' MUHAMMAD HASHIM KHAN KAKAR, J.---This appeal is directed against the judgment dated 24-1- 2008, passed by the Additional Sessions Judge, Naseerabad at Dera Murad Jamali, whereby appellants Ameer Bakhsh alias Mumtaz Ali, Inayatullah alias Ali Nawaz and Ahmed Sultan alias Babul alias Shahbaz Ali have been convicted and sentenced under section 302(b) read with section 34 of the P.P.C. To suffer life imprisonment each and to pay an amount of Rs,100,000 each as compensation to the legal heirs of each deceased, or in default thereof to further undergo S.I.
For six (06) months, with benefit of section 382-B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal," are that on 25-12-2006, a case vide F.I.R. No,91 of 2006 (Exh.P/1-A), under section 302 read with section 34 of the P.P.C. Was registered at Police Station, Manjhoo Shoori, District Naseerabad by complainant Zameer Hussain (P.W.1). It was alleged by the complainant that last night at about 11-00 p.m., he was sleeping in his house, when his maternal cousin Ameer Bakhsh came to his house, awoke him up and told that Mst. Parveen is not present in the house, at which, both of them went in search of Mst. Parveen. At about 5-00 a.m., they saw light of a vehicle, which stopped behind the Kot, where from Mst. Parveen stepped down, at which, accused Ameer Bakhsh, Ahmed Sultan, armed with firearms, became furious and started indiscriminate firing upon the vehicle and when the complainant reached near the vehicle, he saw the dead body of Jabal on front seat of the vehicle, whereas the dead body' of Muhammad Aslam Malghani Umrani was lying at some distance from the vehicle. The complainant further alleged that on hearing fire, Nizam-ud-Din and Gul Meer also reached there, at which the accused persons ran towards Kot and by the time they reached there, accused persons had also committed the murder of Mst. Parveen by means of firing and had fled away from the crime scene. Consequently, the aforesaid F.I.R. Was registered.
3. After registration of the F.I.R., initially the investigation of the case was entrusted to P.W.12 Gul Hassan, S.I./S.H.O., who visited .The place of occurrence, prepared site inspection memo and site sketch Exh.P/12-A, secured bloodstained earth, collect crime empties vide memo, recorded statements of P. Ws. Took into possession the vehicle, prepared inquest reports of deceased Aslam, Jabal and Mst. Parveen vide Exh.P/12-B, Exh.P/12-C and Exh.P/12-D, respectively, sent the dead bodies of deceased for postmortem examination to Civil Hospital, Manjhoo Shoori and took into possession blood-stained clothes of deceased persons. He sent the blood-stained clothes of the deceased persons for chemical analysis and upon receipt of the report from FSL Exh.P/12-F, prepared supplementary and incomplete challans Exh. P/12-E and Exh.P/12-G. On 18-2-2007, he arrested the accused persons Ameer Bakhsh alias Mumtaz and Inayatullah alias Ali Nawaz and later on the investigation was transferred to Ishfaq Jamali, SP Investigation (P.W.13), who interrogated the accused Ameer Bakhsh alias Mumtaz and Inayatullah alias Ali Nawaz. Later on, accused Ahmed Sultan alias Shehbaz was also arrested, who during course of the investigation, made disclosure, at which disclosure memo. Was prepared. It may be noted that during course of the investigation, the dead bodies were released to their heirs vide receipts Exh.P/13-A, Exh.P/13-B and Exh.P/13-C, respectively. After completion of the investigation, he prepared challan Exh.P/13-D.
4. On the stated allegations, a formal charge was framed and read over to the appellants, to which 'they did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced thirteen witnesses. P. W.1 Zameer Hussain son of Muhammad Hasil is complainant of the case, who exhibited F.I.R. Exh.P/1-A. P.W.2 Obaidullah, P.W.3 Abdul Nabi and P.W.6 Gul Meer, who claimed to be the witnesses of occurrence, resiled from their statements and were declared hostile.
P. W.4 Dr. Mehmood Khan Umrani, ADHO RHC, Manjhoo Shori, examined the dead bodies of the deceased persons and issued medico legal certificates Exh.P/4-A, Exh.P/4-B and Exh.P/4-C. P.W.5 Nizamud-Din is witness to the preparation of site inspection memo. Exh.P/5-A, recovery memo.
Exh.P/5-.B regarding -four empties of .222 bore, recovery memo. Exh.P/5-C regarding five empties of China rifle, recovery memo. Exh,P/5-D in respect of two China rifle, recovery memo Exh.P/5-E regarding three empties of .20 bore, recovery memos of blood-stained earth Exh.P/5-F, Exh.P/5-G and Exh.P/5-H of the deceased persons and recovery memo. Of white colour Car Exh.P/54. P.W.7 Muhammad Zameer son of Muhammad Ramzan is the last seen evidence of the incident. P.W.8 Saifullah is witness to the recovery memo Exh:P/8-A regarding blood-stained clothes of deceased Jabal. P.W.9 Muhammad Qasim, constable, is witness to the recovery memo Exh.P/9-A and Exh.P/9-B regarding blood-stained clothes of deceased Mst. Parveen and deceased Aslam, respectively. P.W.10 Mst. Hakima is circumstantial witness of the occurrence. P.W.11 Muneer Ahmed, A.S.-I., is witness to the disclosure memo Exh. P/11-A made by accused Ahmed Sultan alias Babal.
P.W.12 Gul Hassan, S.-I./S.H.O. And P.W.13 Ishfaq Hussain Jamali, S.P. Investigation, are the Investigating' Officer of the case. Then the prosecution closed its side.
5. Thereafter, the appellants were examined under section 342 of the Cr.P.C., wherein they denied the prosecution . Accusation and claimed to be innocent. They did not opt to record their statements on oath as envisaged under section 340(2) of the Cr.P.C., nor produced any witness in defence. The trial Court, after close of the 'parties' evidence, vide impugned judgment, cogvicted and sentenced the appellants, as mentioned hereinabove, hence, this appeal.
6. It has been submitted by learned counsel for the appellants that prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellants. On the contrary, learned Additional Prosecutor General has maintained that prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, present appeal deserves dismissal.
7. We have heard learned counsel for the appellants as well as learned Additional Prosecutor- General and have also gone through the record with their valuable assistance.
8. As far as unnatural death of deceased Jabal Airi, Aslam and Mst. Parveen are concerned; the defence has not disputed the same. It has been proved through the statement of P.W.4 Dr. Mehmood Khan Umrani that deceased persons met with unnatural death on account of firearm injuries.
9. A careful appraisal, of the evidence produced by the prosecution shows that not a single bit of tangible evidence could be found in support of the charge against the appellants, connecting them with the commission of the offence. The connection of the appellants is sought to be established with the crime in question by the evidence of P. W.7 Muhammad Zameer, P.W.8 Saifullah and P.W.10 Mst. Hakima. P.W.7 Muhammad Zameer is the nephew; P.W.8 Saifullah is the brother, whereas P.W.10 Mst. Hakima is the mother of deceased Jabal Airi and are closely related, interested and inimical witnesses. We are conscious of the fact that close relationship of the eyewitnesses inter se and with the deceased is not sufficient to discard their evidence, but it should be natural, confidence inspiring and corroborated by independent pieces of evidence. P.W.7 Muhammad Zameer is a chance witness, who is resident of Sindh and he has failed to establish his presence at the time of occurrence beyond reasonable doubt. His claim to have seen the occurrence or presence in the house of the deceased on the fateful night is not only a tall claim but tall enough that it creates serious doubts about its genuineness. P.W.8 Saifullah and P.W.10 Mst.
Hakima are not eyewitnesses of the occurrence. According to their version,. On 25-12-2006, they were present at their home. At about 4-00 a.m. Accused/appellants Ameer Bakhsh, Inayat and Ahmed came to their house and told them that they need a taxi car for bringing of their children from Goth Tinda. On this, deceased Jabal and Muhammad Zameer accompanied with them. At about 5-15 a.m., their nephew informed them through telephone about the murder of deceased Jabal Airi. The version of said witnesses does not appeal to reasons and prudent mind for a variety of reasons. If the appellants needed the taxi car for bringing the children at such an odd hour, then there was no occasion for P.W.7 Muhammad Zameer to have accompanied them, as there was no space for the children in the taxi car, as the same has the capacity to seat only five passengers. In this context, we are also mindful of the usual human conduct that an offender choosing night time for- commission of an offence necessarily wants to keep his identity concealed. The appellants were, admittedly, previously known to the said witnesses. They were not so fools that they themselves choose to disclose- their identity to the P.Ws., enabling them to get them arrested. To our mind, this is a textbook example of a case of fabricated evidence on the charge of murder, in which the culprits themselves disclosed their identity to the prosecution witnesses. The ocular account remained uncorroborated. The eye-witnesses of the occurrence i,e, P.W.2 Obaidullah, P.W.3 Abdul Nabi, P.W.6 Gul Mir including P.W.1 complainant Zameer Hussain have not supported the case of the prosecution and were declared hostile. The said witnesses have not only stated a single word about the presence of P.W.7, but have negated his presence at the time of occurrence.
According to their evidence, at the time of occurrence, Jabal Airi was accompanied by deceased Mst. Parveen; when they were subjected to firing. The occurrence took place, at about 4-00 a.m.
During odd hours of the night, while the F.I.R. Has been lodged after unexplained delay of 4/5 hours, which also does not figure the names of the witnesses, as such, the possibility of false implication and cooking a false story cannot be ruled out.
10. As already observed, hereinbefore, the case of the prosecution wholly depends on circumstantial evidence i,e, last seen evidence, furnished by P.Ws. 8 and 10. The contention of the learned Additional Prosecutor-General that conviction can be made on the basis of circumstantial evidence, is devoid of force, as necessary ingredients, to establish an offence by circumstantial evidence, are missing in the instant case and those are:
(i) The circumstances, from which the conclusions are drawn, should be fully established.
(ii) All facts must be consistent with the hypothesis.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) The circumstances should, to a moral certainty actually exclude every hypothesis, but the one proposed to be proved.
11. The appellants though arrested, but recovery of crime weapons were not effected from their possession, therefore, naturally, there is no report of Ballistic Expert, which could corroborate the ocular account. The prosecution has failed to bring any cogent, reliable or unimpeachable evidence or any sort of circumstantial evidence to connect the appellants with the crime in question. It is a case of two versions. Only one version can be inferred that the occurrence being committed at the midnight went unseen. The requirement of criminal law is that the prosecution is duty bound to prove doubt and if any single and slightest doubt is created, it must go to the accused and is sufficient to discredit the prosecution story and entitles the accused for acquittal.
12. In view of what has been stated above, the prosecution has failed to prove its case against the appellants beyond reasonable doubt, as such, the appeal is allowed, impugned judgment dated 24-1-2008 passed by the Additional Sessions Judge, Naseerabad at Dera Murad Jamail is set aside and, while extending the benefit of doubt, the appellants are acquitted of the charge. They be released forthwith if not required in any other case.
' These are the reasons of our short order dated 18-8-2011 announced in the open Court.