi community is having enmity with Chachar community. He admitted that during the period of five years between the incident and allegation of "Karap" levelled by co-accused Karim Bux no attempt was made by the accused persons upon them.
12. ' P.W.2. Ghulam Rabbani, who is son of complainant has deposed that on the day of incident he along with his father Haji Amir Bux, his deceased brother Abdul Subhan and his cousin Naseeruddin were going to look after irrigation watercourse, when at about 6-15 p.m. When they reached near Pir Channel Shakh, all of a sudden accused Hazaro armed with kalashnikov, Peroz armed with kalashnikov, Bhagio, Karim Bux, Ali Bux, Chakar, Gul Bahar and Karimore armed with guns emerged there. On the instigation of Karim Bux accused Hazaro fired from his kalashnikov directly at his brother Abdul Subhan. He further stated that accused Peroz fired from his kalshnikov and remaining accused fired from their respective guns but they saved themselves by falling on the ground he stated that the motive for murder was that accused Karim Bux had levelled allegation of "Karap" against his cousin Mir Muhammad. He denied the allegation that Dr. Muhammad Hassan was brother of his father-in-law Ghulam Qadir. He denied the allegation that daughter of deceased Abdul Subhan was given in marriage to the nephew of Dr. Muhammad Hassan. He admitted that on the day of incident his deceased brother performed his duty as teacher. He denied the suggestion that his cousin P.W. Naseeruddin was employee of Police Department. He admitted that at the time of incident their agricultural land was uncultivated. He admitted that they have 100 acres of agriculture land. He admitted that they have agricultural lands in northern and southern side of their village. He further deposed that he cannot give number of fire shots made by the accused except accused Hazaro who fired upon deceased. He denied the suggestion that while deceased was returning back from his duty alone he was killed by unknown persons. He admitted that allegation of "Karap" was levelled five years prior to this incident. He admitted that during five years no attack was made by the appellants/accused upon them. He admitted that they have not made any complaint to police about the threats extended by appellants/accused.
13. ' P.W.6 Dr. Muhammad Hassan conducted postmortem upon dead body of deceased Abdul Subhan and found one gutter type lacerated punctured wound 6 c.m. x 14 c.m. With skull bone fracture and brain matter coming out from the wound present over the forehead extended upto occipital region and head. Medical officer was of the opinion that injury was caused by an automatic weapon like kalashnikov. He further stated that one pellet was recovered from 'wound and he had directed Incharge of Police Station to collect the same. He denied the allegation that his nephew was son-in-law of P.W. Ghulam Rabbani. He stated that pellet lying in the glass bottle and the same is bullet which was recovered by him while conducting postmortem of deceased. He admitted that bottle can be de-sealed and can be re-sealed easily. He admitted that he has stated_ in his evidence that the pellet was recovered from the dead body of the deceased and he voluntarily stated that he was meant about the pellet as a present property which is lying in Court, his intention for saying the pellet to the property was, while the shell removed from the bullet it only remains as pellet. He admitted that at the time of conducting postmortem he was posted at RHC Karampur, District Kandhkot. He admitted that the postmortem pertains to District Shikarpur. He denied the suggestion that he removed the pellet from the bottle and thereafter bullet has been replaced in the bottle.
14. ' Circumstantial evidence is consisting upon evidence of P.W. Muhammad Saleh who is mashir. He has stated that five years back he along with Wahid Bux was taken by A.S.-I. Abdul Qadir in a private Datsun and went to Otaq of Peroz near village Pir Bux Shujrah, where A.S.-I. Abdul Qadir arrested accused Hazaro having Kalasknikov and accused Bhagio having SBBL gun. He further stated that Kalashnikov was loaded with fifteen bullets in its magazine. Gun and five live cartridges were recovered from accused Bhagio. He admitted that complainant is his uncle and co-mashir Wahid Bux is his cousin and they all are residing in the same village. He admitted that Otaq of Peroz is situated near village Pir Bux Shujrah. He stated that driver of Datsun was not known to him, but he was private person. He admitted that the village of accused Hazaro and Bhagio is at distance of 150/200 paces from Otaq of Peroz. He admitted that there were 8/10 houses in the village of accused Hazaro and Bhagio. He admitted that Riazo Laro is big bus stop and peoples remain available there. There are so many hotels, shops at Riazo Laro. He further stated that he did not remember that A.S.-I. Made any attempt to call persons from locality.
15. ' P.W. Abdul Rehman, he is mashir of place of incident, recovery of empty cartridges and inspection of dead body. He deposed that on the day of incident he was available at the place of incident.
16. Complainant Haji Amir Bux brought police of Naper Kot at place of incident. Police visited place of incident in his presence. He stated that dead body was examined by police at the spot and seized blood-stained earth and recovered three empty bullets of kalashnikov from western side of dead body lying near Shakh. He further stated that police also recovered six empty cartridges from place of vardat, which were lying at the distance of ten feet from place of recovery of empty bullets. He stated that he and co-mashirs signed the mashirnamas Exh. 15-A and Exh.5-B. He admitted that complainant is his caste fellow. Co-mashir is also his caste fellow.
17. ' He admitted that he is cultivating the lands of Haji Amir Bux. He admitted that on the day of incident no crop was cultivated in the land due to off season. He admitted that dead body was lying ten paces away from Shaakh. He admitted that before police collected and recovered empties the same were not seen by him at the place of incident due to night time. He also admitted that at the time of collection of empties he was standing near dead body.
18. ' A.S.-I. Abdul Qadir stated that on 29-5-1999, he was posted at Police Station Naper Kot, when at about 7-45 p.m. Complainant Haji Amir Bux came and lodged F.I.R. Regarding murder of his son Abdul Subhan; he registered of the complainant. He stated that he along with complainant visited the place of vardat. He prepared inquest report of dead body, he seized blood-stained earth, and recovered three empty bullets of kalashnikov and six empty cartridges and sealed them at the spot. He further stated that on the same day he recorded statements of prosecution witnesses.
19. One of them was Naseeruddin, whereas he does not remember name of other witness. He stated that on 30-7-1999, he arrested accused Hazaro and Gulbahar from Otaq of Peroz and recovered Kalashnikov from Hazaro and gun from other accused. He stated that he sent the Kalashnikov and gun to Ballistic Expert for examination. He also sent blood-stained earth to chemical examiner for analysis. He stated that Bhagio and Hazaro present in Court are same. Kalashnikov and gun are also same. He further stated that when he visited the place of incident he saw 10/15 persons available there. He stated that three empty bullets were lying at the distance of 2/3 paces away from dead body and six empty cartridges were lying near empty bullets. He admitted that he has not mentioned in the mashirnama of place of incident that where the accused were standing and the complainant and P. Ws. Were standing. He admitted that he made no enquiry from the peoples of locality in respect of the incident. He stated that accused Bhagio and Hazaro were residing in village Dhani Bux and accused Peroz was residing in his own house situated at the distance of about half kilometer from the place of incident towards south. He stated that he deposited case property with WHC who sent the same to Ballistic Expert and for Chemical Examination. He admitted that mashirs of arrest of accused Hazaro and Bhagio and recovery from them are resident of village of complainant. He admitted that they hired a private vehicle which was driven by private driver but he did not remember name of driver. He 'denied the suggestion that he has not recovered empty cartridges and bullets from the place of vardat. He denied the suggestion that during investigation he came to know that deceased was killed by some unknown persons while he was returning back alone from his duty.
20. ' We with the assistance of learned counsel for parties have evaluated the evidence with care and caution and find that the evidence produced by the prosecution is related and interested. We also appreciate the fact that at the time of incident there was no season of cultivation of any crop. The assertion of the complainant and his witness Ghulam Rabbani that they went to look after the irrigation watercourse does not appeal to a prudent mind. It is admitted fact that no recovery was effected from appellants Chakar and Gulbahar. It is also an admitted fact that accused Hazaro fired upon deceased and from the postmortem report it also revealed that the deceased received single injury on his head. After going through the evidence we are of the considered view that the ocular evidence is pregdient of doubt. There is evidence through unimpeachable source to corroborate interested evidence. When there are "Haris" to cultivate the lands of the complainant then there was no need for the complainant to go to look after irrigation watercourse and there was off seasont of the time of incident. These factors create doubt upon the ocular evidence.
21. Circumstantial evidence is also interested and related as admitted by P.Ws. Abdul Rehman and Muhammad Saleh, who are caste fellows and "Haris" of complainant Haji Amir Bux. The weapons were recovered from possession of appellant Bhagio and Hazaro on 30-7-1999, but the same were dispatched to the Ballistic Expert on 12-5-2000 with the delay of ten months and no cogent and plausible explanation has been offered for this inordinate delay in sending the property for chemical examination. This fact also creates doubt about the alleged recoveries.
22. ' In the case of Faryad Ali (supra), the Hon'ble Supreme Court held that an accused is the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not.
23. ' In case of Fazal Din and others v. Rahmat and others (1978 SCMR 18) and Muhammad Nawaz and others v. The State and others (PLD 2005 SC 40); in the same context the benefit of doubt was extended in favour of accused.
24. ' The ocular evidence as views by us is interested and related as the witnesses tried to implicate more and more persons in the commission of crime. Both eye-witnesses, father and son stated that accused Hazaro had fired from his kalashnikov upon deceased. The witnesses only shown presence of appellants Gulbahar, Bhagio and Chakar and stated that they had fired in air. The evidence, which is discarded by us and there is no evidence that the appellants have shared any common intention to kill deceased Abdul Subhan or to facilitated co-accused Hazaro. If the appellants were present at the time of alleged incident and were companions of co-accused Hazaro then no body could have restrained them not to kill P.Ws. As complainant along with his sons and nephew P.W. Naseeruddin were empty-handed. The evidence as disclosed above is interested and related. Their evidence would not be treated as inspiring confidence and trustworthy, as they have tried to implicate more and more persons in the commission of alleged offence.
25. ' Common intention of accused persons for committing murder was a question of fact which could be ascertained on the basis of facts and conduct of accused, the ferocity of the attack, the weapon used, the number of blows coupled with the element of pre-concerned of mind. In the present case no active role is attributed to the present appellants in the commission of crime.
26. ' The case of Moula Bux alias Moulak (supra) relied upon by learned counsel for complainant is on different facts and circumstances. The arguments of learned counsel for complainant that appellants Chakar and Gulbahar remained absconders for more than ten years and that they were real culprits, hence they hidden themselves for a long time. We have not been convinced by the argument of learned counsel for complainant that on the absconsion, the appellants should be convicted. It is settled proposition of law that when the ocular evidence is not inspiring confidence and trustworthy, the only absconsion would not burden the appellants for commission of offence.
27. ' After appraisement and evaluating the evidence we are of the considered view that the prosecution has miserably failed to establish the accusation of appellants by producing worthy and inspiring confidence evidence against the appellants. In the above circumstances, the appeal is accordingly accepted. The impugned judgment is set aside and appellants are acquitted of the charge; they shall be released forthwith if not required in any other case.