1. ' ABDUL HAMEED DOGAR, J.--- The Special Judge for Suppression of Terrorist Activities, Larkana has convicted the appellant under section 302 read with section 34, P.P.C. And has sentenced him to suffer imprisonment for life and a fine of Rs,30,000 or in default to suffer R.I. For two years more and has also convicted the appellant under section 307/324 read with section 34, P.P.C. And sentenced him to suffer R.I. For seven years and a fine of Rs,10,000 or in default to suffer R.I. For one year more by judgment passed on 7-4-1993 in Special Case No,155 of 1992. Both the substantive sentences have been ordered to run concurrently and the appellant has also been given benefit of section 382-B, Cr.P.C. In the computation of his sentences. The appellant has challenged the above conviction and sentences by filing this appeal under section 7 of Suppression of Terrorist Activities Act, 1975.
2. ' The brief facts of the prosecution case are that S.I.P. Rajab Ali of Police Station Badah lodged F.I.R.
3. No,31/1992 on 3-7-1992 on behalf of the State that he came to know through spy information that some notorious dacoits Saja Gopang, Niaz Gopang and Mithal Gopang (the appellant) are available in the house of Bhambho Gopang. On receiving this information complainant produced information before Col. Zahid of law enforcing agency. Col. Zahid arranged a raid along with his own staff and complainant also arranged a raiding party consisting of P.C. Raza Muhammad, P.C.
4. Ghulam Shabbir, P.C. Qurban Ali, P.C. Abdul Razzaque, P.C. Nizam Din, P.C. Ali Gauhar and driver Wazir Ali. They proceeded on 3-7-1992 at 3-30 hours vide Roznamcha Entry No,21 in uniforms having service rifles with them. They alongwith Col. Zahid, who was heading the raiding party, surrounded the village. All of a sudden an immense firing started from the house of Bhambho Gopang on the persons of law enforcing agency and police and in the meantime three persons were seen running from the house of Bhambo Gopang who were identified by P.C. Raza Muhammad to be Sajan Gopang, Niaz Gopang and appellant Mithal Gopang. Sajan was armed with Kalashnikov, Niaz was armed with rifle and appellant Mithal was empty-handed. The dangerous dacoit Saja Gopang and Niaz Gopang took shelter on banks of water courses and succeeded in running away while firing at the police party but one person by name Mithal fell down on the ground due to the firing of complainant party who was found to be the brother of dacoit Sachal Gopang who was murdered in police encounter. Some army and police personnel chased the other dacoits, and complainant and others got search of houses under the supervision of Col. Zahid and when they came across the house of Darya Khan Gopang, they found two ladies, one of them was dead and another was unconscious for whom Darya Khan Gopang disclosed that the lady, who had expired, was Mst.
5. Begum wife of Ghulam Hussain Gopang, his daughter-in-law, while another injured lady Mst.
6. Imamzadi was his daughter who also succumbed to injuries in their presence. Darya Khan Gopang told that they were sleeping on the roof of their Kotha on their room and became victim of the firing. From the search of house of Darya Khan Gopang, one licensed rifle and gun were secured and from the search of houses of other villagers some licensed weapons were also secured.
7. Because of hot season, post-mortem of the deceased ladies was got conducted on the Wardat and appellant Mithal was referred to the hospital for treatment and a case was also registered against him for giving shelter to the notorious dacoits Sajan Gopang and Niaz Gopang in the house of his father-in-law and has also prevented law enforcing agency and police in performing their lawful duties and attempted at their lives.
8. ' The appellant was apprehended and was challaned in the Special Court for Suppression of Terrorists Activities, Larkana, whereas co-accused Sajan Gopang and Niaz Gopang were declared absconders under section 512, Cr.P.C. And proceedings were initiated against them under sections 87 and 88, Cr.P.C. Charge was framed against the appellant on 7-10-1992, to which appellant pleaded not guilty. The prosecution examined in all six P.Ws. i,e, Dr. Irshad Hussain as P.W.1, P.C. Raza Muhammad as P.W.2, Muhammad Azeem (Resident Magistrate, Larkana) as P.W.3, Muhammad Yagoob as P.W.4, P.C. Ghulam Shabbir as P.W.5 and S.I.P. Rajab Ali as P.W.6.
9. ' The appellant in his statement recorded under section 340, Cr.P.C. On oath has mainly denied the allegation of prosecution and has stated that he has been injured by the police by firing at him while he was present in his house and other two women also received injuries who belong to Darya Khan family. He has denied to have fired at the complainant party and the two deceased ladies and pleaded his innocence. He has also examined one Wazir as D.W. In support of his defence. He has also denied to have confessed his guilt before Resident Magistrate, Larkana.
10. ' The trial Court believed the evidence under sections 302, 307, 324 read with section 34, P.P.C. And convicted the appellant under sections 302 and 307 read with section 34, P.P.C. Separately finding him guilty under both sections and has disbelieved the defence plea raised by the appellant- accused at the trial.
11. ' We have heard the learned counsel Mr. Aleem Akbar Sheikh for the appellant and Mr. M. Sarwar Khan, A.A.-G. For the State.
12. ' The learned counsel for the appellant has argued before us that the trial Court has not appreciated the evidence recorded and has convicted the appellant without proper appreciation of the evidence led by the prosecution. According to him, there is nothing on record of prosecution case put forth before the trial Court with regard to the conviction of appellant under section 302/34, P.P.C., as neither the complainant nor any other eye-witness has deposed that the appellant had fired at the deceased ladies Mst. Begum and Mst. Imamzadi. All the witnesses have very clearly deposed in their respective statements before the trial Court that the appellant was empty-handed, so the question of firing by him does not arise. His further contention so far conviction under sections 307, 324 read with section 34, P.P.C. Is concerned, the learned counsel for the appellant contended that none of the witnesses has implicated the appellant in his deposition that he too fired at any of the prosecution witness, as such his conviction under the above section is also based on presumptions and is not sustainable. The appellant was found lying in injured condition without arm in his possession also shows that he was not armed, therefore, it can safely be said that he has not made any firing. Mr. Aleem Akbar Sheikh, learned counsel for the appellant further submitted that the appellant has been fired at by the complainant party while he was inside his house and he has got no connection of whatsoever with the co-accused Sajan Gopang and Niaz Gopang, therefore, sharing of common intention with the above co-accused is also not attracted from the case of prosecution and submitted that the prosecution has failed to make out case against the appellant and the appellant be acquitted by giving benefit of doubt.
13. ' Mr. M. Sarwar Khan, the learned A.A.-G. Has supported the judgment of the Special Court (S.T.A.), Larkana and submitted that the conviction and sentences awarded to the appellant by the Special Court is proper and be upheld.
14. We have given ample consideration to the arguments advanced to bar. According to the F.I.R., the complainant S.I.P. Rajab Ali, the two deceased ladies Mst. Begum and Mst. Imainzadi became victim of cross-firing. The complainant has not specifically mentioned in the F.I.R. That these ladies sustained injuries at the hands of the appellant. The complainant P.W. Raza Muhammad, P.W.
15. Ghulam Shabbir and P.W. Muhammad Yaqoob have very clearly deposed before the trial Court that the appellant was empty-handed and was not seen firing at the deceased ladies or at the complainant party, therefore, in absence of any direct evidence,, connecting the appellant with the commission of offence, he cannot be found guilty of murder and attempt to murder.
16. ' The appellant has admitted that he received injuries at the hands of police while he was present in his house and has denied the presence of co-accused Sajan Gopang and Niaz Gopang. The prosecution has miserably failed to show through evidence that the appellant had provided any shelter to the absconding co-accused Sajan Gopang and Niaz Gopang in his house. The trial Court has believed the confession of the appellant while convicting the appellant without looking into its genuineness as the confession is not only retracted but is exculpatory in nature. The appellant in his confession has repeated the same words that he received injuries at the hands of army and police as stated by him in his statement recorded on oath. Nowhere the appellant has stated confessing any crime. So in these circumstances in absence of any other corroborative piece of evidence, confession cannot be relied upon as sole evidence to convict the appellant. There are, therefore, no reasons to believe in the light of evidence discussed above, that the appellant is guilty of a scheduled offence, as such he is given benefit of doubt and is acquitted and the conviction and sentences awarded to him by the Special Court (S.T.A.) at Larkana is set aside and the appeal is allowed.
17. ' By short order dated 17-6-1995, we had set aside the judgment and sentence passed against the appellant and had allowed the appeal. These are the detailed reasons therefor.