IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No. S-40 of 2016.
Appellant: Gahano s/o Muhammad Murad Gishkori
Through Mr.Safdar Ali Bhutto, Advocate.
Complainant: Aandal s/o Sadaruddin Domki
Through Mr.Khadim Hussain Khoso, Advocate
State: Through Mr.Sharafuddin Kanhar, A.P.G.
Date of hearing: 14.05.2018.
Date of decision: 28 .05.2018.
J U D G M E N T
AMJAD ALI SAHITO, J-. The above named appellant was tried by learned Sessions Judge Kashmore at Kandhkot, in Sessions Case No.243 of 2016, St.Vs.Gahano and another, for offence punishable u/s.302,34 PPC, vide Crime No.12/2011 registered with Police Station, Rasaldar, whereby he was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000/- to be payable to the legal heirs of the deceased, and in default of payment of fine, to suffer R.I. for 06 months more. However, the benefit of Section 382-B Cr.PC was also extended to him vide impugned judgment dated 18.04.2016.
2. The concise facts as depicted in FIR are that on 02.05.2011, at about 0100 hours, complainant Aandal son of Sadaruddin Domki lodged FIR with Police Station, Rasaldar, in which he mentioned that on 01.05.2011, he alongwith his father Sadaruddin, uncle Punhal and cousin Wali Muhammad Domki left their house for thrashing the wheat crop at village Sardar Taj Muhammad Domki. At about 10.00 p.m, when they reached near the house of accused Gahano Ghiskori, saw on torch light accused namely Gahano son of Muhammad Murad, Hafeezullah son of Allah Dino Ghiskori and one unknown culprit, duly armed with guns. On coming, accused Gahano while raising hakal asked his father Sadaruddin that he is “Karo” with his wife Mst.Hidayatan. Saying so, he fired at Sadaruddin with intention to commit his murder, which hit him on right of his back, while accused Hafeezullah also fired at him with intention to commit his murder, which hit him at his buttock and he fell down rising cry. Due to empty handed, the complainant party remained mum. Thereafter, all the accused went away towards their houses. The complainant then saw his father Sadaruddin having fire injuries which were bleeding and he was expired. After arranging conveyance, the dead body of deceased was then taken to police station where he lodged the FIR against the accused. The investigation officer after observance of all the legal formalities submitted the report u/s.173 Cr.PC before the concerned Court by showing accused Gahano in custody and co-accused Hafeezullah as absconder who was then declared as proclaimed offender after observing usual formalities.
3. On 12.10.2011, the learned trial Court after observing all the legal formalities, framed the charge against the present accused (Exh.07) under Section 302 r/w section 34 PPC, to which he pleaded not guilty and claimed trial.
4. In order to establish accusation against all the accused, the prosecution then examined PW-01 Complainant Aandal at Exh.09, he produced FIR at Exh.09/A. PW-02 Punhal Domki at Exh.10. PW-03 Dr.Nazimuddin at Exh.11, he produced inquest report at Exh.11/A and postmortem report at Exh.11/B. PW-04 PC Abdul Ghani at Exh.12, he produced receipt of delivery of dead body at Exh.12/A. PW-05 HC Sharafuddin at Exh.13, he produced mashirnama of arrest and recovery from present accused at Exh.13/A. PW-06 Muhammad Ramzan Domki at Exh.15, he produced mashirnama of inspection of dead body at Exh.15/A, danistnama at Exh.15/B, and mashirnama of place of incident at Exh.15/C. PW-07 Tapedar Liaquat Ali at Exh.16, he produced sketch of vardat at Exh.16/A. PW-08 HC Badal Khan at Exh.17. PW-09 ASI/SIO Qamardudin at Exh.18, he produced FSL report at Exh.18/A. Thereafter, learned ADPP for the State closed the side of prosecution vide statement at Ex.19.
5. Statement of the present accused was recorded under Section 342 Cr.PC at Ex.20, wherein he denied the prosecution allegations leveled against him and prayed for justice. However, he in support of his case produced certified true copy of judgment dated 17.08.2011 passed in case relating to recovery of crime weapon from him under Arms Ordinance at Exh.20/A. He neither examined himself on Oath in terms of Section 340(2) Cr.PC nor produced any witness in his 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 accused, which he has impugned before this Court by way of filing instant appeal.
7. 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 involved in this case by the complainant party; that the incident had taken place in dark hours of the night and the identification of the accused was made on a torch light, which was not produced at trial; that the present appellant has also been acquitted from the case relating to recovery of crime weapon from him, 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 appellant and thus, according to him, under the above mentioned facts and circumstances, the appellant is entitled for his acquittal.
8. The learned counsel for the complainant while rebutting the above contentions, argued that the accused is named in the FIR with specific role of firing at deceased; 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 was right to record the conviction and sentence of the appellant in accordance with law and thus lastly prayed for dismissal of the instant appeal.
9. Learned A.P.G for the State conceded the arguments advanced by learned counsel for the complainant and prayed for dismissal of instant appeal.
10. I have heard learned counsel for the parties and have perused the record.
11. On analysis of the material brought on the record, it is discernible from the FIR(Exh.09/A) that on 01.05.2011, the complainant alongwith his witnesses including deceased left their house and when reached near the house of present appellant at about 10.00 p.m(night), where on a torch light identified the present appellant alongwith co-accused Hafeezullah including one unknown culprit, duly armed with guns, who committed murder of deceased Sadaruddin by causing him firearm injuries. Hence, the prosecution case solely depends upon the ocular testimony of complainant Aandal Domki(PW-01) and his uncle i.e eye-witness Gulzar Ali (PW-02), who both tried to support the case of prosecution but their evidence on deeper scrutiny was found carrying serious infirmities. For the instance, the complainant in his examination-in-chief deposed that deceased Sadaruddin was ahead from them at distance of 10/15 paces, they brought the dead body at their house and after making arrangement shifted it to P.S Risaldar, where he lodged the FIR but he in his cross examination admitted that his house was situated one and half kilometer away from the place of vardat. He further admitted that the accused were sitting while hiding themselves in the small watercourse. The accused fired from inside the watercourse and they were at southern side at distance of 20 paces. The accused fired at distance of 10/15 paces. He also admitted that they reached within five minutes of death of deceased and his cousin brought the cot from their house and lifted the dead body at 10.00 p.m. He again said that they reached after 15 minutes of incident at place of incident and they kept the dead body from 02.00 a.m to 02.30 hours. PW Punhal brought the Dotson at about 12.00 night while PWs and both the mashirs were with him on Dotson. They reached at hospital at 01.00 a.m, and they stayed at P.S at 1 ½ hours and reached at hospital at about 04.00 a.m and stayed 2 ½ hours there. They brought the dead body from hospital at 10.00 a.m and had shown the place of incident to police at 02.00 p.m. The police secured two empty cartridges from watercourse and collected blood stained earth in polythene bag. He further admitted that the place of incident was on small road where Dotson mostly run. He finally admitted that there was old enmity between him and Sabzoi community. This version of complainant has been contradicted by Punhal(PW-02), who in his examination-in-chief deposed that he did not remember the date of incident nor remember how much period has expired after the incident. He further stated that on the eventful day at about 08.00 p.m, they left their house and reached the house of accused Gahano at about 09.30 p.m, the deceased was ahead from them, they heard fire shots and saw on torch light that accused Gahano, Hafeezullah and one unidentified accused ran away with DBBL guns and that the deceased died near the mosque. He in his cross examination admitted that the place of incident was situated at 30/40 paces from their house in which they jointly resided and admitted that their village is big village, there is only street between Mosque and house of accused, they all had separate torches, he saw the accused running away from their backside after making firing at his brother(deceased), it was dark night, they called the Dotson through mobile, Zamindar called the police at place of vardat, the police was with them at the time of shifting the dead body from the place of vardat to their house, they went to police station alongwith dead body, the police brought the dead body in Dotson. He further stated that he was not in senses after the incident and regained his sense after sunset time of the next day. It is astonishing to note that third witness namely Wali Muhammad(cousin of complainant) who witnessed the incident was not examined by the prosecution for no obvious reason, therefore, the presumption will be drawn under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984, that if he had been produced and examined in this case, then the same would have been unfavorable to the prosecution case. The contradictory version of above said eye-witnesses has totally been negated by the medical officer Dr.Nizamuddin(PW-03) who in his evidence has deposed that 02.05.2011, he received the dead body of deceased Sadaruddin at Taluka Hospital, Kandhkot, through PC Abdul Ghani for postmortem examination and report. On external examination of dead body of deceased, he found the following injuries;-
01. Lacerated punctured wound measuring 04 cm in diameter x cavity deep on lower part of back of right chest with blackening.
02. Lacerated punctured wound measuring 04 cm in diameter on back of right of lacteal region x muscle deep wound of entrance with blackening.
In his cross examination, he admitted that the deceased sustained injuries from distance of 03 to 10 feet and that he sustained two injuries which both were entry wounds, the deceased might have sustained pallet injury, no any metallic body secured from the body while the complainant in his evidence as well as FIR disclosed that the accused straight away fired at the deceased from distance of 10/15 paces but the medical officer found both the injuries on the person of deceased from his back side, which both were having blackening. None of the witness deposed that any of the accused/appellant had caused the injuries from close range whereas PW/Tapedar Liaquat Ali in his evidence deposed that as per sketch of vardat, the place of firing has been shown at 06 feet away from the deceased. Thus, from such a distance, injury with blackening cannot be caused as it can be caused from a distance of less than 03 feet as per Modis’ Medical Jurisprudence, hence it conflicts between the ocular and medical evidence. Furthermore, both these witnesses are not consistent with their statements with regard to place of incident. Complainant Aandal stated that the place of incident is situated at distance of 1½ kilometer away from their house where all the PWs reside and that the firing was made by the accused party from inside the watercourse, they reached at place of incident within five minutes again says at 15 minutes, which conflicts his own version as adduced in the FIR wherein it is averred that the deceased was going on the path, but his version is belied by PW-02 Punhal who in his evidence deposed that the deceased died near the Mosque and he heard shots and saw on torch light from their back side. Furthermore, the case of prosecution is that the incident is said to have taken at dark hours of the night and the accused persons were seen and identified on torch light. The evidence relating to the identification of accused on torch light has always been treated as weak piece of evidence. In addition to this, the said torches were admittedly not produced before the investigation officer or at trial, hence, the identification on torch light creates doubt.
12. So far the evidence of mashir Muhammad Ramzan(PW-07) is concerned, he produced mashirnama of inspection of dead body(Ex.15/A), which reflects over-writing on timing of its preparation while danistnama(Exh.15/B) also reveals the over-writing in the column of date of death of deceased. Moreover, PW/Tapedar Liaquat has stated in his evidence that sketch of vardat at Point-A, denotes that “the places where deceased Sadaruddin was said to be murdered with fire arm injuries when complainant, Sadaruddin(deceased) and PWs were sitting on a tractor”, but the evidence of all these eye witnesses before the learned trial Court as well as averments made in the FIR are totally silent with regard to boarding on a tractor. Besides this, the recovery of crime weapon is alleged to have been effected from the possession of present appellant, for which a separate case under Arms Ordinance was registered against the present appellant, and in that case he has already been acquitted vide judgment dated 17.08.2011, which has also attained its finality.
13. Turning to the motive as setup by the complainant in his FIR(Exh.09/A) was with regard to illicit terms of deceased with wife of appellant. For this account, no any substance was brought on record by the prosecution to justify the version/motive of the complainant. However, the complainant himself admitted in his cross examination that there was old enmity between the Domki and Sabzoi communities. Further, the incident is said to have taken place at the village surrounded by number of houses, yet no any dweller from the said village was cited as witness/mashir to prove the version of complainant party and all the witnesses cited in this case are closely related to the complainant as well as deceased and resided in one and same house. Thus, all these contradictions as pointed above in the evidence of prosecution witnesses discarded the veracity of their statements, which are sufficient to render the entire case of prosecution to be highly doubtful. 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:-
11. Having discussed all the aforesaid aspects of the case, it has been observed by us that medical evidence, motive, recovery and for that matter absconding of appellant are merely supportive/corroborative piece of evidence and presence of eye witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/ corroborative piece of evidence to convict the appellant on capital charge.
14. The over-all discussion involved a conclusion that the prosecution has failed to prove the guilt against the present 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 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 appellant guilty of the offence. Resultantly, 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. The appellant shall be released forthwith, if he is no more required in any other custody case.
J U D G E
-