' SARMAD JALAL OSMANY, J.---This Appeal impugns the judgment of the learned Sindh High Court in Criminal Appeal No,267 of 2011 filed by the appellant against his conviction under section 302(b), P.P.C. And subsequent sentence of life imprisonment along with fine of Rs,50,000 imposed by the learned trial Court. Vide impugned judgment said appeal was dismissed and the judgment of the learned trial Court was maintained.
2. Briefly stated the facts of the prosecution case are that the complainant Ghulam Hussain on 2- 9-2006 at about 8-15 a.m. Along with his brother Shandad had gone to their land to take the turn of irrigation water. While Shandad was opening the water course, the appellant Mureed Hussain armed with a pistol and his brother Fazal Karim armed with a gun came there. Mureed Hussain asked Shandad that how he had taken the turn of irrigation water and hence he would be killed.
Mureed Hussain thereafter fired from his pistol at Shandad who fell down and Fazal Karim also fired in the air. The complainant raised cries which attracted Khadim Hussain Banbhan and Abdul Rehman Chandio at which the accused persons ran away. The complainant thereafter took his brother to the hospital but he succumbed to the injury on way. Then he left the P.Ws. Over the dead body in the hospital and went to lodge the F.I.R. At Police Station Mirwah.
3. Mr. Habib Ahmed, learned Advocate Supreme Court in support of the Appeal has firstly submitted that there are a number of contradictions between the F.I.R. And the deposition of the eyewitnesses before the trial Court as well as their 164, Cr.P.C. Statements recorded before the concerned Magistrate. In this connection he has firstly pointed out that in the F.I.R. It is nowhere mentioned that the appellant opened fire from the house of one Siddiq Punjabi while standing under a Baboor tree, but before the learned trial Court the complainant says so. Furthermore, in his deposition the complainant says that he and P.W. Abdul Rehman took the deceased to Thari Mirwah Hospital. However, according to the postmortem report the dead body was taken by the complainant and Atta Muhammad. Similarly, per the complainant accused Fazal Karim had fired shots in the air from his gun and the police secured the empty cartridges from the same area.
However, per the I.O. P.W. SIP Ghulam Shabbir the complainant had disclosed to him that he had made aerial firing from his gun and although the gun was available with the complainant it was never sent to the FSL Laboratory for the purpose of matching with the empties secured from the place of incident which only points to the mala fides of the I.O. In this regard learned Advocate Supreme Court has submitted that the complainant himself is a police official and hence he has influenced the course of investigation. Coming to the deposition of P.W. Abdul Rehman Chandio, learned Advocate Supreme Court has submitted that on the day of incident he was sitting in his house and came out upon hearing a commotion and saw that Shandad and appellant Mureed Hussain were abusing each other. Mureed was standing inside the hedge of the house of same Punjabi, whose name he did not remember, when he heard a fire shot at which Shandad fell down inside the Canal and he was taken out from there by Ghulam Hussain. P.W. Atta Muhammad also came there after a while and both he and Ghulam Hussain took Shandad in an injured condition on a motorcycle to Thari Mirwah. As against this learned Counsel submitted that in his 164, Cr.P.C.
Statement P.W. Abdul Rehman stated that the complainant Ghulam Hussain reached the place of incident after appellant had shot the deceased. So also this witness does not say that P.W. Khadim Hussain was present at the spot. As regards P.W. Khadim Hussain, learned Advocate Supreme Court submitted again that per his deposition before the trial Court he came out from his house after the incident and that P.W. Abdul Rehman and complainant Ghulam Hussain took the deceased to the hospital. He further admits in his cross-examination that he and P.W. Abdul Rehman came out of their respective houses after they heard the fire shot. Learned Advocate Supreme Court has also pointed out that in his 164, Cr.P.C. Statement before the concerned Magistrate he stated that the complainant as well as P.W. Abdul Rehman came to the place of incident after the fire shot.
4. In view of the foregoing contradictions in the eye-witness account, learned Advocate Supreme Court has submitted that they cannot be relied upon and hence what transpired at the place of incident is shrouded in mystery. Consequently the appellant is to be given the benefit of doubt and acquitted. Alternatively learned Advocate Supreme Court has submitted that there may have some altercation between the appellant and Deceased over the turn of water at which the Deceased opened fire at the appellant and he in order to save his life hid in the house of Siddiq Punjabi and fired back at the Deceased in self defence. Per learned Advocate Supreme Court; this line of reasoning is most attractive to the prudent mind, because it is not at all logical that the appellant while facing an unarmed person would run away to a house and take the shelter of a tree and then fire at the Deceased. Consequently, it was a case of self defence and although such plea was not taken in his examination under section 342, Cr.P.C. By the appellant yet this can be taken into account per well settled law for which proposition he has cited Muhammad Yousaf v.
The State (1994 SCM R 1733) and The State v. Muhammad Riaz and another (1999 PCr.LJ 232).
5. On the other hand Mr. Saleem Akhtar, learned Additional Prosecutor-General Sindh has fully supported the impugned judgment. According to him in the 164, Cr.P.C. Statements of both the P.Ws. Khadim Hussain and Abdul Rehman, the presence of the complainant and other prosecution witnesses are shown at the scene of the crime. He has further submitted that according to Article 121 of the Qanun-e-Shahadat Order, 1984 any plea taken by the accused must be proved by him. In this case the accused never took the plea of self-defence and hence same cannot be taken into consideration.
6. The complainant who is present in person has also fully supported the impugned judgment and the arguments of the learned APG. He has further submitted that the pistol which was recovered at the pointation of the appellant was matched with the empty recovered at the place of incident which points to only one conclusion that it was the appellant who had shot the Deceased.
7. In rebuttal, Mr. Habib Ahmed, learned Advocate Supreme Court has submitted that the empty of the pistol was recovered on the day of incident on 2-9-2006, whereas the pistol was recovered on 7-9-2006 but they were both sent together to the FSL' Laboratory on 13-10-2006. Consequently, per well-settled law the positive report of matching is inconsequential and cannot be used as a piece of evidence against the appellant.
8. We have heard learned Advocate Supreme Court as well as learned APG.
9. It would be seen that indeed the prosecution case as unfolded by the eye-witness account is full of contradictions since according to the complainant Ghulam Hussain he along with the Deceased were present at the place of incident and that the other eye-witnesses P.Ws. Abdul Rehman and Khadim Hussain came running to the spot after the shot had been fired by the appellant. However, P.W. Abdul Rehman in his examination-in-chief says that he only saw the complainant Ghulam Hussain taking out the Deceased from the Canal where he had fallen. Similarly, P.W. Khadim Hussain in his examination-in-chief says that he A saw the appellant firing from the house of Siddiq Punjabi, but in the next breath he says that he came out of his house after the fire shot and so also under cross examination he admits that he and Abdul Rehman came out of their houses after they heard the 'fire shot. Similarly, in his statement under section 164, Cr.P.C. He stated that he saw the appellant firing from/Siddiq Punjabi's house at the Deceased and also that the complainant and P.W. Abdul Rehman came there after the incident had taken place.
10. It would also be seen that according to the I.O., the complainant had admitted before him in his 161, Cr.P.C. Statement that he (complainant) had fired in the air and that the empties were from his shotgun. He had given the license of the shotgun to the 1.0., who exhibited the same. However, this has been not at all been stated by the prosecution witnesses according to whom it was co- accused, who had fired in the air. In this connection it is also instructive to note that the co- accused was let off during investigation and he was never charged before the learned trial Court.
Similarly, it would be seen that so far as matching of the empty recovered at the spot with the pistol recovered from the accused is concerned, the same were recovered on different dates and kept in police custody and sent after a month for the forensic test in which event the same is inconclusive per /B well settled law.
11. In view of the foregoing discussion we are of the opinion that both the complainant and the eye- witnesses have not given a true and forthright account of the events which unfolded at the scene of crime. It is evident that at least P.Ws. Abdul Rehman and Khadim Hussain were not the eye- witnesses and had come to the scene after the shot had been fired. In so far as the complainant Ghulam Hussain again it is quite doubtful whether he was present at the scene since not only this is countered by the other eye-witnesses, but he himself has given a false account of the events as regards the involvement of the co-accused in the matter as admitted before the I.O. That the empties belonged to his gun as he had made aerial firing. Consequently, what transpired on the day of incident is shrouded in mystery in which event the appellant has to be given the benefit of doubt. Hence we while allowing this Appeal would acquit the appellant. He shall be released from custody if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.