IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-114 of 2016
Appellants : 1). Peerano s/o Rasool Bux Malhoo,
2). Moula Bux @ Nadir s/o Noor Khan
3). Illahi Bux s/o Noor Khan
4). Noor Khan s/o Rasool Bux @ Malhoo
5). Meer Khan s/o Rasool Bux @ Malhoo
Through Mr. Habibullah Ghouri, Advocate
Complainant : Jalaluddin son of Lakhmir Choliyani
Through Mr.Asif Ali Abdul Razak Soomro, Advocate
The State : Through Mr.Muhammad Noonari, D.P.G
Date of hearing : 31.08.2020, 10.09.2020 & 17.09.2020
Date of decision : 24.09.2020
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellants by way of instant criminal appeal have impugned judgment dated 08.11.2016, rendered by learned Sessions Judge, Kashmore @ Kandhkot, whereby they (appellants) have been convicted under section 302 (b) PPC as “Tazir” and sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- each payable to legal heirs of deceased Bashir Ahmed and in default, whereof to undergo R.I for six months each, with benefit of Section 382-B Cr.PC.
2. The narration of the incident is well placed in the FIR which reads as under;
“Complaint is that there was dispute between us and Makhno Choliyani and others over issue of passage and in private “Faisla” such dispute was decided in our favour, therefore, accused Makhno and others were found saying that they will fight with us. Yesterday, at evening time, my grandson Habib-u-Rehman s/o Abdullah by caste Choliyani, r/o Thari Mir Wah, District Khairpur, came to visit us in connection with some work, he stayed with us for night. Today, at morning time, I, my son master Bashir Ahmed, aged about 38/40 years, Javed Ahmed and my grandson Habib-u-Rehman s/o Abdullah Choliyani left our house for Ghouspur with some piece of work. When at 06.00 a.m, we reached near to our land at Katcha Sarak leading from village Imam Bux to Unar Wah there we found seven persons coming towards us by raising hakals, they were identified by us to be Makhano, Meer Khan, armed with guns, 3). Peerano, armed with hatchet, 4). Noor Khan, 5). Meer Hassan, armed with lathies, all sons of Rasool Bux @ Malhoo, 6).Moula Bux @ Nadir, 7). Illahi Bux, both sons of Noor Khan, armed with lathies, all by caste Choliyani, r/o village Imam Bux Choliyani, Taluka Tangwani. Of them, accused Makhno by raising hakal said that today they would kill master Bashir Ahmed. By saying so, accused Makhno fired from his gun directly at my son master Bashir Ahmed with intention to kill him, which hit him on his left leg, accused Meer Khan fired from his gun directly at Bashir Ahmed which hit him on his left leg, accused Peerano caused hatchet blow to Bashir Ahmed on his left ear, accused Noor Khan caused lathi blow to master Bashir Ahmed on his head, accused Meer Hassan caused lathi blow to master Bashir Ahmed on his right leg, accused Moula Bux @ Nadir caused lathi blow to Bashir Ahmed on his head and accused Illahi Bux caused lathi blow to master Bashir Ahmed on his right leg. Bashir Ahmed by raising cries fell down on the ground. We beseeched the accused in name of “Holy Quran” by asking them not to kill an innocent person, on that, all the accused went away towards eastern direction. Thereafter, we found master Bashir Ahmed sustaining fire arm injuries on his left thigh and calf and hatchet an lathies blows on his right leg, left ear, was bleeding and was found unconscious. Thereafter, I arranged the conveyance and shifted the injured to P.S, obtained letter for medical treatment and then took him to Taluka Hospital, Tangwani, wherefrom my son Bashir Ahmed was referred to Larkana Hospital but on the way he succumbed to the injuries. After getting postmortem, now I am here for lodging FIR that the above named accused being armed with guns, hatchet and lathies over have killed my son master Bashir Ahmed to satisfy their dispute over passage. I am complainant and the investigation be made.”
3. At trial, the appellants did not plead guilty to the charge and the prosecution to prove it, examined PW-01 Medical officer Dr.Nazimuddin (Exh.16), who produced postmortem report on dead body of the deceased, PW-02 Tapedar Nasrullah (Ex.17), he produced sketch of Vardat, PW-03 HC Qamaruddin (Exh.18), he produced memo of examination of injuries of the deceased, PW-04 PC Muhammad Hayat (Exh.19), PW-05 HC Allah Warrayo (Exh.20), PW-06 complainant Jalaluddin (Exh.21), PW-07 Javed Ahmed (Exh.22), PW-08 Mashir Wilayat Ali (Exh.23), he produced memo of place of incident, recovery of blood stained earth and cartridges, memo of arrest of appellant Peerano and recovery of hatchet from him, PW-09 SIO/ASI Muhammad Ishaq (Exh.24), he produced report of Chemical Examiner and memo of arrest of appellant Moula Bux @ Nadir, PW-10 ASI Abdul Sattar (Exh.25), he produced memo of arrest of appellants Illahi Bux, Meer Khan and Noor Khan and closed its side.
4. The appellants in their statements recorded under section 342 Cr.PC, denied the prosecution’s allegation by pleading innocence by stating that they being innocent have been involved in this case falsely by the complainant party and they in order to prove their innocence produced certain documents but did not examine any one in their defence or themselves on oath.
5. On conclusion of trial, the learned trial Court convicted and sentenced the appellants, as is detailed above, by way of impugned judgment.
6. It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely by the complainant party; the FIR of the incident has been lodged with unexplained delay of about 12 hours; there is no independent witness to the incident; the hatchet allegedly recovered from appellant Peerano has not been subjected to chemical examination and the evidence of the prosecution being inconsistent and untrustworthy has been believed by the learned trial Court, without lawful justification. By contending so, he sought of acquittal of the appellants. In support of his contentions, he relied upon cases of Muhammad Ilyas (PLD 2019 SC-527), 2). Muhammad Arif Vs. The State (2019 SCMR-631), 3). Muhammad Shah Vs. The State (2010 SCMR-1009), 4). Ishtiaq Masih Vs. The State (2010 SCMR-1039), 5). Muhammad Irshad and another Vs. The State (1999 SCMR-1030) and 6). Asadullah and another Vs. The State and another (1999 SCMR-1034).
7. It is contended by learned D.P.G for the State and learned counsel for the complainant that the appellants are neither innocent nor have been involved in this case falsely; they have committed the murder of an innocent person only to satisfy their grudge with him on the dispute over passage; the delay in lodgment of the FIR is explained plausibly and the evidence of the prosecution being consistent has rightly been believed by learned trial Court. By contending so, they sought for dismissal of the instant criminal appeal. In support of their contentions, they have relied upon cases of Muhammad Altaf and 05 others Vs. The State (2002 SCMR-189), 2).NallamSetty Yanadaiah and others Vs. State of Andhra Pardesh (1994 SCMR-588), 3). Saidal and another Vs. The State (2015 MLD-828), and 4). Zahid Imran and others Vs. The State and others (PLD 2006 SC-109).
8. I have considered the above arguments and perused the record.
9. As per complainant, he was having dispute with the appellants over the passage. On the date of incident (02.07.2013), when he, deceased master Bashir Ahmed, PWs Javed Ahmed and Habib-u-Rehman were going towards Tangwani by foot with some piece of work, when reached by side of Unar Canal, there at about 06.00 a.m, they found the appellants coming, duly armed with guns, lathies and hatchet, they caused lathies, hatchet and gunshot injuries to master Bashir Ahmed, who by sustaining those injuries fell down on the ground, he arranged for Dotson pickup and then took him in injured condition to P.S Tangwani. At this juncture, the complainant is belied by PW/HC Qamaruddin, as per him, deceased master Bashir Ahmed was brought at P.S Tangwani at about 07.10 a.m by Karim Bux and Wilayat. If it was so, then it has made the assertion of the complainant that he took master Bashir Ahmed in injured condition to P.S Tangwani, to be doubtful. From P.S Tangwani, as per the complainant, he took injured master Bashir Ahmed to Taluka Hospital, Tangwani. As per medical officer Dr.Nazimuddin, master Bashir Ahmed was brought to him at Taluka Hospital, Kandhkot. Such inconsistency could not be overlooked. As per medical officer Dr.Nazimuddin, master Bashir Ahmed was referred by him, for better treatment, to CMC Hospital Larkana. No provisional medical certificate in respect of injuries sustained by injured master Bashir Ahmed however is brought on record by the prosecution; such omission could not be ignored. Injured master Bashir Ahmed as per complainant died on his way to Larkana and his dead body then was taken back to P.S, Tangwani, and therefrom it was referred to Hospital for postmortem. No doubt, postmortem report of the deceased indicates that it was done by Dr.Nazimuddin in capacity of incharge medical officer, R.H.C Tangwani, but it not enough to give preference over the straight forward evidence of medical officer Dr.Nazimuddin that master Bashir Ahmed was brought to him in injured condition at Taluka Hospital, Kandhkot. As per PW/HC Allah Warrayo, it was he who referred the dead body of deceased to Hospital for postmortem after recording Entry No.05 in roznamcha. Technically, such roznamcha entry was First Information Report, as has been held in case of Nooruddin and another Vs.The State (2005 MLD-1217), which has not been brought on record by prosecution. Its non-production could not be overlooked.
10. During course of cross examination, it was stated by the complainant that;
“the incident continued for about 10/15 minutes; he did not disclose the name of culprits to the police at morning time, because he was in hurry to go to Hospital and the deceased was not declared to be “Karo” by Hooran Choliyani with his wife”.
Surprisingly, PW Javed Ahmed has belied the complainant during course of his cross examination by stating that;
“the incident continued for about 01/02 minutes; the complainant disclosed the name of accused before the police at the time of his first appearance and the deceased was declared to be “Karo” by Hooran Choliyani with his wife”.
11. The inconsistency between the evidence of complainant and PW Javed Ahmed (as is pointed above), has not only made their version, to be doubtful.
12. The delay of 12 hours in lodgment of the FIR, if is examined, in the light of above inconsistency, then it could not be overlooked.
13. In case of Mehmood Ahmed & 03 others vs. The State and another (1995 SCMR-127), it has been held by Honourable Apex Court that;
“Delay of two hours in lodging the
FIR
in the particular circumstances of the case had assumed great significance as
the same could be attributed to consultation, taking instructions and
calculatedly preparing the report keeping the names of the accused open for
roping in such persons whom ultimately the prosecution might wish to
implicate”.
14. PW Habib-u-Rehman has not been examined by the prosecution for no obvious reason. His non-examination as per Article 129 of Qanun-e-Shahadat Order, 1984, would lead to presume that he was not going to support the case of prosecution.
15. Almost, all the memos relating to the investigation of the present case, as per SIO/ASI Muhammad Ishaq, HC Allah Warrayo and HC Qamaruddin, were written by WHC/Munshi of P.S Tangwani. He has not been examined by the prosecution. His non-examination obviously has prejudiced the appellants seriously in their defence.
16. The discussion involves a conclusion that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt and they are found entitled to such benefit.
17. 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.
18. The case law which is relied upon by learned D.P.G for the State and learned counsel for the complainant is on distinguishable facts and circumstances. In case of Muhammad Altaf and 05 others (supra), it was held that the testimony of police officials who has declared four accused to be not guilty was not considered in its correct prospective by learned trial Court. In that context, the impugned judgment was modified. In the instant matter, no issue of considering evidence of investigating officer declaring any of the appellant to be innocent is involved. In case of Nallam Setty Yanadaiah and others (supra), it was held that the person who took the plea of “Alibi” and his name was not disclosed in FIR, could not be convicted on the basis of testimony of the eye witnesses. In the instant matter, no issue of “Alibi” on the part of any of the appellant is involved. In case of Saidal and another (supra), co-accused was acquitted on account of failure of prosecution to prove common intention on his part. In the instant matter, the appellants are seeking their acquittal for the reason that the prosecution has failed to prove its case against them beyond shadow of doubt. In case of Zahid Imran and others (supra), leave to appeal was granted to ascertain whether the judgment of High Court convicting the accused under section 316 PPC was sustainable in law and whether the case fell within the Ambit of Section 7-A of Anti-Terrorism Act, 1997 and also to consider the quantum of sentence awarded in the case. In the instant matter, neither issue of applicability of any of the Anti-Terrorism Act nor applicability of Section 316 PPC or the quantum of sentence awarded to the appellant is involved.
19. In view of the facts and reasons discussed above, the impugned judgment is set-aside. Consequently, 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 present case.
20. The instant criminal appeal is disposed of accordingly.
J U D G E
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