1. ORDER SYED ZAKIR HUSSAIN, J. This order will decide three matters bearing Criminal Appeal No.D-92 of 2005, Criminal Acquittal Appeal No.D-3 of 2006 and Criminal Revision Application No.2 of 2006 respectively preferred by the appellant Qurban Ali, the convict, the appellant and the complainant against one and the same judgment dated 6-12-2005 passed in Sessions Case No.28 of 2004 by the learned Ist Additional Sessions Judge, Dadu in the matter of F.I.R. No.262 of 2003 lodged with Police Station K.N. Shah (by the complainant named above) for the offence punishable under sections 302, 147, 148, 149, 114, 504, P.P.C. Whereby the learned trial Court convicted and sentenced the appellant Qurban Ali under section 302(b), P.P.C. To suffer life imprisonment with fine of Rs.50,000 together with benefit of section 382-B,Cr.P.C. And acquitted the other charge sheeted six persons namely Sohbat, Ghulam Nabi, Ghulam Mustafa, Ghulam Rasool, Khadim Hussain and Sachal alias Sachoo on the ground of benefit of doubt for the reasons mentioned therein. Against the conviction in question, the appellant Qurban Ali has preferred the appeal with the prayer that the same be set aside and he be acquitted from the charge of the case on the facts and grounds mentioned therein. Similarly, in the acquittal appeal referred to above, the appellant (complainant) prayed for setting aside of the judgment as to acquittal of the said persons and instead, for awarding conviction and sentence to them for the offence punishable under section 302/34, P.P.C.
2. Likewise, in the revision application in hand, the complainant/applicant prayed for enhancement of the sentence against the convict Qurban Ali of the impugned judgment dated 6-12-2005 converting the sentence of life imprisonment so awarded to him thereby into that of death penalty for the same offence on the facts and grounds mentioned therein.
3. Necessary facts of the appeals and revision in hand, are that on 30-12-2004 at 2-30 p.m. The complainant reported to the police at Police Station K.N. Shah that on the same day at 10-30 a.m.
4. The nominated persons, seven in number, (already named above), duly armed with firearm weapons, came to the pinpointed place and caused death of the deceased Haji Allah Rakha in his presence and that of others namely, Lal Bux, Najam Nazir and Dost Muhammad etc. By having made a fire shot from his country made pistol, at him, which resulted in his instant death. Such fire was made by the appellant Qurban Ali on the instigation of the co-accused namely, Suhbat, while the others facilitated him in the commission of the said crime and thus shared common.
5. Intention and criminal accountability and managed to escape thereafter. The motive mentioned for such incident was an incident of like nature having reportedly taken place already, about 28 years back. The police registered the F.I.R., visited the place of wardat, secured the blood-stained earth and one empty cartridge, prepared lash chakas form/memo of dead body under their respective memos prepared at spot there and then and then caused the dead body to he removed there from to the hospital where the post mortem examination was conducted by the Medico-Legal Officer whereby the said fire injury injuries stood certified as cause of death. The police arrested the - appellant Qurban Ali on 4-1-2005, and secured on his pointation, from a house, on 8-1-2004, an unlicensed country made pistol as crime weapon, before the Mashirs taken from the complainant party, and not from the locality concerned, and thereafter, sent to the expert the secured blood stained earth, crime empty and crime weapon on 27-92004 for examination and report, which got received in the matter as positive to the case in question.
6. After arrest of the other nominated persons and observation of other necessary formalities, the police charge-sheeted the nominated persons, seven in number, for the purpose of trial in the court of law, which concluded by way of the impugned judgment, in the aforesaid manner, which has been called in question by both the sides respectively as already indicated above.
7. By the short order, this Court dismissed the Criminal Appeal No.D-92 of 2005 for the reasons to be recorded later on with the modification in the quantum of sentence from life imprisonment to already undergone term of confinement with no fine. Similarly, the criminal acquittal appeal and the criminal revision both have been disposed of by consent of the parties in the light of the said short order for the same reasons.
8. The record shows that the evidence led by the prosecution is mainly confined to the complainant and another namely, Lal Bux. P.W. Lal Bux who is the son of the deceased. These two witnesses saw the incident. They corroborated each other as well as the story incorporated in the F.I.R. With no material variations. The other witnesses, namely, Najam, Nazir and Dost Muhammad are also said to be the eyewitnesses but they have given the statements that when they reached the place of wardat, the culprits had already committed the crime and were making their escape good. Out of the said three witnesses, Nazir and Dost Mohammad have not been produced. P.W Najam cannot safely be accepted as eye-witness. The purpose of the prosecution however stands served by the evidence of the complainant and his witness Lal Bux. Such statements have stood unshaken in the cross-examination. There appears delay in dispatching of the crime empty, crime weapon and blood-stained material which is inordinate and unexplained. The other witnesses such as the mashir Muhammad Achar Medical Officer and Investigating -Officer etc., have also given their evidence supporting the case to their extent unshakenly. The record produced also went Unrebutted. As a whole, the incident as reported against, appears to have been established against the appellant Qurban Ali beyond shadow of any reasonable doubt whereas the case of other nominated persons, which has been rejected by the learned trial Court on the ground of benefit of doubt, will carry the same weight and there appears no such material as to justify any interference in such findings of the learned trial Court. The State has not challenged the acquittal of the said nominated persons. The State counsel Mr. Altaf Hussain Surahia supported the judgment in all respects. Finally, at the end of the arguments, the learned counsel for the appellant conceded that the findings already arrived at by way of the impugned judgment, warrant no interference in the circumstances except that of reduction in or lessening the sentence, for the reasons of the delay in the matter of the expert report in general and as to crime empty and weapon in particular, the recovery of the same being effected before no independent public witness; and the appellant is the first offender, young, and only bread earning member of his family, all serving as mitigating circumstances for the purpose in question. The complainant side and the State counsel both conceded the reduction of sentence under the circumstances in hand to what is already undergone, which as per them, too has served the purpose of justice already.
9. Keeping in view the above, we being satisfied with the findings and the reasons given there against and in keeping with the aforesaid conceding position of the case, dismissed both the appeals and revision application in hand, by the aforesaid short order with the modification in the quantum of the sentence as indicated therein.
10. The above are the reasons for the same.