1. ' Present appellant has called in question the impugned judgment, dated 23-2-2000 passed by the learned 1st Additional Sessions Judge, Jacobabad in Sessions Case No, 55 of 1998, whereby the appellant has been convicted and sentenced to suffer rigorous imprisonment for life under section 302(b), P.P.C. As Tazir and to pay fine of Rs, 50.000 to the legal heirs of the deceased. In case of default he shall further suffer simple imprisonment for one year. Both the sentences awarded to the appellant are ordered to run concurrently and the appellant is also given benefit of section 382-B, Cr.P.C. Appellant was also charged under sections 324, 149, P.P.C. But the prosecution failed to prove this charge against the appellant and he has been acquitted from this charge by the trial Court. Hence this appeal.
2. ' The accused abovenamed was tried by the trial Court for having committed murderous assault upon P.Ws. Afzal Hussain and Jalaluddin and committing Qatl-e-Amd of one Piyaro in prosecution of the common object of unlawful assembly on 28-7-1995 at 7-30 a.m. At the shop of Jalaluddin situated on Station Road, Jacobabad alongwith absconding accused Moula Bux, Allandino, Ramzan and Allah Rakhio.
3. ' The account of the incident is furnished by one Muhammad Murad, who lodged report with Police Station City on 28-7-1995 at 8-30 a.m. Alleging therein that he alongwith Piyro Khan, Zulfiqar Ali and Ghous Bux are residing on Station Road, Gharibabad Mohallah, Jacobabad and Piyaro Khan was the uncle of the complainant, who was employed as S.D.O. In Building Department, Balochistan. It is further alleged that accused Moula Bux had matrimonial dispute with deceased Piyaro Khan and he used to claim that he will murder Piyaro Khan. On the day of report complainant alognwith Zulfiqar Ali, Ghous Bux and Piyaro were standing in the sircet due to power failure. Deceased Piyaro Khan went and sat on the shop of Jalaluddin Soomro where Afzal Hussain was also sitting and deceased started chit chatting with them when at about 7-30 a.m. a white colour Suzuki Car came from station road and it was parked near the shop of Jalaluddin Soomro. The complainant further alleged that he then saw accused Moula Bux, present accused Azad, Allandino, Ramzan and Allah Rakhio alighted from the car and they all were carrying T.T. Pistols. Accused Moula Bux then gave Hakal to deceased Piyaro Khan that he will be done to death, saying so accused Moula Bux directly fired from his T.T. Pistol at Piyaro Khan which hit him. The remaining four accused then fired at Piyaro Khan from their T.T. Pistols which hit Piyaro Khan as well as P.Ws. Jalaluddin and Afzal Hussain. According to the complainant, accused then threatened the complainant party not to come near them. Thereafter, all the accused went away in the car towards Quetta. The complainant then saw deceased Piyaro Khan lying dead having fire-arm injuries while Jalaluddin and Afzal Hussain had also firearm injuries on their persons, as such, he through Zulfiqar Ali removed injured Jalaluddin and Afzal Hussain for treatment to Civil Hospital, Jacobabad and leaving behind Ghous Bux to guard the dead body he went and lodged the report with Police Station City on 28-7-1995 at 8-30 a.m.
4. ' The police then took up the investigation of the case and this case was investigated by Muhammad Nawaz Kehar who after recording the F.I.R. Proceeded to the place of incident which was shown to him by complainant. He then prepared Mashirnama of Wardat in presence of Mashirs Muhammad Sharif and Muhammad Suleman and then prepared inquest report of the dead body in presence of the same Mashirs. The Investigation Officer then proceeded to Civil Hospital, Jacobabad where he noted down the injuries on the person of injured Afzal Hussain and Jalaluddin. The Investigating Officer also secured blood-stained earth and one empty cartridge of .32 bore from the Wardat. On the same day Investigating Officer recorded 161, Cr.P.C. Statements of the injured and the two other P.Ws. During investigation none of the accused was arrested by the police and challan under section 512, Cr.P.C. Was submitted before the learned Civil Judge and F.C.M., Jacobabad, who sent up the case to the Court of learned Sessions Judge, Jacobabad fromwhere this case was received by way of administrative transfer. After receipt of the case the process in the shape of N.B.Ws. Was issued against the accused but the same was returned unexecuted and finally on 2-6-1997 all the five accused were declared as proclaimed offenders and proceedings under sections 87 and 88, Cr.P.C. Were initiated and completed against them.
5. Then the evidence under section 512, Cr.P.C. Of P.Ws. Afzal Hussain, Jalaluddin and Muhammad Murad was recorded and then the case was kept on dormant file vide order, dated 23-9-1997.
6. Accused Azad who was serving as A.S.-I. In Balochistan was arrested on 5-3-1998 and was sent up with supplementary challan.
7. ' The charge was framed against the accused vide Exh. 2 to which accused pleaded "not guilty" and claimed his trial vide his plea Exh.
8. 3.
9. ' The prosecution in order to establish its case examined complainant Muhammad Murad as Exh. 6, who produced his statement recorded under section 512, Cr.P.C. As Exh.6-A, F.I.R. As Exh. 6-B, P.W.
10. Zulfiqar Ali as Exh. 7; Mashir Muhammad Sharif as Exh.9, who produced Mashirnama of Wardat as Exh. 9-A, inquest report as Exh. 9-B, Mashirnama of injuries as Exh. 9-C, P.C. Muhammad Ali as Exh.
11. 13; Investigating Officer Muhammad Nawaz as Exh. 14, Medical Officer Dr. Nizamuddin Almani as Exh.
12. 16, who produced medical certificate of injured Afzal Hussain as Exh. 16-A, Jalaluddin as Exh.16-B and post-mortem report of deceased Piyaro as Exh. 16-C; Tapedar as Exh. 17, who produced the site sketch as Exh. 17-A. Thereafer, the learned D.D.A. Closed the side of the prosecution vide statement as Exh.
13. 18.
14. ' The appellant/accused in his statement under section 342, Cr.P.C. Totally denied the case of the prosecution and claimed to be innocent. He contended that he never absconded away nor he has any hand in the present incident. He further contended that he was present on his duty all along and at the eventful time he was posted as A.S.-I. At Police Station, Malgulzar, District Jafferabad and when this incident took place he was available on duty at a distance of 200 miles from Jacobabad Town. He also examined himself on oath and examined D.Ws. Muhammad Iqbal, H.C.
15. Balochistan Police vide Exh. 22, who produced the entry of daily diary as Exh. 22-A, Muhammad Akil retired SIP of Balochistan as Exh. 23 and Clerk of this Court as Exh. 24, who produced the bail order passed by the High Court in the bail application filed by accused as Exh.24-A and certificate issued by S.S.P. Jafferabad as Exh. 24-B. One Jalaluddin Soomro was examined as a Court-witness.
16. ' Learned Trial Court formulated the following points for determination:--- "Point No,1 . Whether Piyaro Khan died unnatural death due to fire-arm injuries caused on his person and P.Ws. Jalaluddin and Afzal Hussain sustained fire-arm injuries on 28-7-1995 at 7-30 a.m.?'
17. "Point No,2. Whether the present accused alongwith absconding accused Moula Bux, Allandino, 'Ramzan and Allah Rakhio committed murderous assault upon P.Ws. Jalaluddin and Afzal Hussain on 28-7-1995 at 7-30 a.m. At the shop of Jalaluddin Soomro, situated at Station Road, Jacobabad and caused them fire-arm injuries?"
18. "Point No,3. Whether the present accused alongwith absconding accused Moula Bux, Allandino, Ramzan and Allah Rakhio armed with T.T. Pistols in prosecution of their common object of their unlawful assembly committed Qatl-eAmd of one Piyaro son of Sanwal Khan Pechuho by causing him firearm injuries on 28-7-1995 at 7-30 a.m. At the shop of Jalaluddin Soomro situated on Station Road, Jacobabad?"
19. "Point No,4. What offence, if any, the accused had committed?"
20. ' The learned trial Court after having gone through the evidence adduced by the prosecution and material available on the record passed the judgment in terms as stated above.
21. ' I have heard the learned Advocate for appellant Mr. Muhammad Daud Baloch, Mr. Muhammad Ayaz Soomro learned counsel for the complainant and Mr. Muhammad lqbal Memon, Advocate for the State and have gone through the evidence adduced by the prosecution and other material available on record.
22. ' Learned counsel for the appellant Mr. Muhammad Daud Baloch has contended that the ocular account is being furnished by complainant Muhammad Murad, Zulfiqar, Ghous Bux, Jalaluddin and Afzal Hussain, who are also injured witnesses. According to Mr. Baloch P.W. Ghous Bux, who is eyewitness and P.W. Afzal Hussain, who is injured, have not been examined by the prosecution and such explanation goes unexplained by the prosecution. Mr. Muhammad Daud has further submitted that injured Jalaluddin has not been examined by the prosecution but he has been examined as a Court-witness who has not supported the case of the prosecution and nowhere he has stated before the trial Court that complainant Muhammad Murad, P.Ws. Zulfiqar and Ghous Bux were sitting at the time of incident. Mr. Baloch has further contended that the present appellant was A.S.-I. And was posted at Balochistan and was not available at the place of Wardat and on the date when occurrence has taken place and according to him, he has also taken a plea of alibi. Mr. Baloch has further submitted that there is inconsistency between the medical evidence and the ocular testimony. He has further submitted that there is no recovery from the possession of present appellant of any incriminating weapon and motive has been assigned to co-accused Moula Bux over the matrimonial dispute. He has lastly submitted that the case is doubtful and has prayed for the acquittal of the appellant.
23. ' On the other hand-Mr. Muhammad Ayaz Soomro learned counsel for the complainant has supported the impugned judgment but has not been able to rebut the contentions raised by Mr. Muhammad Daud Baloch, Advocate for the appellant. Mr. Muhammad Ayaz Soomro conceded that injured Jalaluddin was not examined by the prosecution and he has been examined as a Court-witness and there is no explanation whatsoever in this regard. He has further conceded that injured Afzal Hussain has not been examined by the prosecution and such explanation goes unexplained by the prosecution. However, he has submitted that the evidence of complainant Muhammad Murad and Zulfiqar is inspiring confidence and has supported the impugned judgment.
24. ' Mr. Muhammad Iqbal Memon, Advocate for the State has supported the impugned judgment and has adopted the arguments rendered by Mr. Muhammad Ayaz Soomro learned counsel for the complainant.
25. ' I have heard the learned counsel for the parties and with their assistance I have gone through the evidence adduced by the prosecution and other material available on record.
26. ' Admittedly there are two injured witnesses namely and respectively Jalaluddin and Afzal Hussain and it is astonishing to note that the prosecution failed to examine both the afore-named witnesses but one of the injured, namely, Jalaluddin has been examined as Court-witness and who has not supported the case of the prosecution and has not named the appellant before the trial Court. He has not even stated before the trial Court that at the time of incident the P. Ws. Viz. Muhammad Murad (complainant), Zulfiqar and Ghous Bux were sitting and has caused a dent in the version of the prosecution and in view of his statement before the trial Court evidence of complainant Muhammad Murad and Zulifqar not only becomes doubtful but at the same time is at the stake and is to be scrutinized strictly. Both the aforenamed witnesses complainant Muhammad Murad and Zulfiqar are not speaking the truth before the trial Court and they cannot be called honest witnesses in view of the statement given by P.W. Jalaluddin, who is injured. It has been held by Hon'ble Supreme Court in a case reported in 1979 SCM R 214 and 215 that "basic requirement before the trial Court is to see whether the witness is honest or dishonest and it is not before the trial Court to see whether the witness is interested, disinterested or hostile". In the instant case both the aforenamed witnesses namely and respectively Muhammad Murad (complainant) and Zulfiqar have spoken lie before the trial Court and they are not being supported by one of the injured witnesses, namely, Jalaluddin and their presence at the Wardat also becomes doubtful and they cannot be termed as eye-witnesses as P.W. Jalaluddin is an independent witness who is also injured and he has stated before the Trial Court as under:-- "The present incident took place about 4/5 years back at about 6-00 a.m. At that time I was sitting on my shop and reciting on my shop. One deceased Piyaro alongwith 4/5 other persons were sitting with me at that time. P.W. Afzal Hussain was also sitting on my shop. Suddenly four/five persons came on my shop and they fired at Piyaro and said fire hit me on my left leg. Piyaro also received fire-arm injuries alongwith Afzal Hussain. After receiving firearm injuries I went unconscious. I was removed to hospital by Koura Khan Munshi. I was also examined by this Court during proceedings under section 512, Cr.P.C. Accused sitting in the Court was not seen by me at the time of incident."
27. ' Admittedly P.W. Ghous Bux is said to have seen the occurrence and is eye-witness and yet he has not been examined by the prosecution which leads to inference that had he been examined by the prosecution before the trial Court, he would have not supported the prosecution's case. So also it goes unexplained by the prosecution as to why another injured Afzal Hussain has not been examined by the prosecution and adverse inference can be drawn against the prosecution that had he been examined before the trial Court, he would have not supported the case of the prosecution. Reference can be made to the cases reported in 1972 SCMR 386 and PLD 1988 Karachi 523.
28. ' As far as the plea of alibi taken by the appellant is concerned, although no suggestion has been given to the witnesses with regard to the plea of alibi which is evident from the cross-examination of the witnesses. Moreover, the appellant/accused in his statement under section 342, Cr.P.C. Has not specifically taken the plea of alibi but on oath under section 340(2), Cr.P.C. He has elaborated his plea of alibi which appears to be afterthought. Appellant has not produced any document before the trial Court with regard to his plea of alibi. Although the plea of alibi is not being established by the appellant, nevertheless it will not recoil upon the appellant as the plea of alibi has not been challenged by the prosecution during the trial as held in a case of Usman Khan and others v. The State reported in PLD 1969 SC 293294, which is reproduced as under:-- " S . 302- -- Alibi --Plea of--- Evidence in support of plea not strong but not challenged by prosecution---Benefit of doubt given to accused."
29. ' Reference can be made to a case Muhammad Amir v. The State reported in 1971 PCr.LJ 944 wherein D.B. Of this Court has held that:-- "Plea of alibi---Evidentiary value---Setting up of even a false alibi---Cannot lead to inference of guilt."
30. ' In spite of the fact that the plea of alibi has not been established by the prosecution to disprove the plea of alibi being advanced by the appellant as the appellant is not under obligation to prove" his plea of alibi affirmatively as held in a case of Ameenullah v. The State in PLD 1982 SC 429. Case of, the prosecution is resting on the evidence of complainant Muhammad Murad, Zulfiqar, Ghous Bux, Jalaluddin, Afzal Hussain and out of them Ghous Bux and Afzal Hussain (injured) have not been examined by the prosecution whereas the another injured witness Jalaluddin has not supported the case of the prosecution. As far as Muhammad Murad (complainant) and Zulfiqar Ali are concerned, they are interested witnesses and their evidence is not being corroborated by one of the injured, namely, Jalaluddin and from other independent quarter and thus their evidence is tainted. There is no recovery from the possession of the present appellant. Motive is assigned to co-accused Moula Bux over the matrimonial dispute. Prosecution has failed to examine the independent witnesses on the factum of incident as in case of murder when capital punishment is in store, the independent evidence must come forward from the side of the unimpeachable character as held in case of Haji Rabnawaz v. Sikandar Zulqarnain and 7 others reported in 1998 SCM R 25, which is reproduced as under:--- "(c) Penal Code (XLV of 1860)--- Ss.302 & 34---Appreciation of evidence--Interested witness---Courts in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witness only such evidence finds corroboration by some other independent and ' unimpeachable piece of evidence or circumstance in the case."
31. ' There are not only material contradictions in prosecution's case but so also the illegalities committed by the prosecution and non-examination of material witnesses namely and respectively Ghous Bux, Afzal Hussain had vitiated the trial. Motive against the present appellant is not being established by the prosecution and there are so many favourable circumstances which render benefit of doubt to the appellant. Reference can be made to the case of Tarique Pervez v.
32. The State reported in 1995 SCM R 1345 wherein Hon'ble Supreme Court has held that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts, if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right." Besides the learned trial Court has acquitted the appellant from the charge of sections 324, 149, P.P.C. Which is evident from the judgment delivered by the trial Court.
33. ' Upshot of the above discussion is that the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant and I give benefit of doubt to the appellant.
34. Accordingly, the impugned judgment is set aside. In result appeal is allowed. The appellant shall be released forthwith if not required to be detained in any other case.
35. ' Above are the reasons for my short order dated 14-5-2001.