1. ' SYED ZAKIR HUSSAIN, J.---This criminal appeal is preferred by the appellant Ghulam Muhiyuddin against his conviction and sentence awarded to him in the case bearing Sessions Case No, 68 of 1999 (re: State v. Ghulam Muhiyuddin alias Gamboo and others), whereby he was held guilty of the offence of murder, and ordered to suffer life imprisonment under section 302(b), P.P.C., and to pay Rs,100,000 as compensation to the legal heirs of the deceased and in default of payment whereof, he was ordered to suffer R.I. For six mqnths. The said conviction and sentence was recorded and pronounced against the appellant on 5-10-2009 by the judgment of the Court of learned Additional Sessions. Judge Kandhkot. He was however given benefit of section 382-B, Cr.P.C. In the said matter. The appellant has prayed for setting aside of the said conviction in toto and for an order of his acquittal from the charge of the case on the facts and grounds mentioned in the appeal.
2. ' Necessary facts of the prosecution case are that on 22-3-1999, the complainant (Sherbaz son of Qaloo, by caste Muhammadani), reported to the police at Police. Station B Section, Kandhkot, at 1715 hours, that on that day at 4-00 p.m., while he and his brother Mahboob alias Nadhoo, Sanjar and his cousin Mandost, were on their way back to their homes and when they reached near village Gul Beg Muhammadani, the culprits Shah Muhammad, Hidayatullah and Gaboo, already known to them being of Khosa tribe, armed with guns, intercepted them and. Shah Muhammad raised hakal, as to why they had not given the lands to them and upon his instigation, the others with intention to murder of the said Mahboob fired their guns at him while the instigator also used his gun, and made fire shot directly at the said Mahboob who received such shot and hurt his left arm, the fire shot of Hidayatullah injured the said Mahboob alias Nandhoo on his neck while his companion Gaboo fired at Mahboob which hit him on his abdomen. The story also goes to show that Shah Muhammad and Gaboo made single shot, while Hidayatullah fired twice and his second shot hit the injured Mahboob at his right side of neck. The culprits managed to escape thereafter.
3. The complainants found that the injured Mahboob had received firearm injuries on his abdomen, right side of neck and left arm and gone unconscious. The complainant arranged transport and brought the injured to the hospital, and then approached the police station and lodged such report. The police registered the F.I.R. Against the nominated persons and started investigation. The F.1.R, was registered under sections 302 and 114, P.P.C. The police referred to the injured Mahboob for treatment to Kandhkot hospital, and tnen Kandhkot hospital referred the injured to Rahimyar Khan hospital, for further treatment. The injured died on his way to such hospital. The police therefore converted the case and investigation into under section 302, P.P.C. And after completing the investigation, submitted the challan against Gaboo only and placed the ,other two as left off, in column No,2 thereof, who were joined by the court on application of the complainant party under section 193, Cr.P.C. By an order dated 14-5-1999 and accordingly they faced the trial together with Gaboo, and a formal charge against all the three accused was framed by the court in the case.
4. They pleaded not guilty. The trial was processed and concluded by way of impugned judgment whereby the accused the appellant Gaboo was convicted and others were left free as acquitted on behalf of doubt.
5. ' I have heard the appeal and by my short order allowed the same, acquitted the appellant from the charge of the case and ordered his immediate release from the Jail for the reasons to be recorded later on 29-11-2010.
6. ' The learned counsel for the appellant stated that the learned trial Judge has acquitted the co- accused Shah Muhammad and Hidayatullah and convicted the appellant Gaboo on almost same set of evidence, by way of the impugned judgment, which carries no reasons for such two altogether different conclusions , satisfactory to the norms of law and justice. The prosecution led evidence and examined in all seven (7) witnesses as P.W. (1 to 7) Exh.8 to 14 including the complainant who produced F.I.R. As Exh.9-A and eye-witness Mandost and one Mushir Gul Beg,, who produced Mashirnama of injured, memo of place of vardat, memo of dead body, danishnama, memo of dead body of deceased. Mahboob alias Nadhoo, memo of arrest of the accused persons etc. Respectively as Exhs.11-A to 11-E. The other witnesses are official ones namely Medical Officer, first I.O. And second I.O. And Tapedar concerned etc. The court examined the accused persons under section 342, Cr.P.C. And heard the matter and disposed it of accordingly.
7. The learned counsel stated that the learned trial Judge failed to take the notice of lapses of material nature such as there was no chemical examination report of bloodstained material secured under its relevant memo; the only weapon i.e, gun said to have been secured from the appellant from his house on his pointation under the memo prepared to such effect was not sent to the Expert; and similarly the 3 empties secured from the spot were left unsent to the expert; and the memo of recovery of the gun has not been produced in evidence and hence, the factum of recovery of the crime weapon remained un-proved, and as a matter of legal inference, the case of the prosecution as to the recovery of the said weapon, stands belied by its own lapses referred to above. All the witnesses who are material including the complainant and Eyewitness named above, have given contradictory statement as to the number of fire shots of the accused Hidayatullah. The trial Court has taken the notice of the same in his judgment and gave benefit thereof to the acquitted co-accused persons but failed to give the same benefit to the appellant for no sound reasons. The complainant pointed out that the co-accused Hidayatuallah fired his gun twice at the deceased Mahboob. His one shot hit the deceased on his neck and his other shot hit the deceased at his abdomen. The complainant stated that the co-accused Shah Muhammad made fire at the deceased Mahboob and injured his arm, whereas according to his statement, the appellant Gaboo made single shot fire from his gun which hit the deceased at the abdomen. The witness Mandost, however, does not state that the co-accused Hidayatulah made two fire shots.
8. According to him all the three (3) culprits used their guns and made single fire shot from each at the deceased Mahboob. The Medical Officer when examined the accused found as many as five
(5) injuries as sustained by the deceased, which includes one wound at neck and two injuries on abdomen and one at arm, together with one exist wound at neck. His opinion about the cause of death is confined to two fire shots injuries. The learned trial Judge came to the conclusion that one main injury at abdomen was outcome of gun shot and the other injuries around the abdomen were also resulted from such single shot and such shot is ascribed against the appellant and therefore, he was held responsible for causing the death by giving fatal blow as observed by the learned Judge. He also observed that injuries 2 and 3 are entry and- exit wounds respectively, caused by one fire shot. According to his further observation, the injuries on left forearm and right side of neck being pellet injuries were the result of the said fire shot of the appellant Ghulam Mohiyuddin.
9. ' From the perusal of the said observation and of the conclusion so arrived at on the part of the learned trial Judge, it appears that he has made the appellant responsible for the death and exonerated the others from the act of causing injuries irrespective of the fact that they were reported to have fired with their guns, too, against the deceased Mahboob of which the learned Judge has taken the notice, yet he passed an acquittal order against the co-accused mentioned above coupled with the conviction order in question with no proper reasoning, distinguishing both, of them from each other in point of legally acceptable justification in total disregard of the ocular evidence, against the acquittal accused persons, and in derogation of the legal position that on the same set of evidence, two different conclusions can hardly be acceptable for being A drawn and put to practice as well, and that if the case carries such a situation, the same of itself, would give rise to a benefit of doubt for being extended to each accused as a matter of fairness, equity, law and justice. The warned Judge also failed to take notice that the eye-witness i.e, another brother of the deceased is left unproduced, and similarly, P.W. Alif, the other mashir of the said memo, is not produced in Court for no justified reasons or legal excuse, thus leading the court to draw a reasonable inference that had they been produced, they would not have supported the case. The case is doubtful for the appellant, too, and therefore, as rightly pointed out, the learned Judge failed to dispense with justice in the case, and the conviction in hand, is based on no sound reasons, and is not open to be sustained at all.
10. ' The State counsel opposed the appeal and prayed for dismissal thereof, but could not justify his such stand.
11. ' I am therefore, of the firm view that like co-accused named above, the appellant is entitled to such acquittal in the circumstances. In this view of the matter, the appeal was allowed, the impugned judgment was set side and the appellant was acquitted and ordered to stand released forthwith in the matter, by the short order dated 29-11-2010 for the reasons to be recorded later on.
12. The above are the reasons for the same.