1. The appellant Siyano son of Laiq Mirbahar was tried by the learned IInd Additional Sessions Judge, Sukkur, who by his judgment dated 27-6-1987 convicted the appellant under section 302 and sentenced him to imprisonment, for life and fine of Rs.2,000 or in default in payment of fine to undergo R.I. For one year more. The appellant 'was also given the benefit of section 382-B, Cr.P.C.
2. The appellant has challenged his said conviction and sentence under this appeal.
3. The facts of the case are that complainant Rasool Bux lodged report at Police Station Kandhra on 23-10-1984 in which he stated that on the said day in evening he was sitting in the courtyard of his house and at that time his nephew A.I Sher and Ghulam Muhammad were also present his other nephew namely Suleman went out to overhaul his bullock cart with oil. Suddenly they heard report of pistol shots and cries of Suleman. The complainant, his nephew A.I Sher and Ghulam Muhammad rushed to Suleman and found that accused Siyano was armed with pistol and that he was running away by saying that he had killed the `Karo' of his mother. They noticed that Suleman had many holes of pellets above his waist. On his enquiry Suleman informed him that the accused suspected him to be on illicit terms with his mother, today he found him alone, he shot at him with a pistol with intention to kill him. On seeing the complainant party he had ran away. The complainant arranged a Suzuki and removed Suleman to the police station for lodging the report but on the way Suleman became unconscious. The complainant lodged the report which was recorded by S.H.O. Muhammad Nawaz who took up the investigation of the case.
4. The S.H.O. Inspected the injuries on the person of Suleman in presence of witnesses Suleman and Gul Sher and prepared Mashirnama Exh.22. He referred the injured to the Medical Officer and thereafter he proceeded to the Wardat which was situated in village Abejano. He inspected the place of Wardat in presence of Mashirs Nabi Bux and Mir Khan under memo. Exh.24. He then recorded the statements of the witnesses. It is said that on the same date accused voluntarily appeared at the police station and he was arrested under Mashirnama Exh.25. On interrogation the accused also agreed to produce the pistol. He led the police and the Mashirs to his house from where he voluntarily produced a country-made pistol with one live cartridge which was secured by the police under memo. Exh.26. On 24-10-1984 he recorded the statement of injured Suleman at Civil Hospital. On 1-12-1984 he received message that injured Suleman had expired. After completing the investigation he submitted the challan.
5. The charge against the accused was framed by the Court to which he did not plead guilty and claimed to be tried. At the trial the prosecution examined P.W.1 A.I Sher, P.W.2 Rasool Bux and P.W.3 Ghulam Muhammad the three eye-witnesses. P.W.4 Kazi Noorul Huda Medical Officer P.W.5 Rahim Bux Tapedar. P.W.6 Medical Officer Imam Bux, P.W.7 Mashir Muhammad Pathan, P.W.8 another Mashir Muhammad Suleman, P.W.9 S.H.O. Muhammad Nawaz Investigating Officer and P.W.10 Mir Khan Mashir of arrest and recoveries. Thereafter the prosecution closed its side vide statement Exh.29. The statement of the appellant was recorded as Exh.30, he denied the prosecution allegations and stated that the complainant party was constructing Otaq in front of his house but they did not allow them. There was a quarrel between them and due to such enmity he has been involved in this case. He claimed to be innocent and did not want to examine any defence witness nor he wanted to be examined on Oath. Thereafter, the trial Court convicted and sentenced the appellant as already mentioned hereinabove.
6. I have heard Mr. A.R. Faruq Pirzada, learned counsel for the appellant and so also Mr. Abdul Sattar Chohan appearing for AA.-G. With the assistance of the learned counsel I have gone through the entire evidence on record and so also the impugned judgment. The learned counsel for the appellant submitted that there are circumstances on the record to show that the three eye- witnesses A.I Sher, Rasool Bux and Ghulam Muhammad are not the eye-witnesses. It appears that an effort has been made by these witnesses so as to give an impression to the Court as if they are eye-witnesses and they had seen the Wardat but in doing so, they have deviated from their previous statements. He further submitted that the learned trial Judge has given the judgment by taking into consideration only the examination-in-chief portion of the witnesses while the cross- examination portion has been completely over--looked. He next submitted that the material piece of evidence was the dying declaration of deceased Suleman and the same was suppressed by the prosecution. He has even referred to the medical evidence to show that the Medical Officer only detected bullets whereas the prosecution case is that the injury was caused to the deceased by means of pistol which uses a cartridge and the same contains pellets. On the other hand, the learned counsel for the State does not support the conviction and sentence awarded to the appellant.
7. I have carefully considered the points raised by the learned counsel and I have also evaluated the evidence available on record. It appears that at the initial stage when the F.I.R. Was lodged, thereafter the complainant and the two eye-witnesses have changed their version. This can be observed from the fact that according to the F.I.R., it was the case of the complainant that he alongwith Ghulam Muhammad and A.I Sher were sitting in the courtyard of his house while deceased Suleman had gone outside the courtyard in order to overhaul his bullock cart. The complainant further stated that while they were still sitting inside the courtyard they heard fire-arm reports and cries of Suleman on which they all reached there when they saw the present appellant running away and Suleman had many pellet holes above his waist and it was Suleman who informed them that the appellant had suspected him to be on illicit terms with his mother and having found him alone, he had shot him. It is pertinent to note that when the complainant was examined in the Court, he completely changed his version by stating that- he alongwith P.W.
8. Ghulam Muhammad and P.W. A.I Sher were sitting in the courtyard and deceased Suleman was overhauling the bullock cart in the courtyard and he further went on to say that the appellant Siyano came in the courtyard and it was within their sight that the appellant shot at Suleman. The next important circumstance which cannot be lost sight of is that whatever has been stated by the complainant in the Court, the two other eye-witnesses have adopted the same line. All the three of them were confronted with their previous statements in the cross-examination and it has been proved through the Investigating Officer that the witnesses did not state the same fact in the previous statement which they stated in Court: Complainant states that he had stated in the F.I.R.
9. That he saw the accused causing pistol injury to the deceased. The admitted position is that he had not stated so. At the same time the complainant also admits that in the F.I.R. He had stated that he and the witnesses were sitting on a cot when they heard the pistol shots and they also heard cries of deceased Suleman. It is obvious both these versions cannot be possible. P.W. A.I Sher was also examined he has stated the same facts as the complainant had given in the Court by stating that they were sitting in the courtyard and Suleman deceased was also in the courtyard lubricating his bullock cart. In his police statement this witness has not stated that he saw the accused firing though he has stated in his cross-examination that he did state so but it has been proved through the Investigating Officer that he had not stated such fact. Likewise third witness Ghulam Muhammad also adopted the same line, but he was also confronted in his cross- examination with his previous version to prove that he had not stated before the police that he had seen the accused firing at the deceased. At the same time this witness admits that in his police statement he had admitted that at the time of this incident they heard fire-arm report and cries of the deceased and thereafter they went towards the deceased. It is obvious that both the versions given by the prosecution witnesses are not possible. It may however be mentioned that both these witnesses i.e. Ghulam Muhammad and A.I Sher are related to the complainant. P.W. Ghulam Muhammad admitted in his cross-- examination that deceased Suleman and P.W. A.I Sher are his cousins and therefore obviously all three of them are related inter se. It will thus appear that when the complainant Rasool Bux changed his version from the one which he gave in the F.I.R., the other two eye-witnesses who are his relatives have tried to support by adopting the same line not at all realising that in doing so, their varacity was damaged. In the circumstances, it is quite obvious that the incident was not seen by any of these witnesses and that they must have arrived at the time when the whole show was over It may be mentioned that the investigation of this case is also not free from doubt. P.W.10 Amir Khan is the Mashir in whose presence the appellant is said to have been arrested. When this witness was examined in the Court he denied that Kandhra Police had arrested the accused in his presence.
10. The Mashirnama of arrest is Exh.25 on the record, the two Mashirs who have attested this Mashirnama are shown to be Nabi Bux and A.I Khan. Both of these witnesses have not been examined by the prosecution. However the important fact to be noted is that in this Mashirnama of arrest, the place of arrest is shown to be Otaq of Nabi Bux, Village Abejano and this Mashirnama has been prepared by the Investigating Officer i.e. P.W.9 S.H.O. Muhammad Nawaz. When Muhammad Nawaz was examined in the Court, he stated that the appellant voluntarily appeared on the same date at the police station where he was arrested in presence of Nabi Bux and Mir Khan and he had produced the Mashirnama of arrest as Exh.25. As already mentioned Exh.25 does not appear the name of Mashir Mir Khan. It will thus appear that the arrest of the accused in the manner as alleged by the prosecution is not only not proved, but on the contrary it makes the investigation doubtful. Suffice to say that since the arrest of the accused is doubtful, therefore, the subsequent recovery of pistol automatically became doubtful. As such no reliance can be placed on the evidence of recovery. Another factor which also indicates that the investigation was dishonest, is the fact that the statement of injured Suleman was recorded on 24-10-1984 that statement never saw the light of the day and it is not known what happened to that statement. In any case it is obvious that if the said statement of the injured had been brought on record it would not have supported the prosecution case and this appears to be the reason for its suppression.
11. Again according to the F.I.R. Complainant has specifically mentioned that he had seen many pellet holes above the waist of deceased Muhammad Suleman, at the same time it may be pointed out that in the post-mortem report of deceased Suleman, in the column of remarks by Medical Officer, it has been mentioned two bullets were removed from the body of the deceased. This aspect is again repeated in the last portion of the post-mortem shows that the two bullets were forwarded to the S.H.O. It will thus appear that the medical evidence completely belies the prosecution version. If we believe the eye-witnesses ~ and accept their version that appellant Siyano fired at the deceased from his pistol, then the question arises how the deceased received two bullet injuries.
12. Taking into consideration all the circumstances, I have no doubt in my mind that the three eye- witnesses had not witnessed the incident and the, investigation in this case was also dishonest. The entire case appears to be doubtful and the benefit of doubt is also to be resolved in favour of the accused.