1. ' The brief facts of the case are that on 2-8-1991 at 8-00 p.m. Complainant Qurban Ali Gadhi lodged F.I.R. At Police Station Mehar stating therein that deceased Niaz Ali is his maternal-cousin (Masat) and they both reside in one and same village. On 2-8-1991 the complainant alongwith Niaz Ali left for village Bago Teewno, in order to recover price of a bullock which was sold by Niaz Ali to accused Ibrahim Teewno. In the meanwhile the complainant party came to Mehar Town, where they met P.W. Bashir Ahmed and Faqeer and after exchange of news they fixed their programme of their meeting at village Gahi Mahessar. The complainant then alongwith Niaz Ali came to village Bago Teewno and they searched for accused Ibrahim Teewno but he was not available. Complainant and Niaz All then stayed at village Bago Teewno and then left for Mehar in the evening. When complainant and Niaz Ali reached near village Gahi Mahessar, they met P.W. Bashir Ahmed and Faqeer Muhammad who were also coming towards the complainant party. When they reached at circular point of the road, they found accused Arizo alias Ariz Muhammad armed with a hatchet, Shah Nawaz armed with gun and one another unidentified culprit, who was also armed with a gun emerging from the southern side of road. On arrival accused Ariz Muhammad challenged and declared that Niaz Ali is on illicit terms with his sister, hence he will not spare them and will kill them.
2. P.Ws. Bashir Ahmed, Faqeer Muhammad challenged accused not to kill the man. On this accused Shah Nawaz fired from his gun which hit Niaz Ali who fell down after raising cries. Accused Shah Nawaz fired a second shot at complainant Qurban Ali which hit him at the left shoulder. Accused Ariz Muhammad then gave sharp side hatchet blow on the head of Niaz Ali and also another hatchet blow to complainant at his left arm. The unidentified culprit gave challenges to witnessed not to come near them. Afterwards all the accused succeeded in running away towards west. The complainant party, then went and found Niaz Ali lying dead. The complainant then leaving the other persons came to the police station Mehar and lodged the F.I.R. Police after completing investigation arrested accused Shah Nawaz, Ariz Muhammad and Ibrahim Teewno and submitted the challan in the Court of Civil Judge and F.C.M. Mehar who sent up the case to the Sessions Judge, Dadu. Then case was transferred to IIIrd Additional Sessions Judge, Dadu and then to IVth Additional Sessions Judge, Dadu on 26-4-1995.
3. ' Charge was framed against the accused to which they pleaded not guilty and claimed to be tried.
4. Then the Court was shifted to Mehar consequently this case also transferred. In the meantime, accused Muhammad Ibrahim Teewno expired due to natural death consequently proceedings against him were abated vide order, dated 13-2-1995.
5. ' Amended charge was framed against accused Shah Nawaz and Ariz Muhammad to which they pleaded not guilty and claimed to be tried.
6. ' In order to prove its case, prosecution examined P.W.1 complainant Qurban at Exh.11, he produced F.I.R. At Exh.11-A, P.W.2 Faqeer Muhammad at Exh.12, P.W.3 Bashir Ahmed at Exh.13, P.W.4 Dr. Ali Akbar at Exh.14 he produced the post-mortem report at Exh.14-A, P.W.5 Aftab Ahmed at Exh.15, he produced Mashirnama of injuries at Exh.15-A, Mashirnama of place of Wardat at Exh.15-B, Inquest Report at Exh.15-C, Mashirnama of clothes at Exh.15-D, Mashimama of arrest at Exh.15-E Mashirnama of recovery of gun at Exh.15-F, 'P.W.6 Abdul Ghaffar at Exh.16. He was Investigating Officer he produced Mashimama of arrest at Exh.16-A, Mashirnama of recovery of hatchet at Exh.16-B, P.W.7 Muhammad Azeem at Exh.17. He examined on behalf of P.W. Mukhtiarkar Abdul Huda Abro as who has been expired. He produced a statement under section 164, Cr.P.C. Of Muhammad Murad at Exh.17-A, statement under section 164, Cr.P.C. Of Ali Gohar at Exh.17-B, attested copy of statement under section 164, Cr.P.C. Of Faqeer Muhammad at Exh.17-C, attested copy of statement under section 164, Cr.P.C. Of Bashir Ahmed at Exh.17-D and attested copy of confessional statement of accused Shah Nawaz at Exh.17-E and P.W.8 Imam Bux at Exh.18 who is Tapedar of Deh. He prepared site plan and produced the same at Exh.18-A, thereafter side of prosecution was closed by the learned D.D.A. For the State Exh.19.
7. ' Statements of accused were recorded under section 342, Cr.P.C. Where they denied all the allegations levelled against them and accused Shah Nawaz further stated that the gun was his licensed gun and he has not made away confession before Mukhtiarkar and P.Ws. Are interested and on inimical terms with them. However, they did not lead any defence nor examined themselves on oath under section 340(2), Cr.P.C.
8. ' The trial Court formulated four points for the purpose of deciding the case and after appreciation of the evidence including the F.I.R. And the Medical and ocular evidence, decided the case against them resulting in a conviction and sentence to suffer life imprisonment for committing murder of deceased Niaz under section 302, P.P.C. Fine of Rs,20,000 each to the legal heirs of the deceased. In case of failure the accused were to undergo imprisonment for another one year. This conviction was given to Ariz Muhammad and Shah Nawaz. Accused Ariz Muhammad was also convicted under sections 307, P.P.0 and 324, Q.D.O. To suffer R.I. For 5 years for causing hatchet injuries to complainant Qurban. Both sentences were to run concurrently. Shah Nawaz was granted the benefit of 382-B as he remained in custody as a UTP since 24-8-1991 to 6-1-1993. Since the accused were on bail, their bails were cancelled and they were arrested.
9. ' The counsels for the appellants have led a joint argument. Primarily they have assailed the sentence and conviction on several grounds. They have drawn my attention to the judgment of the trial Court, and the observation of the learned Judge as regard, the evidence of the eye-witness is concerned. The trial Court whilst writing judgment has observed that he has relied upon the ocular evidence and testimony of complainant. He also observed that he is relying on the evidence as he is injured and, therefore, a natural witness. He goes on to state that the testimony is beyond doubt.
10. According to him the statement of the complainant has been corroborated by P.W.2 Faqeer Muhammad and P.W.3 Bashir Ahmed. Yet he observes that Faqeer Muhammad and Bashir Ahmed in their evidence have made many contradictions, therefore, their testimony appears to be doubtful. If this is the criteria, then the entire judgment hinges on the evidence of the complainant.
11. Further, in the judgment the learned Judge observed after discussing the various contradictions of P.W.2 and P.W.3 that both the P.Ws. Are caste-fellows of the complainant party, therefore, it would be unsafe to rely on their testimony. Once again he puts immense faith in the evidence of the complainant. He then discusses the confessional statement of accused Ariz Muhammad and also observes that the police has acted malafidely and has tried to let off accused Ariz Muhammad, he further goes on to state that the hatchet has not been recovered by the police from Ariz Muhammad but the police with mala fide intention has shown that the hatchet was recovered from accused Ibrahim.
12. ' Concluding the learned Judge has observed that the prosecution has been able to prove that accused Shah Nawaz and Ariz Muhammad had committed murder and that there was no evidence against Ibrahim. He then asserts that the evidence of complainant who is injured witness is sufficient to base conviction. He also dwelt at length on the evidence of the other two eye- witnesses and admits that no other independent eye-witness has been examined. He in fact opines that the two witnesses must have rushed to the scene of the offence after they were informed by the complainant about the incident and, therefore, according to him they were not present at the time of commission of this offence.
13. ' It would be appropriate to reproduce last paragraph of the judgment which speaks volume.
14. ' "In the light of findings on points Nos.1 and 2 since it is proved that accused Shah Nawaz and Ariz Muhammad had committed the murder of deceased Niaz in furtherance of their common intention and accused Ariz Muhammad caused injuries to complainant Qurban, therefore, accused has committed an offence punishable under section 302-B, P.P.C. In this case motive for the commission of the offence has not clearly come forward. Therefore, under these circumstances when the two eye-witnesses were disbelieved by this Court, there is only the evidence of solitary witness, the complainant. Under these circumstances there are mitigating circumstances for awarding lesser sentence, therefore, accused Ariz Muhammad and Shah Nawaz are convicted and sentenced to suffer life imprisonment R.I. For committing murder of deceased Niaz under section 302-B, P.P.C. They are also to pay fine of Rs,25,000 each to the L.Rs, of the deceased in case of failure to pay the fine they will have to undergo one year imprisonment R.I. Accused Ariz Muhammad is also convicted under sections 307, P.P.C. And 324, Q.D.O. To suffer five years' R.I. For causing hatchet injuries to complainant Qurban. Both the sentences are to run concurrently. The accused Shah Nawaz remained in custody as UTP since 24-8-1991 to 6-1-1993, therefore, he is granted benefit of section 382-B, Cr.P.C. Also. The accused are present on bail, their bail bonds stand cancelled and bond ,of surety discharged. The accused are remanded to custody with the warrant of commitment to serve out the sentence."
15. In my own view after having gone through the evidence of complainant I have come to the conclusion that reliance on an individual testimony and that too in a situation where there was no dispute between both the sides, cannot be placed. Since it is an apparent day time incident, therefore, it would have been easy for prosecution to produce independent witnesses. The complainant Qurban. In his examination-in-chief Exh.11 has clearly stated that Bashir Ahmed and Faqeer Muhammad; were coming on the road and even challenged accused not to kill Niaz but in spite of that Shah Nawaz fired from DBBL. He then states that after the incident, P.W. Bashir Ahmed and Faqeer Muhammad saw that Niaz had died. He left both the P.Ws. At the place of Wardat and came to police station to lodge the F.I.R.
16. I have also seen and read the evidence of the P.Ws. Bashir Ahmed and Faqeer Muhammad. If the evidence of the two P. Ws. Cannot be relied upon as it suffers from basic contradiction then surely the trial Court should also have ignored the evidence of complainant who has relied upon the evidence of the two witnesses. The learned trial Court repeatedly insisted that since the complainant was injured, therefore, his evidence has to be relied upon. In my mind the evidence of .The complainant as well as the injured party has to be always looked at with certain bias. It is to be appreciated that the complainant had a axe to grind right from the word go against the accused.
17. The facts narrated in the F.I.R. And the evidence brought forward by the prosecution may support and assist the complainant's version ultimately resulting in the conviction of the accused but it still depends on the appreciation of the evidence by the trial Court. In an appeal one has to look at the observations in the judgment and then read the evidence. Non-appreciation or misreading of evidence could and should result in the judgment being set aside. However, when observations are made strictly discarding the evidence of the two main eye-witnesses and reliance is totally placed upon the statement of complainant then that reliance should not end in a conviction of the accused. It is settled principle that one has to prove beyond a reasonable doubt the case against accused and then alone he can be sentenced and convicted. It should always be foremost in the mind of the trial Court as by awarding a harsh sentence of life imprisonment one is expecting a human being to undergo incarceration behind four walls for long period or time which may result in adverse physical and mental problems. If a person is killed then that action needs to be condemned, but the killers/accused must be put through the severe test of evidence both ocular and medical. Once unshakeable evidence is brought forward then indeed should he be punished.
18. The complainant, as I had said earlier, is an interested party and he needs to pursue the matter throughout with sole objective of a person dedicated to punish those who have caused him personal loss. Reasoning and logic with analytical appreciation of evidence, cannot be taken into consideration by the complainant. His only objective is to punish the accused. Since a Judge has to look into all facts of the evidence before him and then come to a conclusion, therefore, the mere reliance on the complainants' evidence is not sufficient.
19. ' The concluding paragraph of the judgment is good enough to give the accused the benefit of doubt. The trial Court should appreciate that if evidence is not relied upon and there are mitigating circumstances then the accused has to be acquitted after giving him the benefit of doubt.
20. ' I accordingly order that in view of the above, the appeal is accepted, the sentence of conviction is set aside alongwith the fine and the appellants are to be released forthwith unless required in any other case.