JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.S-14 of 2019

Criminal Jail Appeal No.S-15 of 2019

 

 

Date of hearing

 

Order with signature of Judge

 

 

For hearing of main case.

 

Date of hearing:     11.09.2020

Date of decision:    11.09.2020.

Mr. Rafique Ahmed Abro, Advocate for appellants.

                                    Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

                                                            ~.~.~.~.~.~.~.~.~.~.~

 

IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of the instant appeals are that as per the prosecution, the appellants with co-accused Mst.Shamshad and Mst.Khanzadi, in furtherance of their common intention, committed Qatl-e-Amd of Ali Muhammad, by causing him fire shot injuries, for that they were booked and reported upon. On due trial, Mst.Shamshad and Mst.Khanzadi were acquitted while the appellants were convicted and sentenced to undergo imprisonment for life with fine of Rs.200,000/- each, payable to the legal heirs of said deceased, by learned Additional Sessions Judge, Shahdadkot. On appeal, the conviction and sentence recorded against the appellants were set aside by this Court with direction to learned trial Court to re-write the judgment, after recording statements of the appellants afresh, such compliance was made and the appellants were again convicted and sentenced to undergo imprisonment for life with fine of Rs.200,000/- each, payable to legal heirs of the said deceased and in default whereof to undergo S.I for six months, vide judgment dated 20.02.2019, by learned 1st Additional Sessions Judge, Shahdhadkot, which is impugned by the appellants before this Court by filing separate appeals, those are now being disposed of through the instant judgment.

2.                    It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy its matrimonial dispute with them; the identity of the appellants at night time on torch light is weak piece of evidence; the torch has not been secured; on the basis of same evidence, co-accused Mst.Shamshad and Mst.Khanzadi have been acquitted, while the appellants have been convicted; the recovery of the pistols from the appellants have already been disbelieved by learned trial Magistrate while acquitting them  and the prosecution has not been able to prove its case against the appellants beyond the shadow of doubt. By contending so, he sought for acquittal of the appellants. In support of his contention, he relied upon cases of Muhammad Rafique Vs. The State             (2014 SCMR-1698), 2). Faqeer Muhammad Vs. Shahbaz Ali and others (2016 SCMR-1441), 3). Muhammad Ilyas Vs. Muhammad Abid alias Billa and others (2017 SCMR-54), 4). Muhammad Asif Vs. The State (2017 SCMR-486), 5). Nadeem alias Kala Vs. The State and others (2018 SCMR-153), 6).Muhammad Mansha Vs. The State (2018 SCMR-772) and 7). Abdul Jabbar and another Vs. The State (2019 SCMR-129).

3.                    Learned D.P.G for the State by supporting the impugned judgment has prayed for dismissal of the instant appeals.

4.                    I have considered the above arguments and perused the record.

5.                    The narration of the incident is well placed in FIR of the present case, which was lodged by complainant Juman, and it reads as under;

“complaint is that my son Ali Muhammad alias Mour had contracted marriage with Mst.Shamshad daughter of Mureed Khan by caste Khand, r/o Behram, somewhat four years back. Out of that wedlock, he was having two daughters. Mst.Shamshad was on illicit terms with her relative Sahib Khand. We restrained Sahib Khand from visiting our house. Few days back, Mst.Shamshad’s brother Tariq and her mother Mst.Khanzadi came to our house and asked us that we may not restrain Sahib Khand from visiting our house, otherwise, my son Ali Muhammad alias Mour would be done to death or Mst.Shamshad would be asked to seek divorce from him. On last night, my son Ali Muhammad alias Mour aged about 18 years alongwith his wife and children, nephew Shabir son of Gohram Jamali and my maternal cousin Zulfiqar son of Ali Sher and other family members were sleeping on our cots in courtyard of our house, there at about 03.00 a.m, we woke up on barking of dogs and some noise. I, PWs Shabir and Zulfiqar flashed the torches and found four persons armed with pistols, two were identified by us to be Sahib son of Nizam Khand, r/o Bhathi Hakra, Taluka Miro Khan, 2). Tariq son of Mureed by caste Khand, r/o Behram, while remaining two could not be identified. They were standing over the cot of my son Ali Muhammad alias Mour from feet side. On “hakkal”, Tariq and Sahib asked us that we have not followed our instructions, now they would kill Ali Muhammad alias Mour. By saying so, within our sight, Sahib and Tariq fired at Ali Muhammad alias Mour, those fires hit him, he raised cries and then fell down from the cot. The unknown culprits kept us under wrongful restraint by making aerial firing. All the accused then went away by crossing Noor Pur Shakh. Ali Muhammad alias Mour was found sustaining fire shot injury on left side of his neck, which crossed through his head, he died at the spot and his wife Mst.Shamshad also sustained injury on her right arm. I leaving the above said witnesses over the dead body of my son have come at P.S and lodge FIR that accused Sahib Khan in order to marry with Mst.Shamshad after having hatched a conspiracy with accused Tariq, Mst.Khanzadi and Mst.Shamshad have committed murder of my son Ali Muhammad alias Mour and unknown culprits have made aerial firing upon us. I am complainant and action be taken.”

 

6.                    The FIR of the incident has been recorded by the police at about 0530 hours. As per the complainant, he left his house for lodging FIR at about 06.00 a.m. If it was so, then under what circumstances, the FIR of the incident was recorded by police at about 0530 hours, it before time of arrival of the complainant at police station at least by thirty minutes, such omission could not be lost sight of. As per the complainant, PWs Shabir and Zulfiqar, the deceased was fired twice, first by appellant Sahib and later by appellant Tariq. The deceased as per medical officer Dr.Ramesh Lal was found sustaining single fire shot injury (entry and exit). Who caused that single fire shot injury to the deceased? It is not specified by the complainant or any of his witness, which appears to be significant. Be that as it may, the identity of the culprits by the complainant and his witnesses on torch light is appearing to be a weak piece of evidence. No torch light even otherwise has been secured, which appears to be significant.

7.                    In case of Ayyub Vs.The State (1995 PCr.LJ-1058), it has been held by Honourable Lahore High Court that;

“The identification of the accused in torch light is not considered a sufficient piece of evidence.”

 

8.                    PWs Shabir and Zulfiqar admittedly were resident of distant place and they have not been able to explain their availability plausibly at the time and place of incident. As per them, their 161 Cr.PC statements were recorded by the police at place of incident, which is belied by investigating officer SIP Dili Jan by saying that those were recorded at P.S Shahdadkot. Significantly, the sketch of vardat prepared by Tapedar Muhammad Paryal did not indicate the place of their availability at the time of incident and they apparently are appearing to be chance witnesses. First mashir Nazar Muhammad was given by the prosecution at the instance of complainant. His non examination prima facie indicates that he was not going to support the case of prosecution. Second mashir Muhammad Essa was having reason to support the complainant being his maternal nephew.  Mst.Shamshad, admittedly during course of same incident has sustained fire shot injury and she on the basis of allegation of conspiracy has been made an accused in this case, which appears to be surprising. On arrest from the appellants, as per investigating officer Dili Jan were secured pistols, allegedly used by them in commission of the incident, those have been subjected to  examination through Expert with delay of about 15 days and such delay having not been explained plausibly could not be overlooked. Both of the appellants even otherwise in case relating to recovery of unlicensed pistols from them have already been acquitted by learned trial Magistrate and such acquittals have not been impugned by the prosecution, which appears to be significant. In that situation, the appellants could hardly be connected with recovery of unlicensed pistols and empties from the place of incident. On the basis of same evidence, co-accused Mst.Shamshad and Mst.Khanzadi have been acquitted by learned trial Court by extending them benefit of doubt, while the appellants have been convicted and sentenced. In these circumstances, it is rightly being contended by learned counsel for the appellants that the appellants too are entitled to benefit of such doubt.

9.                    In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”. 

 

10.                  In case of Faheem Ahmed Farooqui vs. The State              (2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

11.                  For what has been discussed above, the impugned judgment is set aside, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they are in custody and shall be released forthwith in the present case.

12.                  The instant appeals are allowed accordingly.

                                                                                        J U D G E .