IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Jail Appeal No. D- 01 of 2011
Present:-
Mr.
Justice Muhammad Iqbal Mahar &
Mr.
Justice Amjad Ali Sahito
Appellant: Shabbir
Ahmed S/o Miro alias Mir Muhammad Dahar
through
Mr. Amanullah G. Malik, Advocate
Respondent: The State, through Mr.
Abdul Rehman Kolachi, Deputy Prosecutor General
Mr.
Shabbir Ali Bozdar, Advocate for the complainant
Date of hearing: 12.09.2018
Date of decision: 12.09.2018
J U D G M E N T
AMJAD ALI SAHITO, J-. The above named
appellant was tried by learned 1st Additional Sessions Judge / Special Court
(STA) Ubauro at Ghotki, in Special Case No. 13 of 2001, St. Vs. Miro alias Mir
Muhammad and another, for offences punishable under Section 302, 449 PPC, vide Crime
No.86/1999 registered with Police Station Ubauro, District Ghotki, whereby he
was convicted and sentenced to suffer imprisonment for life under Section 302
PPC and to pay fine of Rs.100,000/-, in
case of default in payment of fine, he should undergo R.I for 06 months more
and appellant was further directed to pay Rs.200,000/- as compensation to the legal heirs of
deceased Ghulam Hussain, in case of default in payment of compensation, he
should also undergo R.I for 06 months more. However, the benefit of Section 382-B Cr.P.C
was also extended to him vide impugned judgment dated 28.12.2010.
2. The concise facts as depicted in FIR
are that on 25.07.1999 at about 0810 hours, complainant Abdul Jabbar Arain lodged
FIR with Police Station Ubauro, in which he has mentioned that sometime ago
Shabbir Ahmed Dahar had exchanged harsh words with his father over the landed
property, but on intervention of the neighbours they were calm, whereas,
accused Shabbir Ahmed and his father Mir Muhammad were threatening them. On the
eventful date, he and his father wokeup at about 12:15 a.m (night) on the
barking of dogs and saw on the electric light each one (1) Miro alias Mir
Muhammad, having Gun, (2) Shabbir Ahmed having Kalashnikov and two unidentified
persons armed with guns, entered into their house and challenged them
(complainant party) and accused Miro alia Mir Muhammad made direct fire from his
gun which hit his father, as such he immediately fell down and raised cries,
which attracted the neighbours namely Fakir Hussain S/o Muhammad Hanif (2)
Muhammad Anwar S/o Mushtaque Ahmed, who came running there and saw the accused
persons, thereafter in their presence accused Shabbir Ahmed made direct fire
from his Kalashnikov at his father Ghulam Hussain with intention of murder.
Thereafter the accused persons went away. The complainant went over his father
and found him sustained firearm injuries on his chest, leg and arm and bleeding
and was died. The complainant left the witnesses at the place of incident and
himself went to village for narrating the facts to Fida Hussain Niazi and on
his advice he went to police station and lodged the FIR against the accused.
3. On 25.09.2001,
the learned trial Court after observing all the legal formalities, framed the
charge against the present appellant at Ex.02 under Section 302, 449 r/w
Section 34 PPC, to which he pleaded not guilty and claimed trial.
4. In order
to establish accusation against the appellant, the prosecution examined PW-1
complainant Abdul Jabbar at Ex.10, who produced FIR and receipt at Ex.10/A and
10/B respectively; PW-2 Eye-witness Fakir Hussain at Ex.11, PW-3 Muhammad Anwer
at Ex.12; PW-4 mashir Muhammad Boota at Ex.13, who produced mashirnama of place
of incident and inspection of the dead body at Ex.13/A, mashirnama of arrest at
Ex.13/B; PW-5 Tapedar Jalaluddin at Ex.14, who produced sketch of vardaht at
Ex.14/A; PW-6 I.O SIP Muhammad Ismail Bozdar at Ex.15; PW-7 Muhammad Aslam
Langah SHO P.S Mirpur Mathelo at Ex.16.
Learned DDPP produced the chemical report through statement at Ex.17; PW-08
Medical Officer Dr. Noor Ahmed Chachar at Ex.18, who produced attested copy of
postmortem report at Ex.18/A. Thereafter learned ADPP for the State closed the
side of prosecution vide statement dated 04.10.2013 at Ex.19.
5. Statement
of the accused was recorded under Section 342 Cr.P.C at Ex.20, wherein he
denied the prosecution allegations leveled against him and prayed for justice.
He did not examine himself on oath, but examined Abdul Qadir at Ex.22 and Wahid
Bux Shaikh at Ex.23 as defence witnesses and thereafter learned counsel for the
appellant closed it’s side.
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 to the
present appellant, which he has impugned through instant appeal before this
Court.
7. Mr. Amanullah
G. Malik, 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 been falsely implicated in this case; that complainant and
his eye witnesses are not eye witnesses of the incident; that the presence of
the eye witnesses at the place of incident is doubtful as none of them
physically intervened in order to save the victim or apprehend accused at the
spot; that the evidence of prosecution witnesses is full of contradictions and
discrepancies, which are fatal to the prosecution case; that the alleged incident has taken place in
the night time, whereas, the identity of the appellant has been shown on the
electric light, which is weak piece of evidence; that the ocular testimony is not
in consonance with medical evidence; that the defence plea taken by the
appellant is more plausible and fitting in the circumstances of the case than
the story narrated by the P.Ws; that the
trial Court has not decided the case of the appellant by keeping in
juxtaposition the defence evidence but has relied upon the prosecution story
and convicted the appellant. 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. In support of his contentions, he relied upon case
of Abdul
Hamid v. The State PLD 1980 Peshawar 25,
Rahat Ali v. State 2010 SCMR 584, Sardar Bibi v. Munir Ahmed 2017 SCMR 344 and
Muhammad Asif v. The State 2017 SCMR 486.
8. Mr. Shabbir
Ali Bozdar, learned counsel for the complainant argued that there was no malafide on the part of complainant to
implicate the appellant in this case falsely; that the appellant is named in
the FIR with specific role of firing upon the deceased; that the ocular
testimony furnished by the complainant and the eye witnesses is corroborated
with medical evidence. He further argued that the learned trial Court has
rightly appreciated the evidence while recording conviction and sentence to the appellant, prayed for dismissal of the
instant appeal.
9. Mr. Abdul
Rehman Kolachi, learned Deputy Prosecutor General submits that although it was
a case of night but the complainant and eyewitnesses being the residents of the
same locality are well-known to each other, hence on the light of electricity glowing
in the house of the deceased, the appellant and co-accused Mir alias Mir
Muhammad have been rightly identified at the spot. He further contended that
the role of direct firing from Kalashnikov is attributed to the preset
appellant, therefore, the learned trial Court has rightly come to the
conclusion that he is responsible for the commission of murder, hence he supported
the impugned judgment.
10. Having
heard the learned counsel for the parties and perused the record, we have
observed that the present case hinges upon two sets of evidence, one ocular
testimony and another is medical evidence. The ocular evidence is consisting
upon complainant Abdul Jabbar, eyewitnesses Fakeer Hussain and Muhammad Anwer.
First of all it is to be seen as to whether these witnesses have given a
unanimous evidence or not.
11. PW-1 complainant
Abdul Jabbar has deposed that deceased Ghulam Hussain aged about 50/52 years
was his father, the accused persons were known to him being residents of
village Allah Ditto Arain and previously accused Mir Muhammad and Shabbir Ahmed
had exchanged harsh words with his father over the landed property as such
threats were issued by them. On 25.07.1999, he along with his father and other
family members slept in their house, when at about 12:15 a.m (night), they
woke-up on the barking of dogs, saw accused Mir Muhammad with gun, Shabbir
Ahmed with Kalashnikov and another unidentified person with gun, they were
identified on electric bulb; out of them accused Mir Muhammad challenged
deceased Ghulam Hussain and made direct fire upon him which hit him; they
raised cries which attracted P.Ws Fakir Muhammad and Muhammad Anwer who came
there and saw the accused, whereafter accused Shabbir Ahmed also made
Kalashnikov fire upon Ghulam Hussain which too hit him on his chest, arm and
leg. Thereafter accused escaped away and then he want over his father and found
him bleeding and dead and he then went to narrate such facts to his nekmard
Fida Hussain and thereafter such FIR was lodged at police station. In his
cross-examination the evidence of complainant has been shattered and he has
contradicted his own version on material aspects of the incident and presence
of the witnesses at the place of incident. He has admitted that at the time of
incident, the other family members were also available in the house including
his sister and mother, whereas, the houses of other people of Bhutta and Kori
community are also situated in the same village. He has stated that he did not
remember that who made the first fire.
12. PW-2
Fakeer Hussain in his deposition has stated that the incident took place on
25.07.1999, it was midnight time, when he heard the cries so also fire shots
from the house of complainant Abdul Jabbar, hence he and PW Muhammad Anwer went
running there and saw accused Mir Muhammad with gun while accused Shabbir Ahmed
with Kalashnikov-rifle and one unknown person armed with gun, they were
identified on electric bulb. He also deposed that he saw accused Shabbir Ahmed
while firing upon Ghulam Hussain and thereafter the accused escaped away
towards southern side. In his cross-examination, this witness has also given
different aspects of the alleged incident while replying the questions of
defence counsel that he heard 5/6 fires of gun and kalashnikov; the accused
completed the incident within one minute and were at the distance of 2/3 feet;
on cries 15/16 other persons of village gathered there. He also belied the
version of complainant with regard to the enmity by stating that there was no
dispute between the complainant and the accused party.
13. PW-3
Muhammad Anwer in his examination-in-chief has deposed that on 25.07.1999 it
was 12:15 of night he was sleeping in his house and suddenly heard the noise of
fires from the side of wall of his house, the same were coming from the house
of Abdul Jabbar, as such he rushed there while Fakir Hussain had also arrived
there. He deposed that they saw the accused on electric light and accused
Shabbir Hussain with kalashnikov and accused Mir Muhammad was armed with gun
and within their sight accused Ghulam Shabbir fired upon Ghulam Hussain who
fell-down then the accused while making aerial firing escaped away. Thereafter
they went over Ghulam Hussain and saw him dead, the complainant leaving him and
Fakir Hussain at the place of incident, brought the nekmard at the place of
incident and on his advice lodged such FIR. In the cross-examination, he has
contradicted his own version stating that when they reached at the place of
incident, they saw that deceased Ghulam Hussain was lying dead, meaning thereby
that he had not witnessed the incident as per the version setup by the
complainant in his evidence that the witnesses had arrived and seen the accused
persons while making fires upon the deceased.
14. According
to the prosecution, the incident took place at 12:15 a.m in odd hours of the
night and it is alleged that the accused persons were identified on the bulb
light which were glowing at the time of incident, whereas, during investigation
no such bulb was taken into possession. In that eventuality, the identification
of the accused is highly doubtful especially when eyewitnesses allegedly saw
the occurrence from a close range. The complainant and P.Ws in their evidence
have deposed that the accused persons had made fires from very close range of
2/3 feet, whereas, the evidence of Tapedar has belied such version of the
eyewitnesses and confirmed all the distances and points given in the sketch.
According to the sketch the distance shown between the deceased and the accused
is thirty feet from where they are alleged to have made fires. The Medical
Officer examined by the prosecution has stated in his evidence that he
conducted the autopsy of deceased Ghulam Hussain on 25.07.1999 at 9:15 on the
same day, whereas, the duration between the death and postmortem examination is
given 12 hours, if the maximum time is taken into consideration, the one
favourable to the accused, the time of occurrence would be around 08:00 p.m,
thus the medical evidence does not support in any manner the time of death of
the deceased or to say the time of occurrence.
15. Furthermore,
the ocular evidence furnished by the prosecution in shape of complainant Abdul
Jabbar, eyewitnesses Muhammad Anwer and Fakir Hussain is contradictory to each other,
which requires some substantial support from the medical as well as
circumstantial evidence, particularly the crime weapons used in the commission
of the offence. From the perusal of whole prosecution case, we did not find
that the crime weapon which were allegedly used by the present appellant in the
commission of the offence have been recovered from the possession of the
present appellant or any persuasive efforts were made by the Investigating
Officer to secure the same. Mere
recovery of empties of 12 bore gun and 7.62 bore which were secured from the
place of incident were sent to the chemical examiner for examination on
14.02.2001 almost after the delay of about 06 months of its recovery, are not
favourable to the prosecution at all.
16. Thus, all
these contradictions as pointed out above in the evidence of prosecution
witnesses discard the veracity of their statements, which are sufficient to
render the entire case of prosecution to be highly doubtful. The
rule of benefit of doubt is essentially a rule of prudence, which cannot be
ignored while dispensing justice in accordance with law. Conviction must be
based on unimpeachable evidence and certainty of guilt and doubt arising in the
prosecution case must be resolved in favour of the accused. The overall
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. We are fortified
by the authority reported in the case of Muhammad
Masha v. The State (2018 SCMR 772), wherein the Honourable Supreme Court of
Pakistan has held that:-
“4……Needless 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 guilty 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 (2013 SCMR 749).
17. 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.
18. These are
the reasons of our short order dated 12.09.2018.
Judge
Judge
ARBROHI