' SADIQ HUSSAIN BHATTI, J.---Criminal Jail Appeal No,S-81 of 2009 was filed by the Appellant Abdul Razzak, subsequently Mr. Fayyaz A. Soomro filed power on behalf of Appellants Abdul Razzak, Allandino, Naseer and Nazeer and preferred Criminal Appeal which was renumbered as Criminal Appeal No, S-104 of 2009. During the pendency of above appeal, co-accused Allah Wassayo who was shown as absconder was arrested, tried and convicted by I-Additional Sessions Judge, Khairpur. Subsequently he also preferred Criminal Jail Appeal No, S-112 of 2012 and Mr. Ali Mutahir Shar filed power on his behalf.
2. Through these three above Criminal Appeals, the appellants named above have called in question the judgments dated 27-6-2009 and 10-12-2012 passed by the learned 1st Additional District and Sessions Judge, Khairpur in Session Case No,405/2004 and 405-A/2004, arising out of F.I.R. No,48/2004 lodged by complainant Qadir Bux at Police Station Ahmed Pur on 17-4-2004.
3. Since both the aforesaid Appeals arise out of same common F.I.R. Having same set of witnesses. I propose to dispose of the same, through this common judgment.
4. Briefly the facts arising out of the above said F.I.R. Are as under:-- "The F.I.R. Lodged on 17-4-2004 by complainant Qadir Bux alleging therein that about 18/19 months prior to F.I.R. His father was murdered, Aslam alias Saloo and others were challaned in that case. On 9-5-2004 Aslam alias Saloo became injured. The matter was reported against the Complainant his brother Khuda Bux and Rahim Bux. On the day of report Khuda Bux, Ghulam Shabir and Abdul Hameed after taking tea at the hotel of Ghulam Nabi Chachar were returning towards their houses, when it was about 8.00 p.m., they saw accused Aslam alias Saloo armed with Kalashanikov, Allandino armed with pistol, Naseer, Nazeer, Razzak, Allah Wassayo armed with Kalashnikov and Rajib Ali empty handed standing there. On the instigation of Rajib Ali, all the rest accused directly fired upon Khuda Bux from their respective weapons. On the cries of Complainant and fire reports many persons attracted then accused went away. Khuda Bux received firearm injuries and expired on spot."
5. Police took up the investigation and after usual investigation submitted the charge sheet against accused Abdul Razzak, Allandino, Naseer and Nazeer and showing co-accused Rajib, Aslam and Allah before the commencement of trial, co-accused Rajib appeared and joined the trial. The trial Court after necessary legal proceedings declared co-accused Aslam and Allah Wassayo as proclaimed offenders and their case was separated and kept on dormant file.
6. Charge. Exh.4 was framed against the accused Abdul Razzak, Allandino, Naseer, Nazeer and Rajib for the alleged offence under sections 302/148/149/114 P.P.C., after completing the formalities as required under section 265-C Cr.P.C. The accused named above pleaded not guilty and claimed to be tried vide their pleas Exs.5 to 9. Prosecution in order to prove its case examined following witnesses:--- P.W.1, Exh.11. Qadir Bux, Complainant and eye-witness. He produced F.I.R. Exh.11-A.
P.W.-2, Exh.12 Abdul Hameed, eye-witness Exh.14Application submitted by DDA, giving up eye-witness Ghulam Shabir at the behest of Complainant.
P.W.3, Exh.15.Muhammad Ismail, Mashir. He produced memos of place of incident Exh.15-A, Inquest Report Exh.15-B, last worn clothes of Deceased Exh.15-C, arrest of accused Abdul Khalique, Allandino, Naseer and Nazeer Exh.15-D.
P.W.4. Exh.16.P.C. Turab Ali, Corpse Bearer. He produced receipt of Exh.16-A of handing over the dead body to the heir of Deceased after Postmortem Examination.
P.W.5, Exh.17SIP. Gul Hassan, SIO Incharge Officer. He verified the memo Exh.15-D as arrest of accused and produced Chemical Report Exh.17-A regarding blood-stained earth, recovered from place of vardat.
P.W.6, Exh.19. Inspector Syed Abbas Ali Shah, Incharge Officer.
P.W.7, Exh.20.Dr. Inayat Ali, M.O. R.H.O. Pir-Jo-Goth, conducted Postmortem Examination and produced Postmortem Report as Exh.20-A, and Police letter Exh.20-B.
Exh.21. Application under section 540-A Cr.P.C. by D.A.
Exh.22. Application under section 540-A Cr.P.C. by D.A.
P.W.8, Exh.23.H.C. Mumtaz Ali, mashir, produced memo of arrest of accused Rajib Ali, Exh.23-A.
P.W.9, Exh.24.SHO Ghulam Jaffar, recorded F.I.R.
Exh.11-A.
Exh.25.Prosecution side closed by DDA.
7. Statement of accused Abdul Khalique, Allandino, Naseer, Nazeer Hussain and Rajib Ali were recorded vide Exhs.26 to 30 respectively. All of them denied the allegations levelled against them by prosecution and further pleaded that they have been falsely involved in this case due to previous enmity and prayed for justice. They did not examine themselves on Oath and also led no defence.
8. After hearing the learned counsel for the respective parties, trial Court convicted the appellants/accused under section 302(b), P.P.C. To suffer imprisonment of life and to pay Rs,50,000 each as compensation to the legal heirs of deceased and in default thereof to suffer S.I for six months more. However, they were given the benefit of section 382-B, Cr.P.C. While co-accused Rajib Ali, who was on bail was given benefit of doubt and acquitted under section 265-H(1), Cr.P.C.
9. The learned counsel appearing on behalf of the appellants and co-accused, Appellant Allah Wassayo argued that the case of prosecution is doubtful and the evidence of eye-witnesses was not inspiring confidence. The evidence of alleged eyewitnesses was .Neither consistent nor corroborated by the Medical evidence.
' They also argued that on the basis of same evidence, the co-accused Rajib Ali had been acquitted. According to them, it is well-settled principle of law that the appellants were also entitled for the same benefit under rule of consistency. They also concluded that trial Court did give due importance to the fact that Police did not examine the natural witnesses i,e, owner of hotel and his servants but have given importance to two witnesses, who were on criminal terms with the appellants. The trial Court has also not taken into consideration the major contradiction brought through cross-examination as the same has not been formed the part of the judgment.
10. As against the above, learned State Counsel contended that the prosecution has fully proved the case beyond any shadow of doubt, as all witnesses have fully supported the prosecution. The contradictions are minor and should not be given ' any importance. The motive as well as recoveries are also well-supported by witnesses.
11. The arguments advanced pro and contra have been heard by me very carefully and I have also gone through the record available on file. The whole prosecution case hinges on the evidence of two eye-witnesses P .W . 1 Qadir . Bux examined at Exh.11 and P.W.2, Abdul Hameed examined at Exh.12, P.W.3, Muhammad Ismail examined at Exh.15 is mashir of examining the place of incident and recoveries of empties.
12. Medical evidence is furnished by P.W.7 Dr. Inayat Ali M.0, R.H.C, Pir-JoGoth examined at Exh.20 and motive as well as testified by Complainant.
13. In order to arrive at just conclusion, the above evidence needs to be thoroughly examined and fully scrutinized along with the submissions advanced at the bar by the learned counsel for the respective parties as well as law cited at bar.
14. Complainant Qadir Bux during the trial testified that the alleged incident took place at about 8.30 p.m, on that day, he alongwith Deceased Khuda Bux and P.Ws. Ghulam Shabir and Abdul Hameed had gone to the Hotel of Ghulam Nabi Chachar situated in their village for having cup of tea. After taking tea, they remained in the hotel for an hour and thereafter all of them came out, from the hotel and proceeded to their respective houses. Complainant further deposed that, as they proceeded ahead and covered about five to eight paces from hotel, they saw and identified seven accused persons namely Aslam, Allah Wassayo, Nazeer, Naseer and Abdul Khalique, armed with Kalashnikov. Allandino armed with pistol whereas Rajib Ali was empty-handed. Accused Rajib All instigated co-accused named above not to spare Khuda Bux and kill him on which co-accused duly armed fired at Khuda Bux from their respective weapons, resultantly Khuda Bux was killed.
Complainant further deposed that due to fear of firing he along with P.Ws. Named above fallen down on the ground. All the accused persons walked away after committing the murder of Deceased, Khuda Bux, along with their weapons. Complainant also testified' that he along with Ghulam Shabir and Abdul Hameed took the dead body of Deceased Khuda Bux and came to Police Station Ahmed Pur, where he lodged the F.I.R. Against the accused persons. Police also recorded the statements of P.Ws. At. Police Station. Complainant also deposed that thereafter the dead body of deceased was shifted to R.H.C, Pir-Jo-Goth from Police Station. Ahmed Pur for Postmortem Examination. After Postmortem Examination the dead body was handed over to Ghulam Rasool.
15. In the cross-examination, the Complainant deposed that' absconder accused Aslam had received hatchet injury prior to this incident and accused Rajib Ali had lodged the F.LR. At Police Station Ahmed Pur. He admitted that accused Rajib Ali and his two companions Aslam and Allandino are his co-villagers. Co-accused Nazeer resides about half a mile away from his house.
He also contended that prior to this incident all the accused persons were extending threats of murder to Complainant Party, but we did not lodge such F.I.R. Or N.C. Report with the concerned Police. He admitted that P.W. Ghulam Shabir was actually resident of village Wada. Machyoon, but on the day of incident he was staying with him as a guest. He admitted that 10 or 15 persons were also present at the hotel of Ghulam Nabi Chachar along with them. Hotelkeeper Ghulam Nabi Chachar was also present in the hotel. The accused persons were standing about 15 paces away on metalled road. During the course of firing nobody came out but closed the doors of hotel. After the firing incident, Hotelkeeper Ghulam Nabi Chachar and other persons sitting at the hotel rushed to the place of occurrence. Police Station Ahmed Pur was at a distance of about 25 to 30 miles away from the place of vardat. He further disclosed that they remained at the place of incident for about half an hours. He arranged a Datsun Vehicle from village Wada Machyoon which was at a distance of three miles away from place of vardat and then he along with P.W. Ghulam Shabir, Abdul Hameed, mashir Muhammad Ismail, Fazal Muhammad and Ghulam Rasool removed the dead body to Police Station Ahmed Pur from place of vardat, we reached Police Station Ahmed Pur at about 0.00 to 10.00 p.m. After filing the F.I.R., we all brought the dead body at P.H.C. PirJo-Goth at 10.30 p.m., for Postmortem Examination, after 30 minutes the dead body received by them from M.L.O. He admitted that before going to Police Station first they went to PP Wada Machyoon and informed the facts to Incharge where he noted the same. He also admitted that P.Ws. Ghulam Shabir and Abdul Hameed are related to him. He also admitted that both the mashirs are related to him. He had given the names of accused persons to Hotelkeeper Ghulam Nabi Chachar. He also admitted that he did not give the name of any other person sitting at the hotel and police even not Hotelkeeper Ghulam Nabi Chachar. Police reached at place of vardat at 10.30 p.m, but dead body of deceased was received by them at 10.00 p.m., from hospital. Police had only secured bloodstained earth from place of vardat. He also admitted that there is enmity between the accused persons and him and such cases are pending. He denied that he has falsely involved these accused persons over previous enmity.
16. On the other hand, P.W. Abdul Hameed, the other eye-witness of the incident deposed that after taking tea they left hotel and covered 15 to 20 paces from hotel when they saw the above named accused, who duly armed on the instigation of co-accused Rajib Ali fired upon Deceased Khuda Bux. We all ran away from the place of vardat to save their lives in fear. All the accused persons left the place of vardat along with their weapons. We all returned back and found Deceased Khuda Bux dead. Complainant Qadir Bux alone went to lodge the F.I.R. Leaving them at place of vardat. Police came at the place of vardat removed the dead body to R.H.C, Pir-Jo-Goth for conducting the Postmortem Examination. Police recorded his statement at place of vardat. He was once again called at Police Station Ahmed Pur once again his statement was recorded. He admitted that previous enmity existed between them over previous murder case and hatchet injuries received by absconding accused Aslam and such F.I.Rs, were lodged against each after. He further contended that at the time of incident first on receiving the HAKALS from accused Rajib Ali we all ran away separately in different directions due to fear and to save our lives. After the incident 15/20 persons sitting at the hotel came at the place of incident firstly police of PP Machayoon, reached place of vardat and 'thereafter mashy, Ismail, Fazal came at place of vardat along with police team of Police Station Ahmed Pur on Police Mobile Van. He once again admitted that Police recorded his statement twicely and obtained his signatures on both the statements. This P.W. Further deposed that Police Party of Police Station Ahmed Pur and PP Machayoon removed the dead body along with P.Ws. To R.H.C. Pir-Jo-Goth at 12.00 midnight and after conducting the Postmortem Examination the dead body was received by them at 3.30 a.m, or 3.45 a.m,. He also deposed that after receiving the dead body we all P.Ws. Returned back to Police Station Ahmed Pur along with Police where Complainant Qadir Bux lodged the F.I.R., which recorded by Police. He also admitted that prior to the incident there was inimical terms in between the Complainant Party and accused Party. He denied the suggestion that he did not witness of the incident, but has deposed due to previous enmity. He also deposed that the accused Party and the Complainant Party are related and that prior to this incident accused persons had not extended any threats to them. He admitted that the witnesses and mashirs are, closely related to each after. P.W. Ghulam Shabir, who as per F.I.R. Is also an eye-witness was given up by the prosecution at the behest of Complainant. In spite of the fact that P.W. Ghulam Shabir is also related to the Complainant, another important P.W. Is Muhammad Ismail, who is mashir.
17. P.W. Muhammad Ismail mashir of this case deposed that he was present at his Autaq situated in village Wada Machayoon when at about 7.00 p.m to 8.00 p.m when Complainant, who is related to him came and narrated the facts of the incident to him and then proceeded with him first to PP Wada Machayoon and then to Police Station Ahmed Pur, where complainant Qadir Bux lodged the F.I.R. He then visited the place of incident along with Police and co-mashir Fazal and inspected the place of incident, where dead body of Deceased Khuda Bux was laying it had 7 or 8 firearm injuries on his person, Police noted the same and recovered blood-stained earth from place of vardat and prepared the memo of place of vardat. Police prepared inquest report upon the dead body of Deceased Khuda Bux. He also deposed that after Postmortem Examination the last worn clothes of Deceased were recovered by Police and such memo was prepared by Police in his presence.
Subsequently, Police arrested accused Abdul Razzak, Allandino, Nazeer and Naseer in his presence and such memo of arrest was prepared. In the cross-examination this P.W. Deposed that complainant, co-mashir Fazal and other P.Ws. Are related inter se. Co-mashir was sitting with him when complainant came and informed him about the incident and they all went to PP Wada Machayoon on foot where Incharge recorded the N.C. Report regarding the said incident. From where they all went to Police Station Ahmed Pur located at a distance of about 15 km in hired Datsun Pick-up, along with co-villagers Wada Machayoon and reached Police Station Ahmed Pur at about 10.00 p.m. Or 11.00 p.m. They remained at Police Station for about one hour and then came at place of vardat at 12.00 midnight where 5 to 7 persons of the locality were present and there was darkness, Police shifted the dead body to R.H.C. Pir-JoGoth and reached there at 1.00 a.m., where they stayed for about two hours, when dead body was received by them after Postmortem Examination. He also deposed that he was called by Police at Police Station for about 5/6 times during investigation. Police made no inquires from the persons available at vardat, who belonged to Shaikh and Chachar Communities.
18. P.W.4 P.C. Turab Ali deposed that after Postmortem Examination he received the dead body of Deceased Khuda Bux from MLO at 11.30 p.m, and he handed over the same to the heirs of the Deceased, who was present in the hospital and obtained such receipt.
19. P.W. SIO. Gul Hassan, who is the Incharge Officer deposed that he had recorded the statements of P.Ws. At Police. Station Ahmed Pur and also recorded the statement of the Hotelkeeper at his hotel. He produced the Chemical Report Exh.17-A, which is in respect of the bloodstained earth collected from place of vardat, which was positive.
20. P.W.8 is SIO Abbas Ali Shah, who conducted the investigation of this case prepared the memo of place of incident during which he secured blood-stained earth and 8 empty shells of Kalashnikov from there in presence of mashirs sealed the same and prepared memo in presence of the mashir.
He admitted that he did not recover the bulb from the hotel of Ghulam Nabi Chachar.
21. P.W.7, is Dr. Inayat Ali, who conducted the Postmortem Examination of the Deceased Khuda Bux.
He deposed that he received the dead body of Deceased Khuda Bux on 17-6-2004 at 9.00 a.m, from P.C. Turab Ali of Police Station Ahmed Pur B. No,2833 along with Request Letter for Postmortem Examination. He started the Postmortem Examination at 10.00 p.m., and finished the same at 11.30 p.m. In all he found 18 firearms injuries which were inlet and outlet wounds, ante-mortem in nature.
22. In the cross-examination, this P.W. Deposed that he did not find any hole on the clothes of the Deceased worn by him. He also deposed that injuries could be the result of firearm weapon like Revolver.
23. Absconder co-accused Allay Wassayo/appellant was subsequently arrested by Police on 18-8- 2010 as his case was kept on dormant file was opened and he too was tried after completing the legal formalities as required under section 265-C, Cr . P. C .
24. Complainant Qadir Bux was reexamined as Exh.40, he in his Examination-in-chief deposed that on seeing the above named accused persons they started running when co-accused Rajib Ali gave HAKALS that his enemy was Khuda Bux and they will kill him and he be separated from others.
All the accused persons decamped from the place of vardat after committing murder of the Deceased Khuda Bux. Complainant Qadir Bux further deposed that leaving P.Ws. At place of vardat he came at PP Machayoon for registration of case. He brought Police at place of vardat. Police secured bloodstained earth and empties from there. He admitted that place of incident was surrounded by Banana Crops and houses and witnesses/bearers of hotel were also present at the time of incident. He further deposed that we handed over the dead body to MLO at 9.00 p.m., who returned the same after conducting the Postmortem Examination after one and half hours. He further stated that thereafter he reached Police Station Ahmed Pur at 11.00 p.m, on 11.30 p.m for lodging F.I.R. First Police prepared F.I. R. On rough paper and then prepared the fair copy of F.I.R. With the consultation of 3 or 4 Police Officials.
25. P.W. Abdul Hameed another eyewitness was re-examined as Exh.41, who deposed that on the day of incident, we got released deceased Khuda Bux from Police Station Ahmed Pur and in the evening time, he along with Complainant Qadir Bux, deceased Khuda Bux and P.W. Ghulam Shabir went to hotel for taking cup of tea. After taking tea when they came out from the hotel and covered 10/15 paces they saw some persons who gave HAKALS to them, on which we ran away, they went and killed Khuda Bux and also fired on them and escaped from vardat. He also deposed that during the incident of firing, we all ran away due to fear to save our lives. When accused ran away we returned and found Deceased Khuda Bux lying dead. In the Examination-in-chief he simply gave the name of the accused persons.
26. In the cross-examination, deposed that he and Ghulam Shabir got released Khuda Bux from Police Station Ahmed Pura Complainant Qadir Bux was also confined at Police Station Ahmed Pur and we got him released. Both of them were confined at Police Station Ahmed Pur in the case of absconder accused Aslam. He also deposed that all the accused persons have fired upon Deceased, but I had not seen them because at the time of firing I had already ran away. He also deposed that the dead body was actually lying about 100 feet away from hotel. He denied that he has deposed falsely at the instance of complainant.
27. P.W. Muhammad Ismail, who was reexamined as Exh.44 was declared hostile by prosecution and in the cross-examination of prosecution gave affirmation relies only to the leading questions.
28. After going through the entire evidence brought on record through prosecution witnesses, I am of the firm opinion that death of Deceased is not denied, as he received nine firearm injuries which caused his death. The cardinal question is that who caused his murder. Admittedly it is night time incident, the place of incident is surrounded by Banana Crops and houses. On the source of light for proper identification of accused, no proper evidence is led, the Complainant, A P.W. Abdul Hameed and mashir of vardat Muhammad Ismail has not clearly deposed that whether the sufficient light was available at place of incident. May be light available at the hotel but the important question is whether at the place of incident sufficient light was available to identify the accused. It has come on record that on receiving the hakals, the witnesses ran away due to fear to save their lives. The question is under these circumstances a person can be properly identified when the identifier is on a run to save his own life. Whether such fleeting look is sufficient for identification of person.
29. It-has also been brought on record that there is long-standing enmity between the Parties, under these circumstances strong corroboration is needed to filter the evidence of interested, inimical witnesses. The witnesses have not given the actual time of lodging the F.I.R. It has come on record through above witnesses that after Postmortem Examination and receiving the dead body, Complainant lodged the F.I.R. With the consultation 3/4 Police Officials. P.W. Abdul Hameed, who is eye-witnesses has deposed that:- "The. Police Parties of Police Station Ahmed Pur and PP Machayoon removed the dead body and P.Ws. To R.H.C. Pir-Jo-Goth at 12.00 midnight, and after the completion of Postmortem Examination, the dead body was received by them at 3.30 a.m., or 3.45 a.m.,"
' He also deposed that after receiving the dead body we all P.Ws. Returned back to Police Station Ahmed Pur, where complainant Qadir Bux lodged the F.I.R. This P.W. Has also admitted the enmity between accused Party and Complainant Party.
30. Police for the reasons best known to them did not record the statement of any person from the neighbourhood or the persons who were present at hotel of Ghulam Nabi Chachar, which was most important. Prosecution also did not examine the hotelkeeper Ghulam Nabi Chachar, whose statement was recorded by Police. It is also very strange that P.W. Ghulam Shabir, who is also the alleged eye-witness of the incident was given up at the behest of Complainant. This all shows that trial has not been fairly conducted and important evidence has been suppressed.
31. The prosecution has not proved the motive of incident either orally or through documents. No question is put in the Examination-in-chief regarding the motive nor any previous F.I.Rs, are brought on record. Prosecutor has not asked a single question regarding the recoveries and whether they were sealed at the spot.
32. Mashir Muhammad Ismail has also deposed regarding the articles recovered from the place of vardat were sealed at the spot. Admittedly, there is no recovery of any crime weapon from any accused, simply empties allegedly recovered from place of incident cannot prove that they were fired by present accused.
33. I have also gone through the statements of accused recorded by trial Court, in which strange questions were asked from accused, which are not borne out of the evidence recorded by it i,e, Question No,2, it reads as under:- "It has further come in evidence that on 17-6-2004 at 2155 hours 10 recovered 87 empty shelles of K.K and blood-stained earth from the place of incident, referred to Chemical Analyzer and Ballistic Expert who reported in positive. What have you to say?"
' Eightyseven empties shells were recovered by Police from place of vardat. No Ballistic report is produced by prosecution, which is positive. Since no crime weapon was recovered from any accused how the empties matched and report becomes positive.
34. The whole case revolved around the evidence of two P.Ws. Qadir Bux Complainant and Abdul Hameed. There is no other corroborative evidence to support the testimony of two P.Ws. Who categorically admit that there is long standing enmity between them since 18/19 years.
35. Police during the investigation did not collect the source of light. Mashir did not say a single word regarding the source of light on which the accused persons were identified.
36. Identity of the accused persons is the only important point in this case. No doubt, the enmity cuts both ways, but the law has also set very strict grounds to seen their evidence. They should not be set at liberty to settle their accounts in this way.
37. I am also mindful while going the evidence that co-accused who has been shown as master- mined behind this evidence by prosecution, is acquitted by F trial on the same set of evidence.
While, convicting the co-accused Allah Wassayo, trial court seemed to be influenced by the previous judgment dated 27-6-2009, delivered by Mr. Abdul Hameed Qureshi, the then Additional District and Sessions Judge, as it has formed part of his judgment dated 10-12-2012. The trial Courts should ignore this practice and should give independent views while assessing the evidence.
38. The cumulative effect of all these circumstances, as discussed above, is that possibility of mistaken identity cannot be excluded and this alone makes the case doubtful coupled with major contradictions in their evidence which reveal that above incident is unseen, hence, makes the case doubt, as prosecution has failed to prove the case against the appellants beyond shadow of doubt, resultantly, the conviction and sentence awarded to the appellant are set aside and these appeals are allowed. The appellants are acquitted of the charges. They shall be set at liberty forthwith if not required to be detained in any other case.