' The appellants were convicted and sentenced for life imprisonment and to pay fine of Rs,10,000 each for allegedly committing murder of deceased Muhammad Ali by the learned Sessions Judge, Badin, Sindh vide judgment, dated 1-8-1995. Being aggrieved by the said conviction/sentence, they preferred this appeal and at subsequent stage they also filed an application under section 426, Cr.P.C. Since due to pressure of work this bail application could not be proceeded, as such it was ordered by consent that this application be heard along with the main appeal. Accordingly, this order will dispose of the said application as well as the main appeal.
2. Briefly, the facts of the case are that one Muhammad Siddique lodged F.I.R. On 12-6-1989 with Police Station Outpost Nito Shehar at about 8-30 a.m. Which was later on converted into F.I.R.
No,89/89 at Police Station Badin. The facts, as stated in the F.I.R., are that complainant Muhammad Siddique who resides with his other brothers and sisters at his village Muhammad Hussain Sehto. It was alleged by the complainant that one Mooso Mallah was suspecting that his brother deceased Muhammad Ali was having some illicit terms with the wife of said Mooso Mallah and that there was some dispute in this connection also which resulted in a private Faisla by the Nekmard, namely, Dino Khan Chandio and it was due to such Faisla that Mooso migrated from the village Sehto. It is further alleged that in night of 2th June, 1989 at about 1-45 a.m. The informant woke up after hearing sound of gun fire and immediately rushed to his brothers Talib Gul Muhammad and Ghulam Muhammad who all woke up due to this sound of gun fire. They went to their brother Muhammad Ali and found him dead who was bleeding from his chest. It is further alleged in the F.I.R. That they also heard second fire from the street but were not able to see the culprits due to the darkness. In the end, it is stated that one Yousuf Shoro and other villagers also came to the scene of Wardat. That they sent Abu Bakar to call Rajperi Mataro to trace the foot prints of the culprits.
That one party left to trace the foot-prints while the complainant went to Police Post Nindo where S.I.P. Chakar Khan recorded his statement under section 154, Cr.P.C. Which was exhibited as Exh.14- A. It is very interesting to note that in the F.I.R. The complainant has disclosed four names against whom he was having suspicion that they may have killed deceased Muhammad Ali. Their names are: Mooso son of Soomar Mallah, (2) Jummo son of Arif Mallah, (3) Billa alias Billo son of not known Mallah and (4) Jummo son of not known Mallah.
3. On 28-6-1989 appellants Mehboob Ali, Allah Julio and Behram (not before this Court) were arrested while appellant No,2, Abdul Karim, surrendered before the trial Court on 27-2-1990.
Accordingly, police filed charge-sheet against them and on 14th April, 1990 the trial Court framed the following charge against all the four accused:-- "That you on the night in-between 1 1 th and 12th June, 1989 at about 1-45 a.m. At the house of deceased Muhammad Ali in Village Muhammad Siddik Deh Dasti, Taluka Badin in furtherance your common intention did commit murder by intentionally causing the death of Muhammad Ali Saihto by means of fire-arm injuries and thereby committed an offence punishable under section 302, P.P.C. Read with section 34, P.P.C. And within the cognizance of this Court."
4. I have heard Mr. Syed Madad Ally Shah, Advocate for the appellants and Mr. Ch. Bashir Ahmed, Advocate for the State. I have also perused the paper book and have gone through the evidence brought on record by the prosecution. It is strenuously contended by Mr. Syed Madad Ally Shah that it is a case of unseen incident and that the only evidence against the present appellants is that P:W. Ghulam Hussain has seen these appellants going away from the place of incident in the torch light. The remaining P.Ws. Namely, Muhammad Siddique (complainant), Ghulam Haider, Talib and Yousuf Shoro have deposed against the present appellants up to the extent that they were told by P.W. Ghulam Hussain that he had seen the appellants in torch light on the date of alleged incident.
The second ground of attack of Mr. Madad Ally Shah is that the present appellants were not named in the F.I.R. Despite the prosecution version that P.W. Ghulam Hussain has informed all the witnesses including complainant at the place of Wardat, immediately after the incident that he had seen all the four appellants including absconder Behram going away from the place of incident. It is further contended by Mr. Shah, learned counsel for the appellants that admittedly 161, Cr.P.C. Statements of P.W. Ghulam Hussain was recorded after lapse of 19 days i,e, on 1st July, 1989 where after his 164, Cr.P.C. Statement was recorded on 2nd July, 1989. In these circumstances, he argued that this statement has no evidentiary value and cannot be accepted to be basis of any conviction. He has referred to the case of Gull Muhammad alias Kallo and another v. The State 1974 PCr.LJ 400 as well as the case of Sikandar v. The State PLD 1963 SC 17. According to the learned counsel, these views were further followed by our Supreme Court in the recent case of Muhammad Saeed Shah v. The State 1993 SCM R 550.
5. Mr. Ch. Bashir Ahmed learned counsel appearing for the State, in view of the above factual as well as legal position, does not oppose grant of this appeal. With the help of both the learned counsel, I have gone through the evidence produced by the prosecution. Except the evidence of P.W. Ghulam Hussain that he has witnessed all the three appellants and Behram going from the side of the place of incident going towards their village and that too in the torch light, there is no other piece of evidence against the present appellants. All the remaining witnesses have stated that P.W. Ghulam Hussain has told them about these appellants but despite that the names of all these appellants were not mentioned in the F.I.R. By the complainant. It is also interesting to note that no motive was alleged against the present appellants. Any motive alleged was against those persons who were named in the F.I.R. But were not challenged by the police.
6. On the question of identifying accused in torch light, it is argued by Mr. Syed Madad Ally Shah, Advocate that these Courts have always treated such piece of evidence as weak and had never based any conviction order on such weak piece of evidence. In this connection, he has referred to a recent decision of a Division Bench of this Court in the case of The State v. Hakim Ali and others 1996 PCr.11 231.
7. The result of the above discussion is that this appeal is allowed and the sentence and conviction passed by the learned Sessions Judge, Badin, dated 1-8-1995 passed in Sessions Case No, 90 of 1989 is hereby set aside. On 18-2-1996, through a short order the appellants were acquitted and it was ordered that they be released forthwith, if not required in any other crime. Above findings are the reasoning for the said short order.