1. SYED ZAKIR HUSSAIN, J.---By this criminal jail appeal, the appellant has impugned the judgment dated 21-1-2010, passed by the learned 4th Additional Sessions Judge, Shikarpur, in Crime No,15 of 2009 of Police Station Dakhan for an offence punishable under sections 302, 148, 149, P.P.C. whereby the appellant has been convicted and sentenced under section 265-H(2), Cr.P.C. to suffer R.I. for life imprisonment and fine of Rs,50,000 to be paid to the legal heirs of the deceased Mst. Makhan Khatoon and in default of payment to suffer R.I. for six months. The sentences were directed to run currently.
2. The allegations against the present appellant Muhammad Nawaz alias Timon are that on 8-2- 2009 at 1130 hours, he duly armed with gun along with 7 others, having guns, intercepted the complainant party and they allegedly fired from their respective weapon(s) at the complainant party; one fire shot hit to Mst. Makhan Khatoon, the daughter of the complainant; on gun shot reports, some people came running to the place of occurrence on which culprits decamped. Later it was found that Mst. Makhan Khatoon having received the fire shot on her right side flank, had stood expired already.
3. After registration of the F.I.R. the investigation followed and in due course the appellant and co- accused Mubarak and Mazaris were arrested and sent up to to stand trial on conclusion vide impugned judgment dated 21-1-2010, the co-accused Mubarak and Mazaris were acquitted while the present appellant was convicted and sentenced as above giving rise to the present appeal.
4. I have heard the learned counsel for the parties and perused the material brought on record. By the short order dated 22-11-2010 this appeal was allowed the impugned judgment passed by the trial Court was set aside and the appellant was directed to be released forthwith if not required in any other custody case, for the reasons as follows.
5. The points raised by the learned counsel for the appellant, are that the learned trial Court has acquitted two accused persons namely Mazaris and Mubarak as their case was found to be doubtful in the light of the evidence which is almost the same on the basis of which the appellant has been convicted. The same is confined to the statements of 7 witnesses including two main private persons complainant and her sole eye-witness Mst. Hajran. Their evidence is contradictory to the record of first instance including the F.I.R. Memo of place of wardat etc. which show that 9 persons caused the incident by having made fire shots from their respective weapons straight at the complainant party that ultimately resulted in death of the deceased lady Mst. Makhan Khatoon out of whom six were nominated as already known to the complainant party and three unidentified ones the death took place instantly as a result of single fire shot not attributed to any' of the culprits, whereas the evidence of these persons in court states that six persons known to them (namely Mubarak, Timon, Mazari, Baloch, Rafique and Manzoor) duly armed with firearms made attack in the manner that Mubarak instigated and Timon made a single fire shot from his weapon which hit at the abdomen of the deceased who fell down and ultimately died, whereas the' culprits managed to escape. In such statements, three unidentified persons are missing, besides firing alleged to have been made by the nominated persons including the said Timm, is also left unmentioned and simultaneously the specific attribution of the said single shot injury of the deceased to the appellant Timon is contradictory or an improvement to what has already disclosed in the first instance as a matter of report incorporated in the F.I.R. in question.
6. Other factors which relate to the circumstantial evidence such as securing A blood-stained material on the spot, securing five empties of .12 bore therefrom under the memo. prepared to such effect, are not established as there is no Expert report as to such material, as also nothing is produced in Court as case property. The body of the deceased had already been removed and taken to the police by the complainant party before registration of the F.I.R. and they lodged the F.I.R. while being already with the dead body in their custody in the Police Station, which was inspected not on the spot but' in the Police Station by the Investigating Officer and such fact being astonishing and unnatural, of itself makes the story doubtful and statements of the P.Ws. including complainant and eye-witness as stated above, cloudy, for before giving any weight to their evidence, the matter would need independent corroboration, which is no where available. The case shows that there were people who came running to the spot having heard gunshot reports, yet none has been picked up as witness to such effect. There is no witness from the spot in terms of ocular evidence. The police has not interrogated the complainant party and blindly believed the complainant and his witnesses and prosecuted the nominated persons, be the basis of no positive incriminating evidence. Even the witness available in the story namely eye-witness Ashiq has been left unexamined and un-produced in Court without legal excuse and the legal presumption in this regard is that had he been so produced in Court, he would not have supported the case.
7. The learned trial Court has taken two altogether different views culminating in conviction and acquittal on the basis of same evidence and yard stick of law without any cogent reason distinguishing both the above two conclusions from each other, leading the court to the conclusion arrived at on its part, which is no service to justice. The judgment is not supported by the prosecution's representative in Court.
8. The same does not deserve to be sustained.