' The appellants, being aggrieved and dissatisfied with the impugned judgment, dated 30th May, 2000 passed by learned 2nd Additional Sessions Judge, Jacobabad, have filed this appeal. They have challenged their conviction under section 452/34, P.P.C. And sentencing for 7 years and fine of Rs,10,000 each and in case of default of payment of amount of fine to suffer S.I. For six months more. The appellants were also convicted for offences under section 302(b) read with section 34, P . P . C. And sentenced to suffer R.I. For life imprisonment and to pay fine of Rs,1,00,000 (Rupees one lac) each and in case of default of payment of fine amount to suffer S:I. For two years each.
2. Briefly the facts of the case are that according to the prosecution case on 6-4-1996 complainant Muhammad Rahim Jaffri alongwith his brothers Muheem and Rahim Bux were available in their house and Mst. Shahnaz aged about 25 years was busy in doing house hold work. At about 5-30 p.m. Accused Jurio, Shahal Naukhaf and Tillu all sons of Qaloo Jafferi duly armed with guns came running into the house. On inquiry they disclosed that Mst. Shahnaz was Kari, as such they will murder her. Hearing this complainant party replied that Mst. Shahnaz was not Kari and they tried to prevent accused, but accused pushed them and followed Mst. Shahnaz who ran in the 'room of house. First of all accused Jurio fired at her which hit her thereafter all the four accused repeated fires and then went away. The complainant party then noticed Mst. Shahnaz lying dead: The complainant then leaving behind Muheem and Rahim Bux to guard the dead body went to his Nekmard who was not there. He then went to Police Station Thul where he lodged the report at 7-05 p.m.
3. This case was investigated by A.S.I.P. Qamaruddin Panhwar, who after registration of the F.I.R.
Proceeded to the place of Wardat which was situated in the house of complainant. At the Wardat dead body of Mst. Shahnaz was lying inside the room and he secured two empty cartridges from the Wardat in presence of Mashirs Imam Bux and Amanullah and then prepared the Mashirnama of Wardat. He then prepared inquest report of the dead body and dispatched the dead body to the Taluka Hospital, Thul for post-mortem examination and report. The Investigating Officer then recorded 161, Cr.P.C. Statement of P.Ws. During the pendency of the case Qamaruddin the Investigating Officer was transferred to Kandhkot, as such case papers were handed over to Akbar Ali Channa and on 21-5-1996 he arrested accused Naukhaf and Tillu from Bus Stand Kandhkot in presence of Mashirs Imam Bux and Amanullah, and prepared such Mashirnama. On completion of investigation S.H.O. Police Station Thull submitted challan against the accused showing accused Jurio and Shahal as absconders. This case was then received by way of administrative transfer and after receipt of the case the process in shape of N.B.Ws. Were issued against absconding accused Jurio and Shahal, but the said process was returned unexecuted and finally both these accused were declared as proclaimed offenders. Proceedings under section 88, Cr.P.C. Were initiated and completed against them.
4. The charge was framed against the accused vide Exh.3 to which accused pleaded not guilty and claimed their trial vide their plea Exhs.4 and 5. The prosecution in order to establish its case examined complainant Muhammad Rahim as Exh.10, who produced F.I.R. As Exh.10/A, Muheem as Exh.11, Rahim Bux as Exh.12, Tapedar. Saeed Khan as Exh.13, who produced site sketch as Exh.13-A, Mashir Imam Bux as Exh.14, who produced Mashirnama of Wardat as Exh.14-A, inquest report as Exh.14-B and Mashirnama of arrest as Exh.14-C, Investigating Officer Qamaruddin as Exh.15, who produced the Chemical Examiner's Report as Exh.15/A, Doctor Muhammad Ibrahim Sarki as Exh.16, who produced post-mortem report as Exh.16-A. Second Investigating Officer Akber Ali Channa as Exh.17. Thereafter, the learned D.D. Closed the side of the prosecution vide statement as Exh.18. The accused in their statements under section 342, Cr.P.C. Totally denied the case of the prosecution and claimed to be innocent. According to them Mst. Shahnaz was done to death by the complainant and they have been falsely involved in this case as there was a land dispute between them. They, ho,wever, neither led any defence evidence nor examined themselves on oath.
5. I have gone through the facts of the case and heard the learned counsel at length. On appreciation of, the F.I.R. It is clear that at the outset 4 persons have been nominated. These four persons are Jurio, Shahal, Naukhaf and Tiloo all by caste Jaffri. All these persons are supposed to have entered into the house of the complainant and stated that as Mst. Shahnaz was a Kari she shall be killed. Accused Jurio with his gun fire straight upon Shahnaz which hit her thereafter other accused also fired straight upon her which hit her and all the accused then ran away.
6. The complainant had been examined i,e, Muhammad Rahim who has stated in his evidence and confirmed that the four accused entered into their house. He also confirms that Jurio fired at her.
He then makes a general statement that all the accused then fired at her. In his cross-examination he admits that the two other persons who were present at the time of Wardat were Moheem and Rahim Bukhsh who are brothers. They have lived adjacent to his house. He then points out that Mst.
Shahnaz was stitching clothes. He further justifies his statement on the ground that he was in a state of shock and, therefore, he could not name all the accused. On further cross-examination he admits that nobody came from the village. He also admits that the dead body was lying on the cot when the police came. This is a contradiction to his statement made earlier when he claims that Mst. Shahnaz was standing outside and she ran inside the house. She was killed when she was inside the house. He admits that the dead body was shifted from the actual place where she was murdered. He denies that he was instrumental in the death of his wife and was falsely blaming the accused. The complainant has stated in his cross-examination that at the time of incident Akbar Khan and Sikandar Khan, the Nekmard, were not available in the village.
7. The second eye-witness is Moheem. He further states in his evidence that Shahal fired at the deceased when she was inside the room. Then he states that all the other accused fired at her. He admits that in spite of being an eye-witness the police did not examine him or record his statement. He recognizes accused Noukhaf and Tiloo and other accused are supposed to be absconding. He then admits in his cross-examination that he heard four fire reports but cannot say which accused fired how many shots. He also states that after the departure of the accused about four persons came from the village. The eye-witnesses Moheem states that Sikandar Khan came from village when he was informed by the complainant and in fact Sikandar was available when the police arrived.
8. The third eye-witness Rahim Bakhsh has repeated what the other eye-witnesses have stated in his examination-in-chief but confirms that Jurio first fired at Shahnaz. In his cross-examination he admits that Mst. Shahnaz was standing at the distance of 7/8 paces. She sustained first fire on her chest. The deceased was standing at a distance of 3/4 paces from her room when she was fired at by Jurio. He then states that he heard three fire reports out of one was fired in the courtyard and two fire reports in the inside of the room. He also states that he cannot say whether anybody came to the village. In cross-examination he has stated that Sikandar Khan was not available in the village. He also cannot say whether Sikandar Khan come to place of Wardat. He also stated that the police came at about 12 midnight. The Mashir of Wardat and the Mashir who has prepared the sketch plan have also been examined. The Mashir for recovery has shown two empty cartridges. He also admits that he arrested Naukhaf and Tiloo and also points out that the place of Wardat is at a distance of 40 to 50 paces from the village and there are 50 to 60 houses in the village. He claims that the police had come to the place of Wardat at 5-30 p.m. He heard the fire reports at 5-00 p.m.
He also claims that there were many people who came to the place of Wardat when the police came. He also states that the dead body was lying on the floor. I have seen the Mashirnama of arrest and no guns have been recovered from them.
9. To support his arguments, learned counsel for the appellants has relied upon the following case- laws:-- ' In the case of Zaab Din and another v. The State PLD 1981 Lah. 13 it was observed that:-- "Examination of witness---Investigating Officer failing to record separately statements of persons examined by him during investigation and destroying notes taken by him---Omission of Investigating Officer as such held, constituted a flagrant attempt to circumvent law and thereby defeated right which law bestowed on accused---Conduct of Investigating Officer not approved-- -Police statement of prosecution witness discarded.
' In the case of Abdul Khaliq v. The State 1996, SCMR 1553 it was held that:-- "Appreciation of evidence---Complainant was not trustworthy as had got removed the name of co-accused from the investigation on monetary consideration---Investigating Officer had examined eye-witnesses under S.161, Cr.P.C. At the instant of the complainant and that too at a belated stage for which there was no explanation---Eye-witnesses were not found to have seen the occurrence---Ocular evidence was in conflict with medical evidence---Accused was acquitted in circumstances.
' In the case of Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 it was held that:-- "Appreciation of evidence---Delay of two hours in lodging the F.I.R, in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly, preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate--- Nonexplanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence---Medical evidence by itself was unable to establish the identity of the accused---Non-association of any independent respectable witness from the locality with the recovery proceedings, in the absence of any explanation in this behalf by the prosecution had made the recovery of the carbine and the empties unreliable and consequently the Ballistic Report was of no importance---Picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable having no evidentiary value---Accused were acquitted in circumstances.
' In the case of Javaid Shah v. The State 1992 Cr.LJ 455 it was held that:-- "Appreciation of evidence---Prosecution had failed to prove motive as alleged---One of eye- witnesses examined at trial was a brother of deceased and the other one was husband of sister of deceased---Indication was available on record that very strong party faction existed in village where parties resided and that enmity between parties had led to a number of murders--- Presence of prosecution witnesses at place of occurrence was not believable and besides a background of animosity between parties, the witnesses were chance witnesses of occurrence--- Gun was allegedly recovered at the instance of accused, but no crime-empty was found on the spot, thus the gun remained unconnected with alleged commission of offence in question--- Involvement of accused in commission of murder was thus not free from doubt and accused, was thus acquitted in circumstances.
' In the case of Zahid Iqbal v. The State 2001 PCr.LJ 773, it was observed that:-- ----Recovery---Delay---Recovery of blood-stained incriminating articles, crime pistol and empties made under unusual circumstances---Such incriminating articles involving unexplained delay of 5 months in dispatching them to experts and submission of reports by them---Held: Unsafe to rely upon such recoveries as evidence for corroboration purposes. In the case of Habib- ur-Rehman and another v. The State PLD 1994 Pesh. 126, it was observed that:-- ----Sentence---Mitigating circumstances---It was not possible to determine as to which of the injuries caused to the deceased proved fatal and who out of the two accused caused said injuries- --Sentence of death awarded to each accused by Trial Court was altered to imprisonment for life in circumstances. "
' In the case of Misri Khan v. The State 1975 PCr.LJ 116, it was held that:-- "Recoveries---Mention in F.I.R. That a lantern was also present at occurrence---Obliges Police Officer to secure lantern and; produce it in evidence---Failure to do to held, would not detract from oral evidence with regard to presence for lantern."
' In the case of Safeer Hussain v. Muhammad Jahangir and 3 others 1996 SCMR 951 it was held that:-- "----Petition for leave to appeal against acquittal of accused by High Court---Eye-witnesses had appeared before the Investigating Officer on the next day without having reasonably explained such delay---Ocular account was in conflict with medical evidence---Parties were inimical towards each other and eye-witnesses who were chance witnesses of the occurrence had not convincingly explained their presence at the spot---Ocular evidence, thus did not inspire confidence---Supreme Court declined interference---Leave to appeal was refused in circumstances. "
10. The post-mortem report shows that only two empties were recovered whereas the report of the Medical Officer shows about three injuries from fire on the body of the deceased.
11. The statements of accused recorded under section 342, Cr.P.C. Have also been .Seen by me. They have denied that they are guilty.
12. After going through the evidence and looking at the facts it is very clear that there are material contradiction between the statements of the eye-witnesses. As regards the present accused are concerned who are the appellants in this case no specific role has been attributed to them. Even at the time of arrest and afterwards no recovery has been made from them. All the eye-witnesses have not named the two appellants in the commission of the offence except that they were present at the time of incident.
13. The learned counsel appearing for the State has contested this matter and has insisted that specific role has been attributed to all the accused and that there are no material contradictions.
However, I have noted from the evidence that has been brought on record on behalf of the prosecution against the appellants that they have failed to prove the case against the present appellants beyond any reasonable doubt as such I would give them benefit of doubt and set aside the judgment dated 30-5-2000 passed against them and acquit both of them. Sentence against them is set aside and they may be released forthwith, if not required in any other case.