1. ' Appellant Abdul Rehman has called in question the impugned judgment, dated 10-4-2001 passed by the learned Sessions Judge, Nausharo Feroze, in Sessions Case No,191 of 1995, whereby the appellant has been convicted and sentenced to suffer life imprisonment as Ta'zir while co- accused Abdul Qayyum has been given benefit of doubt and has been acquitted, hence this appeal.
2. ' Brief facts of the case are that on 13-10-1995 at about 10-30 a.m. Complainant Aijaz Ali, his brother deceased Riaz Ali, P.Ws. Rafiq and Nizam were returning from village Mad lbyani, where they had gone for labourers for brick kiln. When they reached in the land of Muhammad Bahar Phariro in Deh Dehat Taluka Kandiaro, they saw accused Abdul Rehman armed with rifle, Abdul Qayyum armed with Repeater, Hakeem armed with hatchet and Ghulam Mehdi empty-handed. They restrained complainant party from passing through the land, which they claimed to be theirs. Complainant party said them that it was the land of relative. Thereafter accused Ghulam Mehdi instigated others not to spare the complainant party. Accused Abdul Rehman fired from Rifle, which hit Riaz Ali on the right side, below his breast. Accused Abdul Qayyum fired from Repeater on complainant party, but the fires were missed as complainant and P.Ws. Became duck; on the cries of complainant party and fires reports P.Ws. Ghulam Muhammad and others came from the village, whereafter accused persons ran away.
3. ' Investigation was conducted and after completing the investigation accused namely, Abdul Rehman and Abdul Qayyum were challaned, while co-accused Ghulam Mehdi and Hakeem were let off by the Police during the investigation.
4. ' Formal charge was framed against accused named above under sections 302, 324 read with section 34, P.P.C. To which they pleaded not guilty and claimed to be tried.
5. ' Prosecution during the trial examined P.C. Hakeem Ali vide Exh.7, who produced receipt of the dead body vide Exh.7-A Mashir Ghulam Sarwar was examined vide Exh.8, who produced Mashirnama of Wardat, arrest of accused Ghulam Mehdi, recovery of blood-stained clothes, Mashirnama of arrest of accused Abdul Qayyum and Hakeem, Mashirnama of recovery of Rifle and Gun vide Exhs.8-A to 8-E. Complainant Aijaz Ali was examined vide Exh.9, who produced F.l.R. Vide Exh.9-A, P.W. Rafiq Ahmed was examined vide Exh.10, who produced his statement under section 164, Cr.P.C. Vide Exh.10-A, P.W. Dr. Bashir Ahmed was examined vide Exh.12-A, who produced receipt of the property vide Exh.12-13. Tapedar Mushtaq Ahmed was examined vide Exh.13, who produced sketch of wardat vide Exh.13-A. Inspector Fida Hussain was examined vide Exh.14, who produced Mashirnama of arrest of accused Abdul Rehman, inquest report of the dead body, report of the Chemical Examiner, report of Ballistic Expert and release writ of accused Ghulam Mehdi vide Exhs.14-A to 14-E. Thereafter, the prosecution closed its side through learned D.D.A. Vide Statement Exh.15.
6. ' The statements of accused Abdul Rehman and Abdul Qayyum were recorded under section 342, Cr.P.C. Appellant Abdul Rehman has produced certified copy of the plaint in F.C.S. No,60 of 1994, F.C.
7. No,60 of 1995, F.I.R. Of Crime No,53 of 1994 of Police Station Muhabbat Dero, F.I.R. Of Crime No,27 of 1995 of Police Station Muhabbat Dero, F.I.R. Crime No,48 of 1995 of OS Muhabbat Dero vide Exhs.16-A to 16-E. Statement of co-accused Abdul Qayyum also produced photocopy of F.I.R. Of Crime No, 53/94 of Police Station Muhabbat Dero, two applications addressed to Deputy Commissioner Naushahro Feroze and Commissioner, Sukkur vide Exhs.17-A to 17-C.
8. ' Learned trial Court formulated the . Following points for determination:---
(1) Whether Qatal-i-Amd of Riaz Ali son of Muhammad Ibrahim Phariro was committed?
(2) Whether present accused in furtherance of their common intention committed Qatal-i-Amd of Riaz Ali son of Muhammad Ibrahim Phariro?
(3) Whether present accused person in furtherance of their common intention fired from fire-arm upon complainant party with intention to kill them?
(4) What offence is proved against the accused persons?
9. ' The learned trial Judge after having gone through the evidence adduced by the prosecution and other material available on record acquitted the co-accused Abdul Qayyum, while convicted and sentenced the present appellant in terms as stated above.
10. Mr. A.Q. Halepota, learned counsel for appellant has argued that co-accused Hakeem, who was carrying hatchet. Ghulam Haider, who instigated the other; accused Ghulam Muhammad, who was armed with hatchet have been let off by the police during the investigation, whereas the another co-accused Abdul Qayyum has been acquitted by the trial Court on the same set of evidence, when there are specific allegations against him that he fired from Repeater on the complainant party and the recovery of Repeater has been effected from his possession, yet he has been acquitted by the trial Court. According to Mr. A.Q. Halepota, learned counsel for appellant there is no recovery whatsoever from the possession of the present appellant. He has argued that ocular evidence is being produced by complainant P.W. Aijaz who is brother of deceased Riaz Ali, P.W.
11. Rafiq who is closed relative of Muhammad Beharo relative of complainant and P.W. Nizam, who is the brother of P.W. Rafiq and such relationship has been admitted by them before the trial Court thus their evidence is highly interested. Mr. A.Q. Halepota, learned counsel for appellant has further argued that co-accused Hakeem, Ghulam Mehdi and Ghulam Muhammad have been let off by police although their names not only appear in the F.l.R. But with specific role, that they were carrying hatchet, while Ghulam Mehdi instigated the co-accused and the version of the complainant and P.Ws. Rafiq and Nazam cannot be relied upon with regard to the majority of the accused and they cannot be called as reliable witnesses. Learned counsel for the appellant has also drawn my attention on the documents filed by accused Abdul Rehman during his statement under section 342, Cr.P.C. And such documents are with regard to First Class Suit No,60 of 1994 then there is another First Class Suit No,60 of 1995 pending between the complainant and accused party; F.l.R. No,53 of 1994, in which complainant is Abdul Qayyum, who has been acquitted by the trial Court; F.I.R. 27 of 1995 in which the complainant is Riaz Ali deceased: F.l.R. No,48 of 1995 in which complainant is Abdul Rehman, the present appellant, and the complainant party is accused party and thus the relations between complainant party and accused party are strained and the present appellant has been implicated falsely by the afore-named witnesses on account of having strained relations and finally he has prayed for the acquittal of the appellant.
12. ' Mr. Habib-ur-Rashid, leartwd counsel for Assistant Advocate-General for the State has not supported the impugned judgment and has contended that judgment of the trial Court is not based on sound reasons.
13. ' I have heard Mr. A.Q. Halepota, learned counsel for appellant Mr. Habib-urRashid, learned counsel for Assistant Advocate-General for the State, who has not supported the impugned judgment and have gone through the material available on record.
14. ' Admittedly, the names of co-accused Hakeem with hatchet, Ghulam Muhammad with hatchet while Ghulam Mehdi, who instigated co-accused appear in F.I.R. The name of co-accused Abdul Qayyum is also appeared in F.I.R. With specific role and recovery has been effected from his possession. No reasons have been assigned by police as to why co-accused Hakeem, Ghulam Mehdi and Ghulam Muhammad were let off during the investigation and also no reasons have been assigned by the trial Court while acquitting Abdul Qayyum, who has fired from Repeater on complainant party and recovery has been effected from his possession. I have seen the impugned judgment with jaded and critical eye and this aspect of the case has not been taken into consideration by the trial Court, while delivering the judgment. It is claim of the prosecution that four accused came duly armed at the place of Wardat: one of the co-accused Ghulam Mehdi instigated while Hakim Ali was carrying hatchet, Ghulam Mehmood was carrying hatchet and Abdul Qayyum was carrying Repeater who also fired on complainant party thereafter the complainant has deviated from his earlier statement and as such his evidence and evidence of other witnesses is at the stake. The complainant and witnesses are not certain with regard to the majority of the accused, which shows that either they were not available at the place of Wardat or they are suppressing the material facts. In both cases, the aforenamed witnesses cannot be declared to be reliable witnesses and their evidence needs independent corroboration, which is lacking in the case, as it has been admitted by them that they have close relations with complainant party. There are so many documents filed by the afore named appellant as well as Abdul Qayyum in the shape of suits and the complainant party is also accused in the F.l.R.
15. Registered by Abdul Rehman and Abdul Qayyum. This factor also shows that there is long standing litigation between the parties and their relations are strained. In these circumstances, their evidence cannot be taken into consideration until and unless corroborated by independent quarter as held by Supreme Court in 1998 SCM R 25; that when capital punishment in store for any person, the evidence must come forward from the side of impeachable character which is lacking in the instant case. Admittedly, no recovery has been effected from the possession of the present appellant. Admittedly, the recovery has been made from the possession of co-accused Abdul Qayyum, who is also assigned specific role yet he has been acquitted by the trial Court on the same set of evidence.
16. ' Since co-accused Abdul Qayyum has been acquitted by the trial Court on the same set of evidence, it was the duty of the trial Court to accord benefit to the present appellant, particularly, when the evidence of the witnesses is not inspiring confidence. The witnesses who have been examined by the prosecution appear to be dishonest witnesses as they have not spoken truth before the trial Court as the complainant and the witnesses have been deviated from their earlier statement with regard to the majority of the accused. The entire evidence of the witnesses is unreliable in view of the aforementioned circumstances and surrounding and taking into consideration their strained relations with the afore named appellant, the case of the prosecution stands riddled when the police let off co-accused, whose names appear in the F.l.R. With specific role and the case-of the prosecution is shattered. The investigation of police is also dishonest in the case and the Investigating Officer appears to be delinquent, who has not conducted the investigation properly. The benefit of doubt goes to the present appellant also. I give benefit of doubt to the appellant; his conviction and sentence are set aside. In result, this appeal is allowed, the appellant shall be released forthwith if not required in any other crime.
17. ' These are the reasons for my short order, dated 20-8-2001.