1. ' FAIZ MUHAMMAD QURESHI, J.---The present appellant has called in question in impugned judgment, dated 20-3-2001 passed by learned Special Judge, S.T.A, Larkana in Special Case No,135 of 1997 whereby he has been convicted and sentenced to suffer imprisonment for life for the charge of an offence punishable under section 302, P.P.0 and to pay fine of Rs,50,000 in case of default, accused to suffer S.I. For one year more. He has also convicted and sentenced to suffer imprisonment for life for the charge of an offence punishable under section 120-B, P.P.C. And is also sentenced to suffer R.I. For six months more for the charge of an offence punishable under section 148, P.P.0 Hence this appeal.
2. ' Prosecution story in brief is that on 12-1-1995 at about 7-00 p.m. Complainant Gul Bahar lodged F.I.R at Police Station Miro Khan, stating therein that they are three brothers and about 3 months prior to the present incident one Yousaf son of matenal uncle of the complainant was murdered in which Manzoor Ali and others were challaned, accused Farooque and others use to suspect the complainant party to be murderer of Yousif complainant has alleged in the F.I.R that on the day of the incident at about 6-00 p.m., accused Nihaluddin came to complainant and his brothers and told them that they all the three brothers should clear themselves by taking oath in the Otaq, the complainant thereafter alongwith his brothers Haji and Amir Bux accompanied accused Nihaluddin to the Otaq, of Farooque. When Haji and Amir Bux were performing ablution at that time accused Farooque and Gul Bahar who were armed with K.Ks. Shadoo and Chair Muhammad who were armed with guns at the instigation of accused Nihaluddin started firing at brothers of complainant with the result Haji and Amir Bux fell down and died on the spot. Complainant raised cries, on his cries and on the noise of firing P.Ws. Ghulam Sarwar, Golo, Qadir Bux and Mst. Noor Bibi came running the accused also fired at them with the result Mst. Noor Bibi received the injuries, the accused thereafter fled away from the place of incident. Leaving the P.Ws at the place of incident the complainant went to Police Station and lodged the F.I.R.
3. ' During investigation police only arrested accused Nihaluddin and submitted his challan, whereas accused Farooque Ali, Khair Muhammad, Shadoo and Ghaffar were shown as absconders in the challan and now they have been declared as proclaimed offenders.
4. ' Charge framed against the accused as Exh. 5, plea recorded as Exh.6, in which accused pleaded not guilty and claimed to be tried.
5. ' During the trial prosecution has examined the complainant Ali Bahar as Exh.7 P.Ws. Ghulam Sarwar as Exh.8, Mst. Noor Bibi as Exh.9, Qadir Bux as Exh.10, Dr.Roshan Ali as Exh.11, S.I.P Ahmed Ali as Exh.12, P.C. Azmatullah as Exh.13, Mashir Muhammad Hashim as Exh.16, L.N.C. Muhammad Qasim as Exh. 17, A.S.-I. Abdullah as Exh.18, and Tapedar Khan Muhammad as Exh.19. During the evidence complainant has produced the F.I.R. As Exh.7-A, P.Ws. Ghulam Sarwar, Mst. Noor Bibi and Qadir Bux have produced their statements under section 164, Cr.P.C. As Exhs.8-A to 10-A. Medical Officer has produced post-mortem reports of deceased Amir Bux and Haji as Exhs.11-A and 11-B, P.C.
6. Azamatullah has produced the Mashirnama of arrest of accused Nihaluddin as Exh.13-A. Learned S.P.P. Gave up P.Ws. Niaz Hussian and Mukhtiar as Exh.14 and Exh.15. Mashir Muhammad Hashim has produced Mashirnama of place of incident, inquest report and Mashirnama of injuries as Exhs.16-A to 16-D, Tapedar has produced the sketch of place of incident as Exh.19-A. Learned S:P.P closed the evidence side of prosecution vide Exh.20.
7. ' Statement of accused Nihaluddin recorded under section 342, Cr.P.0 as Exh.22. Statement of accused Nihaluddin recorded on oath as Exh.23. Accused has examined defence witnesses Haji Ghulam Sarwar and Fazul Muhammad as Exh.24 and Exh.25. Learned Advocate for accused closed his defence side vide Exh.26.
8. ' The learned trial Court has formulated the following points for determination:
(1) Whether deceased Amir Bux and Haji were killed?
(2) Whether on 12-1-1995 at about 6-00 p.m. In the Otaq of Farooque Jalbani accused Nihaluddin in conspiracy with the absconding accused Farooque, Khair Muhammad, Shadoo and Ghaffar being armed with K.Ks. And guns were members of an unlawful assembly and in furtherance of their common object they committed Qatl-e-Amd of deceased Amir Bux and Haji and also caused injures to Mst. Noor Bibi as alleged by the prosecution?
9. ' 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.
10. ' We have heard the learned counsel Messrs Muhammad Ashique Dhamraho and Muhammad Ayaz Soomro for the appellant Nihaluddin and Mr. Gul Hassan Solangi Advocate for State and with their assistance we have gone through the evidence adduced by the prosecution and other material available on the record. It is the case of the prosecution that till today co-accused namely and respectively Farooque, Ghaffar, Shadoo and Khair Muhammad have not been arrested and who are still absconders and they are alleged to have fired with K.Ks. And guns on deceased namely and respectively Haji and Amir Bux and one of the co-accused Farooque also injured Mst.
11. Noor Bibi whereas the present appellant is alleged to have instigated the co-accused and hatched conspiracy and kill the deceased. The prosecution is relying on the ocular testimony being furnished by complainant Gul Bahar, Ghulam Sarwar, Mst. Noor Bibi (injured) and Qadir Bux as far as the ocular account being furnished by the aforementioned witnesses is concerned except complainant no one has stated before the trial Court that the present appellant instigated co- accused and hatched conspiracy against the deceased. Mst. Noor Bibi who is the injured and material witness in the case specifically and categorically stated, before the trial Court that Farooque and other co-accused namely and respectively Farooque, Ghaffar, Shadoo and Khair Muhammad came duly armed and she sustained injury at the hands of co-accused Farooque whereas the present appellant was sitting in Qtaq. Nowhere she has said in her deposition that the present appellant instigated or shouted or hatched conspiracy towards the incident. We have also examined the evidence of prosecution witness namely and respectively Ghulam Sarwar and Qadir Bux and they too have not stated anywhere as regard to the instigation and conspiracy on the part of present appellant. We have also examined the record. Conspiracy and instigation as far as are concerned on the part of the present appellant, the prosecution has not been able to make out the case for conspiracy and abetment and instigation against the present appellant as we have not been able to find out from the record that there was any meeting of mind between the co-accused namely and respectively Farooque, Ghaffar, Shadoo and Khair Muhammad and the present appellant and we have also gone through the ingredients of section 107, P.P.0 which are reproduced as under:
107. Abetment of a thing.- -- A person abets the doing of a thing, who: ' Firstly. Instigates any person to do that thing, or ' Secondly. Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or ' Thirdly, Intentionally aids, by any act or illegal omission, the doing of that thing.
12. ' We are being fortified by reported case of Nazir Ahmed and another v. The State D.B decision reported in 1991 PCr.LJ 329 (Karachi) wherein the D.B. Of this Court has given benefit of doubt to the appellants on the charge of conspiracy and abetment and instigation. It has been held that Abetment---Without knowledge or intention there could not be any abetment---Mere presence, when offence is being committed by other is not sufficient to make out a case of abetment. It has been further held in the aforementioned decision of Division Bench that common intention--- Incident took place all of a sudden on the spur of moment with no previous hostility between parties---Any evidence showing pre-concert or prior meeting of minds was totally absent-- Provisions of section 34, P.P.C. Thus, were not attracted---Accused was given benefit of doubt and acquitted in circumstances. In the present case the only presence of the present appellant have been shown at the place of Wardat but there is nothing to suggest that he abetted, instigated of any case of abetment is made out against him and there is only version of complainant which is not being corroborated by other witnesses who were available at the place of incident and no where as discussed supra. The prosecution has not been able to make out the case prior to incident there was meeting of minds between co-accused and the present appellant and prior meeting of minds is totally absent in case and thus, the accused cannot be convicted and sentenced on the charge of instigation when there is totally meeting of minds is absent and no case of abetment is made out. We have also seen that from the trend of cross-examination the present appellant has taken a plea of alibi that on the date and time of incident he was available somewhere else in religious gathering although the same has not been proved by the appellant and yet it requires on the part of the , prosecution to disprove the plea of alibi of the appellant. It has been settled by the Honourable Supreme Court that even if the false plea of alibi has been set up by the accused the same will not lead to inference to his guilt. The accused is not under obligation to prove affirmatively that he was available somewhere else at the time of occurrence and yet the barden is shifted on the prosecution and in present case the prosecution has not challenged the plea of alibi of the appellant and thus the plea of alibi is not proved by the prosecution and will not go against appellant. As far as motive is concerned it is totally double- edged weapon and it cuts both ways and even the prosecution has failed to prove motive positively against the present appellant. We have also examined the other aspect of the case and we have not been able to find out another evidence against the present appellant to connect him with the alleged incident. The case on the face of it appears to be riddled with material contradictions particularly that there is specific allegation against the present appellant that he abetted, instigated and conspired and such elements of conspiracy, abetment and of instigation are lacking in the case and benefit of doubt goes to the present appellant. It is also baffling enigma to note that the co-accused so far have not been arrested by the police and they have not been brought to book till today and it has not been explained by the prosecution.
13. 'The upshot of the above discussion is that the prosecution has miseraby failed to prove its case beyond reasonable doubt against the present appellant and we give benefit of doubt to the present appellant, his conviction and sentence are set aside and resultantly appeal is allowed.
14. Appellant shall be released forthwith if not required in any other crime.