IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Appeal No. S- 62 of 2016.
Appellant: Asad Brohi, through Mr. Habibullah Ghouri, Advocate.
Respondent: The State, through Raja Imtiaz Ali Solangi, A.P.G.
Date of hearing: 18.05.2018.
Date of Judgment: 18.05.2018.
JUDGMENT
AMJAD ALI SAHITO, J-. Through this criminal appeal, Asad son of Aacher Brohi has impugned the judgment 30.05.2016, passed by learned Additional Sessions Judge-II, Shikarpur, in Sessions Case No.608 of 2015, Re; St. v. Asad, arisen out of Crime No.07 of 2015 registered with Police Station Nabi Shah Wagan (District Shikarpur); whereby the appellant was convicted for offence under Section 302 (b) and sentenced to imprisonment for life and pay “Diyat” to the legal heirs of deceased Ram Bibi amounting to Rs.19,23,843/-; it was ordered that appellant would remain in custody until he paid the amount of “Diyat”. The appellant was also convicted for offence under Section 324 P.P.C for causing injuries to deceased Mehar Brohi and sentenced to undergo R.I for five years with fine of Rs.10,000/- and in default thereof to undergo S.I for two months. However, he was extended benefit of Section 382-B Cr.P.C.
2. The facts of the prosecution case are that on 20.3.2015 complainant SIP Ghulam Qamber Kumbhar SHO of P.S Nabi Shah Wagan lodged F.I.R on behalf of the State, stating therein that on fateful day he alongwith his subordinate staff was on patrolling duty by a private vehicle and during patrolling at 11.30 hours they reached near village Dodo Khoso, where they saw three armed persons who were following one man and one woman with intention to commit their murder. They identified the accused, to be Asad having hatchet, Saeed armed with T.T pistol and Shahzado having gun in his hand; while chasing man and women the accused were saying that they have illicit relations with each other, therefore, they will not spare them. Meanwhile, accused Asad caused hatchet blows to that woman who fell down on the ground, while accused Saeed fired from pistol upon that man on instigation of accused Shahzado and that person on receipt of firearm injury fell down on the ground. Then, accused Asad Brohi also caused hatchet blows to that person and thereafter all the accused persons escaped away towards jungle. The complainant saw that man who was dead while woman was seriously injured and she disclosed her name as Ram Bibi. The complainant took dead body and injured woman to hospital but on the way to hospital she succumbed to injuries. The complainant then took both dead bodies to hospital and after postmortem handed over the same to legal heirs and he went to police station and lodged the F.I.R 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 two nominated accused were shown as absconding. 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.11, to which he pleaded not guilty and claimed trial. As such prosecution examined its witnesses.
5. PW-1 Dr. Marjan Fatima was examined at Ex.13, who produced postmortem report of deceased Ram Bibi at Ex.13-A. PW-2 Dr. Dayal Das at Ex.14, he produced postmortem report of deceased Mehar Brohi at Ex.14-A. PW-3 complainant SIP Ghulam Qamber was examined at Ex.15; who produced mashirnama of arrest and recovery of hatchet at Ex.15-A, mashirnama of recovery of blood stained earth at Ex.15-B, mashirnama of place of vardat at Ex.15-C, danishtnama of deceased Mst. Ram Bibi at Ex.15-D, mashirnama of inspection of dead body of deceased Mst. Ram Bibi at Ex.15-E, danishtnama of deceased Mehar at Ex.15-F, mashirnama of inspection of dead body of deceased Mehar at Ex.15-G, report of chemical examiner at Ex.15-H, entries at Ex.15-I to Ex.15-K. PW-3 PC Ghulam Hussain was examined at Ex.16. PW-5 Tapedar Sadaruddin was examined at Ex.22, who produced sketch of vardat at Ex.22-A. PW-6 PC Ghulam Hyder was examined at Ex.23, who produced receipt of dead bodies at Ex.23-A. Thereafter, the prosecution closed its side vide Ex.24.
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 but lead evidence in his defence by examining one Kajlo Khan at Ex.26 and Ghulam Shabir at Ex.27.
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 are the police personnel and no any independent person was cited or examined by the prosecution and that evidence of witnesses examined at trial is unrealistic, full of contradictions, tainted with doubts and could not be relied upon; as such it was in-sufficient for awarding conviction. He further contended that the defence plea if put in juxta position, it has more weight than the prosecution case. He further contended that the prosecution case is belied by the medical evidence and that the story as narrated by the prosecution is totally un-believable and does not appeal to a prudent mind. 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 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. Perusal of contents of the F.I.R and evidence brought on record through complainant SIP Ghulam Kamber and PC Ghulam Hussain shows that the police party was on patrolling duty and when reached the place of occurrence they noticed three accused persons chasing a man and a woman and in their presence the accused persons caused murder of that man and woman by inflicting hatchet injuries and pistol shot. A prudent mind cannot accept this version that two persons were being murdered in presence of the police party consist of five persons duly armed with official weapons, but none of them come forward to save the deceased by making an aerial firing etc. As such the prosecution case in its entirety does not appeal to a prudent mind and it appears that a concocted story has been furnished. On the contrary, the defence version put forth by the appellant in his statement under Section 342 Cr.P.C and by producing defence witnesses has some weight that both the deceased had been murdered by their enemies and the fact of enmity of accused persons with other tribes has been admitted by both the eyewitnesses in their evidence. The medical evidence is also not in line with the ocular version, as according to complainant SIP Ghulam Kamber and PW PC Ghulam Hussain, the accused Asad had hit hatchet injury on head of deceased Mst. Ram Bibi, while as per her postmortem report she had in all seven injuries on her person. The complainant in his cross-examination has deposed that male deceased had sustained one fire shot injury, whereas postmortem report of deceased show that he had sustained in all four injuries on his person. PW PC Ghulam Hussain in his cross-examination has also contradicted medical evidence by deposing that lady deceased had three injuries.
12. Moreover, both the eyewitnesses have deposed in their examination-in-chief that accused Saeed fired single pistol shot at deceased Mehar, but in their cross-examination both of them have contradicted their own version by deposing that two empties of pistol were recovered from place of occurrence.
13. Furthermore, except police personnel no any person was cited or examined as witness during trial, through it has been admitted by the witnesses in their statements that they proceeded to place of occurrence by a private vehicle, which was being driven by private driver, but that driver has not been examined as witness.
14. 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, as evidence of witnesses examined at trial was un-realistic, tainted with doubt and could not be relied upon; as such it was in-sufficient for awarding conviction.
15. 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 18.05.2018 and these are the reasons for the same.
JUDGE
Ansari/*