' SYED DEEDAR HUSSAIN SHAH, J.--- These appeals by leave of the Court arise out of the same impugned judgment, therefore, shall be dealt with this single judgment.
2. Briefly stated the facts of these appeals are that Ihtshamuddin complainant on 6-9-1990, at 8- 30 lodged a report with the police stating that Mushtaq Choopa wanted to construct his general store illegally and in this respect the complainant also complained to the Anjuman and the settlement was to be made by the Anjuman; in spite of that Mushtaq Choopa started demolishing his shop at morning time. Upon which the complainant, his nephew Iqbaluddin, Mehtabuddin and Muhammad Tariq restrained him from doing so; Mushtaq Choopa went to Bhai Khan Chari and came back alongwith Iqbal Ladla, Mehtab alias Mmoon Kathiawari and Yameen. Iqbal Ladla was armed with automatic repeater gun and the others were armed with Klashnikovs. Mushtaq instigated others to commit murder of Mehtabuddin. Iqbal fired with his repeater gun on Mehtabuddin, who received injuries and fell down. The remaining accused fired with. Klashnikovs at complainant party, who managed to save themselves. The assailants decamped and the complainant side found Mehtabuddin in serious injured condition. The injured was taken to the hospital for treatment but before any medical aid could be provided, he expired. The police was informed about his death. The police prepared the inquest report of Mehtabuddin deceased.
Thereafter, the complainant went to the police station and lodged the F.I.R. The doctor conducted the post-mortem and the dead body Of Mehtabuddin was handed over to his relatives.
3. After the completion of investigation, the police submitted the challan in Court. At the trial, prosecution examined 5 witnesses. The learned trial Court vide judgment dated 1-10-1998 convicted the accused-respondents under section 302, P.P.C. And sentenced them to life imprisonment, each with fine of Rs,50,000 each; in default of payment of fine, each accused shall suffer R.I. For six months. It was directed that the fine if recovered, out of the same, Rs, 15,000 of each should be paid to the legal heirs of the deceased Mehtabuddin as compensation.
4. The accused-respondents filed separate appeals, which were accepted by the High Court of Sindh, Karachi and they were acquitted vide impugned judgment dated 5-1-2001.
5. Leave to appeal was granted by this Court to reappraise the evidence.
6. Mr. Zulfiqar Ahmad Bhatti, learned counsel for the appellant, inter alia, contended that this is a case of clear-cut misreading and non-reading of ocular evidence, which has resulted in miscarriage of justice and the acquittal judgment passed by the learned High Court is not in accordance with the settled principles laid down by this Court for dispensation of criminal justice.
He further submitted that the medical evidence in this case supports the ocular evidence and the prosecution was able to prove the case against the accused-respondents beyond any shadow of doubt.
7. Mr. Abdur Rahim Kazi, learned counsel for the respondents-accused controverted the contentions of the learned counsel for the appellant stating that the High Court has correctly examined and analyzed the evidence; that the recovery evidence was rightly disbelieved by the High Court because empty was not secured by the police from the place of "Wardat" and simple recovery of repeater gun from the respondent without Ballistic Expert's report could not be taken into consideration as a circumstantial evidence and the impugned judgment may be maintained.
8. We have considered the arguments of the learned counsel for the parties and gone through the record. The incident took place on 6-9-1990 at 8-30 a.m. According to the prosecution case, the respondents came there with fire-arms. At the instigation of Mushtaq respondent, Iqbal respondent fired at Mehtabuddin deceased from his repeater gun, who after receiving the injuries fell down on the ground, whereas allegation against rest of the respondents is that they fired at the complainant party, but none was injured. Inference can be drawn that role of ineffective firing was attributed to other respondents. P.Ws. Muhammad Tariq and Iqbaluddin also supported the prosecution case and stated on oath that respondent Iqbal Ladla fired at the deceased with his repeater gun. After receipt of the injuries the injured fell down on the ground, and the complainant found him in a pool of blood and he was immediately taken to the hospital for medical treatment, so that he may be saved, but he expired in the hospital, from where Khalid P.W. Informed the concerned 'Investigating Officer. The Investigating Officer reached hospital, inspected the dead body of Mehtabuddin and also prepared inquest report, thereafter he came at the police station alongwith the complainant and lodged F.I.R.
9. The explanation so furnished by the prosecution, in the above circumstances, appears to be natural inasmuch as if a person is injured, definitely his relatives will take him to the hospital for treatment, s6 that he may be saved. The ocular version also gets support from the medical evidence furnished by Dr. Ahmad Ali Memon, who found fire-arm injuries on the person of the deceased and according to him Mehtabuddin died due to the injuries received by him. We have further found that the High Court in the impugned judgment on surmises and conjectures has disbelieved the prosecution version, which is not borne out from the record. The incident was of day time. The F.I.R. Was lodged very promptly and specific role of effective firing by repeater gun at Mehtabuddin deceased was attributed to lqbal Ladla and role of ineffective firing was attributed to rest of the respondents. The ocular evidence of the P.Ws. Appears to be very natural, convincing, trustworthy and reliable, which was not shaken by the defence in cross-examination and was rightly believed by the trial Court. Perusal of the record further shows that P.Ws. Had no malice or enmity, so that Iqbal Ladla may be falsely implicated in the case. The medical evidence has also gone unshaken and the grounds whereby the appeal of Iqbal respondent was accepted by the High Court, in our opinion, are not tenable, which caused miscarriage of justice and the impugned judgment to the extent of Iqbal Ladla respondent, in any case, is not sustainable.
10. In view of what has been stated above, Criminal Appeal No, 65 of 2001 is accepted to the extent of Iqbal alias Ladla, respondent No,2, order of the High Court regarding his acquittal is set aside, and the sentence awarded to him by the trial Court is maintained.
11. For the foregoing reasons, Criminal Appeals Nos. 66 and 67 of 2001 are found to be without merit and substance, which are hereby dismissed.
12. Iqbal alias Ladla son of Kaley Khan shall surrender to bail bonds. In case of default, the trial Court shall issue non-bailable warrants against him and he may be sent to jail to serve out the sentence.