1. ' Present appellant has called in question the impugned judgment, dated 22-3-2000 passed by the learned VIth Additional Sessions Judge, Larkana in Sessions Case No,240 of 1988 and Sessions Case No,131 of 1989 in Crime No,11 of 1985 registered with Police Station Mirokhan whereby the present appellant has been found guilty for the murder of deceased Gul Muhammad and has been convicted and sentenced under section 302, P.P.C. To imprisonment for life and to pay fine of Rs,50,000 and in default of payment of fine he shall suffer one year more rigorous imprisonment. If the fine is realized half of the fine shall be paid to the legal heirs of deceased Gul Muhammad.
2. Appellant Anwar Ali has also been granted benefit under section 392(b), Cr.P.C. Feeling aggrieved thereby, the appellant has filed the present appeal.
3. ' Succinctly, the case of prosecution as alleged in the F.I.R. Lodged by complainant Noor Muhammad on 31-1-1988 at 13-00 hours at Police Station Mirokhan are, that on the day of incident he, his brother deceased Gul Muhammad and his cousin P.W. Mubarak were thrashing paddy crop in the morning time when at about 8-00 a.m. Accused Deedar, Ali Gohar, Wali Muhammad and appellant Anwar came there armed with guns. Appellant Anwar told Gul Muhammad that for how long he would avoid and thereby appellant Anwar fired from his gun at deceased Gul Muhammad which hit him on the chest while the shot of accused Deedar hit Gul Muhammad on his left side and resultantly he fell down. Rest of the accused also fired in the air. On gun shot reports and cries of complainant party, the villagers attracted the place of occurrence and they also saw the accused while, running away alongwith their weapons. Deceased Gul Muhammad died on the spot and thereafter the complainant leaving the above witnesses over the dead body went to police station for lodging the F.I.R. The motive behind the offence is that appellant Anwar had declared his mother as Karri with deceased Gul Muhammad.
4. ' After registration of F.I.R. A.S.-I. Illahi Bux of Police Station Mirokhan inspected the place of occurrence and he secured the dead body of deceased Gul Muhammad and empty cartridges. He also prepared inquest report of dead body of deceased Gul Muhammad. On 27-2-1988 Investigating Officer arrested appellant Anwar and secured one SBBL gun alongwith two live cartridges in presence of Mashirs: The Investigating Officer also recorded statements of witnesses under section 161, Cr.P.C. He also got recorded statements of P.Ws. Bahadur and Mubarak from Civil Judge and F.C.M. Shandadkot under section 164, Cr.P.C. Thereafter, appellant Anwar was produced before Mukhtiarkar and F.C.M. Mirokhan for recording of his confessional statement where such statement was recorded. On completion of usual formalities appellant Anwar and acquitted accused Rabban were sent up to stand their trial while accused Deedar Ali and Waloo were shown in Column No,2 of the charge-sheet.
5. ' The case was tried by Court of Vlth Additional Sessions Judge, Larkana where the charge against appellant Anwar and acquitted accused Rabban was framed as Exh.12 to which they pleaded not guilty vide their pleas as Exhs.13 and 14 and claim their trial.
6. ' The prosecution in order to substantiate its case, examined in all seven witnesses namely and respectively (1) Tapedar Ahmed Khan as Exh.15 he produced sketch of Wardat as Exh.15-A, (2) Dr. Aziz Ahmed as Exh.16, he produced the postmortem report of deceased as Exh.16-A, (3) P.W.
7. Mubarak as Exh.17 he produced his 164, Cr. P . C . Statement as Dal .17-A, (4) P.W. Deedar as Exh.18, he produced his 164, Cr.P.C. Statement as Exh.18-A, (5) P.W. Ali Gul as Exh.19, he produced his 164, Cr.P.C. Statement as Exh.19-A, (6) Corpse bearer Ghulam Nabi as Exh.20, he produced the receipt of handing over the dead body to its heirs and 161, Cr.P.C. Statement of P.C. Ghulam Nabi as Exhs.20-1A and 20-B respectively. Complainant Noor Muhammad could not be examined because of his shifting to some unknown place as per statement of process server Dur Muhammad as Exh.22.
8. Magistrate Muhammad Ramzan Charm could not be examined because of his retirement from service and his present address was not available, therefore, his well-conversant Ghulam Shabir was examined as Exh.23 through him the confessional statement of appellant Anwar has been brought on record as Exh.23-A. Investigating Officer Azizullah also could not be examined by the prosecution as his whereabouts are not known to this effect his well-conversant S.H.O. Muhammad Banaras was examined as Exh.24 through whom the Mashirnama of Wardat, inquest report, Roznamcha entry and F.I.R. Were brought on record as Exhs.24-A to 24-D respectively. Thereafter, prosecution side was closed by Deputy District Attorney vide his statement as Exh.25.
9. ' Appellant Anwar and acquitted accused Rabban were examined under section 342, Cr.P.C. Where they have denied the allegations levelled by the prosecution.
10. ' Following points were formulated for determination.
(1) Whether the deceased Gul Muhammad died in unnatural death as a result of fire-arm injuries?
(2) Whether the present accused in furtherance of their common intention committed the murder of deceased Gul Muhammad on the date, time and place as alleged by the prosecution?
(3) What offence if any, has been committed by the accused?
11. ' The learned trial Court after formulating the points for determination and after going through the entire evidence adduced by the prosecution and material available on record passed the judgment in terms as stated above.
12. ' Learned counsel for the appellant Mr. Muhammad Ayaz Soomro has argued that the prosecution has failed to examine complainant who is eye-witness in the case and there is no explanation whatsoever in this regard as to why the attendance of the complainant has not been procured by the prosecution and according to Mr. Soomro the benefit of doubt goes to the accused in view of the fact that the complainant is eye-witness who has registered F.I.R. And F.I.R. Is the corner stone of the prosecution story and yet the complainant has not been examined. According to him no efforts have been taken by the prosecution to produce the attendance of complainant. He has further contended that the Magistrate who has not only recorded the statements of P.Ws. Namely and respectively Ali Gul, Bahadur and Muhabat under section 164, Cr.P.C. And also recorded the judicial confession of present appellant on 28-2-1988 has not been examined by the prosecution and no efforts have been made by the prosecution to procure his attendance and judicial confessional has not been placed' on record. Mr. Muhammad Ayaz Soomro has further submitted that the Mashirs of recovery namely and respectively Mithal and Bago have not been examined on the factum of recovery and no explanation whatsoever, has been given by the prosecution as to why the prosecution failed to procure the attendance of the aforenamed Mashirs. He has further contended that only witnesses namely and respectively Ali Gul, Bahadur and Mubarak have been examined by the prosecution. As far as P.W. Ali Gul is concerned, he is not the eye-witness and his evidence is based on hearsay evidence and he was informed with regard to the incident by the complainant. As far as P.W. Bahadur is concerned, he has stated before the trial Court that he had seen all the accused namely and respectively Deedar, Ali Gohar and Wali Muhammad, appellant Anwar and Rabban with weapons and they fired upon the deceased and ran away but he has not narrated before the trial Court as to whether they caused the injuries to the deceased and the injuries sustained by deceased have not been described by P.W. Bahadur before the trial Court and according to Mr. Soomro he cannot be called as eyewitness. P.W. Mubarak has implicated the present appellant in examination-in-chief but in cross-examination, has admitted that in 161, Cr.P.C. Statement he has stated before the police that it is accused Rabban who fired from his gun on deceased Gul Muhammad who sustained injury on his arm and shoulder. Again he has stated in cross-examination that Anwar also fired two shots from his gun on deceased. Mr. Muhammad Ayaz Soomro, learned counsel for appellant submits in this regard that P.W. Mubarak cannot be called as an honest witness as he has given different version before the trial Court in the same breath and the superior Court have held that the basic principle before the trial Court is to see whether the witness is an honest or dishonest and it is not before the trial Court to see whether the witness is interested or disinterested or hostile Mr. Muhammad Ayaz Soomro has placed reliance on 1979 SCM R 214 and 215 wherein the Honourable Supreme Court has held that the fundamental requirement before the trial Court to see whether the witness is honest or dishonest and not to see whether the witness is interested or disinterested or hostile. In the present case P.W. Mubarak has ,implicated the appellant in examination-in-chief but in cross-examination he has given summersault by stating that in 161, Cr.P.C. He has stated before police that Rabban fired from his gun on deceased and thereafter Anwar also fired from his gun on deceased and in these circumstances P.W. Mubarak cannot be said to dubbed as he is speaking in two voices. Mr. Soomro has further submitted that the statements of the appellant at page 157 of the record and proceedings there is no L.T.I. Of the present appellant on first page and on the next page there is L.T.I. But no name is written below the L.T.I. In the statement of appellant Anwar Ali under section 342, Cr.P.C. Mr. Soomro has further drawn my attention to the statement of co-accused Rabban and has stated that both the statements under section 342, Cr.P.C. Are in violation of section 364(2), Cr.P.C. As the first page of the statement of appellant Anwar has not been affixed as L.T.1.
13. And on the second page there is L.T.I. But name is not mentioned below the L.T.I. And the certificates in both the statements have been typed and have not been written in the handwriting of the Presiding Officer and according to Mr. Soomro there is flagrant violation of section 364(2), Cr.P.C.
14. Which is illegality and is not curable under section 537, Cr.P.C. Mr. Soomro has further argued that the co-accused Rabban has been acquitted by the trial Court on the same set of evidence although he has been implicated by P.W. Mubarak in his cross-examination and yet the accused Rabban has been acquitted by the trial Court.
15. ' On the other hand Mr. Mushtaque Ahmed Korejo has not controverted the contentions raised by Mr. Muhammad Ayaz Soomro, Advocate for appellant and has not supported the impugned judgment and has given no objection if the appeal is allowed.
16. 'I have considered the arguments rendered by learned counsel for the parties and have gone through the material available on record and the record and proceedings of the case and the depositions of P.Ws. Admittedly the prosecution claims that complainant Noor Muhammad is an eyewitness and he has not been examined by the prosecution and there is no explanation whatsoever in this regard. Non-examination of such material witness cuts the root of prosecution case as held in 1972 SCM R 286 wherein the Honourable Supreme Court has held that non- examination of material 'witness whose name appears in the F.I.R. And not examined by the prosecution, benefit of doubt goes to the accused. In the present case, complainant has lodged F.I.R. So also he is the eye-witness and yet he has not been examined by the prosecution and in that event the benefit of doubt goes to the accused. Reliance can be placed on PLD 1988 Kar.
521. Admittedly, Investigating Officer has not been examined by the prosecution and Mr. Muhammad Ayaz Soomro has contended that there is no explanation from the side of prosecution as to why the attendance of Investigating Officer was not procured by the trial Court and reliance can be placed on 1972 PCr.LJ 1259, 1983 PCr.LJ 1319-1323. Admittedly, the Magistrate who has recorded the judicial confession of present appellant has not been examined by the trial Court and no efforts have been taken by the trial Court to procure the attendance of Magistrate as stated by Mr. Mushtaq Ahmed learned counsel for the State and judicial confession has not been placed on record and in that event, the piece of evidence in the shape of judicial confession against present appellant is shattered. Admittedly, the Mashir of recovery has not been examined by the prosecution and no efforts have been taken by the prosecution as stated by learned counsel for the State and recovery against the present appellant is also vanished. As far as other witnesses are concerned as discussed (supra) they have not married with the statement of P.W. Mubarak on the factum of incident. The evidence of Ali Gul is based on hearsay evidence and he was informed with regard to the incident by complainant whereas P.W. Bahadur has seen the accused with weapons and also he has seen firing upon deceased but they have not disclosed before the trial Court where the deceased sustained injuries and in that event P.W. Bahadur cannot be called an eyewitness as held in 1983 PCr.LJ 1319-1323 wherein D.B. Of this Court has held that it is the duty of the eye-witness to tell before the trial Court that after sustaining injuries deceased fell down whether faced up or down and before the trial Court the P.Ws. Have not deposed in a manner that deceased after sustaining injuries whether fell down faced up or faced down and more over they have not stated before the trial Court as to where the deceased sustained injuries, and therefore, they cannot be called the eye-witnesses. Independent evidence is lacking in the case as all the P.Ws. Are closely related to the deceased. Reliance can be placed on 1998 SCM R 25 wherein the Honourable Supreme Court has held that where the capital punishment is in store for accused the evidence from the unimpeachable character has to come forward in support of prosecution and in the present case independent evidence is lacking. Enmity has been admitted by the complainant party in the F.I.R. And the motive is double-edged weapon which cuts both the ways and no motive has been assigned to the present appellant by the prosecution witnesses.
17. ' Upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the present appellant. Co-accused has been acquitted by the trial Court on the same set of evidence. I give benefit of doubt to the present appellant. I set aside the impugned judgment. In result the appeal is allowed. Appellant shall be released forthwith if not required in any other case.