1. ' Impugned in this criminal appeal is the judgment, dated 23-2-1998. Passed by learned Sessions Judge, Sukkur, in Sessions Case No,100 of 1993 whereby he has convicted and sentenced the present appellants to suffer imprisonment for life under section 302(b) read with section 34, P.P.C.
2. And to pay compensation of Rs,30,000 each to the heirs of deceased under section 544-A, Cr.P.C., in case of default, they have to suffer S.I. For one year.
3. ' The facts in brief are that complainant Manzoor Ahmed Junejo lodged F.I.R. At Police Station Abad at 5-30 p.m., stating therein that on the said date he, his brother Abdul Ghani were returning to their home from their lands. At about 4-15 p.m., when they reached near Farash Mor near Hawaii of Syed's they were assaulted by accused Rustam, Sher Muhammad armed with pistols and Ghulam Hussain armed with Lathi. It is stated that accused Ghulam Hussain instigated the other accused, who opened fire at Abdul Ghani, who sustained fie-arm injuries on various parts of his body and fell down. He succumbed to injuries. The cries and the fire shots attracted P.Ws. Muhammad Haroon and Amir Bux. They witnessed the incident.
4. ' The F.I.R. Was registered and police took up investigation. After completing the investigation, the case was sent up and tried by learned 1st Additional Sessions Judge, Sukkur.
5. ' The prosecution examined complainant Manzoor Ahmed Exh.10, P.W. Lal Bux alias Muhammad Haroon Exh.12, Tapedar Rab Dino Exh.13, Mashir Muhammad Suleman Exh.20 and Dr. Badaruddin Malik Exh.21. However, Investigating Officer Muhammad Aslam could not be examined by the trial Court as he had retired from his service and his whereabouts were not known.
6. ' The statements of appellants under section 342, Cr.P.C. Were recorded wherein they denied the charges of prosecution case levelled against them and pleaded that they were falsely involved in the case due to enmity. The appellants examined D.W. Nooruddin and Amanullah in their defence vide Exhs.30 and 31 respectively.
7. ' The learned trial Court came to the conclusion that the prosecution has successfully proved the case against the appellants and they were awarded sentence for the terms stated above.
8. ' Mr. Muhammad Daud Baloch, the learned counsel for the appellants after arguing this appeal to some extent offered a suggestion that he would not press this criminal appeal for appellants Rustam and Sher Muhammad as there was overwhelming evidence against them and they had directly fired at the decreased. He, therefore, did not argue the appeal on merits for these appellants.
9. However, I have examined the record and gone through the evidence adduced by the prosecution.
10. The eye-witnesses of the incident are complainant Manzoor Ahmed, Amir Bux and Muhammad Haroon alias Lal Bux. The complainant has supported his version as narrated by him in the F.I.R. His evidence gets support from the testimony of Amir Bux and Lal Bux alias Muhammad Haroon. It was a day time incident and then parties were known to each other. They have stated in clear terms that appellants Sher Muhammad and Rustam fired at deceased Abdul Ghani, who sustained injuries and died on the spot. Their evidence gets support from medical evidence. The deceased sustained five fire-arm injuries on various parts of his body. The said witnesses have no animosity with the appellants and had no reason to implicate the appellants in the false case. The appellant Rustam was arrested and he volunteered to produce the pistol which was used by him in the commission of the offence. The empties were recovered from the Wardat. The F.I.R. Of this case was promptly recorded within one hour wherein the names of appellants were nominated. The Mashir of Wardat has A supported the recovery of weapon, blood and empties from the Wardat. He has supported the recovery of weapon from accused Rustam which was used in the commission of the offence.
11. ' In this view of the matter, the prosecution case against the aforesaid two appellants has been proved beyond any shadow of doubt and, therefore, the learned counsel has not pressed their appeal on merits.
12. ' The learned counsel, however, argued the appeal for appellant Ghulam Hussain and stated that he did not cause any injury to the deceased. He is convicted under section 34, P.P.C. For having instigated the said two accused. It is argued that the persons who were armed with pistols needed no instigation in the circumstances. The inference of common intention should not be lightly drawn against the convict. There has been complete safeguard against such prejudice in case of joint trial and judicial pronouncements have always been administered consciously and fairly where a person is sought to be convicted on the ground of companionship with the main offender on the basis of merely common intention. The tendency of our people especially in this part of the Province is to join as many innocent members of the family as possible with guilty persons.
13. The record shows that two accused duly armed with pistols attacked the deceased and they hardly needed any instigation. The complicity of instigator is to be considered carefully and the Courts of Criminal jurisdiction can sift the grain from the chaff and acquit the accused as a matter of abundant caution who is entitled for benefit of doubt without impeaching or impairing the credibility of evidence of witnesses against the other accused against whom overwhelming evidence is available and their involvement is established without any doubt.
14. ' The reference can be made to a case of Abdul Aziz and another v. The State 1993 SCM R 544, wherein it is observed:-- ' "It is by now well-settled that the criminal Courts can sift the grain from the chaff and acquit some of the accused as a matter of abundant caution by giving them the benefit of doubt without, in any way, impairing the veracity of the witness qua the other accused whose involvement in the occurrence is free from doubt and the part attributed to them is established from the direct as well as circumstantial evidence. In the instant case too, both the Courts below have acquitted the co- accused of the appellants by extending them the benefit of doubt but this cannot come to the rescue of the appellants in any way, as the charge against them has been consistently and satisfactorily established."
15. ' Keeping in view above settled principle for the dispensation of justice in criminal law, I gave benefit of doubt to the appellant Ghulam Hussain. His appeal was allowed and sentence was set aside.
16. ' Aforesaid are the reasons of the short order, dated 23-10-2000.