1. MUKHTAR AHMED JUNEJO, J.--- Appellant Ghulam Sarwar has challenged his conviction and sentence by the Judge, Suppression of Terrorist Activities, Larkana in Special Case No,165 of 1991 which is outcome of F.I.R. No,5 of 1991 of Police Station Warrah, District Larkana.
2. According to the prosecution on 12-1-1991 at about 5-30 p.m. Complainant Ahmed Ali, his brother Ghulam Mustafa and witnesses Wahid Bux, Nabi Bux were proceeding to a neighbouring village Kalhoras. On the way Ghulam Mustafa, who was following the complainant and said witnesses, went inside Lundi Shakh which was dry, to urinate. While waiting for Ghulam Mustafa, the complainant and the witnesses heard burst of a klashnikov. They saw appellant Ghulam Sarwar with co-accused Madad Ali, Hafizullah, Kadoo alias Kadir Bux and Shaman emerging from Otaq of Madad Ali. Ghulam Sarwar and Shaman had guns while rest had klashnikovs. They fired klashnikovs and guns at Ghulam Mustafa, who received the injuries and fell down. The complainant and the witnesses were given threats not to approach or else they would be killed. The assailants declared that they had avenged murder of Nazir Channa. After exit of the applicant and his companions, the witnesses approached injured Ghulam Mustafa and found that he had died after suffering the injuries and after profuse bleeding. Leaving the witnesses with dead body of Ghulam Mustafa,. Complainant Ahmed Ali went to narrate the incident to his Nekmard Muhammad Panah who was not available on that day. After apprising Muhammad Panah of the incident, complainant Ahmed Ali lodged his F.I.R. At Police Station Warah on 13-1-1991 at 7-00 a.m. Motive for the offence, as per for the F.I.R., was that 6/7 months prior Nazir Channa was killed while committing dacoity in house of Ghulam Ali in village Abad, with others. Such case was registered with Warah police.
3. Ghulam Sarwar (brother of Nazir Channa), Hafizullah Channa and Madad Ali Kalhoro told complainant Ahmed Ali Massat of Ghulam Ali, to pay cash compensation or else a man of his side would be killed.
4. ' After recording the F.I.R., S.H.O. Imam Bux took over the investigation and inspected Wardat where he secured, and sealed one empty cartridge, three empties of China bore klashnikov and one empty of .7 mm rifle besides blood-stained earth. He saw the dead body of Ghulam Mustafa and sent it for autopsy after preparing its memo. And inquest report. Despite efforts S.H.O. Imam Bux could not arrest any accused of said case. The case was further investigated by S.H.O. Sardar Ali Shah who arrested Madad Ali, Hafeez Shaman nominated in the F.I.R. As accused, but later on released them under section 169 of Cr.P.C. Appellant Ghulam Sarwar was arrested on 13-7-1991 by W.H.C. Muhammad Ramzan and then challenged. In the challan Aqil and Rawat were shown as absconders.
5. ' At his trial the appellant pleaded not guilty to the charge Exh.2 containing the prosecution allegations. Prosecution examined Dr. Nayyar Hussain Exh.3, Imdad Ali Exh.4, Ahmed Ali Exh.5, Wahid Bux, Exh.6, Nabi Bux Exh.7, Allah Rakhio Exh.8, Imam Bux Exh.9, Sardar Ali Shah Exh.11 and Muhammad Ramzan Exh.12. P.W. Mohabat Ali Channa, Mukthiarkar and F.C.M. Was given up under statement Exh.10 and prosecution was closed under statement Exh.13.
6. ' In his statement Exh.14 the appellant denied the prosecution allegations and alleged enmity with the prosecution witnesses, who were said to be interested.
7. ' The appellant did not examine himself on oath and did not examine anybody in his defence.
8. Under the impugned judgment, dated 13-6-1993 the appellant was convicted for the offence punishable under section 302, P.P.C. Read with section 34, P.P.C. And was sentenced to suffer imprisonment for life and to pay fine of Rs,25,000 or to suffer further R.I. For two years. Hence this appeal.
9. ' Mr. Muhammad Kassim Mirjat learned counsel for the appellant argued that there was established enmity between the complainant party and the appellant and that all the witnesses examined by the prosecution, were interrelated and interested. Learned counsel pointed out certain contradictions in the prosecution evidence about the spot where deceased Ghulam Mustafa was fired at and about position of the deceased while receiving the fire-arm shots. He also pointed out the inconsistency between the medical evidence and the ocular evidence. It was further argued that the appellant was allegedly armed with a gun, while Dr. Nayar Hussain Exh.3 stated in cross-examination that all the entry wounds on the dead body appeared to have been caused by discharge from some fire-arm like a klashnikov. It was also argued that the village in which Wardat was situated consists of 100 to 150 houses where people of different castes live, as admitted in cross-examination by P.W. Ahmed Ali Exh.5 but no independent person was examined to support the prosecution case. Learned counsel also criticised late filing of the F.I.R. By 14 hours.
10. ' Mr. Ashiq Raza learned counsel for Advocate-General, Sindh for State supported the conviction. He was of the view that the eye-witnesses had been examined after passage of 16 months and as such certain contradictions in the evidence were bound to occur. Learned counsel for the State was of the view that evidence of P.Ws. Ahmed Ali, Wahid Bux and Nabi Bux alone was sufficient for conviction of the appellant.
11. Neither the prosecution nor learned counsel appearing for State had any answer to the question as to why 3/4 persons nominated as accused in the F.I.R. With the appellant, were let off on the basis of same evidence that has been used against the appellant. The eye-witnesses Ahmed Ali Exh.5, Wahid Bux Exh.6 and Nabi Bux Exh.7 have supported the prosecution story and have stated that firing was done by five persons including the persons who have been exonerated by the police. It is against the principle of consistency, if the evidence which has-not been relied upon in respect of the persons let off by the police, is used against the appellant for the purpose of his conviction. Dr. Nayyar Hussain Exh.3 who performed post-mortem examination of the dead body of Ghulam Mustafa, found 12 lacerated punctured type wounds on the dead body and A deposed that all the entry wounds were without charring. The Medical Officer has given a fatal blow to the prosecution case, by saying that all the external injuries on the dead body appeared to have been caused by discharge from firearm like klashnikov. Unfortunately the person who were allegedly carrying klashnikov have been let off. In the light of the medical evidence it can be said that none of the injuries on the person of the deceased, was caused by appellant Ghulam Sarwar who was allegedly carrying a gun. In this situation it is difficult to agree with the learned counsel appearing for State that the appellant's conviction can be maintained on the basis of vicarious liability.
12. ' Besides this, many contradictions have been pointed out by learned counsel appearing for the appellant and it may not be necessary to discuss the same because even if those contradictions did not exist, the evidence on record was not sufficient for conviction of the appellant. In this situation it is not necessary to discuss the cases cited by learned counsel for the appellant.
13. ' As a result of the above discussion, we accept this appeal and set aside the conviction and sentence of the appellant and order his acquittal. Appellant be released forthwith if not required in any other case.