JUDGMENT NISAR MUHAMMAD SHAIKH, J.---By this common judgment, the appeal No.D-104 of 2006, filed by appellant Esso and appeal No.S-103 of 2006, filed by appellants Ashique and Sadaqat, will stand disposed of as the same have arisen out of one judgment dated 14-11-2006, passed by learned 3rd Additional Sessions Judge, Dadu, in Sessions Case No.191 of 2002, arisen out of Crime No.33 of 2002 of Police Station Thariri Mohabbat, whereby he convicted appellants/accused Esso, Ashique and Sadaqat for the offence under section 302(b), read with section 34, P.P.C. And sentenced appellant Esso to death as Tazir, while appellants Ashique and Sadaqat were sentenced to suffer R.I for life. The appellants were also sentenced with fine of Rs.100,000 each, out of which 50% was ordered to be payable to legal heirs of deceased and in default of payment of such fine, each appellant was ordered to suffer further R.I for six months. The appellants were also convicted for the offence under section 324/34, P.P.C. And sentenced to suffer R.I for seven years and pay fine of Rs.5000 each or in default of its payment, to suffer further R.I. For three months. The above sentences were ordered to run concurrently, with benefit of section 382-B, Cr.P.C. The case as against absconding accused Gulab was ordered to be kept on dormant file till his arrest.
2. The brief facts of the case are that on 5-5-2002, at 11-00 p.m. Complainant Mehboob Ali Chandio, resident of village Kisho Chandio, taluka Mehar lodged F.I.R. No.33 of 2002 at Police Station Thariri Mohabbat, stating therein that there is old enmity between them and accused Esso and others and few days back, an altercation had also taken place between accused Esso with Muhammad Khan, the brother of complainant. It is further stated that today i.e. 5-5-2002, the complainant, his brother Muhammad Khan and cousin Yamin left their house and were going towards the Otaq and at about 10-30 p.m. When they reached at watercourse, they saw accused Esso, Gulab, Sadaqat, and Ashique, all armed with guns, came from southern side. It is further stated by the complainant that they saw, on the light of bulb, that accused Esso while abusing, straightly fired with his gun at Muhammad Khan with intention to commit his murder and the same hit at his abdomen who fell down while crying. The remaining accused straightly fired at complainant and his cousin Yamin but the complainant, while saving himself, fell down on the ground and his cousin Yamin raised cry and fell down. In the meantime, complainant's cousin Hameed and maternal uncle Gohram and other villagers came running on hearing cries and firing, while the accused persons seeing witnesses coming there left towards southern side. The complainant party then saw that Muhammad Khan had died while Yamin had firearm injury at left side of his head, which was bleeding. The complainant leaving the witnesses over dead body, reached at police station and lodged such F.I.R, stating further that above named accused on the basis of old enmity, have committed murder of Muhammad Khan aged about 25 years and seriously injured to Yamin while firing jointly with their guns.
3. During investigation, the police arrested accused Ashique on 11-6-2002, and challaned him under sections 302, 324, 504 and 34, P.P.C. On 26-6-2002, showing remaining three accused namely Esso, Gulab and Sadaqat as absconders. Thereafter accused Sadaqat was arrested on 26- 7-2002, while accused Esso was arrested on 18-5-2004, when he surrendered himself at Police Station Thariri Mohabbat and then they were also sent up with supplementary challan. The remaining accused Gulab was declared absconder on 24-2-2004, by the trial Court.
4. During trial of the case, the charge (Exh.3), was framed by the trial Court on 19-11-2005, for the offences under sections 302, 324, 504 and 34, P.P.C., to which the accused Esso, Ashique and Sadaqat pleaded not guilty. Thereafter the prosecution examined nine witnesses namely complainant Mehboob Ali, injured Yamin, eye-witnesses Abdul Hameed and Hubdar, Tapedar Ali Asghar, Mashir Muhammad Ameen, medical officer Dr. Hidayatullah and two police officials namely A.S.-I. Bakhshal Khan and SIP Imam Bux, the Investigating Officer. The trial Court then recorded the statements of the accused under section 342, Cr.P.C. As Exhs.25, 26 and 27. The accused did not examine themselves on oath or any witness in their defence. After hearing the parties learned trial Court awarded the conviction and sentence to appellants as mentioned above and such judgment has been impugned by them respectively.
5. It is argued by Mr. Asif Ali Abdul Razak Soomro learned counsel for the appellants that the alleged incident had taken place at dark night time and the culprits could not be identified in the darkness of night but the present appellants were implicated by the complainant party on account of their previous enmity. He further argued that incident was reported after due consultation and deliberation for implicating the appellants, but such F.I.R was shown to have been lodged very promptly which fact is falsified by the medical evidence, as well as ocular evidence. He further argued that even otherwise there are material contradictions in the ocular testimony of the interested and related witnesses and such evidence is also in conflict with the medical evidence.
He also argued that there is no circumstantial evidence, such as recovery of crime weapon, therefore, the prosecution case could not be proved in any way against the appellants, who were falsely implicated by the complainant party though the complainant himself had not witnessed the alleged incident, therefore, the appellants are entitled to be acquitted and the impugned judgment is liable to be set aside.
6. On the other hand, Mr. Naimatullah Bhurgri learned State counsel contended that the case of prosecution was proved before the trial Court and therefore, the accused were rightly convicted by the trial Court and as such they are not entitled to any relief and their appeals are liable to be dismissed being meritless.
7. We have considered the above submissions and also perused the material available on record, which shows that the case of prosecution hinges upon the ocular testimony, medical evidence, motive of crime etc. While the defence has agitated the points of doubtful identification, contradictory ocular evidence of interested P.Ws., conflicting medical evidence, lack of circumstantial evidence and false implication of the accused.
8. It is an admitted position that there was old/previous enmity between the parties. However, such enmity cuts both the ways, as it may be a motive of crime and the same could also be a reason of false implication. The prosecution has relied upon the F.I.R. Which, according to them, was lodged very promptly, as the incident had taken place on 5-5-2002, at 10-30 p.m. And F.I.R. Was lodged on the same day at 11-00.- p.m. Though Police Station Thariri Mohabbat, where the F.I.R. Was registered, was about 7/8 kilometers away from village Kisho Chandio where the incident had taken place. While considering his material aspect of the case in the light of evidence available on record, we find that the very F.I.R. Shows that the deceased Muhammad Khan had died at the spot instantaneously and the complainant immediately left such place for lodging his F.I.R. At Police Station Thariri Mohabbat and the same, as shown in the very F.I.R., was lodged within half on hour as the incident was said to have had taken place at 10-30 p.m. And such F.I.R. Was mentioned to have had been lodged at 11-00 p.m. But, the Medical evidence (Exh.20) of Dr. Hidayatullah Medical Officer clearly reveals the time between injuries and death as about half an hour and not instantaneously, as was shown in the F.I.R. Apart from this, the complainant Mehboob Ali also deposed very clearly during his cross-examination that the F.I.R. Was lodged by the police after visiting the place of wardat. As per the mashirnama Exh.22-A, as well as the evidence of mashir Muhammad Ameen (Exh.22), the place of incident was visited by the police on 5-5-2002 at 11-30 p.m. This no doubt, supports the contention of learned counsel for the appellants that the F.I.R. Was lodged after due consultation and deliberation mala fidley showing it to have had been lodged very promptly, which even otherwise is not believable in circumstances of this case. In this connection learned counsel for appellant has rightly relied upon case of Tariq Parvez v. The State (1995 SCM R 1345), which provides that for giving benefit of doubt to the accused it is not necessary that there should be many circumstances creating doubt but if a simple circumstance creates reasonable doubt in a prudent mind about guilt of accused, then the accused will be entitled to such benefit, not as matter of grace and concession but as a matter of right.
9. Although the complainant deposed during his evidence that it was a moon night at the time of incident, but P.W. Hubdar very clearly deposed before the trial Court that it was a dark night of incident. According to the prosecution case the incident took place near a watercourse. The Tapedar Ali Asghar, examined by the prosecution at Exh.14, produced an sketch after preparing the same while visiting the place of incident and taking necessary measurement, and he very clearly deposed before the trial Court that the place of incident was a watercourse but there was no source of electricity. However, the complainant party deposed that there was a bulb at an "Alarm", which was installed near place of incident. This was also belied by mashir Muhammad Ameen who deposed that such bulb was at the Otaq of complainant party and not at the "Alam". He further deposed that such "Alam" was at the distance of about 50-paces away from the Otaq. But in this connection, P.W. Yamin deposed that such Otaq was about 200-feet away from the place of incident. Whereas complainant deposed in his cross-examination that the distance between place of incident and the said Otaq was about 1000-feet. Besides these material contradictions, there are so many other contradictions on the subject, which however create doubt in the identification of the culprits but the possibility, that the appellants had been nominated being suspect on account of previous enmity, could not be ruled out of consideration in circumstances of this case.
10. So far as the medical evidence is concerned, there were four accused nominated in the F.I.R, therefore, P.Ws: appear to have deposed that accused party had fired total four gun shots, but the medical evidence shows that the deceased had sustained two fire shot injuries while injured Yamin had sustained only one gun shot injury. Moreover, only three empty cartridges were secured from place of incident. However, the A.S.-I. Bakhshal who had visited the place of incident and prepared such mashirnama (Exh.22-A), did not say any word in this regard during his evidence. Apart from this, the medical evidence shows that the firearm injuries were sustained by the deceased and injured from the distance of about five feet but the ocular evidence of complainant party shows that there was distance of about 25-feet. It was also surprising that till the place of incident was visited at 11-30 p.m., P.W. Yamin who was unconscious and seriously injured, was left at the place of incident. The evidence of some prosecution witnesses shows that the dead body and the injured were lying in the bed of watercourse while the evidence of other P.Ws. Shows that the dead body and injured were lying on the bank or by the side of watercourse.
11. Regarding ocular evidence adduced by the prosecution, the defence has shown serious defects and dents in it. The very F.I.R shows that the accused had come from southern side while evidence of injured Yamin shows that they came from western side. The F.I.R shows that firstly accused Esso abused and then fired with his gun, but the evidence of P.W. Yamin shows that the incident started after the instigation of accused Gulab. However, there is nothing on record to corroborate such abuse .Or instigation in any way. The F.I.R. Does not show as to whose fire shot hit P.W. Yamin but the evidence of complainant shows that it was accused Ashique whose gun shot hit the injured. There are also so many material contradictions in respect of making fire shots, causing injuries, the manner of committing offence and there is also much improvement and exaggeration in the evidence of complainant party which by itself, creates doubt in such evidence of the material witnesses and the same also goes to support contention of learned counsel for appellants that the complainant was not even present at the relevant times at the place of incident.
12. It is the matter of record that the independent villagers who had allegedly attracted at the spot after hearing the cries and firing, were not examined by the prosecution to corroborate the alleged incident. The name of one villager, namely Ali Hassan was cited by the complainant during his evidence, but he too was not examined by the prosecution without any explanation. On the contrary only the close relatives of the complainant were examined by the prosecution. P.W.
Hameed examined by the prosecution, is the cousin of complainant as well as deceased and brother of injured Yamin as well as mashir Muhammad Amin. Moreover, this P.W. Hameed also admitted during his evidence that he was not examined by the police. While P.W. Hubdar who is maternal nephew of complainant and was not cited by the complainant in his F.I.R. Or in his evidence as a witness but he was examined by thy prosecution. However, these P.Ws. Namely Hubdar as well as Hameed deposed very clearly during evidence that they did not witness incident of firing. Although these P.Ws. Were related to the complainant, yet their evidence is contradictory on material particulars and therefore, the ocular account furnished by the prosecution is not inspiring confidence.
13. There was also no circumstantial evidence of the nature to connect the accused for the alleged crime as only the blood-stained earth and three empty cartridges were secured from the spot but without recovery of crime weapon, such empties were of no consequence. There was no other evidence to corroborate the prosecution case, as set up in the, very F.I.R. In view of such facts and circumstances, on discussed above the false implication of the accused cannot be ruled out, as the entire case of the prosecution was based on doubtful, contradictory and weak evidence which could not be the basis of the conviction and therefore, the appellants are entitled to claim benefit of such doubt created in their favour.
14. For the reasons as discussed above, the conviction and sentence awarded to the appellants cannot sustain and such judgment calls for interference by this Court and therefore the accused, being entitled to the benefit of doubt, are hereby acquitted of the charges. Accordingly, the appeals of the above appellants are allowed and the impugned judgment, dated 14-11-2006, of the trial Court is set aside. The appellants who are in custody, are directed to be released forthwith if not required in any other case.
15. Criminal Reference under subsection 374, Cr.P.C. Moved by trial Court vide No.2495 dated 15-12- 2006 for confirmation of death sentence, stands answered in the negative and disposed of accordingly.