' NISAR MUHAMMAD SHAIKH, J.---The Criminal Appeal No,96 of 2007 was filed by the appellants/accused Deedar Ali Gadehi and Abdul Sattar Chandio against their conviction and Criminal Acquittal Appeal No,33 of 2007 was filed by the appellant/complainant Abdul Sattar Khoso against the acquittal of accused/respondent Ahmed Ali Depar. Both these appeals have arisen out of one judgment passed by learned 1st Additional Sessions Judge, Dadu on 16-11-2007 in Sessions Case No,225 of 2001 (Crime No,124 of 2001 of Police Station Khairpur Nathan Shah). The relevant portion of the impugned judgment dated 16-11-2007 is as under:-- ' it I therefore, convict accused Deedar son of Noor Muhammad Gadehi and Abdul Sattar son of Makhno Chandio for the offence punishable under sections 302(b), 460 and 34, P.P.C. And sentence them to suffer rigorous imprisonment for life to each and ten years respectively, both sentences will run concurrently and to pay fine of Rs,100,000 each and in case of non-payment of fine they shall suffer S.I. For six months more. The benefit of section 382(B), Cr.P.C. Is also extended to accused.
While co-accused Ahmed son of Habibullah Depar is acquitted under section 265-H(1), Cr.P.C. By giving benefit of doubt."
2. Brief facts of the case are that on 25-8-2010 at 2-00 a.m the complainant Abdul Sattar Khoso r/o Village Bahadur Khan Gadehi, Taluka K.N. Shah lodged F.I.R. No,124 of 2001 at Police Station K.N.Shah stating therein that last night after taking meal, he and his family members were sleeping in the courtyard of their house and the electric bulbs were on, in the courtyard as well as street of their house. It was about 0130 hours (night), the complainant and his maternal nephew Noor Nabi woke up on some noise and they saw five persons who were standing in the courtyard of complainant's house, out of them two were identified as accused Muhammad and Haroon both sons of Ghulam Mustafa Gadehi who were armed with guns, while the remaining three persons having their faces opened, were unidentified, out of them one was armed with rifle and the other had a gun while third one had a hatchet in his hand. Noor Nabi asked them as to who are they, to which the culprits started running out of the house of complainant. Noor Nabi raised cries which attracted complainant's paternal nephews namely Abdul Qadir and Muhammad Khan and maternal nephew Nobr Hussain. Then all they chased the thieves in order to apprehend them. Accused Muhammad gave lalkara to complainant party, not to come near them else they will be killed.
Subsequently, at the distance of about one furlong from house of complainant, Noor Nabi grappled with accused Haroon, to which accused Muhammad fired with his gun which hit at the back of Noor Nabi who, therefore, fell down. Abdul Qadir grappled accused Muhammad, to which accused Haroon fired with his gun which hit Abdul Qadir at his abdomen therefore, he also fell down.
Remaining accused fired upon the complainant party with their rifle and gun but the same were missed. Thereafter P.Ws. Noor Hussain and Muhammad Khan apprehended accused Haroon together with his gun. Meanwhle the other villagers also came running on hearing the noise of firing therefore, the accused persons ran away. The complainant party then saw Abdul Qadir and Noor Nabi who both had died. Thereafter the complainant party took the dead bodies as well as apprehended accused Haroon together with his gun, on a van and left the dead bodies at Taluka Hospital K.N. Shah and then the complainant reached at Police Station and handedover the apprehended accused Haroon together with his gun, to the police and lodged such F.I.R. Alleging further that the accused persons had entered into his house with intention to commit theft.
3. It appears from record that the police after arresting accused Deedar Ali on 7-9-2001, submitted challan against accused Haroon and Deedar Ali before the trial Court showing the remaining 3 accused as absconders. Thereafter the accused Abdul Sattar surrendered before the trial Court on 19-9-2001 and subsequently accused Ahmed also surrendered before the Court on 23-4-2007. In the meantime, the accused Haroon after he was granted bail, absconded away.
4. During trial of the case, the trial Court framed the charge as Exh.30 against the accused Deedar Ali, Abdul Sattar and Ahmed Depar, to which they pleaded not guilty. The prosecution examined complainant Abdul Sattar Khoso and eye-witness Noor Hussain while the remaining eye-witness namely Muhammad Khan died during pendency of this case. Prosecution then examined mashir Ayaz Hussain, and Dr.Ali Hassan, Senior Medical Officer of Taluka Hospital, K.N. Shah. Since the A.S.-I.
Allah Bachayo who had recorded the F.I.R. Of the complainant and SIP Muhammad Soomer, who conducted investigation of the case, expired away therefore, the prosecution examined HC Ahmed Khan who being, well conversant with the signatures and handwriting of the said ASI and SIP, produced relevant documents. After the side of prosecution evidence was closed, statement under section 342, Cr.P.C. Of the accused Deedar Ali, Abdul Sattar and Ahmed were recorded respectively, to which they denied the commission of alleged offence and claimed their innocence. After hearing the parties, learned trial Court acquitted the accused/respondent Ahmed and convicted accused/appellant Deedar Ali and Abdul Sattar as mentioned above.
5. We have heard Mr.Aftab Ahmed Gorar, learned counsel for the appellant/accused Deedar Ali, Abdul Sattar Chandio and Ahmed Depar, Mr. Ahsan Ahmed Qureshi, learned counsel for the complainant/ respondent Abdul Sattar Khoso and Mr. Musab Baleegh Dhamrah, learned State Counsel and also perused relevant record.
6. It is an admitted fact that the names and description/features of the accused Deedar Ali, Abdul Sattar Chandio and Ahmed Depar are not mentioned in the very F.I.R. Lodged by complainant Abdul Sattar Khoso on 25-8-2001 at Police Station , K.N. Shah but, it is very surprising that the names of all these three accused, who were shown in the very F.I.R. As unidentified/unknown persons, have been mentioned by the complainant Abdul Sattar Khoso as well as eye-witness of the incident namely Noor Hussain, in their evidence recorded by the trial court but, there appears no explanation in .The evidence of any of the P.Ws including these two witnesses, as to how, when and through whom, the complainant Abdul Sattar Khoso and P.W Noor Hussain came to know about the names of present 3 accused persons, after they were shown in the F.I.R. To be unidentified/unknown persons. It appears from the evidence of eye-witness Noor Hussain that he had also accompanied the complainant upto Taluka Hospital of K.N. Shah where the complainant delivered dead bodies and then he left for Police Station for registration of his F.I.R., yet the complainant could not know about the names of present accused nor the P.W. Noor Hussain disclosed their names to him. It is also an admitted position that none of the present three accused, was put to an identification test/parade for the purpose of identification by the eye- witnesses including the complainant, where 164, Cr.P.C. Statement even, was also not recorded during the investigation. There was also no confession of the accused Haroon who was apprehended at the spot. Thus, the material brought by the prosecution on record, is silent on such material point relating to the identification of the present three accused persons by the complainant Abdul Sattar and the eye-witness Noor Hussain, while third eye-witness namely Mohammad Khan died during the pendency of the case. The mashirnam Exh.27-F produced by the mashir Ayaz Hussain shows that on 25-8-2001 at 10-30 am the house of one absconding accused Muhammad only, was searched to apprehend him, meaning thereby that the names of remaining absconders were not known to the complainant party or the police party on the day of incident i.e, 25-8-2001.
7. Apart from above, admittedly no crime weapon could be recovered from accused Abdul Sattar or Ahmed who had surrendered themselves on 19-9-2001 and 23-4-2007 respectively, before the trial Court. However, a gun together with one empty cartridge of .12 bore was allegedly recovered after arrest of accused Deedar Ali on 7-9-2001 i.e, after about 2 weeks of the alleged incident but, the mashir Ayaz Hussain during his evidence before the trial Court, admitted that he was mashir in such case under section 13(d) Arms Ordinance and his evidence was also recorded by 2nd Judicial Magistrate K.N. Shah but the accused Deedar Ali was then acquitted from such case.
8. Even otherwise, the motive of crime as is evident from the F.I.R. Itself, was only the theft but the murder in question was committed at the distance of about one furlong away from the house of complainant therefore, the contention of learned counsel for the accused carries force that such murders of two persons were allegedly committed by two nominated accused all of a sudden when they were grappled by the deceased who were therefore, done to death, while the role attributed C to the unidentified persons was of ineffective firing at the most. Learned counsel further contended that since there was no pre-planning or premeditation for commission of such murder therefore, the present three accused, even otherwise, could not be held to be vicariously liable for the same. In this connection, he also placed reliance on .The case of Farid v. Dhaular Sher and 4 others (2001 PCr.LJ 820), the relevant portion of which is reproduced below:--
(a) Penal Code (XLV of 1860), Ss.302/149, 307/149 & 148--- Appreciation of evidence---Benefit of doubt---Occurrence had resulted on account of sudden flare-up and not as a result of preplanning or premeditation and, therefore, every accused person was liable for the act committed by him during the occurrence---Accused had not caused any injury either to the deceased or to the injured witness and they could not be held responsible vicariously for the murder of the deceased or the injury caused to the witness---Participation of the accused in the occurrence lacked reliable corroboration---Accused were extended benefit of doubt and acquitted in circumstances."
9. On the other hand, learned counsel for the appellant/complainant Abdul Sattar Khoso, relying upon the case reported as 2005 SCM R 1568, contended that the case of the prosecution was since proved against all the accused including the acquitted accused Ahmed who was therefore, liable to be convicted like the accused/appellants Deedar Ali and Abdul Sattar Chandid. The above authority, as relied upon by learned counsel for complainant, seems to be distinguishable to the case in hand. On the contrary, learned counsel for the accused/respondent Ahmed, appears to have rightly relied upon case of Abdullah v. The State (2006 SCM R 1466) in support of his contention. The relevant portion of this authority, is as under:--
(b) Penal Code (XLV of 1860), S.302/34---Appreciation of evidence---Accused armed with Lathi neither used same nor participated in crime in any manner---Participation of accused in crime was, doubtful---Accused was acquitted in circumstances."
(c) Criminal trial---Acquittal of accused---Finding of acquittal could be interfered with only where reasons of acquittal were capricious, artificial or speculative in nature."
10. It is clear from the material available on the record of the case that the presence of the accused Deedar Ali, Abdul Sattar and Ahmed at the spot and their participation in commission of alleged crime, was itself very doubtful and accordingly, the case of convicted accused Deedar Ali and Abdul Sattar was at par to that of acquitted accused Ahmed, therefore, all they were entitled to be given the benefit of such doubt and, even otherwise, the accused Deedar Ali and Abdul Sattar could not be convicted in circumstances of this case, on the basis of same evidence on which the accused Ahmed was acquitted by the trial Court.
11. In view of the above facts and circumstances, the impugned judgment dated 16-11-2007 was set aside, the appellants Deedar Ali and Abdul Sattar were acquitted of the charge and their Criminal Appeal No,96 of 2007 was allowed while the Criminal Acquittal Appeal No,33 of 2007 filed by appellant/complainant Abdul Sattar Khoso, was dismissed by this Court, vide a short order dated 28-4-2010 and these are the reasons for the same.