1. ' This appeal under section 410, Cr.P.C. Has been filed by the convict/appellant namely Ariz Muhammad alias Ajoo son of Muhammad Paryal Machi, against the judgment, dated 7-1-1999 passed by the learned 1st Additional Sessions Judge, Khairpur in S.C. No,11 of 1990, whereby the appellant has been convicted under sections 302, 34, P.P.C. And sentenced him to suffer imprisonment for life. This appeal was admitted and subsequently it was fixed for regular hearing.
2. ' The case of the prosecution case is that complainant namely Hafiz Bashir Ahmed son of Haji Abdullah Memon, resident of Thari, Taluka Khairpur, lodged report with Police Station Pir Jo Goth District Khairpur on 29-6-1988 at 11-45 hours which was taken down under sections 302, 34, P.P.C.
3. And 13-D, A.O. 307, 114, P.P.C. In which the complainant has stated that he and his brother deceased Hafiz Shabbir Ahmed, .Hafiz Muhammad Hassan son of Haji Rasheedullah all by Caste Memon, resident of Thari, Abdul Kadir son of Allah Dino by Caste Kori resident of Saddar Joon Bhatyoon Taluka Khairpur, were sitting at the decoration shop at bus stand Pir Jo Goth, on 29-6-1988 at about 11-45 hours accused Ariz Muhammad alias Ajoo son of Haji Muhammad Parial by Caste Machi, resident of Buxoo Wah, Irshad Ali alias Irshoo son of Nek Muhammad by caste Machi resident of.
4. Gagri, Ali Khan son of Ganj Bux by Caste Machi resident of near Ali Wahan, Taluka Rohri, District Sukkur, came on motorcycle. Out of them Ariz Muhammad alias Ajoo was armed with K.K., Arshad alias Irshad armed with rifle, Ali Khan was empty-handed and on the instigation of Ali Khan, Ariz Muhammad and Irshad said that enemies are sitting in the shop and so murdered them with fires of weapons, Ariz Muhammad fired from his K.K. And Irshad fired from his rifle on the brother of the complainant namely Hafiz Shabbir Ahmed, who sustained the injuries and fell down. On account reports and cries many other persons came at the bus stand and the accused after firing made escape good and afterwards the complainant saw Hafiz Shabbir Ahmed who had sustained fire- arm injuries on his chest and other parts of his body and was dead. Later on, the complainant left the witnesses over the dead body of Hafiz Shabbir Ahmed and other persons at the shop and according to the complainant accused Ali Khan and Memon tribe of Thai are on inimical terms and there is dispute over the land and for the purpose of taking the revenge, the accused have directly fired upon the complainant party to which Hafiz Bashir Ahmed sustained fire-arm injury and died, and he has also mentioned the colour of motorcycle is black 70 Honda without number.
5. ' I has been pointed out by the learned counsel for the State Mr. Nidamuddin Brohi that in fact the abovenamed appellant/accused was arrested on 11-2-1990 by Rahimyar Khan Police in some another case/crime and on 18-5-1991 the complainant made an application before the learned trial Court that the abovenamed appellant/accused is confined in Central Prison Khairpur. It has been further pointed out by the learned counsel for the State that trial Court wrote a letter to the Home Secretary and Home Secretary of Sindh wrote a letter to the Home Secretary Punjab Province for the production of appellant/accused from Punjab to Sindh and subsequently the appellant/accused was produced before the trial Court.
6. ' It has been further pointed out by the learned counsel for the State that the challan has been submitted on 27-5-1989 under sections 302, 307, 114, 34, P.P.C. And 13-D, A.O. Has been excluded and according to the challan the appellant/accused Ariz Muhammad has been shown as absconder alongwith co-accused Irshad alias Irshoo and Ali Khan. It has been further pointed out that Irshad alias Irshoo died during the abscondance period and Ali Khan is still absconder.
7. ' The trial Court framed the charge on 20-8-1992 and proceeded with the trial and examined the witnesses in the case and finally after hearing the learned counsel for the parties, the trial Court convicted and sentenced the appellant/accused to suffer R.I. For life and fine of Rs,50,000 and in default to undergo for further 3 years, and the same if recovered from the appellant/accused be paid to the legal heirs of the deceased.
8. ' I have heard the learned counsel for the parties and have gone through the record and proceedings of the trial Court.
9. ' The learned counsel for the appellant/accused has invited my attention that in the case that there is no recovery from the appellant/accused, Investigating Officer namely Rashid Ahmed Awan has not been examined and according to record who was not traceable, Medical Officer has not been examined and no post-mortem report has been brought on the record.
10. ' The learned counsel for the appellant Mr. Mumtaz Ali Siddiqui, further submits that the ocular account is being furnished by complainant P.W.1, Hafiz Muhammad Hussain, P.W.2, P.W.3 Abdul Qadir and has further submitted that all the witnesses are related to each other and the P.W.3 is the servant of the deceased and their evidence is not inspiring confidence and has further submitted that the offence has taken place at 11 a.m. At the decoration shop of the deceased situated at bus stop at Pirjo Goth but no independent witness has been associated by the police. He further submits that other persons were available at the place of Wardat and yet police have not associated them and he has further invited my attention that since it is a murder case and the capital punishment is in store for the appellant/accused and yet the prosecution has not examined the independent witnesses as held by the learned Superior Courts.
11. ' The learned counsel for the defence Mr. Siddiqui has also invited my attention on the statement under section 342, Cr.P.C. And the page No,1 of the statement under section 342, Cr.P.C. Does not bear the signature of the appellant/accused and thus, there is a violation of section 364, Cr.P.C.
12. And he has further invited my attention that no question has been put to the appellant/accused' as to whether he wants to examine himself on oath under section 342, Cr.P.C. And separately the trial Court has prepared the statement that the appellant/accused was given option to examine himself on oath to which he denied. In these circumstances there is a flagrant violation of section 364, Cr.P.C. He has further submitted that according to the contention of the prosecution that co- accused Ali Khan has not fired as he has been shown as empty-handed and yet under section 342, Cr.P.C. Statement, the question has been put to the appellant/accused that on 29-6-1988 at about 11-15 a.m. At the decoration shop of Hafiz Bashir Ahmed at the bus stand Pir Jo Goth Taluka Kingri the appellant/accused alongwith absconding accused Irshad alias Irsho and Ali Khan in furtherance of common intention committed the murder of Hafiz Bashir Ahmed by firing upon him from K.K. And according to the learned defence counsel since Ali Khan has been shown as empty- handed, therefore, the learned trial Court has not applied its judicial mind on the entire facts of the case. He has further invited my attention that the charge is also defective.
13. ' That the learned counsel for the State Mr. Brohi has not controverted the grounds raised by the defence counsel during the course of arguments except the charge is not defective. The learned Advocate for the State is unable to convince as to why the charge is not defective nevertheless, the learned counsel for the State has conceded on the other grounds raised by the learned defence counsel.
14. ' The learned defence counsel Mr. Siddiqui has also invited my attention to the jail roll which reveals that the appellant/accused has served the sentence up to 2-10-2000 9 years, 4 months, and 14 days, whereas the remission earned by the appellant/accused is 13 years, 7 months and 4 days and unexpired portion of sentence is 5 years and 12 days and according to the learned defence counsel that the benefit of 382-B, Cr.P.C. Has been accorded to the appellant/accused by the learned Court andon 18-10-2000 the appellant/accused also made an application through the jail Authorities in which he has prayed for the remission of the rest of the sentence and such application was taken on record.
15. I have carefully examined the jail roll and which shows that the appellant/accused has served out more or less 23 years his sentence, and unexpired portion of sentence is five years 12 days. The learned counsel for the State Mr. Brohi has also conceded the legal position and then he conceded for undergone sentence of the appellant.
16. ' Taking into consideration the period of his detention before and after his conviction, I am of the humble view that the ends of justice will be met if the sentence is reduced to the period already undergone by him, accordingly the sentence of the appellant is reduced to the period already undergone by him and with this modification the appeal is dismissed, according to this judgment in appeal, the appellant has completed his terms of imprisonment he will be released forthwith from the custody if not required in any other case.
17. Sentence reduced.