SYED ZAKIR HUSSAIN, J.---This criminal appeal is preferred by the appellant Zulfiqar Ali Rahar against the conviction order and the sentence awarded by the learned Additional Sessions Judge, Shahdadkot in Sessions Case No, 235 of 2006, in Crime No, 50 of 2006 of Police Station Behram, under sections 302, 148, 149, P.P.C. by way of the Judgment dated 29-5-2010, ordering him to suffer life imprisonment with fine of Rs, 100,000, as compensation to the legal heirs of deceased, and in default of payment whereof, to suffer SI for six months more; the appellant was also convicted and sentenced for the offence, punishable under section 148, P.P.C. to suffer R.I. for one year, while all the sentences were ordered to run concurrently, with benefit of section 382(b), Cr.P.C. The appellant has prayed for setting aside of the same, and for his acquittal from the charge of the case, on the facts and grounds mentioned therein.
2. Necessary facts are that, the complainant namely, Muhammad Khan reported to the police at Police Station Behram on .14-7-2006, that on 13-7-2006, at 11-30 p.m. when he was present with his son Zulfiqar and relations Qurban Ali and Umed Ali in their field under cultivation on the given place, he found on the torch-light basis, that already known to him, Zulfiqar Ali armed with kalashnikov, Anwar armed with pistol and Ghulam Muhammad armed with gun and two other unknown persons armed with guns, had arrived at over there. Zulfiqar gave hakal that they would not spare the son of the complainant and he and others made tire from their respective weapon at Zulfiqar, who fell to the ground owing to such shot injuries. The villagers attracted on gun, shot reports and came running, whereupon the culprits managed to escape. The injured Zulfiqar had injuries on his . back and scalp and had already died as a result thereof. The complainant approached the police for such report. The police registered the F.I.R. No, 50 of 2006, against the nominated and unknown persons six in number for having committed the offences of sections 302, 148, 149, P.P.C.
3.The police investigated the case. The place of vardat was inspected and the memo. of injuries was prepared. The memo. of dead body and inquest report/Danishnama etc. were taken down.
The postmortem was conducted by the Medical Officer of the Taluka Hospital, Shahdadkot. The doctor in such postmortem examination found that the deceased had sustained only one injury caused by firearm shot, which resulted in his death. The blood stained material secured from the spot under the memo of place of vardat, was put to sealed parcel under a memo prepared before the Mashirs add similarly, under the same memo., they secured one empty cartridge of .12-bore together with two empties of pistol; they were sealed, too. The record does not show if the said material were sent to the Expert. Similarly, the record does not show if the Expert reports as to the same, have been produced in evidence. The police however, could not effect any recovery of crime weapon from the only arrested person of the case namely, the appellant. The others could not be arrested. The police on the basis of the collected evidence found three other nominated persons innocent and accordingly let them off by having placed them in the relevant column II of the charge sheet; they were joined by the Court later on under section 193, Cr.P.C. as accused to face the trial together with the appellant. The unknown persons could not be traced and therefore remained un-charge sheeted. The Court proceeded with the case and concluded the trial in conviction of the appellant, whereas the case of other three who had already stood declared proclaimed offenders by the Court, was kept on dormant file by the judgment impugned in this appeal.
4.I have heard the learned counsel for the appellant, the learned State counsel and perused the record. The learned counsel stated that there appears doubt in the case of the prosecution, as to the involvement of the appellant or as to his guilt to the offence he has been charged with entitling him to stand acquitted as a matter of law, for the reasons that the eye-witnesses including the complainant have given evidence with material variation on material points, such as that the complainant and the eyewitnesses, all in their respective statements under sections 154 and 161, Cr.P.C. have stated in the first instance to have seen the incident 'caused by six persons as reported against, which resulted in death of the deceased owing to the injuries caused by firearm weapons used against such dead person at the relevant time by all the culprits in their front. Such statements carry a claim that six persons used six firearm weapons respectively and caused six firearm shots at the deceased who sustained-six injuries, as a result of such six firearm shots. The mashirnama of injuries, inquest report, medical report and postmortem examination report etc. all are showing otherwise, i.e, there was only one gun shot injury. The medical officer gave three opinions; one in his report and the other two are in his evidence. As per the report, the only injury, which was fatal to the deceased and resulted in his death, was firearm injury meaning thereby the doctor did not describe the weapon nor disclosed if the injury was caused by gun shot pellet, pistol bullet or rifle bullet. In his cross-examination however, the doctor stated that the injury sustained by the deceased might have been a bullet injury caused by a pistol, whereas in reply to a question put to him by the learned trial Judge in elaboration there against, he deposed that the said injury was the result of pellet. Needless to mention that the pellet is always used in cartridge of .12-bore, which is used and fired either by country made pistol or gun of .12-bore in caliber. The complainant being the part of the ocular testimony stated that the appellant had kalashnikov rifle type weapon, whereas neither any injury is sustained by the deceased, which could be said to have been caused by such kind of weapon nor was there any empty of such weapon ever found from the spot, at the relevant time as crime empty of the case. On the contrary, the crime empties, include one T.T pistol empty and two cartridges of .12-bore. The other witnesses namely, Umed Ali and Qurban Ali in their statements under section 161, Cr.P.C. supported the complainant to the number of the firearm shots; number of the accused persons, and number and kind of the weapons, and similarly, to number of the injuries as well, but in their depositions, the complainant supported his version, his witness Qurban Ali corroborated him, whereas his witness Umed Ali stated to have reached the incident after the culprits had managed to escape and the incident had already taken place, and therefore, he contradicted his earlier statement of 161, Cr.P.C. He was not declared c hostile by the prosecution. His evidence is of no use, which damaged the evidence of the others,, who claim that he was one of them at the relevant time as part of ocular testimony while he contradicted the same. This aspect makes all the witnesses doubtful, atleast to the extent that a positive incriminating evidence must come forward connecting the appellant or nominated persons with the commission of the crime in the manner reported against, which nowhere available and even the important circumstantial evidence, such as blood-stained earth and empties referred to above, which were not sent to the expert, as there is no expert report produced, are not proved to have ever been secured, and hence. it is not open to be held that they are the blood-stained earth and the firearm empties in absence of such Expert Report. No crime weapon is secured as already stated above, and there appears only the evidence, which has been discussed above, which being contradictory and carrying no circumstantial evidence of the material nature in the case, is of no such status as could warrant any conviction by holding the charge sheeted persons guilty of the offence in question. The benefit of doubt which is extendable in the circumstances to the appellant, is also open to be so extended to other charge-sheeted persons, who already stated above, had already stood let off in the first instance on the part of the Investigating Officer, but the Court being in disagreement with such opinion of the Investigating Officer, joined them under section 193, Cr.P.C. unnecessarily, and such exercise ultimately stood to be futile. The learned counsel relied on golden principle of the law that even a simple circumstance, which creates doubt as to the guilt of the accused to the offence he is charged with entitles him to the acquittal not as a matter of concession but as a matter of right and similarly a single reason can be a source of discrediting the entire evidence of a witness. He further pointed out that a chain of culprits as a matter of law is open to be let free in order to prevent punishment to an innocent person. The case-law reported as 1995 SCM R 1345, 1997 SCM R 25 and 2008 SCM R 1221, supports such contention respectively. The relevant head-notes of the same are reproduced as under:- 1995 SCM R 1345. For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a single circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.
1997 SCM R 25. Benefit of doubt. Where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation.
2008 SCM R 1221. For the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful.
5. The learned State counsel concedes. Consequently, in view of what has been discussed above, I allowed the appeal, set aside the impugned judgment by the short order dated 6-12-2010, for the reasons in hand.
6. There is no need to keep the case of the absconding accused on dormant file, as no case appears to be made out against them as well, therefore, the absconding accused Anwar, Tarique and Ghulam Muhammad also stand acquitted from the charge of the case for the same reasons in the interest of justice and fairplay.