' The appellant abovenamed, being aggrieved by the judgment, dated 24th August 1980, of the learned first Additional Sessions Judge, Sukkur, in Sessions Case No,626/76, whereby he has been convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life and to pay compensation of Rs,2,000 to the heirs of the deceased or in default to suffer R.I. For one year and to pay fine of Rs,5000 or in default to suffer further R.I. For 6 months, has preferred the above appeal, on the following facts and grounds.
2. The facts of the case in brief are, that one Ali Bux son of Muhammad Nawaz lodged report on 16th July, 1976, at about 8-00 p.m. It is alleged in the F.I.R by the complainant, that he resides in village Darvesh Naich. Today his brother Ali Anwar and their relative Mukhtiar Ahmad Naich and other villagers had gone in the morning time to Nasoo Wah to enjoy picnic, where his brother Ali Anwar (now deceased) and Mukhtiar Ahmad (appellant) fought with each other while talking. They were separated by Shabir son of Muhammad Ibrahim Naich and others. At noon time, his brother came back to house and informed complainant and his father Muhammad Nawaz, that they had gone to Masoo Wah for picnic, where Mukhtiar Ahmad (appellant) spoke harsh words to him when 'complainant and his brother explained to Ali Anwar (now deceased), that it is a matter of house and they will explain to Mukhtiar Ahmad. Again on the same day at about 6.00 p.m. Complainant, his father, deceased Ali Anwar and their relative Mahboob son of Azizullah Naich were standing in front of the School. In the meantime, appellant Mukhtiar Ahmad was coming duly armed with a gun from his house and on reaching, he gave Hakal to his brother Ali Anwar and aimed fired gun at him and said as to why he had fought with him. Upon this complainant and his brother explained, that do not be fool, but appellant Mukhtiar Ahmad fired at his brother Ali Anwar and it hit on his arm. They raised cries and inbetween appellant fired second shot which hit on chest. On receipt of gun-shot injuries, his brother Ali Anwar raised cries and fell down. Appellant then ran away, firing in the air. They did not run after appellant due to fear. Thereafter they saw, that his brother Ali Anwar had expired. He left his father and abovesaid witness over the dead body and went to Police Station Mirpur Mathelo, where he lodged F.I.R. No,101/76. The F.I.R. Was recorded by ASIP Ghulam Rasool. It was read over to complainant who signed it. The F.I.R. Has been produced as Exh.8.
3. After recording F.I.R. ASIP Ghulam Rasool went to place of Vardat, which was shown by complainant. He saw dead body of Ali Anwar lying at Vardat. He had gunshot injuries. ASIP prepared the Inquest report Exh.15 and sent the dead body to the Medical Officer Mirpur Mathelo, for autopsy. The ASIP prepared Mashirnama of Vardart and secured one empty cartridge and pieces of wad of cartridge from the place of Vardat. He also secured blood-stained earth and prepared the Mashirnama of Vardat Exh.14. On the same day, ASIP examined P.Ws.
4. On the next day viz. 17th July, 1976, ASIP arrested appellant Mukhtiar Ahmad in presence of mashirs and prepared Mashirnama Exh.16. Again on 18th July, 1976, appellant voluntarily led police and Mashirs to village Darvesh Naich, from where appellant produced a gun lying concealed in front of his house under manure. He secured the gun and prepared Mashirnama as Exh.17.
Appellant Mukhtiar Ahmad had no licence for the gun, hence, ASIP registered a case under section 13-D of the Arms Ordinance against the appellant. ASIP also sent blood stained earth to the Chemical Examiner and sent gun empty cartridge and wads to the Ballistic Expert for examination and report. After completing the investigation the appellant was challaned.
5. Charge Exh.8 was read out to appellant, to which he did not plead guilty.
6. The prosecution examined P.W. Dr.Bhajan Lal Exh.5, P.W. All Bux Exh.7, P.W. Muhammad Nawaz Exh.9, P.W. Mahboob Exh.11, P.W. Puhbal Exh.11, P.W. Allah Warayo Exh.13, P.W. Chulam Rasool Exh.18, P.W. Muhammad lssa Exh.21. Thereafter the prosecution closed side vide Exh.22.
7. In his statement Exh.23, appellant had denied to have committed this offence. He has stated, that he is innocent. He had produced certified copy of F.I.R. Exh.23-A, filed by Saleh Muhammad brother of Dur Muhammad, his sister's husband. He also produced certified copy of Challan Exh.23-B. He also produced certified copy of F.I.R. Exh.23-C filed by Dur Muhammad in which Abdul Razzak, his father-in-law was witness. Appellant stated, that he will submit the list of defence witnesses during the course of day, when his statement was recorded. Appellant neither produced list of defence witnesses during the long period of two weeks nor produced the defence witnesses.
8. The learned trial court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.
9. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That all the three eye-witnesses are closely related and there is contradictions are their ocular evidence and the medical evidence brought on record and as such the presence of these three eye-witnesses is doubtful. In support of this contention, the learned Advocate for the appellant relied upon case reported in PLD 1974 Kar.
274.
(b) That the Mashir of the alleged recovery is also closely related to the complainant side and as such no reliance can be placed on such recovery, without independent Mashirs of the locality, who were available, but the police did not care to take such Mashirs.
(c) That time and date of the arrest of the appellant as mentioned in the Mashirnama of the arrest does not tally with the statements of the P.Ws
10. The learned Advocate for the appellant in view of the above contentions submitted, that the prosecution has failed to prove its case beyond reasonable doubt. The learned Advocate for the appellant also relied upon cases reported in 1978 P Cr. L J 369 and 1971 S B R 494.
11. The learned Advocate appearing for the State on the other hand submitted, that the evidence of three eye-witnesses is fully corroborated by recovery of unlicensed gun from the possession of the appellant and' in view of the Ballistic Expert positive report, this corroborative piece of evidence lends full support to the prosecution eye-witnesses. The learned Advocate for the State further submitted, that there is no reason why prosecution witnesses should falsely implicate the appellant, who is 'also related to them. The learned Advocate further submitted that the learned trial Court has duly appraised the evidence and for the cogent reasons convicted and sentenced the appellant and as such he fully supports the impugned judgment.
12. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through the impugned judgment and the cases cited by the learned Advocate for the appellant.
13. Prosecution case rests upon the ocular evidence of P.Ws. Ali Bux (brother of deceased), Muhammad Nawaz (father of deceased) and Mehboob (Pophat of the deceased). Even recovery Mashir P.W. Allah Warayo is maternal uncle of deceased. Appellant has alleged old enmity with complainants' side and in support of this has produced certain documents. There are certain contradictions in ocular evidence and medical evidence. According to P.Ws. Deceased received first shot on his arm from some distance and second shot on chest. According to P.W. All Bux, appellant fired first shot from distance of about 15 paces and then came near and fired second shot on chest. According to P.W. Muhammad Nawaz first shot was fired from distance and second shot from 3 paces, which hit the deceased on chest. However according to statement of P.W.
Dr.Bhajanlal there was no blackening and charring in respect of injury No,3 i,e, on chest and according to him injury No,1 i,e, on arm was charred and as such same has been caused from nearer distance than one on the chest. In view of this statement of P.W. Dr.Bhajanlal, statements of P.Ws. Muhammad Nawaz and Ali Bux create doubt about their presence, at the time of incident. In addition to this Investigation Officer in utter disregard of law of evidence chose P.W. Allah Warayo, a near relation of the deceased as Mashir, though independent Mashirs were available. Old enmity between complainants' side and apellant was not denied by P.W. Ali Bux. It may further be noted, that according to P.W. Muhammad Nawaz and P.W. Mehboob, appellant was immediately arrested from his house within 2 hours or so and according to P.W. Mehboob gun was secured by Police from appellant at that time, whereas according to P.W. Allah Warayo appellant was arrested near Masoo Wah Bridge on 17th July, 1976 and gun was secured on 18th July, 1976, as mentioned in Mashirnama Exhs.16 and 17. Keeping in view all these facts on record and contradictions in ocular and medical evidence as well as about the date and place of the arrest of the appellant and production of gun by him, statements of eye-witnesses as well as Mashir required independent corroboration in my opinion, which is not at all available in present case, as statement of P.W.
Ghulam Rasool (1.0.) is contradicted by P.Ws. Ali Bux, and Mehboob regarding time, date and place of the arrest of the appellant and production of gun by the appellant and as such statement of 1.0.
Cannot be considered as sufficient corroboration, in view of the facts of the present case and admitted old enmity between the parties. In view of this, I am of the opinion, that prosecution has failed to establish its case against the appellant beyond reasonable doubt and cases cited by the learned counsel of the appellant and case reported in PLD 1981 Kar. 1 are fully applicable to present case of the appellant.
14. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him by the impugned judgment and acquit him by giving him benefit of doubt and direct that he be released forthwith, if not required in any other case.