KHADIM HUSSAIN TUNIO, J.---Appellants namely Zafar Almani, Moula Bux Almani and Javed Almani have preferred above captioned Jail Appeals along with Constitutional Petition No.D-2080 of 2018, filed by the complainant/petitioner for enhancement of the sentences, against the judgments dated 26.3.2016, 12.5.2018 and 13.11.2018 passed by the learned Judge Anti-T errorism Court Nausheroferoz in Special Cases Nos.62/2014, 63/2014, 23/2018, 28/2018 and 86/2016 for offences punishable under sections 302, 324, 412, 429, 337-H(2), 337- F(i), 148, 149, P.P.C. read with section 7 ATA, 1997 in Crime No.285/2014 registe red at Police Station New Jatoi, whereby the appellants have been convicted and sentenced as under: i) Appellants namely Zafar Almani, Moula Bux Almani and Javed Almani have been convicted under section 302(b), P.P.C. read with section 7(a) ATA and were sentenced to suffer R.I for life imprison ment, and to pay compensation of Rs. 100,000/- as contemplated under section 544-A, Cr .P.C., in case of default to pay compensation, they shall further suf fer R.I for one year . ii) Appellant Zafar Almani was also convicted for offence punishable under section 23(i)(a) Sindh Arms Act, 2013 and sentenced to suf fer R.I. for ten years vide judgment dated 23.6.2016 in Cr . Jail Appeal No.D-65/2016. iii) Appellant Moula Bux Almani was also convicted for offence punishable under section 395 read with 149, P.P.C. and sentenced to suffer R.I for four years and to pay fine of Rs.10,000/-, in case of default in payment of fine he shall undergo S.I for three months. Appellant Moula Bux was also convicted for offence punishable under section 337-L(i) read with 149, P.P.C. and sentenced to suffer R.I for four years vide judgm ent dated 13.11.2018 in Cr. Jail Appeal No.D-142/2018. Appellant Moula Bux was also convicted under section 23(i)(a) Sindh Arms Act, 2013 and sentenced to suffer R.I. for seven years in Cr. Jail Appeal No.D-143/2018. All the sentences were ordered to run concurrently . Benefit of section 382-B, Cr .P.C. was also extended to appellants.
2. Brief facts of the prosecution case as unfolded in the FIR are that complainant Khan Muhammad Soomro lodged FIR at Police Station, New Jatoi, wherein he stated that on 21.8.2014, deceased Waseem lodged FIR No.272/2014 at Police Station New Jatoi against accused Saleem Almani and others, due to which Saleem and others were annoyed and had issued threats of dire consequences. On 25.8.2014 complainant went to meet his son-in-law , where after taking meals they went to bed. On 26.8.2014 at about 00.45 hours eight armed persons entered into the house, who were identified on light of bulb as Javed with K.K, Saleem with repeater , Moula Bux with repeater , Zafar with pistol along with four unidentified persons, out of them two with lathis and remaining two were armed with pistols. They exclaimed to the complainant party that since you have lodged FIR against them, they will not be spared and they kill them. By saying so Javed made straight fire at his son-in-law , which hit him at his right side shoulder . Saleem made fire from repeater with intent to commit murder which hit at his right side of back. Moula Bux made fire from repeater at Illahi Bux which hit him at his right side of lower part of leg and head. Zafar fired from pistol at Muhammad Juman which hit him at right calf and head, unidentified accused made firing from pistols at injured. Accused who were having lathis in their hands caused lathi blows to Muhammad Jurnan and Allandino.
Accused made indiscriminate firing with intent to create terrorism and cause harassment, one he goat and one she goat died in the firing. Accused robbed one licensed repeater of Ghulam Abass, other house hold articles and pair of bullocks on the force of weapons. Then they noticed that Muhammad Waseem. Illahi Bux, Muhammad Juman and Ailandino were seriously injured and blood was oozing. Thereafter they arrang ed a vehicle and shifted them to taluka hospital Moro. Waseem, Illahi Bux and Muhammad Juman were seriously injured, therefore they were referred to ,PMC Nawabshah. Waseem succumbed to the injuries and died on the way near Kazi Ahmed, his dead body was brought back at hospital. After post mortem dead body was brought at house, then complainant went to Police Station New Jatoi and lodged FIR.
3. After registration of the FIR and conducting the investigation in the case, the Investigating Officer submitted challan against the accused. After compliance of section 265-C, Cr.P.C., a formal charge was framed to which appellants pleaded not guilty and pleaded their innocence.
4. In order to substantiate the charge, prosecution examined complainant namely Khan Muhammad, PW Illahi Bux, PW Muhammad Juman, PW Allandino, ASI Qurban Ali Mangi, Mushtaq Ahmed Soomro, Qaimuddin, SIP Muhammad Urs, SIP/SHO Meer Muhammad Rind, IO/Inspector Ghulam Hussain Sahito, 10/Inspector SHO Muhammad Essa Dahiri, HC Muhammad Khan Dahar , PC Allah Bux, PC Toto Khan, Dr. Syed Bashir Ahmed, Dr. Muhammad Yaseen, tapedar Manzoor Ahmed Mari, Veterinary Officer Dr. Rasheeda Mughal and they have produced' numerous documents through their evidence and thereafter prosecution side was closed.
5. Statements of accused under section 342, Cr.P.C. were recorded in which they denied the allegations levelled against them and claimed that they have been falsely implicated in the case by the complainant due to political enmity .
However , neither they examined themselves on oath nor adduce any evidence in their defence. Report of chemical examiner and ballistic expert were brought on record through application under section 510, Cr.P.C. after recording of statements of accused in Spl. Case No.62/2014 Re: Zafar Almani and others.
6. After hearing learned counsel for the respective parties, learned trial court convicted the appellants namely Zafar Almani, Javed Almani and Moula Bux Almani by separate judgments and acquitted the co-accused namely Pervaiz Chandio, Nangar Mashori, Rajib Mashori and Allah W arayo by extending benefit of doubt to them.
7. Learned counsel for the appellants have argued that the impugned, judgments passed by the trial court are against the administration of criminal justice, perverse and shocking; that there are material contradictions in the evidence of PWs which have not been considered; that no independent witness has been cited by the prosecution; that PWs are related and interested witnesses; that there is conflict in ocular acco unt and medical evidence; that recovery of pistol on the pointation of appellant Zafar was not from the place which was in his exclusive possession; that all the incriminating pieces of evidence have not been put to the appellant while recording their statements under section 342, Cr.P.C.; that the identification on electric bulb light is weakest type of evidence; that co-accused have been acquitted by the learned trial court on the basis of same set of evidence; that the case of prosecution is full of material contradict ions, discrepancy , infirmities, therefore, they prayed that the impugned judgments may be set aside and appellants/accused may be acquitted. They referred case law reported as 2008 SCMR 707 (Alisher and others v. The State ), 2011 SCMR 323 (Ameer Ali and another v. The State ), 2017 SCMR 486 (Muhammad Asif v. The State ), 2009 SCMR 916 (Ghulam Mustafa and Muhammad Safdar v. The State ) 2020 PCr.LJ 915 (Nawab and 4 others v. The State ), PLJ 2001 SC 683 (Munir Ahmed alias Munni v.
The State ), 1980 SCMR 225 (Rasool Bux v. The State ) and 2018 SCMR 2118 (Haroon Shafique v. The State ), 2017 SCMR 344 (Sardar Bibi and another v. Munir Ahmed and others ), 2018 SCMR 772 (Muhammad Mansha v. The State ), 2006 YLR 3200 (Allah Jurio v. The State ), 1990 PCr.LJ 1018 (Nabi Bux and another v. The State ), 2003 MLD 1196 (Shakeel Ahmed and others v. The State ), 2004 SCMR 1185 (Iftikhar Hussain and others v. The State ), 1969 SCMR 629 (Ghulam Nabi Shah v. The Crown ), 2003 MLD 808 (Muhammad Arshad v. The State ), 1996 SCMR 308 (Bashir Ahmed alias Mannu v. The State ) and 1995 SCMR 599 (Ata Muhammad and another v . The State ).
8. Conversely learned DPG for the state has half heartedly supported the impugned judgments. He further submitted that learned trial court has not put all incriminating pieces of evidence to the appellants while recording their statements under section 342, Cr.P.C.; that the learned trial court has not recorded the conviction separately for each offence and therefore he prays that impugned judgments may be set aside and case be remanded to the learned trial court for re-writing of judgments; that no findings has been recorded regarding section 324, P.P.C. whether 'accused has been acquitted or convicted. He has placed his reliance on case law reported in 2016 SCMR 1190 (lrfan and another v. Muhammad Yousuf and another ). However , learned counsel for the complainant has not pressed C.P. for enhancement of sentences and recorded no objection if the conviction and sentences awarded to the appellants may be set aside and if the accused may be acquitted of the charge.
9. We have heard learned counsel for appellants, learned DPG for State and learned counsel for complainant.
Perused the record carefully with their assistance.
10. From perusal of record it reveals that the complainant has nominated eight accused namely Zafar , Javed, Saleem, Moula Bux along with four unidentified persons per FIR, fired at the comp lainant with K.K, repeater , pistol and caused lathi blows to deceased Muhammad Waseem and PWs namely Muhammad Juman, Illahi Bux and Allandino, out of four injured persons, injured Muhammad Waseem succumbed to injuries and expired away on the way while shifting him from taluka hospital Moro to PMC Nawabshah. The incident was shown to have occurred on 26.8.2014 at 00.45 hours whereas appellant Zafar was arrested on 3.9.2014 who led the police party and voluntarily produced pistol from hedge of his house, whereas accused Pervaiz, Rajib, Nangar and Allah Warayo were arrested on 27.8.2014 at 1000 hours by Inspector Ghulam Hussain Sahito and recovered one pair of robbed bullocks. The 6 empties of K.K 7 empty cartridges and 3 empties of pistol were secured by the police from place of incident. Furthermore, departure entry has not been produced in evidence by the 1.0. who left the police station after receiving spy information. Complainant and PWs did not implicate co-accused Pervaiz, Rajib, Nangar and Allah Warayo though recovery of robbed pair of bullocks was alleged to have been made from their possession per prosecution case. Further complainant and PWs disclosed in their evidence that they came to know regarding name of appellant Pervaiz as bullocks were recovered from the culprits and whose name was disclosed to them by the police at the time of recording of their 161, Cr.P.C. statements. So far recovery of pistol is concerned on the pointation of appellant Zafar , same has been recovered after seven days of his arrest and the place wherefrom recovery was made was not in exclusive possession of appellant Zafar , rather the same was open place and easy accessible to everyone. The Hon'ble Apex Court has been pleased to observe in the case of Sean Solangi v, The State (2019 SCMR 872) that "allegedly petitioner got recovered the said gun from bushes which place was accessible to everyone The private, persons were also present there as admitted by the witness the recovery of the gun is inconsequential." More so, the presence of complainant and PWs and place of bulb on whose light complainant and PWs identified the accused per prosecution case had not been shown in the sketch by the tapedar , who prepared the sketch on the pointation of PW namely Muhammad Juman. Furthermore there is conflict between ocular account and medical evidence, more particularly complainant and PWs deposed that accused Zafar directly fired with pistol at Muhammad Juman which hit at his lower part of his left leg with intention to commit his qatl, whereas Doctor has noticed and certified that PW Muhammad Juman received injuries lower part of right leg. Deceased Muhammad Waseem received two injuries at the hands Javed Almani but none of the witness has specifically disclosed the part of body of deceased Muhammad Waseem received injuries whereas MLO has certified injuries as lacerated punctured wound 1 cm x diameter x cavity deep on right shoulder interiorly and downward as wound of entrance and lacerated wound 3 cm x 2 cm x cavity deep on right side of chest posteriorally . Surprisingly Doctor neither noticed wound of exit at the body of deceased nor he secured any bullet or pellet from the body of deceased Muhammad Waseem while conducting his post mortem. More so Doctor has given contradictory evidence during his cross-examination recorded at different time during trial of appellants after their arrest. More particularly during cross-examination dated 05.06.2015 MLO Dr. Bashir Ahmed deposed that it is fact that "in the certificate of injured Muha mmad Juman he has simply mentioned injury No.1 to have caused with fire arm but not specified whether it was caused with shotgun or K.K, but same was caused from close distance, whereas in his cross-examination dated 25.3.2017 he deposed that on the day of examination of injured he was present on duty from 10.00 pm to next day 8.00 am. There were two injuries on the person of Muhammad Waseem. The injuries were caused by the bullet of revolver . The injuries were caused from distance of more than five feet. There was no blackening on injury No.1, the bullet has crossed chest cavity and liver. Internal details of injuries are not shown in his medico legal certificate. He referred injured to PMC Nawabshah for further treatment.
The fire arm injury was caused from upper side might be at a distance of five feet. The injuries of injured Illahi Bux were caused by cartridges. Injuries caused to Illahi Bux from distance of below five feet and charring was present.
It is a fact that in medical certificates of all injured persons kind of fire arm weapon is not disclosed. Injured Illahi Bux sustained injury in standing. position . Injured Muhammad Juman sustained injury in standing position. So far injuries to PW Muhammad Juman are concerned, the MLO certified and noticed that his injury was also one hour old and one injury was caused with fire arm and another injury was caused with sharp cutting substance, whereas injury of PW Allandino stated to have been caused with hard and blunt substance. It is a fact that in his medical certificate he has not given specific weapon by which injury was caused to injured Illahi Bux.
11. It is pertinent to mention here that the case of present appellants is not different from the case of co-accused who have been acquitted though recovery was effected from them and they were assigned the role of actively firing upon the complainant party . It was mentioned in the FIR that all the accused made firing in order to cause terror- strike environment.
12. Moreover , the alleged recovery of crime weapon as stated above was made and sent to ballistic examiner after delay of one month and five days. Such a delay was not explained by the prose cution at any point, nor did the prosecution adduce any evidence in order to esnhlish the safe custody of the same. Surprisingly . the empties secured from the place of seer were kept at P S. and same were sent to the ballistic expert after recovery of alleged pistol from appellant Zafar Almani along with empties already secured from place of scene, therefore, any report from ballistic expert in that regard cannot be believed in order to uphold the conviction of the appellants. In this respect, the Hon'ble apex Court in case of Javed Khan alias Bacha and another v. The State (2017 SCMR 524) has been pleased to observe that: "10. As regards the matter of matching the bullet casing with the pistol it is not free from doubt. The police allegedly recovered the pistol stated to have been used in the crime in another case (FIR No.237 dated 29.6.2001) however pistol was sent to forensic science laboratory on 7.1.2002, whereas the investigation officer stated that Raees Khan disclosed using the same in the crime on 14.10.2001; the delay in sending the pistol was not explained.
Neither forensic science laboratory nor any of the police men who had retrieved the bullets and its casing and had kept them in custody and then delivered them to the laboratory , mentioned the marks affixed on the seals affixed on the parcels in which the said items were delivered to and received by the laboratory . Under such circumstances it would not be safe to uphold the conviction of the appellant merely on the basis of fire arm expert report because of the legitimate concern about when and how the bullet casing and pistol were delivered to the forensic laboratory ."
13. In case of Haroon Shafique v. The State reported in 2018 SCMR 2118 it has been held by Hon'ble Supreme Court which reads as under: "Almost all the co-accused of the appellant, attributed effective roles, had been acquitted by the High Court and, thus, the appellant could not have been convicted and sentenced without independent corroboration. In that backdrop we have noticed that the High Court itself had concluded that no independent proof regarding the alleged motive had been adduced by the prosecution before the trial court and that the alleged recovery of a pistol from the appellant's custody during the investigation was legally inconsequential because the crime-empties had been sent to the Forensic Science Laboratory after the alleged recovery of a pistol from the appellant's possession...
The High Court had itself concluded in so many words that it was a case of a free fight which had taken place at the spur of the moment without any premeditation. This shows that the High Court had not believed the story of the prosecution in its material particulars and had doubted the veracity of the eye-witnesses and their version of the incident. In these circumstances the benefit of doubt has to be extended to the appellant and it is so extended. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the High Court are set aside and he is acquitted of the charge by extending the benefit of doubt to him."
14. In case of Muhammad Asif v. The State reported in 2017 SCMR 486 it has been held by Hon'ble Supreme Court which reads as under: "Both these two eye-witnesses have been disbelieved by the investigating agency qua the acquitted two co- accused/the real brothers of the appellant. It is a trite principle of law and Justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case.
15. It is well settled principal of law that all the incriminating piece of evidence available on record in shape of examination-in-chief, cross-examination or re-examination of witnesses are require d to be put to the accused, if the same are against him while recording his statement under section 342, Cr.P.C. in which the words used "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him." which clearly demonstrate that not only the circumsta nces appearing in the examination-in-chief are put to the accused but circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and reexamination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order , 1984. The piece of evidence which is not put to the accused in statement under section 342, Cr.P.C. cannot be used against him as held in the case of Imtiaz alias Taj v. The State 2018 SCMR 344 (2) Qadan and others v. The State 2017 SCMR 148 and Mst, Anwar Begum v, Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 that a piece of evidence or a circumstance not put to an accused person at the time of recording his statement under section 342, Cr.P.C, could not be considered against him. Nor, on this point, can the case be remanded back to the trial Court for recording statement under section. 342, Cr.P.C. afresh so that the prosecution can fill in the lacunas in its case as has been held by Honourable Supreme Court of Pakistan in case of Nusrat Ali Shar and others v. The State in Cr. Appeals Nos. 24-K, 25-K and 26-K of 2018. As far as the contention of learned D.P.G. regarding the 342, Cr.P.C. statement of accused is concerned, while the same is acknowledged, the case cannot be remanded on the sole basis of that when the case against the appellants itself is not free from doubt.
16. The above aspects have led us to believe that the prosecution has failed to establish its case beyond shadow of doubt and miserably failed to discharge its duty in that regard. We have found that the in the manner as stated by the prosecution. There are strong reasons and circumstances in the prosecution case which creates reasonable doubt and led us to hold that the prosecution has not proved its case against the appellants for the offences charged beyond reasonable doubt. Keeping the assertion of the FIR in juxta position of evidence led by the prosecution. It is well established principle of criminal administration of justice that no conviction can be awarded to accused until and unless reliable trustworthy and unimpeachable evidence containing no discrepancy causing some doubt in the veracity of prosecution story as disclosed by the prosecution casting some doubt over the veracity of prosecution story as disclosed by the prosecution. We are of the humbl e opinion that prosecution could not establish the guilt of appellants at home without reasonable doubt.
17. For the foregoing reasons all the appeals are allowed, conviction and sentence awarded against the appellants vide impugned judgments dated 26.3.2016, 12.5.2018 and 13.11.2018 respectively passed by the Judge Anti- Terrorism Court being outcome of Crime No.285/2014 of Police Station New Jatoi registered for offences punishable under sections 302, 324, 412, 429, 337-H2, 337-F(i), 148, 149, P.P.C. as well as special cases No.62/2014, 63/2014 and 128/2018, Re: State v. Zaffar and State v. Moula Bux, respectively under section 23(i)
(a) Arms Act, 2013 are set aside and the appellants are acquitted of the charge. The appellants who are confined in jail shall be released forthwith if their custody is not required in any other case and Constitutional Petition No.D- 2080/2018' is dismissed as not pressed by our short order dated 4,8.2020. These are the reasons for the same.