' This appeal is directed against the judgment, dated 3-12-1998 passed by learned Additional Sessions Judge, Ratodero whereby the appellants were convicted and sentenced to life imprisonment under section 302/34, P.P.C. And fine of Rs,1,00,000. In case of default they shall suffer further one year's imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. Briefly the case of the prosecution is that complainant Arbab Shah lodged report at Police Station, Ratodero on 22-7-1994 at about 9-30 p.m. Alleging therein that complainant used to reside alongwith his brother Razi Shah and Rajan Shah in one and same house. About 6/7 years back one Abdul Rahman son of Tagio was murdered by thieves but accused Sahibdino suspected that Razi Shah to be responsible for the said murder. Complainant party asked the accused for Faisla but they said that they will take the revenge of murder. On the date of incident complainant alongwith brother and nephew Rajan Shah were sitting in house of Razi Shah and were just ready to take the fodder for cattle, in the meanwhile somebody called them from outside. They all went out and saw that their neighbour Bagan son of Ghulam Rasool resident of Jalal Bozdar, Ratodero, deceased Razi Shah exchanged the view with Bagan so that he take fodder for cattle. Razi Shah filled a basket of fodder and proceeded to the house. In the meanwhile Sahibdino, Lala, Ali Nawaz and Ibrahim came in the street from side of their houses who were armed with shot-guns. Accused Lala shouted at Razi Shah and instigated rest of the accused to murder him, saying so all the accused fired gun shot upon Razi Shah with intention to commit his murder which hit him. Deceased Razi Shah received gunshot injuries and fell down. Complainant party raised cries which attracted villagers.
Accused seeing the villagers decamped to their houses with their shot guns. Complainant party went over Razi Shah and noticed fire-arm injuries on his left side abdomen and other parts of the body. He was bleeding and was dead. Complainant leaving Rajan Shah and Bagan over the dead body went to lodge the report.
3. The formal charge was framed on 29-9-1995 in which accused pleaded not guilty and claimed trial of the case. Their pleas were recorded as verbatim.
4. Prosecution examined complainant Arbab Shah, who produced F.I.R., P.Ws. Rajan Shah, who produced 164, Cr.P.C. Statement, Medical Officer Dr. Afzal Hussain, who produced criminal deposition and post-mortem report, Bagan who produced 164, Cr.P.C. Statement, P.C. Ali Gohar expired during the trial of the case such statement of process-server Syed Zulfikar Ali Shah was recorded, Beat Officer (Tapedar) Gul Muhammad produced sketch in duplicate, Mashir Ghazi Shah, who produced Mashirnama of place of Wardat and secured blood-stained earth and empties from place of Wardat, inquest report of deceased Razi Shah, Mashirnama of arrest, recovery of guns and empty cartridges from appellants Sahibdino, Laloo Bux and Ali Nawaz, Investigating Officer Abdul Wahid who produced attested photo copy of recovery of Mashirnama of recovery of guns from appellant Ibrahim. The report of Ballistic Expert and report of Chemical Examiner and thereafter prosecution closed his side.
5. Statement of appellant Sahibdino was recorded under section 342, Cr.P.C. In which he stated that the case is false and P.Ws. Have deposed due to enmity. He did not want to examine himself on oath so also he did not lead any defence evidence. Appellant Ali Nawaz also gave the same statement. Appellant's Laloo alias Lal Bux statement was recorded in which he stated that P.Ws.
Have enmity with him and guns have been foisted by police which are licensed one. He also produced order under section 249, Cr.P.C. Of Criminal Case No,52 of 1993 passed by the Judicial Magistrate, Ratodero on 11-7-1998 in which Arbab Ali Shah was complainant against accused Ladho, Sahibdino, Ibrahim, Laloo alias Lal Bux and Muhammad Mithal. He did not want to examine himself on oath as well as he did not want to lead any defence evidence. Statement of appellant Ibrahim was also recorded in which he stated that case is false. Gun has been foisted by the police upon him. P.Ws. Are hostile and interested in the case. The learned trial Court after assessing the evidence brought on record was pleased to award the sentences as stated above.
6. I have heard the learned counsel for the appellants, learned counsel for complainant and learned Assistant Advocate-General at length and with their assistance have also gone through the entire evidence recorded in the case.
7. While going through the evidence that has been brought on record by the prosecution one is constrained to note the contradictions that are prevailing tween the eye-witness account and other witnesses and taking the ocular 'dence in one hand and the medical evidence on the other, one is forced to note a sharp difference which forces one to question the authenticity of the prosecution case. Dr. Afzal Hussain who conducted the post-mortem of the deceased Razi Shah has discussed in detail the injuries that were found on the body of the deceased and the conclusion that was drawn by him was that there were only two injuries caused by fire-arms.
Prosecution also examined Arbab Shah, complainant who while narrating the incident has stated "accused Laloo alias Lal Bux .Instigated other persons to kill Razi Shah and all the accused persons opened fire. All four fires hit the deceased Razi Shah thereafter, all the accused ran away. Deceased Razi Shah was lying dead and he had received gun shot injuries on left side and on other parts of his body. A detailed cross-examination of this witness has been done and one very interesting point that has come to light is "police station is situated two miles away from the place of Wardat.
Complainant first left the place of Wardat on bicycle and thereafter on tractor and reached the police station after 2-1/2 hours". He then goes on to state at length why the F.I.R. Was lodged so late, but the basic justification is that it took him more than 2-1/2 hours to cover the distance of two miles by bicycle and tractor.
8. P.W.2 Rajan Shah who has also given his statement alongwith complainant and which is supposed to be eye-witness account. Once again he has stated "all accused namely, Laloo alias Lal Bux, Ali Nawaz, Ibrahim and Sahibdino came out from their respective houses. Accused were armed with guns. Accused Laloo instigated other accused to kill Razi Shah. On seeing accused all gave fire-arm blows to deceased Razi Shah. All four accused had made fire but I cannot say whose fire hit the deceased."
9. P.W. Bagan has also been examined who has stated that accused having guns in their hand emerged from the northern side. Accused Laloo alias Lal Bux gave Hakkal to Razi Shah and instigated the other persons to kill Razi Shah on which all four accused persons gave gun shots. All four shots hit the deceased. This statement is in sharp contradiction to the medical report of the doctor where he has recorded only two injuries by fire-arm.
10. The learned counsel for the appellants whilst dealing at length with the various contradictions that have come out in the evidence of the various witnesses, has also drawn my attention to the statement of Abdul Wahid, S.H.O. Of Police Station, Ratodero who was examined and has stated in cross-examination that on his arrival at the place of Wardat he found four cartridges lying empty which were of .12 bore rifle. The empties that were recovered from the place of Wardat were sent for ballistic test on 18-10-1994 when the alleged incident has occurred on 23rd July, 1994. There has been no explanation coming forward from the prosecution side as to why such a delay took place in getting the empties examined from the Ballistic Expert. According to learned Assistant Advocate- General guns and licence had been recovered from the appellants who were arrested from their Otak. All the guns were recovered and a joint Mashirnama has been prepared. It is doubtful that the guns recovered from Otak were those used in the alleged killing. Since the opinion of the Ballistic Expert has also been sought very late it is again doubtful whether the single shot fired from each gun were those that hit the deceased or were used by persons unknown and there an attempt was made to catch them with the Wardat. In any case it is difficult to accept that all the accused could sit in Otak with guns and licences perhaps waiting for the police to pick them up. Learned counsel has relied upon 1972 SCMR 575, 1969 SCM R 625, 1970 PCr.LJ 402, 1976 PCr.LJ 1462, 1983 SCM R 1292, 1992 SCM R 1134, 1979 PCr.LJ 615 and PLD 1984 SC 61.
11. Learned counsel for the complainant also argued this case and the crux of his arguments was that it was immaterial how many injuries were received as according to him the important thing that has come to light is that all four accused had fired. This is evident from the evidence of the prosecution witnesses. According to him even if two shots were the fatal shots all four accused could be held equally liable on the ground of common intention. The learned counsel also relied upon the report of the Ballistic Expert which according to him substantiated his stand that the fire did take place from the guns belonging to the accused which were examined by the Ballistic Expert. According to him the intention to kill was there.
12. Learned Assistant Advocate-General also argued the matter and in fact he in all humility acknowledged that the prosecution has miserably failed not only to prove the case but the defence has successfully created doubts as regards the authenticity of the evidence brought forward by the prosecution. He has also clearly pointed out and is also enumerated above that it is not clear as to who fired the fatal shot and whether the two injuries received examined from a single gun or were caused by different firing from different guns. Learned Assistant Advocate- General also dwelt at length on the concept of common intention and relied on certain judgments of this Court as well as apex Court and according to him common intention has to be fully proved.
The burden lies heavily upon the prosecution to show that all the persons who have been accused of the alleged offence were indeed responsible for the death of the person. In this respect he has relied on 1993 PCr.LJ 1707, PLD 1983 Kar. 545, PLD 1976 SC 303. In these decisions the common observation was to the effect that if there were material contradictions between the medical and ocular evidence then that was fatal to the prosecution stand. On the point of benefit of doubt learned Assistant Advocate-General also relied on 1997 SCM R 25 and 1531.
13. Above are the detailed reasons for the short order announced in open on 2nd April, 1999 by which the appeal was accepted and the appellants acquitted and the conviction and sentences were set aside.