IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S-183 of 2016

Appellant(s): Abdul Majeed & others.

Through Mr. Amanullah Malik, Advocate.

Respondent(s): The State through Mr. Afzal Hussain Talpur, A.P.G

Mr. Ghulam Shabbir Dayo, Advocate for complainant.

Date of hearing: 27.08.2018

Date of decision: 28.09.2018

J U D G M E N T

Khadim Hussain tunio, J-Through present Criminal Appeal, appellants have impugned judgment dated 28.09.2016, passed by learned V^th Additional Sessions Judge, Mirpur Mathelo in Sessions Case # 780 of 2011 whereby the appellants were convicted and sentenced, for offences punishable under section 148 & 149 PPC, to rigorous imprisonment for three years and fine of Rs. 20,000/- each and in case of default thereof to suffer S.I for six months more. Appellant Muhammad Bux was further convicted and sentenced u/s 302(b) PPC and sentenced to imprisonment for life. Rest of the appellants were further convicted u/s 302(b) PPC and awarded rigorous imprisonment for 10 years and Rs. 100,000/- (each) compensation to the legal heirs of the deceased, and in default thereof to suffer simple imprisonment for six months more.

2. Brief facts of the prosecution case are that there was a dispute between the complainant party and Raees Mitho Chachar and there was annoyance between either of the parties. On the eventful day, i.e. 19^thJune 2011, complainant’s cousin Mehrab received a phone call from one Jabbar who informed him that the dead body of his cousin Ameer Bux was lying near Village Hussain Chachar and he was asked to come and take the dead body. Thereafter complainant party rushed to the pointed out place and upon reaching they were surprised by the presence of accused persons named above and two unidentified persons, duly armed with deadly weapons. After an exchange of harsh words from the accused, accused Raees Mitho, Abdul Wahid and Muhammad Bux fired from their respective weapons, which hit the Mehrab and he fell down while raising cries. Accused Waryam and Jabbar fired from their respective weapons at P.W Ali Akbar which hit him and he fell down. Due to the cries raised by the complainant party and the shots, co-villagers were attracted to the site who, after giving the sake of God to the accused, convinced them to leave. Mehrab, the complainant’s cousin was found to have expired whereas P.W Ali Akbar was transported to Rahimyar Khan for treatment. The dead body of deceased Mehrab was referred to Taluka Hospital Ubauro for post mortem. After completion of formalities, complainant lodged the F.I.R.

3. After usual investigation, charge was framed against the appellant to which he pleaded not guilty and claimed his trial.

4. In order to prove its case, prosecution examined in all 11 witnesses, as follows:-

1. SHO Ali Hassan – He produced copy of mashirnama of visit of place of wardat and recovery of empty shells and blood stains, copy of mashirnama of arrest of accused Abdul Majeed, copy of mashirnama of recovery of 12 bore SBBL Gun and formal arrest of accused Abdul Majeed, copy of chemical examiner’s report, copy of report of Forensic Science Laboratory. He was examined again and he produced original chemical examiner report & original ballistic expert report.

2. Dr. Shafqat Ali – He produced post mortem report of deceased Mehrab.

3. Muhammad Younis – He produced report regarding death of accused Raees Mitho, affidavit of LPC, report of SHO PS Ubauro, statements of neighbors, copy of death certificate of deceased Mehrab.

4. Dalial Khan – He produced copy of FIR.

5. Nizamuddin

6. Meer Hassan

7. Abdul Karim – He produced copy of sketch of place of incident.

8. Nazeer Ahmed – He produced mashirnama of inspection of dead body & mashirnama of recovery of clothes.

9. ASI Muhammad Iqbal – He produced danishnama, referral letter.

10. PC Munir Ahmed

11. Karim Bux – He produced receipt of handing over dead body.

Learned ADPP filed a statement, giving up witness Lakhmir Chachar. Thereafter prosecution side was closed.

5. Statements of accused u/s 342 Cr.P.C were recorded wherein they denied the allegations levelled against them by the prosecution and pleaded innocence, claiming being falsely implicated due to enmity. However, they did not choose to be examined on oath or produce any evidence in their defence. Accused Abdul Majeed produced true copy of judgment dated 31.07.2013 in which he was acquitted in a case of 13(d) Arms Ordinance by the Civil Judge & J.M Daharki & true copy of Challan/FIR No. 314 of 2011.

6. Learned counsel for the appellants has argued that the prosecution failed to produce so-called injured P.W Ali Akbar, who allegedly received injuries at the hands of the appellants; that the prosecution also gave up P.W Lakhmir Chachar who is an eye-witness of the whole incident; that the story of complainant does not find corroboration by the medical evidence; that per prosecution story, deceased had received three injuries whereas per medical evidence, the deceased had allegedly received four G.S.Ws, through and through, and one injury from a hard blunt substance; that the appellants No. 1 to 8 did not cause injury to the deceased or to the complainant party, they did not commit any offence whatsoever alleged by the complainant party due to previous enmity; that during investigation, no crime weapons were recovered from the possession of any of the appellants except from Abdul Majeed who did not cause any injury to the deceased or prosecution witnesses; that P.W Mir Hassan is a managed witness since, not once, has the complainant, be it in FIR or in his statement u/s 161 Cr.P.C, deposed regarding P.W Mir Hassan’s presence; that there are numerous contradictions in the depositions of witnesses, hence he prays for the acquittal of the appellants. In support of his contentions, he has placed case law reported as 2010 SCMR 584, 2010 SCMR 424, 1980 SCMR 231, PLD 1967 SC 443, PLD 2004 Karachi 8, 2006 P.Cr.L.J 639, 2004 P.Cr.L.J 92, 2002 P.Cr.L.J 1240, 2001 P.Cr.L.J 845, 2000 P.Cr.L.J 1360, 2008 YLR 829, 2008 YLR 2082, 2005 YLR 1629, 2000 YLR 294 & 2001 MLD 619.

7. Learned counsel for complainant and learned A.P.G, in one voice, while supporting the impugned judgment have contended that the appellants have been specifically nominated in the FIR; that an innocent man lost his life because of the actions of the appellants therefore the present appeal is liable to be dismissed.

8. I have heard the respective counsel for either parties along with learned A.P.G and have perused the record available before me.

9. From the perusal of judgment of trial court, the judgment mainly rested on (highlighted by the trial court in the impugned judgment) ocular account, medical evidence, motive and circumstantial evidence along with recovery. For safe administration of justice, all these points had to be in such a manner that not a shadow of doubt would strike the thought among a prudent mind regarding the innocence of accused else it would never be safe to record conviction in existence of such doubts. Having said that, I would attained to each of the points individually.

10. Before indulging, deeply, into discussing the merits of the case, I would like to state that from the face of record itself and after perusal of depositions of prosecution witnesses, there appears to be many contradictions between the ocular and medical account. I would add that though medical evidence alone never identifies / connects the accused but was / is helpful so as to test veracity of eye-witnesses regarding their claim of witnessing incident which they state in a particular manner. Reference may well be made to the case of Ghulam Qadir v. State 2008 SCMR 1221 wherein it is observed as:-

“So far as medical evidence is concerned, it is settled law that the medical evidence may confirm the ocular evidence with regards receipt of injuries, nature of the injuries, kind of weapons, used in the occurrence but it would not connect the accused with the commission of the offence.

In another case of Ghulam Mustufa v. State 2009 SCMR 916 it is observed as:-

“10. In so far as corroboratory pieces of evidence are concerned the medical account displays that the deceased and injured had received wounds from a fire-arm but there is no opinion as to what type of weapon was used in the occurrence. However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same.

In instant case the medical evidence never confirms the ocular account rather brings the claimed presence of eye-witnesses under serious doubts.

11. Coming to the contradictions in the evidence of P.Ws and those contradicting the medical evidence, it was stated in the FIR that the deceased Mehrab had received a total of 3 G.S.Ws on his body; two on the back and one on the right arm however per medical report, another G.S.W was found on the body of deceased, on the left chest, also through and through. Medical report also showed an injury on the skull which was caused by a hard blunt object, which too was not mentioned by the complainant. Such a contradiction raises serious doubt about claimed presence of the complainant at relevant time else he would have not escaped speaking about fourth G.S.W as well injury, caused by blunt object. Further, per the medical examiner, the shots might have been fired from a distance of 10 to 15 feet, contradicting the same, P.W Nizamuddin states that the accused fired at the deceased at a distance of 2 feet. On the same point, P.W Mir Hassan deposed that the shots were taken at the deceased from a distance of 3 to 4 feet however he further deposed in his cross-examination that the accused fired at the deceased at point-blank range. The claimed eye-witnesses specifically claimed fire-shot injuries from a short-distance but per medical evidence there had not been any signs, so necessarily appear if fire is caused from such distance. The position, being so, also makes claim of these witnesses as ‘eye-witnesses’. While deposing regarding the weapons used by the appellants, the complainant in the FIR stated that Raees was armed with a Repeater, Shahnawaz without any weapon, Abdul Wahid with rifle, Saifal with gun, Abdul Khalique with pistol, Jabbar with gun, Anwar with rifle, Rasool Bux with gun, Khair Muhammad with Repeater and two unidentified accused with weapons. Firstly, the complainant has not disclosed the exact type of weapons used in the commission of the offence, secondly the complainant, while deposing in evidence, merely stated that the accused were armed with “guns”, including Shahnawaz who was originally shown as unarmed. He further contradicted his own statement by stating that Waryam was armed with a pistol, however on the same point he stated that Waryam was armed with a repeater gun. When disclosing the time at which the incident had taken place, each of the witnesses had their own opinions, which also contradicted with that in the FIR. The time of incident was originally shown to be 1530 hours which is 3:30pm local time, whereas complainant, in his cross examination, stated that deceased Mehrab received a phone call at 3:30pm and they proceeded to the place of incident 10 to 15 minutes later. P.W Mir Hassan in his cross-examination deposed that the complainant reached at the place of incident at about 3:00pm. He also deposed that he was arrested by the police at about 3:30pm. When questioned about the date, time and day of incident, P.W Nizamuddin found no words. Such contradictory statements raise serious doubt in a prudent mind and the question rises as to what version should be believed? When questioned about the clothes worn by the deceased at the time of incident, complainant deposed that they were white in colour whereas trial court observed the same to be a Khaki (Boski) shirt and loin cloth, green in colour. P.W Nizamuddin, on the same point deposed that deceased was wearing brown shirt and loin cloth was black. The case property present in court had a loin cloth, multi-coloured and checkered and a Khaki shirt. All these glaring contradictions in statement (s) of claimed eye-witnesses were always sufficient to doubt their claim of having seen the manner of incident hence it was never safe to have relied upon such ocular account for awarding conviction in a case of capital punishment. Reference may well be made to the case of Muhammad Akram v. State 2012 SCMR 440 wherein it is observed as:-

“Except for the oral statements of eye witnesses there is nothing on record which could establish the presence of both the eye witnesses at the spot and as their presence of both the eye witnesses at the spot and as their presence at the spot appears to be doubtful; no reliance could be placed on their testimonies to convict the appellant on a capital charge. ….”

Further, it is also a matter of record that prosecution did not examine the injured witness though injury on his person could have been taken as a circumstance to believe his presence at relevant time. The failure to examine such a material witness also goes against the prosecution as well opens a room to draw a presumption within meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 that had he been examined he would not have supported the prosecution case.

12. Though in a case of claimed ocular (direct) evidence, the failure of ocular (direct) evidence is always sufficient for acquittal. Reference may well be made to the case of Dr. Israr-ul-Haq v. Muhammad Fayyaz & another 2007 SCMR 1427. However, as an abandon caution I would discuss other pieces of evidences , so brought on record by prosecution or least discussed by learned trial court judge, for reaching to conclusion of conviction.

13. The trial court, while deciding the case, considered the motive behind the case and gave it undue significance. I would like to hold that the existence of motive / enmity is neither a substantive nor a direct evidence. It is not a corroborative piece of evidence either. The motive/enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime; enmity is a double‑edged weapon. Offence may be perpetrated because of the existence of motive/enmity and it can also be a basis to a false charge. Reference may be made to the case of Ghulam Mustufa supra wherein it is observed as:-

“….Admittedly , there was enmity between the parties because one of the deceased Javed Iqbal was nominated along with other P.Ws in the murder of Ahmed Nawaz, who was a relation of the assailant party. If enmity persuades a person to commit a crime then it is also sufficient to falsely implicate some person from the other side i.e the accused.

In this view of the matter it can hardly be said that motive/enmity has any value except that of a circumstance. Thus, it can safely be concluded that it alone can never be taken as ‘sufficient proof to hold one guiltyso long as direct evidence is not forthcoming.

14. Since there is no direct evidence left to consider, the prosecution case hinges upon circumstantial evidence. It seems to me an inescapable consequence that in a criminal case the circumstances from which the inference should be drawn must be established beyond reasonable doubt. Circumstantial evidence can, and often does, clearly prove the commission of a criminal offence, but two conditions must be met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts. Secondly, the inference of guilt must be the only inference which is reasonably open on all the primary facts.

15. Circumstantial evidence was explained by Sir Charles Edward Pollock while addressing to the jury in the case of Regina v. Exall & others (176 ER 850) 1866 as:

“It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.”

Where one circumstance is insufficient, multiple circumstances are sufficient to hold one guilty. Howsoever, the same should be linked to one another, because if one strand of the rope faces the North and the other the South, the strands would not be able to sustain the weight. Same goes for the link and chain rule as if, even, a single link is found to be weak, the whole chain collapses. In the case of Nasir Javaid & another v. State 2016 SCMR 1144 it is observed as:-

7. …..Deduction about the guilt of the accused could well be drawn from the circumstances as are well authenticated. But where the circumstances so reported are tinkered and tampered with, or contrived and conjured up, there cannot be accepted without careful and critical analysis. Circumstantial evidence can form basis of conviction if it is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of this guilt. The case thus has to be analyzed and adjudged in this perspective.

The series of events in the present case should have been in such a way that it could easily be judged that event A led to the occurrence of event B and so on. However, this was not the case as material facts of the case either stood contradicted by the medical evidence or the same did not find any corroboration of any sort.

16. It cannot be stressed enough, the use of the phrase “beyond reasonable doubt” when proving the case on the basis of circumstantial evidence. When determining this question, the following aspects often rise:

• The identification of each individual fact which along with all other individual facts is said to constitute proof of the offence beyond reasonable doubt.

• The identification of each intermediate fact which may be an indispensable link in the chain of reasoning.

• The identification of each individual fact which, along with others, is said to constitute an essential intermediate fact.

• The identification of facts which require proof beyond reasonable doubt before an inference of guilt can be drawn from them.

Having said that, in the present case, the circumstances that took place do not appear to be a series of events, but rather a concocted story from a devious mind. Many important facts, i.e. the time at which the incident took place, the alleged crime weapons used or the G.S.Ws received on the body of the deceased, were either contradicted by the depositions of the P.Ws or found no corroboration with the medical evidence. Here I would like to state that in many, if not most, cases it has kept in mind that guilt should not only be a rational inference but the only rational inference that can be drawn from the circumstances. Clarifying the statement, the facts/circumstances should be so clear that the only logical circumstance coming to a prudent mind is the appellant being guilty.

17. As for the recovery of the 12 Gauge SBBL Gun from the possession of appellant Abdul Majeed is concerned, it is an admitted fact that the appellant Abdul Majeed was acquitted in a case of 13(d) Arms Ordinance, for which he has also produced the true copy. Not only this, the recovery of weapon from a single appellant does not tie all the appellants/accused to the commission of offence even if I was to ignore the acquittal of appellant Abdul Majeed in the 13(d) Arms Ordinance case. Moreover, the weapon was sent to the ballistic expert with a delay of 13 days and an explanation for the same has remained off the record.

18. I would like to add here that the so-calledeye-witnesses are all close relatives of the complainant, the alleged motive behind the case has been mentioned as enmity. Enmity is a double edged sword which cuts both ways, it can be a ground for false implication. What is the most concerning aspect about recording statements of witnesses is that allegedly there were well over a 100 villagers that had gathered on the crime scene, no matter how contradictory the number be, even if hardly 2 witnesses showed up, I am surprised as to why police failed to record the statements of those witnesses. The absence of independent witnesses, even when there were allegedly numerous present, raises serious doubt in the case of the prosecution.

19. The defence has established number of serious doubts, which have damaged the entire prosecution case and the Hon’ble Apex Court in case titled as Ghulam Qadir v. State 2008 SCMR 1221 has observed that for the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creates reasonable doubt in the mind of reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. It is a recognized principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused, regardless of the fact whether he has taken any such plea or not. Further reference in this respect laid on Tariq Pervaz v. The State 1995 SCMR 1345. The same principle has been reiterated by Hon’ble Supreme Court in the case of Muhammad Akram 2009 SCMR 230. It is an undoubted principle of criminal administration of justice that an accused, during trial, is the likes of a most favourite child of law. Such a statement emphasises on the fact that benefit of doubt, in each and every aspect, is to be given to the accused, regardless of the fact that he has taken any such plea or not. Reference in this regard can be made to Faryad Ali’s case 2009 SCMR 1086. After all, it is a golden principle of law that ❝It is better to risk saving a guilty man than to condemn an innocent one❞. Such statement plays a pivotal role in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (P.B.U.H) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”.

20. In consequence to what has been discussed above, I am of the clear view that prosecution never established the charge against the appellants beyond reasonable doubts hence it was never safe to record conviction on such evidences . Accordingly, the impugned judgment of conviction is hereby set-aside and appellants are hereby acquitted……