IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No. S-100 of 2011.
Appellants: (1) Ubedullah s/o Abdul Rehman Bangulani
(2) Abdul Rehman s/o Abdul Qadir Bangulani
(3) Samandar s/o Abdul Rahim Bangulani
Through Mr.Asif Ali Abdul Razzaque Soomro, Advocate.
Complainant: Abdul Jabbar s/o Haji Hazar Khan Bangulani
Through Mr.Habibullah Ghouri, Advocate
State: Through Mr.Sharafuddin Kanhar, A.P.G.
Dates of hearings: 04.05.2018 & 07.05.2018.
Date of decision: 25.05.2018.
J U D G M E N T
AMJAD ALI SAHITO, J-. The above named appellants were tried by learned 1st Additional Sessions Judge, Jacobabad, in Sessions Case No.177 of 2008, St.Vs.Ubedullah and others, for offence punishable u/s.302,149 PPC, vide Crime No.55/2005, registered with Police Station, Thull, whereby they were convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.200,000/-, and in default of payment of fine, to suffer R.I. for 06 months more vide impugned judgment dated 11.08.2011. However, the benefit of Section 382-B Cr.PC was also extended to them.
2. The brief facts of the prosecution case as depicted in the FIR are that on 24.06.2005, at 1300 hours, complainant Abdul Jabbar son of Haji Hazar Khan Bangulani lodged FIR with Police Station, Thull, stating therein that deceased Hafeezullah aged about 18/20 years was his younger brother, who used to study at Madersah of village Mochi and he had come to home one day prior the incident. The complainant had purchased paddy seedling from one Haji Abdul Rehman Bangulani and today at morning, he alongwith his brothers namely Hafeezullah, 2).Fateh Ali, and 3).Himath Ali, went to pluck the paddy seedling in village Haji Abdul Rehman Bangulani and after plucking and keeping it there, they were returning back to their home. At about 08.00 a.m, when they reached at call’s distance from village Abdul Rehman Bangulani, they noticed accused namely Haji Abdul Rehman, 2).Raheem, 3).Hamid, all sons of Abdul Qadir, 4).Ubedullah son of Abdul Rehman, 5).Samandar son of Raheem, all by caste Bangulani, resident of village Abdul Rehman Bangulani, who were standing there. Of them, accused Raheem was armed with Kalashnikov, while rest were armed with guns, who on coming near to them, aimed their weapons upon them and while raising hakals asked that Hafeezullah is their Karo and he will be done to death by them. Due to fear of weapons, the complainant party stood at some distance while his brother Hafeezullah started running, whereupon accused Abdul Rehman fired at him with intention to commit his murder, which hit him on his back. Accused Samandar fired at Hafeezullah on his left arm while accused Ubedullah fired at him on his left flank and he fell down raising cries. Thereafter, all the accused fled away towards the house of Haji Abdul Rehman saying that Hafeezullah has been done to death over the pretext of “Karap” with Mst.Soomri d/o Warrayo w/o Ubedullah, and they are going to kill Mst.Soomri at her house, and subsequently they heard the cries of Mst.Soomri. After a while, all the accused went away towards western side while raising slogans. The complainant then saw his brother Hafeezullah having above detailed fire-arm injuries on his body with bleeding and was expired. Thereafter, the complainant party went to the house of Abdul Rehman and saw Mst.Soomri aged about 20/22 years lying on the ground having strangulation marks on her neck and she was died. After arranging the conveyance, the dead bodies of deceased Hafeezullah and Mst.Soomri were shifted to Taluka Hospital Thull, where leaving their dead bodies, the complainant came at police station and lodged the FIR against the above named accused. The investigation officer after observance of legal formalities submitted the report u/s.173 Cr.PC before the concerned Court by showing accused Ubedullah, Abdul Rehman and Samandar in custody while the names of accused Hamid and Raheem were placed in column No.2, who subsequently were joined to face trial.
3. On 03.05.2008, the learned trial Court after observing all the legal formalities, framed the charge against all the accused(Exh.02) under Section 302 r/w section 149 PPC, to which they pleaded not guilty and claimed trial.
4. In order to establish accusation against all the accused, the prosecution then led its’ evidence and examined PW-01 SIP Muhammad Khan at Exh.04, he being author of FIR produced the photo stat copy of FIR at Exh.04/A. PW-02 Medical Officer Dr.Abdul Hameed at Exh.05, he produced photo stat copy of postmortem report of deceased Hafeez at Exh.05/A. PW-03 Abdul Jabbar Bangulani at Exh.08. PW-04 Fateh Ali Bangulani at Exh.09. PW-05 Himath Ali Bangulani at Exh.10. PW-06 WMO Dr.Hameeda Asif at Exh.11, she produced photo stat copy of postmortem report of deceased Mst.Soomri at Exh.11/A. PW-07 Manzoor Ahmed Bangulani at Exh.12, he produced carbon copy of mashirnama of place of incident at Exh.12/A, mashirnama of inspection of dead bodies at Exh.12/B, and mashirnama of place of incident i.e place of death of deceased Mst.Soomri at Exh.12/C. PW-08 ASI Shahan Shah at Exh.13, he produced photo stat copy of mashirnama of arrest of accused Abdul Rehman and recovery at Exh.13/A. PW-09 PC Kaloo Khan at Exh.14, he produced receipt of delivery of dead body of deceased Hafeezullah at Exh.14/A, photo stat copy of mashirnama of arrest and recovery from accused Ubedullah at Exh.14/B, and photo stat copy of mashirnama of arrest and recovery from accused Samandar at Exh.14/C. PW-10 HC Noor Hassan at Exh.16, he produced receipt of delivery of dead body of deceased Mst.Soomri at Exh.16/A. PW-11 Muhammad Younis at Exh.18, he produced mashirnama of house inspection at Exh.18/A. PW-12 SIO Nazir Ahmed Dayo at Exh.19. Later-on, the side of prosecution was closed by learned DDA vide statement at Ex.20.
5. Statements of the all accused were recorded under Section 342 Cr.PC at Ex.21 to 25, wherein they denied the prosecution allegations leveled against them. Accused Ubedullah, Abdul Rehman and Samandar in support of their case produced certified true copies of judgments dated 20.04.2010 passed in cases relating to recovery of crime weapons from them under Arms Act. However, none of them examined themselves on Oath in terms of Section 340(2) Cr.PC nor produced any witness in their defence.
6. The learned Trial Court, after hearing the learned counsel for the parties and going through the material brought on record, awarded conviction and sentence against the present appellants while acquitted co-accused Hamid and Raheem vide judgment dated 11.08.2011, which the present appellants have impugned before this Court by way of filing instant appeal.
7. Learned counsel for the appellants contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been involved in this case by the complainant party; that the FIR has been lodged with considerable delay without furnishing any plausible explanation which reflects due deliberation and consultation, that there is conflict between the ocular and medical evidence, all the witnesses cited in the case are closely related inter-se and are hostile against the appellants; that neither any inmate of house of deceased Mst.Soomri was shown to be present at the time of incident nor was cited as witness in this case which clearly negates the version of the complainant party; that the present appellants have also been acquitted from the cases relating to recovery of crime weapons viz.guns, that there are several other material contradictions in the evidence of witnesses, which are fatal to the prosecution case. He lastly contended that the prosecution has miserably failed to prove the case against the appellants and thus, according to him, under the above mentioned facts and circumstances, the appellants are entitled for their acquittal.
8. While rebutting the above contentions, the learned for the complainant argued that the appellants are named in the FIR with specific role of firing at deceased Hafeezullah; that the ocular version is consistent with medical evidence; that the FIR has been lodged promptly; all the witnesses have supported the version of the complainant; that there was no material contradiction in the evidence of prosecution witnesses, in that situation, the learned trial Court has rightly appreciated the evidence for recording the conviction and sentence of the appellants in accordance with law and thus lastly prayed for dismissal of the instant appeal. In support of his contentions, he placed his reliance upon case of Roohul Amin and another vs. The State 2014 SCMR-348 and case of Zulfiqar Ali vs. the State 2008 SCMR-796.
9. Learned A.P.G for the State conceded the arguments advanced by learned counsel for the complainant.
10. I have heard learned counsel for the parties and have minutely perused the record.
11. The presumption of innocence remains throughout the case until such time, the prosecution on the evidence satisfied the Court beyond a reasonable doubt that the accused is guilty. It is one of the principles, which seeks to ensure that no innocent person is convicted. On evaluation of the material brought on the record, it appears that the case of prosecution solely depends upon the ocular testimony adduced in shape of statements of complainant Abdul Jabbar(PW-03) and his brothers i.e eye-witness Fateh Ali (PW-04) and eye-witness Himath Ali (PW-05). It is evident from the evidence of complainant Abdul Jabbar that one day prior to the incident, the complainant party purchased paddy seedling from the accused party and on the day of incident, at about 04.00 a.m, they left their house and started plucking the paddy seedling from the land of accused Abdul Rehman which was at distance of fifty paces away from their house. The complainant party after plucking the paddy seedling and keeping it there were returning back and when reached near the house of accused Abdul Rehman, where all the accused allegedly emerged from their house and killed deceased Hafeezullah after declaring him as “Karo”. It is pertinent to mention here that prior to this, deceased Hafeezullah was not blamed as “Karo” and if the accused persons had any intention to kill Hafeezullah, then there was no reason for them to wait for him till 08.00 a.m, when deceased Hafeezullah was already within their sight. As per complainant, the appellants fired from their respective guns from distance of 20 paces, which hit Hafeezullah(deceased) on his back and other parts of his body resulting his death after falling down on the ground, but it was incredible that not a single witness received even a single pallet injury when the fires were made from the guns from such distance then usually the pallets spread. The complainant in his evidence further deposed that the accused persons after committing murder of deceased Hafeezullah went towards their houses with intention to kill Mst.Soomari, who were followed by the complainant where he found the dead body of Mst.Soomari lying dead on the ground and he then noticed that the accused fled away raising slogans. Thereafter, the dead bodies of both the deceased were brought at Taluka Hospital Thull by complainant party and then the complainant went to police station for lodging the FIR against accused persons. In his cross examination, he admitted that at 04.00 a.m, he left his house without having any food and further admitted that he lodged the FIR after inspection of dead bodies by the police at hospital, then the police also inspected the place of incident at about 03.00 p.m. He further admitted that accused/appellant Abdul Rehman could have seen them while plucking the seed from his house. He further stated that he brought the police at place of vardat of deceased Hafeezullah after 03.00 p.m and that they had received the dead bodies back at 03.30 p.m and came directly to their village for funeral ceremony. PW Himath Ali in his cross examination deposed that they received the dead bodies back at 01.00 or 02.00 p.m and that they brought the dead bodies directly to their home and his statement was recorded at police station on the same day at about 02.00 p.m in presence of PW Fateh Ali, who was also accompanied with him at that time. He further stated that the police recorded statement of PW Fateh Ali in his presence. However, all these eye-witnesses admitted that their lion-clothes including deceased were stained with mud but none of them had shown the place of plucking the paddy seedling to the police to believe that whether they had gone to pluck the paddy seedling or not, thus their version has totally been negated by the medical officer Dr.Abdul Hameed(PW-02) who in his evidence has deposed that he received the dead body of deceased Hafeezullah on 24.06.2005 at Taluka Hospital Thull, through PC Kaloo Khan of P.S Thull under letter bearing No.Cr.No.55/2005, and started its postmortem examination at about 04.00 p.m and completed it at 05.00 p.m. However, WMO Dr.Hameeda Asifa(PW-06) in her evidence deposed that she received dead body of deceased Mst.Soomari on 24.06.2005 at Civil Hospital, Jacobabad, through PC Noor Hassan of P.S Thull for postmortem examination and report, which was identified by Mumtaz and Haji Akbar(brother and uncle of the deceased) and her postmortem examination was started at 05.00 p.m and finished at 06.00 p.m. In this case, the incident is said to have taken place at about 08.00 a.m and the dead bodies of both the deceased were shifted jointly by complainant party in one and same vehicle for postmortem examination to Taluka Hospital Thull, thereafter the FIR was lodged but the complainant in his evidence admitted that after leaving the dead bodies at hospital for most-mortem, he went to police station for lodging the FIR against the accused persons, whereas both the medical officers in their evidence deposed that they received the dead bodies through police under reference letters containing crime number thereon. Further, the complainant party could not witnessed the second part of the incident i.e murder of deceased Mst.Soomari that in what manner she was murdered by the accused party, when deceased Hafeezullah(brother of complainant) being blamed as “Karo” was done to death then despite an extreme fury against the accused party then how the complainant party had access to go inside their house without having any fear to their lives. Furthermore, the complainant party also did not disclose the presence of any inmate in the house of deceased Mst.Soomri, who could have witnessed the incident, whereas her dead body was identified at hospital by Mumtaz and Haji Akbar(brother and uncle of deceased), which reflects that her brother and uncle remained available in the house, and he(complainant) himself shifted the dead bodies of both the deceased who were blamed as “Karo-Kari” in one same Dotson, which does not appeal to the prudent mind. Moreover, the complainant admitted that at about 04.00 a.m, they left their house without taking any food but the postmortem examination on the dead body of deceased Hafeezullah reveals that his stomach was found full of semi digested food but Dr.Abdul Hameed(PW-02) in his cross examination admitted that the food is to be digested within five hours while the same is semi digested within three hours. PW-Himath Ali in his cross examination admitted that they received back the dead bodies at 01.00 or 02.00 p.m and brought at home, while PW-02 Dr.Abdul Hameed in his evidence stated that he started postmortem of deceased Hafeezullah at about 04.00 p.m and completed it at 05.00 p.m, and found him wearing little blue color Shalwar and Kamees without having any mud thereon, though all these eye-witnesses disclosed in their evidence that they had worn lion-clothes which were duly stained with mud while plucking the paddy seedling. In this case, the FIR was lodged with delay of about five hours to the incident without any plausible explanation, which reflects due deliberation and consultation. Moreover, the postmortem was conducted on the dead bodies with delay of about 8/9 hours after the incident, for which there was no any plausible explanation furnished by the complainant Abdul Jabbar and eye-witness Fateh Ali and Himath Ali(being real brothers of the deceased) regarding such delay. In this context, the reliance is placed upon case of Zafar vs. The State(2018 SCMR-326), wherein the Hon’ble Supreme Court of Pakistan has held that;
“5. It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 03.00 a.m(later half of night) and the matter was reported to the police on the same day at 08.30 a.m. i.e after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m i.e after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali(PW-05) and Umer Daraz (PW-06) in the FIR or while appearing before the learned trial Court qua the delay in lodging the FIR or for that matter the belated postmortem of the deceased”.
In another case law reported in case of Nazir Ahmed vs. The State (2018 SCMR-787), wherein the Hon’ble Supreme Court of Pakistan has held that;
“3.--Instead of providing support to the ocular account the medical evidence produced by the prosecution had gone a long way in creating dents in the case of prosecution. Postmortem examination of the dead body had been concluded after about 13 hours of the death of the deceased giving rise to an inference that time had been consumed by complainant party and the local police in cooking up a story for the prosecution and in procuring and planting eye witness. The time of death of the deceased stated by the eye witness was materially different from the discernible from the medical evidence”.
12. So far the evidence of mashir Manzoor Ahmed(PW-07) is concerned, he in his examination-in-chief deposed that he saw the dead body of lady with towel wrapped on her neck, whose name was not remembered to him. Thereafter, the police collected blood stained earth and three shells from the place of vardat at 08.30 or 09.00 a.m but the mashirnama of place of incident reveals that it was prepared on 24.06.2005, at about 1530 hours. This mashir lastly disclosed that his signatures were obtained on blank papers. However, he denied the averments made in the mashirnama(s) but he also stood at his same stance despite cross examined by learned DDA. Regretful to say that neither the aforesaid towel was secured by the investigation officer during course of investigation nor was produced before the Court at trial to substantiate the version of the complainant party regarding commission of murder of deceased Mst.Soomri at the hands of accused. In this case, the crime weapons viz.guns allegedly secured from the possession of present appellants were not sent to FSL for its report to match the same with empties secured from the place of vardat, which may justify the version of the complainant party. In addition to this, the present appellants have already been acquitted from the cases relating to recovery of crime weapons viz. guns and their acquittal(s) have not been challenged by the prosecution, which too have attained its finality. Further, the incident is said to have taken place during broad hours of the day near the village, which was witnessed by number of the inhabitants of the vicinity as admitted by the witnesses, yet no any independent person from the said area was cited as witness/mashir to prove the version of complainant party and all the witnesses cited in this case are brothers of the deceased and resided in one and same house. These all material contradictions noticed in the evidence of prosecution witnesses impaired the transparency of their statements and rendered it highly doubtful. In this context, the reliance is placed upon case of Mst.Shazia Parveen vs. the State(2014 SCMR-1197), wherein the Hon’ble Supreme Court of Pakistan has held that;
“4. Such related witnesses had failed to receive any independent corroboration inasmuch as there was no independent evidence produced regarding the alleged motive, alleged recovery of rope was legally inconsequential and the medical evidence had gone long away in contradicting the eye witnesses in many ways. The duration of the injuries and death recorded by the doctor in the postmortem examination report had rendered the time of death allegedly by the eye witness quite doubtful, the stomach contains belied the eye witnesses regarding the time of occurrence”.
13. The case law relied upon by learned counsel for the complainant is distinguishable with facts and circumstances of the present case.
14. The over-all discussion involved a conclusion that the presence of eye-witnesses at the place of occurrence on relevant time has been found to be doubtful and the medical evidence coupled with recovery has also been belied by the ocular account furnished by the complainant party. Thus, I am of the considered view that the prosecution has failed to bring home the guilt against the present appellants 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 is to be extended in favour of 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 arrived at an erroneous conclusion by holding the appellants guilty of the offence. Resultantly, the instant appeal is allowed. The conviction and sentence awarded to the appellants is set-aside and they are acquitted of the charge by extending them benefit of doubt. The appellants shall be released forthwith if they are no more required in any other custody case.
J U D G E
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