IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No. S-125 of 2016.

Present:

MR. JUSTICE AMJAD ALI SAHITO

Appellant:                      Naeem alias Gunda s/o Nusrat Hussain Dahar, through Mr. Athar Abbas Solangi, Advocate.

State:                             Through Mr. Sharafuddin Kanhar, Additional Prosecutor General.

Date of hearing:             23.04.2018.

Date of Judgment:         23.04.2018.

JUDGMENT

AMJAD ALI SAHITO, J-. The instant appeal is directed against the impugned judgment dated 19.12.2016, passed by learned VI-Additional Sessions Judge, Larkana, in Sessions Case No.520 of 2013, Re.St.Vs.Naeem alias Gunda and others, for offence punishable u/s.302, 324, 452, 34 PPC, arisen out of Crime No.58 of 2013 of Police Station, Badeh (District Larkana); whereby the appellant was convicted for offence punishable u/s.302 (b) PPC and sentenced to suffer rigorous imprisonment for life and to pay fine/Diyat amounting to Rs.200,000/- to the legal heirs of deceased Akbar Ali and in case of default in payment of fine/Diyat, to suffer S.I for six months more. However, the benefit of Section 382-B Cr.PC was also extended to him.

2.           The facts in brief leading to disposal of instant appeal are that on 02.07.2013, complainant Asghar Ali son of Gul Muhammad Sario lodged FIR with P.S Badeh, in which he mentioned that on 30.06.2013, harsh words were exchanged between the complainant party and party of accused Fayaz alias Fouji Dahar over the matter of children. On the eventful day i.e. 02.07.2013, his brothers namely Akbar Ali and Imdad Ali were available in their house, while he(complainant) was present in his house. At 10.00 a.m, fire shot and cries were heard from the house of his brother Akbar Ali, whereupon he alongwith his cousin Ghulam Sarwar went there and saw accused Fayaz alias Fouji and Naeem alias Gunda Dahar, duly armed with repeaters were firing at his brother Akbar Ali with intention to commit his murder, who was found lying on the courtyard of his house and was bleeding from him stomach, back and right arm. The accused on seeing the complainant party went out of the house with their respective weapons. The complainant party after obtaining such letter from P.S Badeh then shifted injured Akbar Ali for treatment to RHC Badeh, from where the injured was shifted to CMC Hospital Larkana and leaving him there, the complainant came at police station and lodged the FIR against the accused for offence punishable u/s.324, 452, 34 PPC. During treatment, injured Akbar Ali succumbed to his injuries and died, then the investigation officer after observance of legal formalities submitted the report u/s.173 Cr.PC before the concerned Court by including section 302 PPC.

3.       After completing all the formalities, on 06.11.2013 the learned trial Court framed the charge against accused(Exh.05) under Section 302, 324, 452, 34 PPC, to which he pleaded not guilty and claimed to be tried.

4.       In order to establish accusation against the accused, the prosecution then led its’ evidence and examined PW-01 Complainant Asghar Ali Sario at Exh.07, he produced FIR of the present case at Exh.07/A. PW-02 Imdad Ali at Exh.08, he produced his 164 Cr.PC statement at Exh.08/A. PW-03 Gulbahar at Exh.09, he produced mashirnama of place of incident at Exh.09/A, mashirnama of inspection of injuries of injured Akbar Ali(deceased) at Exh.09/B, mashirnama of inspection of dead body of deceased at Exh.09/C, Danistnama at Exh.09/D, mashirnama of arrest of accused at Exh.09/E, and mashirnama of recovery of Repeater from the accused at Exh.09/F. PW-04 Ghulam Sarwar at Exh.10, he produced his 164 Cr.PC statement at Exh.10/A. PW-05 ASI Saddaruddin at Exh.11. PW-06 Medical Officer Dr.Abdul Ghaffar at Exh.12, he produced inquest report at Exh.12/A, letter of police referring injured/deceased Akbar Ali for treatment to hospital at Exh.12/B, the receipt of dead body at Exh.12/C, postmortem report on the dead body of deceased Akbar Ali at Exh.12/D, the letter to Medical Superintendent/Police Surgeon, CMC Hospital Larkana at Exh.12/E. PW-07 Tapedar Shakeel Ahmed at Exh.13, he produced sketch of vardat at Exh.13/A. PW-08 Inspector Mir Muhammad at Exh.14. Thereafter, the learned ADPP for the State filed FSL report through his statement at Exh.15. PW-09 ASI Abdul Qayoom was examined at Exh.16, he produced the receipt of delivery of dead body to him at Exh.16/A. PW-10 Shakeel Molani C.J & J.M, at Exh.17. Later-on, the side of prosecution was closed vide statement at Ex.18.

5.       Statements of the present accused/appellant was recorded under Section 342 Cr.PC at Ex.19, wherein he denied the prosecution allegations leveled against him and lastly prayed for justice. However, he neither examined himself on Oath in terms of Section 340(2) Cr.PC nor led any evidence in his defense.

6.       The learned Trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, recorded conviction and sentence against the present appellant vide judgment dated 19.12.2016, which he has impugned before this Court by way of filing instant appeal. 

7.       Mr.Athar Abbas Solangi, learned counsel for the appellant contended that the impugned judgment is against the law and facts of the case; that the present appellant is innocent and has falsely been implicated in this case; that complainant Asghar Ali and PW Imdad Ali being eye-witnesses/real brothers of the deceased Akbar Ali have not implicated the present appellant with commission of offence in their evidence recorded before learned trial Court despite cross examined by the learned DDPP for the State, that there are several other material contradictions in the evidence of remaining witnesses, which are fatal to the prosecution case. He lastly contended that the prosecution has miserably failed to prove the case against the appellant and thus, according to him, under the above mentioned facts and circumstances, the appellant is entitled for his acquittal.

8.       While rebutting the above contentions, the learned Additional Prosecutor General for the State argued that the appellant is named in the FIR with specific role of firing at deceased; that although the ocular version has been belied by its own witnesses yet the medical evidence has supported the factum of commission of murder of deceased. He further argued that the learned trial Court has rightly appreciated the evidence to base the conviction and sentence of the appellant in accordance with law and thus lastly prayed for dismissal of the instant appeal. 

9.       I have heard learned counsel for the parties and perused the record.

10.     On assessment of the material brought on the record, it appears that the case of prosecution mainly depends upon the ocular testimony in shape of statements of complainant Asghar Ali (PW-01), eye-witness Imdad Ali (PW-02) and eye-witness Ghulam Sarwar(PW-04). It is evident from the evidence of complainant Asghar Ali that he on hearing fire shots from the house of his brother deceased Akbar Ali, rushed and found that his brother Akbar Ali was lying on the ground in injured condition and the blood was oozing but he could not see anybody who committed murder of his brother. On such, the learned DDPP declared him hostile and requested the learned trial Court to cross examine him, wherein he denied that he identified the accused persons at the time of incident. He further denied that he had given the name of present appellant in the FIR which was read over to him. In cross examination to learned defense counsel, he(complainant) admitted that the present appellant was neither available at the place of incident nor he saw him armed with rifle, firing at his brother. Further, Imdad Ali(PW-02) who is also real brother of deceased Akbar Ali, also admitted that on the eventful day he while present at his otaq, heard fire noise, rushed there and found that his brother was lying in injured condition, and the complainant was already standing there while PW Ghulam Sarwar also came there, he made enquiry from both of them who disclosed that they could not see any body. This witness was also declared hostile and cross examined by learned DDPP for the State but he could not extract anything from his mouth to connect the present appellant with commission of the offence. In cross examination by learned defense counsel, he(PW-02 Imdad Ali) admitted that he was not produced before the Magistrate but the concerned clerk obtained his signature over written paper and at the time of signing of 164 Cr.PC statement, the present accused/appellant was not present before the Court and he was unaware regarding real culprits, as he could not see present appellant at the scene of offence duly armed with weapon or firing at the deceased. Since, all three witnesses claimed   that  they  had  witnessed   the  incident but Ghulam Sarwar (PW-04) in his examination-in-chief deposed that he and Asghar Ali (complainant) were available in their house while PW Imdad and deceased Akbar Ali were present in their house and they heard fire shot from the house of deceased Akbar Ali to which he and Asghar Ali rushed to his house and saw that accused Naeem alias Gunda and Fayaz alias Fouji duly armed with repeaters made straight firing upon his cousin Akbar Ali who was lying on the earth, after their arrival both accused persons succeeded in running. In cross examination by learned defense counsel, he admitted that his house and house of deceased Akbar Ali are situated at first and last corner of street separately and his sister Nasreen is wife of deceased Akbar Ali. It is astonishing to note that although the incident is said to have taken place during broad hours of the day in presence of inmates/wife at the house of deceased, but neither any of the inmate/wife of the deceased was enquired about the incident during course of investigation by the investigation officer nor they were produced before the learned trial Court for recording their statements to corroborate the version of prosecution story.

11.        From the evidence of above mentioned eye-witnesses, it reflects that the complainant claimed that he was present at his house while PW-02 Imdad Ali stated that he was available at his otaq whereas PW-04 Ghulam Sarwar claimed that he alongwith Asghar Ali was present at his house but all of them have made contradictory statements. There could be no denial to legally established principle of law that it is always the direct evidence which is material to decide a fact(charge). The failure of direct evidence is always sufficient to hold a criminal charge as not proved but where the direct evidence remains in the field with test of its being natural & confidence inspiring, then requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. The direct evidence, as detailed above, is in shape of evidence of complainant Asghar Ali and PW Imdad Ali, who are real brothers of deceased whereas PW Ghulam Sarwar is said to be brother-in-law of deceased, and they all reside adjacent to the place of occurrence. In the wake of such contradictory statements of the above named eye-witnesses coupled with material improbabilities, then such conflicting statements have impaired the transparency of their ocular testimony, which itself is sufficient to demolish the whole case of prosecution. In this case, the learned trial Court has relied upon 164 Cr.PC statements of PWs Imdad Ali and Ghulam Sarwar, whereas PW Imdad Ali in his evidence has admitted that he was not produced before any Magistrate for recording his 164 Cr.PC statement but only his signature was obtained by a Clerk on a written paper. When the statement of said witness has lost its sanctity then the credibility of his such statement would be nothing but a travesty of justice, which could not be a base for recording the conviction against the appellant.

12.     Gul Bahar(PW-03) is said to be mashir in this case, who in his evidence produced mashirnama of place of incident recovery of empties at Exh.09/A, mashirnama of injuries at Exh.09/B, mashirnama of inspection of dead body at Exh.09/C, Danistnama at Exh.09/D, mashirnama of arrest of present appellant at Exh.09/E and mashirnama of recovery of gun at Exh.09/F, but he in his cross examination admitted that he was called by the investigation officer at Police Station where his signatures were obtained on all mashirnamas. He further admitted that the cartridges were not sealed at the spot. In these circumstances, when the entire recovery has been refuted by the mashir, then the recovery, even if, effected in his presence carries no weight and the FSL report produced by State counsel by way of statement, is also of no consequence. Thus, this piece of evidence will not strengthen the prosecution case, which rendered it highly doubtful. For disbelieving a witness, it is not necessary that there should be numerous infirmities, if there was one which would impeach the credibility of the witness that it makes the entire statement doubtful.

13.     Per learned Additional Prosecutor General that the medical evidence has fully supported the prosecution case is concerned. The medical evidence at the most is supporting piece of evidence and relevant only if primary evidence i.e ocular account inspire confidence. Here, the complainant and one of the witness namely Imdad Ali being real brothers of the deceased who witnessed the incident, have not involved the present appellant to connect him with commission of the offence, therefore, the medical evidence simply discloses the nature of injuries, kind of weapon and duration of time as well as cause of death, but it cannot signify the author of injuries. In this context, the reliance is placed upon case of Muhammad Mansha vs. the State(2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that;

“The medical evidence it has been declared by this Court in various judgments that the medical evidence neither pinpoint the accused nor establish the identity of the accused and at the most can depict the locale of injury, duration, weapon used etc; and medical evidence can never be considered to be corroboratory piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of set of injuries, the weapon used, duration, the cause of death etc;”.

14.     In view of above discussion, I am of the considered view that the prosecution has failed to prove it’s case against the appellant beyond any reasonable doubt and it is well settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. The reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:

4.--- Needles to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim,”it is better that ten guilt persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State(1995 SCMR-1345), Ghulam Qadir and 2 others v. The State(2008 SCMR-1221), Muhammad Akram v. The State(2009 SCMR-230) and Muhammad Zaman v. The State(2014 SCMR-749).

15.     In this case, the learned trial Court has not evaluated the evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence. Consequently, the instant appeal is allowed. The conviction and sentence awarded to the appellant is set-aside and he is acquitted of the charge by extending him benefit of doubt.

16.     These are the detailed reasons of short order dated 23.04.2018, announced by me.

J U D G E

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