IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Appeal No. S- 109 of 2016.
Appellant: Deedar Chandio, through Mr. Habibullah Ghouri, Advocate.
Respondent: The State, through Raja Imtiaz Ali Solangi, A.P.G.
Date of hearing: 11.05.2018.
Date of Judgment: 11.05.2018.
JUDGMENT
AMJAD ALI SAHITO, J-. Through this criminal appeal, the appellant Deedar son of Muhammad Khan Chandio has impugned the judgment dated 29.10.2016, passed by learned Additional Sessions Judge-V, Shikarpur, in Sessions Case No.77 of 2015, Re; St. v. Deedar, arisen out of Crime No.32 of 2015 registered with Police Station Mian-Jo-Goth (District Shikarpur); whereby the appellant was convicted for offence under Section 302 (b) P.P.C read with Section 311 P.P.C, and sentenced to suffer rigorous imprisonment for life as Tazir and to pay fine of Rs.100,000/- and in case of default to suffer S.I for six months more. However, he was extended benefit of Section 382-B Cr.P.C.
2. The facts of the prosecution case are that on 23.09.2015 complainant SIP Saeed Ahmed Aghani lodged report on behalf of the State, stating therein that on fateful day he alongwith his subordinate staff was on patrolling, as such at about 1100 hours when they reached on link road Mian-Jo-Goth; heard fire-shot reports, as such they rushed towards there and noticed four persons, out of them two were having pistols in their hands and rest two were with shot-guns and they while making firing in air fled away towards southern side of the village. The police party went ahead and saw that one woman was lying on the ground outside house of Nisar Ahmed Chandio, where two persons namely, Qadir Bux and Barkat were present and they disclosed to police that they were standing outside the house of Nisar Ahmed and Mst. Zahida (the daughter of said Qadir Bux) was also standing nearby them and meantime accused Deedar, Nisar Ahmed, Ali Mardan having T.T pistols and Muhammad Khan with shot gun came there; out of them accused Deedar and Nisar Ahmed gave “hakal” Mst. Zahida and by declaring her “Kari” with one Nazeer Chandio, both of them made direct fired upon her; the fire made by Deedar hit her on her head and fire made by Nisar hit her on shoulder and she fell down. Rest two accused also made firing in air; meanwhile on reaching of police party all the accused made their escape good. The police shifted dead body to police station, where SHO lodged report to the above effect on behalf of the State.
3. On completion of usual investigation, the challan of the case was filed before concerned Judicial Magistrate showing appellant to be arrested, while rest three nominated accused were let-off by police while placing their names in column No.2 of the challan. Ultimately, the case was sent to the Court of Sessions, as the offence was cognizable by the Court of Session.
4. The charge against accused/ appellant was framed as Ex.2, to which he pleaded not guilty and claimed trial. As such prosecution examined its witnesses.
5. Complainant SIP Saeed Ahmed was examined at Ex.4; he produced roznamcha entry No.2, memo of inspection of dead body; Danistnama, F.I.R, memo of site inspection, memo of last worn blood stained clothes of deceased, police letter to Mukhtiarkar for preparation of site plan, police letter for sending blood stained earth to chemical laboratory, chemical examiner’s report, FSL report at Ex.4-A to Ex.4-J. ASI Muhammad Yousif was examined at Ex.5; he also produced memo of arrest and recovery at Ex.5-A. PW PC Ali Gohar at Ex.6. PW Qadir Bux at Ex.7 he produced his 164 Cr.P.C statement and receipt of handing over clothes of deceased at Ex.7-A and Ex.7-B. PW Barkat Ali was examined at Ex.9. PW/ Mashir Wahid Bux was examined at Ex.9 and PW/ Mashir Qabil at Ex.10. PW PC Ghulam Asghar was examined at Ex.11. PW Tapedar at Ex.12; he produced site plan at Ex.12-A. PW WMO Sabra Shah was examined at Ex.13; she produced postmortem report of deceased and police letter/ lash chakas form at Ex.13-A and Ex.13-B. PW Shahabuddin Muhammad, the Civil Judge and Judicial Magistrate Khanpur was examined at Ex.14; he produced police letter at Ex.14-A. Thereafter, the prosecution closed its side vide Ex.15.
6. Then the statement of appellant was recorded under Section 342 Cr.P.C at Ex.16, in which he denied the prosecution allegations against him and also denied to examine himself on oath or to lead evidence in his defence.
7. I have heard learned counsel for the appellant, as well as learned A.P.G. and perused the entire record with their assistance.
8. Learned counsel for the appellant criticized the impugned judgment. He mainly contended that, the eyewitnesses of the case so also mashirs examined at trial have not supported the case of prosecution, while evidence of rest of the witnesses who are not the eyewitnesses is unrealistic, full of contradictions, tainted with doubts and could not be relied upon; as such it was in-sufficient for awarding conviction. Learned counsel submitted that, this sole factor create serious doubt in the case of prosecution, and it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused.
9. On the contrary the learned A.P.G appearing for the State half heartedly supported the impugned judgment by submitting the prosecution evidence has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction.
10. I have heard the learned counsel for the parties and perused the record and have read the evidence of the witnesses examined at trial by prosecution.
11. It is matter of record that, per F.I.R Qadir Bux and Barkat are the eyewitnesses of the alleged incident of murder of deceased Mst. Zahida. Both these witnesses, when came into witness box did not support the case of prosecution and none of them implicated the appellant or any other accused in the case and did not identify the appellant, to be the same accused who made fire upon deceased. Likewise, mashirs of the case namely, Wahid Bux and Qabil have also not supported the prosecution case; both of them have deposed in one voice that, they do not know anything about this case. All these witnesses/ mashirs were declared hostile by the Prosecutor and cross-examined but nothing favorable to prosecution come out from their month. The evidence of rest of the witnesses, namely, complainant SIP Saeed Ahmed, PC Ali Gohar and PC Ghulam Asghar is hear-say in nature and it can be termed as circumstantial evidence, but since ocular evidence is not supporting to the case of prosecution, the only circumstantial evidence cannot be made as basis of conviction. The trial Court while awarding conviction and sentence to appellant has observed and relied upon the statements of above named eyewitnesses recorded in terms of Section 161 and 164 Cr.P.C. In this context, suffice to say that the retracted statement loses its sanctity and purity and it cannot be made basis for awarding sentence. Moreover, per contents of 164 Cr.P.C statements only one person, i.e. appellant Deedar has been implicated in the case for murder of deceased, though contents of F.I.R implicate four persons for murdering deceased and if contents of 164 Cr.P.C statements are taken as truth, then this again makes the case as of two versions, which definitely causes doubt in its truthfulness. Furthermore, during recording evidence one of the witnesses namely, PC Ghulam Asghar did not identify the appellant, to be the accused. It is also matter of record that during course of investigation three co-accused were found innocent and they were let-off by police while placing their names in column No.2 of the challan; meaning thereby that the prosecution itself did not believed its own version as mentioned in the F.I.R.
12. In view of all these factors, it is observed that the learned trial Court has not evaluated the above evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence.
13. Accordingly, in view of above the instant appeal was allowed. The conviction and sentence awarded to the appellant was set-aside and he was acquitted of the charge by extending him benefit of doubt and was directed to be released forthwith, if his custody is not required in any other case, vide my short order dated 11.05.2018 and these are the reasons for the same.
JUDGE
Ansari/*