MUHAMMAD IQBAL MAHAR, J.---Through instant Jail appeal, appellants Allandad alias Dadan Narejo, Mithal Narejo, Ranjhan Narejo, Gul Bahar Mahesar and Munawar alias Munoo Narejo have challenged the judgment dated 15.04.2015 passed by learned Special Judge, Anti-T errorism Court, Khairpu r Mir's in Special Case No,73 of 2009 arising out of Crime No, 82 of 2009 of Police Station, Ahmedpur , whereby they were convicted and sentenced as under; i) For offence under section 148, P.P.C. appellants were convicted and sentenced to suffer R.I. for three years each and to pay fine of Rs,10,000/- each and in case default thereof to suf fer S.I. for two months more. ii) For offence under section 457 read with Section 149, P.P.C. they were convicted and sentenced to suffer R.I. for five years and to pay fine of Rs,15000/- each and in case of default in payment of fine to suffer S.I. for four months more. iii) For offence under section 302(b) read with Section 149, P.P.C. all the appellants were convicted, and sentenced to death penalty on 05 counts. They shall be hanged by their neck till they are dead and further ordered to pay the compensation as contemplated under Section 544-A, Cr.P.C. to the legal heirs of deceased persons of Rs,2,50,000/-each in lieu of deceased persons, total Rs,12,50,000/-and in case of default in payment of fine to suffer S.I. for six months more and if the compensation amount is recovered it shall be paid to the legal heirs of the said deceased persons in accordance with law . iv) For offence under section 324 read with Section 149, P.P.C. the appellants were convicted and sentenced to suffer R.I. for Ten years each and to pay fine of Rs,25,000/- each. In case of default in payment of fine to suffer S.I. for six months more. v) For, offence under section 7 of ATA, 1997, they are convicted and sentenced to death penalty on 05 counts.
They shall be hanged by their neck till they are dead subject to confirmation by this Court.
However , benefit of Section 382-B, Cr.P.C. was extended to them and all the sentences awarded to the appellants/accused were ordered to run concurrently .
2. Tersely , prosecution case is that there was murderous enmity in between the complainant and Mubeen Narejo and others. Two days prior to this incident three companions of Mubeen Narejo, were murdered in an encounter by Larkana Police but dacoit Mubeen Narejo had asked the complainant party that they had given such information to the Police, hence they would not be spared. On 16.06.2009 at 12.00 mid night time complainant along with his relatives Ali Mour , Nizar , Sikandar , Mst. .Imam Khatoon, Mst. Jeejan, Mst. Umedan Khatoon, Mst. Singhar , his brother Farzand Ali and brother-in-law Mohammad Umar , after taking dinner went to sleep in the house and the electric bulbs were on. They woke-up on some noise and saw 21 culprits armed with Kalashnikovs and G-3 Rifles, out of them they identified Mubeen alias Meenu, Gulzar , ' Mashooque alias Ghamon, Mithal, Munawar alias Munoo, Nizam alias Nizoo, Paryal alias Paroo, Hayat, Baggan alias Bagoo, Anwar alias Anoo, Ranjhan and Fakeer Naseer all by caste Nareja, Akber and Gul Bahar Mugheri while 09 were unidentified, whose faces were opened and the complainant party would identify them on seeing again. Accused Mubeen Narejo challenged the complainant party that they have got murdered his companions by Police, hence they would be murdered. Saying so all the accused' persons started indiscriminate firing with intention to kill them, resultantly Ali Mour , Nizar , Sikandar , Mst. Imam Khatoon, Mst. Jeejan, Mst. Umedan Khatoon and Mst. Singhar sustained injuries 'and fell down. The complainant party raised cries and took shelter behind the walls. On the firing and cries, co-villagers came there and the accused persons seeing them went away, making aerial firing. Complainant and PWs found Ali Mour , Nizar , Sikandar , Mst. Imam Khatoon and Mst. Jeejan lying dead and their blood was oozing, whereas Mst. Umedan and Mst. Singhar were injured. The complain ant with the help of co-villagers sent both injured ladies to Civil Hospital Khairpur for their medical treatment and himself went at Police Station, Ahmedpur and lodged the FIR.
3. After usual investigating, the challan of the case was submitted before the comp etent Court against the accused persons. Learned trial Court completed all legal formalities and framed the charge at Ex.12, to which the appellants pleaded not guilty and claimed trial, such pleas were obtained at Exs. 12-A to 12-E.
4. To substantiate the charge, prosecution examined PW-1 PC. Turab. Ali at Ex.13, who produced copies of letters of Police for conducting the post mortem of deceased Mst. Imam Khatoom, Mst. Jeejan and receipt of handing over the dead bodies to the legal heirs of both the deceased at Ex.13-A to 13-C, PW-2 Dr. Inayat Ali Memon at Ex.14, who produced letters for conducting postmortem of 03 deceased person and their post mortem reports at Exs.14-A to 14-F, PW-3 SHO/Inspector Inayatullah Soomro at Ex.15, who produced memo of arrest of accused Inayatullah Soomro at Ex.15, who produced memo of arrest of accused Ranjhan Narejo and Jail Certificate regarding confinement of accused Ranjhan at CP-Khairpur Mir's at Ex.15-A to 15-B. PW-4 Dr. Tabasum Syed at Ex:16, who produced letter for treatment of 02 injured ladies, 02 X-ray films and provisional certificate of Mst. Umedan, X-ray films and provisional certificate of injured Mst. Seenghar , 02 letters for conducting postmortem of 02 deceased ladies, post mortem reports of Mst. Jeejal and Mst. Imam Khatoon, first and final medico legal certificates of both injured Mst. Umedan and Mst. Singar at Exs.16-A to 16-M, PW-5 HC Rafique Ahmed Lund at Ex.17, who produced receipt of handing-over the dead bodies of deceased, namely , Ali Mour , Nizar and Sikandar to the relatives/legal heirs of the deceased at Ex.17-A, PW-06 complainant Ghanwar Narejo at Ex.19, who produced FIR No,82/2009 and his further statement at Ex.19-A to 19-B, PW-07 Mohammad Umar Narejo at Ex.20, PW-08 Farzand Ali Narejo at Ex.21, PW-09 PC Abdul Rehman Narejo at Ex.22, PW-11 Mst. Singhar Narejo at Ex.25, PW-12 HC Ameer Hussain Malian at Ex.26, who produced memo of arrest of accused Munawar and Mithal at Ex. 26-A. PW-13 Mohammad Waris Narejo at Ex.28, who produced memo of inspection of dead bodies of deceased, memo of place of incident, memo of securing blood stained earth, inquest reports of all the deceased, memo of securing the last worn clothes of 03 male deceased persons, memo of last worn clothes of deceased ladies, memo of imaginary arrest of accused Allandad and Gul Baharat Ex.28-A to 28-J. PW-14 Tapedar Sanaullah Maitlo at Ex.29, who produced the sketch of the place of incident at Ex.29-A,PW -15 Inspector Altaf Hussain Burdi at Ex.30, who produced letter to SSP for sending the blood stained earth to chemical examiner , letter to Mukhtiarkar concerned for preparation of sketch, chemical examiner's report of blood stained earth, post mortem report of 03 male deceased persons at Ex.30-A 30-F, PW-16 Inspector Mohammad Ameen Pathan at Ex-31. Thereafter , learned DDPP closed the side of prosecution vide statement at Fx.33.
5. After completion of prosecution eviden ce, learned trial Court recorded statemen ts of the appellants/accused as required under section 342, Cr.P.C. at Exs.34 to 38, in which they denied the prosecution allegations and claimed their innocence, they examined themselves on oath at Exs.39 to 43. Appellant Gul Bahar produced copy of judgment passed in 13(d) AO case and they examined witnesses, namely , Mohammad Yousif, Shahbazi and Mohammad Bux, at Exs.44 to 46 in their defence. Thereafter , learned defence Counsel closed the side vide statement at Ex.47.
6. The learned trial Court after hearing learned Counsel for the appellants, learned DDPP for the State and, appraising the evidence passed impugned judgment.
7. Learned Counsel for the appellants contended that the impugned judgment passed by trial Court is against the facts and settled principles of law; that the appellants are innocent and have falsely been involved in this case by the complainant due to enmity; that the names of appellants Allandad and Gul Bahar Mahesar do not appear in FIR, but they have been implicated after two days of the FIR in further stateme nt of the complainant.; that no identification parade of appellants Allandad and Gul Bahar was held before learned Magistrate; that there is general allegation that all the appellants and 16 co-accused fired upon complainan t party but no specific injury has been assigned to a particular person; that the prosecution evidence is deeply interested and consists of close relatives of the deceased and none from the villager has been cited as witness; that injured Mst. Umedan was not examined before trial Court; that the crime weapons were not recovered from the appellants; that there are material contradictions in evidence of prosecution witnesses- which have not been considered by learned trial Court. Lastly , he contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubt hence, they may be acquitted. The learned counsel further contended that this case is outcome of old murderous enmity between the parties and has no nexus with section 6 of ATA, 1997, therefore its trial by Anti-T errorism Court was coram non judice , hence impugned judgment may be set-aside and the case may be remanded to ordinary court for trial. In support of his arguments he relied upon case of Barkat Ali v.. Mohammad Asif and others (2007 SCMR 1812 ), Attaullah alias Qasim and another v. The State (2006 YLR 3213 ) Kamran Khan and another v. The State (2005 PCr .LJ 129) and Nasir Khan and others v . The State (2005 PCr .LJ 1).
8. Learned counsel for the complainant conceded to the arguments of learned counsel for the appellants and tendered his no objection, however neither the LRs of deceased have filed compromise application nor any affidavit in favour of the appellants.
9. Learned Deputy Prosecutor General while controverting the contentions of learned counsel for the appellants submitted that this is a heinous 'offence in which- two ladies and three male persons have lost their lives and two ladies have sustained fire arm injuries. The witnesses examined by the prosecution have fully supported the prosecution case; that the medical evidence also corroborates the ocular evidence; that the ocular evidence and medical evidence are supported by official witnesses and private mashir , therefore he submitted the impugned judgment passed by learned trial Court does not call for interference.
10. We have given due consideration to the arguments advanced by learned Counsel for the parties and have gone.. through the evidence available on record. It is observed that there are two sets of accused, one is of appellants Ranjhan, Mithal and Munwar alias Munoo, who are nominated in FIR and second is of A appellants Allandad and Gul Bahar , whose names have been disclosed in further statement of the complainant after two days of the FIR. Firstly , we are discussing the case of first set of accused. The incident occurred on 16.06.2009 at 12.00 night and FIR was lodged on following day at 2.00 am, after two hours wherein appellants Ranjhan, Mithal and Munwar have been nominated, hence there is no question of consultation or cooking-up false story . The accused were identified by the complainant and other eye-witnesses on the light of bulb as at that time bulbs were glowing in the house of complainant though the I.O. has not collected the bulbs but he has confirmed the version of the complainant that he has prepared the memo of inspection of dead bodies and place of occurrence at Ex.28-A on very same night viz. 17.06.2009 at about 0250 hours on the light of bulbs. Furthe rmore, the parties are known to each other which is evident from their evidence, so there was no question of mistaken identity of appellants Ranjhan, Mithal and Munawar . Admittedly , two innocent ladies, three male persons have lost their lives and two ladies have sustained fire arm injuries in the occurrence. The prosecution produced four eye-witnesses, i,e, complainant Ghanwar , eye-witnesses, Muhammad Umar , Farzand Ali and injured Mst. Singhar , who supported the version of complainant and deposed that the appellants along with absconders and unknown accused entered into the house, made indiscriminate firing upon the inmates of the house and committed the murder five innocent male, female and children and caused fire arm injuries to innocent two ladies. So far the plea taken by the learned Counsel for the appellants that the witnesses are close relatives, hence they are interested has no force, because mere relationship of the witnesses with the deceased alone is not enough to discard their testimony until the malice is proved.
11. The ocular evidence is corroborated by medical evidence. In order to prove this piece of evidence prosecution examined Dr. Inayat Ali, who conducted postmortem of deceased Sikander Ali, Ali Mour and Nizar Ali and produced their postmortem reports. He further deposed that the injuries were ante-mortem in nature and were caused by discharge from fire arm and were sufficient to cause death of deceased persons in ordinary course of life. Dr. Tabasum Syed was also examined by the prosecution, she had examined injured ladies Mst. Umedan and Mst.
Singhar , she produced medical certificates of both injured ladies and deposed that both the ladies were sustaining fire arm injuries. She further deposed that she conducted postmortem of deceased Mst. Imam Khatoon and Mst.
Jeejal and produced their postmortem reports and deposed that the injuries were ante-mortem in nature and death was due to injuries caused by discharge from fire arm.
11. The motive behind the incident is that two days prior to this incident dacoit Akber Narejo and 2 others, the companions of dacoit Mubeen Narejo, were murdered in an encounter by Larkana police and Mubeen Narejo had issued threats to the complainant that his companions have been murdered on the spy information of the complainant, hence the complainant party would not be spared. Consequently , the accused persons being armed with deadly weapons entered the house of complainant at odd hours of the night and started indiscriminate firing upon the inmates of the house, due to which seven members of the family including four ladies, two boys aged about 4 years and 13 years sustained fire arm injuries. Out of them five lost their lives. The act of the appellants appears to be a shocking and brutal which created sense of insecurity in the public at large.
13. So far as the case of appellants Allandad and Gul Bahar is concerned, it is pertinent to mention here that their names do not transpire in the FIR but they were implicated by the complainant in his further statement recorded on 19.06.2009 after two days of the FIR, which is evident from the record as well as from his evidence. He deposed that "On 19.06.2009 police recorded further statement under section 162, Cr. P.C. in which I had disclosed the names of accused Allandad son of Hyder Bux, Gul Bahar Mahesar son of Sohr ab. The perusal of evidence of complainant and eye-witnesses reveals that both the accused persons were previ ously known to the complainant party which is evident from their cross-examination. The complainant deposed that "Prior to this incident there was dispute between me and accused Allanda d, Ranjhan, Mithal and Munwar alias Munoo. It is correct that I know the above said accused persons personally prior to this incident." PW Muhammad Umar in his evidence did not disclose the name of appellant Gul Bahar and on the contrary deposed that "At time of incident I did not see accused Gul Bahar Mahesar ." He further deposed that "It is a fact that I know the accused Allandad prior to this incident." Mst. Singhar deposed that "I know the accused persons prior to this incident as we saw them occasionally in the area." This clearly shows that appellant Allandad and Gul Bahar were previously known to the complainant party but the complainant did not disclose their names in FIR and he implicated them in his further statement after two days of the FIR which creates reasonable doubt regarding their involvement in the case. In this context the reliance is placed upon the case of Khalid Javed and others v. The State (2003 SCMR 1419 ), wherein the Honourable Supreme Court of Pakistan has held that; "As far as supplementary statement of a complainant is concerned its value is not more than a statement under Section 161, Cr.P.C. in this behalf reference may be made to the case of Falak Sher alias Sheru v. The State (1995 SCMR 1350 ). In this report appellant Falak Sher was not nominated in the FIR. However , subsequently complainant involved him by making supplementary statement deposing therein that the unidentified person was appellant 'who had earlier served with him for two years and was on visiting terms . Accordingly , he was put to trial and was convicted by the trial Court and sentenced the accused to life imprisonment. In appeal the Federal Shariat Court maintained the conviction and sentence. As such appellant and two other filed petition before this Court.
Leave was granted only to appellant Falak Sher whereas the same was refused to the co accused. While evaluating the case of both the sides it has been laid down that FIR is the document, which is entered into 154, Cr.P.C. book maintained at the Police Station at the complaint of the informant. It brings the law into motion. The police under Section 156, Cr.P. C. start investigation of the case. Any statement or further statement of the first informant recorded during the-investigatio n by Police would neither be equated with First Information Report nor road as part of it. Consequently , it was held that as the name of appellant does not appeal in the FIR, resultantly he was acquitted of the charge. The dictum laid down in this case has been followed by a Division Bench of Lahore High Court in the case of Anees-ur -Rehman and another v . The State (PLD 2002 Lah. 1 10)".
14. It is settled proposition of law that the prosecution is bound to prove its case against the accused beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, benefit of the same must be extended to the accused not as a grace or concessio n, but as matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution; rather any reasonable doubt arising out of the prosecution evidence pricking the judicious mind is sufficient for acquittal of the accused. In this respect reliance can be placed upon case of Mohammad Mansha v . The State (2018 SCMR 772 ),
4. "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The 'State (2008 SCMR 1221 ), Mohammad Akram v . The State 2009 SCMR 230 ) and Mohammad Zaman v . The State ( 2014 SCMR 749 )."
15. The learned trial Court has not evaluated the evidence in its true prosp ective and thus reached to an erroneous conclusion by holding that appellant Allandad and Gul Bahar are guilty of the offence, consequently , the Jail Appeal is partly allowed, the conviction and sentence awarded to the appellants Allandad alias Dadan son of Ghulam Hyder alias Hyder Bux Narejo and Gul Bahar son of Suhrab Mahesar vide judgment dated 15.04.2015 are set-aside and they are acquitted of the charge. Both the appellants are in jail they shall be released forthwith if not required in any other case.
16. Turning to the case of appellant Ranjhan, Mithal and Munawar , the motive set-up by the prosecution stood established and postmortem examination on the dead bodies of the deceased were conducted with no lapse of time. The Investigating Officer visited place of incident which was situated in the house of complainant, secured empties, blood stained earth of each deceased separately from place of incident, inspected injuries of both ladies, dead bodies and secured last worn clothes of deceased. He produced mashirnamas and inquest reports and further deposed that he arrested appellant Allandad and Gul Bahar and prepared memo of imaginary arrest which was produced by him. He corroborated the evidence of mashir on each count and further deposed that blood stained earth and clothes were sent to chemical examiner , he produced chemical report which reflects that Articles 1 to 5 are stained with human blood. Hence, the above piece of evidence substantiates the ocular testimony of the complainant and his witnesses.
17. As to the sentence, a lenient view cannot be taken as the circumstances of this case indicates that an act of the appellants was gruesome and merciless. For offence of murder , death is normal sentence unless mitigating circumstances exist to justify a lesser punishment. We have not been perused to see any mitigating or extenuating circumstance in favour of the appellants for lesser sentence as they have committed murder in order to create terror as no may come forward to comp lain against them. The case law relied upon by learned counsel for the appellants is distinguishable on facts.
18. The upshot of the above discussion is that the prosecution has successfully established its case against appellants Ranjhan son of Abbas Narejo , Mithal son of Loung Narejo and Munawar alias Munoo son of Loung Narejo through ocular account furnished by eye-witnesses, which is corroborated by medical evidence coupled with circumstantial evidence. Learned Counsel for the appellants has failed to point out any material illegality or serious infirmity committed by the learned trial Court while passing the impugned judgment against appellant Ranjhan, Mahal and Munawar , which in our view is based on an appreciation of the evidence and the same does not call for any interference by this Court. Thus, the conviction and sentence awarded to appellants Ranjhan, Mithal and Munawar by the trial Court is hereby maintained and the instant appeal to the extent of above three appellants being de void of merits stands dismissed and Crl. Reference No,D-03 of 2015 to the extent of appellants Ranjhan son of Abbas Nurejo, Mithal son of Loung Narejo and Munawar alias Munoo son of Loung Narejo is answered in AFFIRMA TIVE' .
With the above modification the instant appeal is disposed of.