2019 P Cr (PLP)

ABDULLAH BALOCH, J.

This judgment disposes of Criminal Appeal No.(s)103 of 2018 filed by the appellants Ameer Bakhsh and Wali Muhammad sons of Ali Bakhsh, against the judgment dated 30th April 2018 ("the impugned judgment") passed by the learned Additional Sessions Judge Nasirabad at Dera Murad Jamali ("the trial Court"), whereby they were convicted under section 302(b), P.P.C. as Tazir and sentenced to suffer R.I. for life each and to pay compensation amount of Rs.300,000/- (Rupees Three Hundred Thousand) and in default thereof to further suffer six (06) months' S.I., with the benefit of section 382-B, Cr.P.C.

2. Facts of the case are that on 2nd May 2014, the complainant Ghulam Haider, lodged FIR No.24 of 2014 at Police Station Manjhoo Shori, under sections 302, 34, P.P.C. with the averment that he is a resident of Goth Mir Shaukat Ali and earns livelihood by working as a labourer, while near to their houses some tenants from Bangulzai tribe are also residing. On the day of occurrence he along with his brother Band Ali, cousin Wazir Ali and relative Saddam Hussain were present in their house, when at about 9.30 a.m. Ameer Bakhsh called his brother Band Ali, who went out of the house, whereafter on on hearing altercation, he along with others came out and found that his brother and Ameer Bakhsh were exchanging hot words and they had entangled with each other. In the meanwhile Wali Muhammad, who is brother of Amir Bakhsh with his relatives Battay Khan and Babu Dina also came out of their houses duly armed with firearms and made firing, hence he rushed to save his brother, but in the meanwhile, due to firearm injuries his brother fell down and died on the Spot, while due to indiscriminate firing by the accused a bullet also hit their companion Battay Khan, due to which, he became injured; that the motive behind the incident was that his brother Band Ali and Battay Khan had earlier exchanged harsh words and due to that grudge the accused persons have killed his brother and had fled away.

3. After registration of FIR PW-7, Ghulam Qadir SI was deputed to investigate the case. Initially, accused Battay Khan was arrested, who was put on trial and on conclusion thereof was convicted and sentenced by the learned trial Court for life imprisonment, vide judgment 14th March 2016, whereas the case to the extent of present appellants was ordered to be kept on dormant. The accused Battay Khan assailed his conviction and sentence before this Court through Criminal Appeal No.(S)53 of 2016, which was allowed and he was acquitted of the charge by this Court, vide short order dated 18th May 2017 and subsequently reasons drawn on 23rd July 2017.

4. The appellants approached the trial Court for grant of bail, which was granted to them, thereafter they joined the investigation. On completion of investigation, both the appellants were put on trial before the trial Court, which indicated the charge, but the same was denied, hence the prosecution has produced the evidence of seven witnesses. Whereafter, the appellants were examined under section 342, Cr.P.C. and on conclusion of trial both the appellants were convicted and sentenced as mentioned above in para No.l. Whereafter, the instant appeal has been filed.

5. Heard the learned counsel for the appellants and perused the available record with the valuable assistance. The most important witnesses of the prosecution case is PW-2 Ghulam Haider (complainant), PW-3 Wazeer Ali (eye-witness) and PW-4 Sadam Hussain (eye-witness),. All the witnesses appeared in the trial Court and narrated the story as contained in the FIR by mentioning the date and time of occurrence and also brought on record that the deceased had received bullet injuries and was died at the spot. The witnesses in the examination in chief have also mentioned the names of the assailants, but surprisingly they did not identify the appellants as assailants, who committed the murder of deceased Band Ali, thus all the three accused persons were declared as hostile. Furthermore, the complainant and the alleged eye-witnesses have not mentioned about the nature of firearm in the hand of the appellants. No recovery of any firearm has been effected from the possession of the appellants. No disclosure or confession of the appellants has been recorded. After declaring hostile to the eye-witnesses, the only evidence connecting the appellants with the commission of this offence is the Medico Legal Certificate, issued by PW-1 Dr. Mehmood Khan Umrani, which is not sufficient to connect the appellants with the crime in question for the reason that through such type of evidence the unnatural death can be established, but it does not identify the culprits.

6. Since, the material prosecution witnesses i.e. PW-2 Ghulam Haider, PW-3 Wazir Ali and PW-4 Saddam Hussain, who claimed to be eye-witness of the occurrence, have not identified the appellants at the trial and they were declared hostile by the prosecution, thus there remains no evidence to connect the appellants with the commission of charges. Even otherwise, earlier the co-accused Battay Khan was arrested and after his conviction, the matter was assailed before this Court and after deep appreciation of evidence, he was acquitted of the charge, vide judgment dated 23rd July 2017 and the said judgment still holds the field being not assailed before apex Court, thus having similar nature of allegations, the appellants are also entitled to be treated alike. For the above reasons the appeal is accepted. The impugned judgment dated 30th April 2018 passed by the learned Additional Sessions Judge Nasirabad at Dera Murad Jamali, is set aside and while extending benefit of doubt, the appellant Ameer Bakhsh and Wali Muhammad sons of Ali Bakhsh, are acquitted of the charge under section 302(b), P.P.C., in FIR No. 24 of 2014, registered with Police Station Manjhoo Shori. The appellants being in custody are ordered to be released forthwith, if not required in any other case. SA/3/Bal. Appeal accepted.