' SH. IJAZ NISAR, J.---Sheral alias Sher Muhammad, the appellant herein, alongwith 4 others was tried for the murder of Rasool Bakhsh deceased with a fire-arm. By judgment dated 22-6-1993 the learned Additional Sessions Judge, Khairpur, convicted all the accused under sections 148, 452 and 302/149, P.P.C., and sentenced them to various terms of imprisonment plus fine. The maximum sentence was life imprisonment with a fine of Rs,5,000 under section 302/149, P.P.C. All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Sheral appellant and his companions challenged their convictions and sentences in the High Court. Vide judgment dated 17-4-1994, a learned Single Judge of the High Court of Sindh, Bench at Sukkur, allowed the appeal of four companions of the appellant, but maintained his conviction and sentence under section 302, P.P.C. And dismissed his appeal.
3. Feeling aggrieved, the appellant petitioned to this Court through jail. Leave was granted on'28-9- 1994 to reappraise the evidence.
4. The prosecution case, in brief, is that on the night between 29-4-1986, Rasool Bakhsh deceased, his son Mushtaq P.W., and his brother Ghulam Akbar (not produced) were sleeping in the court yard of their house. At about 1-30 a.m. The appellant armed with a gun came there alongwith his co-accused and raising a Lalkara fired at the deceased hitting him on the right side of his chest.
On hearing the commotion, Ghulam Nabi P.W.1, brother of the deceased, who lived in a nearby house, rushed to the scene of occurrence and saw all the accused present there with their respective weapons. The accused threatened and told them that they had avenged the murder of Bashir Ahmad, an uncle of the appellant and brother of Wadhal co-accused. After the offence, the accused left the place of occurrence.
' The motive for the offence was that 5 years prior to the, occurrence Bashir Ahmad aforementioned was murdered for which Rasool Bakhsh deceased and Ghulam Akbar P.W. Were challaned. They were on bail in the said case when the present occurrerce had taken place.
5. The matter was reported to the police by Ghulam Nabi P.W.1 on 29-4-1986 at about 4-30 p.m.
During investigation the Police recovered an empty cartridge from the "Wardat" which according to the report of the Ballistic Expert was not found to have been fired from the licensed gun recovered at the instance of the appellant.
6. The learned High Court based conviction of the appellant on the testimony of Ghulam Nabi P.W.1, real brother of the deceased, Mushtaq P.W.2, son of the deceased and Hussain Bakhsh P.W.3, a cousin of the deceased. Reliance was also placed on the medical evidence and the motive.
7. It is contended that enmity between the parties admittedly existed, and that the prosecution story is highly improbable, in that, five persons variously armed had come to the spot but only one shot was fired at Rasool Bakhsh deceased and no harm was done to other inmates of the house, particularly Ghulam Akbar, who was also one of the accused in the murder case of Bashir Ahmad, uncle of the appellant. It is further maintained that the eye-witnesses having been disbelieved qua majority of the accused, could not have been relied upon against the appellant in the absence of any material corroboration coming from some independent source. The crime empty which was allegedly recovered from the spot did not match with the gun allegedly recovered at the instance of the appellant. The narration of events given by the P. Ws. Appears to be highly improbable.
Mushtaq P.W.2, who was sleeping in the adjoining house, could not have witnessed the occurrence, when only one gunshot had been fired during the occurrence. By the time he could reach the spot, the accused would have left the spot. They would not have waited for him to reach the scene of offence to be witnessed by him and Hussain Bakhsh P.W. There are material discrepancies in the statements of the P.Ws. With regard to the places from where they had witnessed the occurrence.
According to the Police, the F.I.R. Was recorded at 4-30 p.m. But according to the deposition of the witnesses at the trial the Police hi reached the spot at 3-30 p.m. Which gives an impression that it we/recorded after preliminary inquiry.
8. The motive which forms the basis of the occurrence does not stand proyed. The P.Ws. Have not given any definite statement as to when Bashir Ahmad, uncle of the deceased, had been murdered and who was the accused besides the deceased and the motive for his murder and how long after the said occurrence the appellant had been released and what part had been played by the deceased in the said occurrence. There is yet another strong reason for not using the same against the appellant because it was not suggested to him in his statement under section 342, Cr.P.C. Law requires that any circumstance appearing in the evidence must be put to the accused before it is used against him. There is absolutely no reason as to why the same was not suggested to the appellant and his explanation obtained thereto. As already stied above, the D crime empty did not match with the gun recovered at the instance of the appellant. It is a well-settled proposition of law that when the eye-witnesses are disbelieved qua majority of the accused material corroboration is required to accept their testimony against the other accused. The medical evidence is also in conflict with the ocular evidence. There should have been some charring or blackening around the wound of the deceased, had he been fired from such a close range as alleged by the prosecution, but it was not found and the fact that the bullet did not make any exit wound shows that the same had been fired from some distance.
9. Having considered all the pros and cons of the case, we are of the view that the prosecution has failed to bring home guilt to the appellant beyond all shadow of doubt, therefore, we accept his appeal, set aside the conviction and sentence and acquit him of the charge. He shall be released forthwith, if not required to be detained in any other case.