IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No. D-43 of 2016 a/w
Cr. Confirmation Case No. D-08 of 2016
Present:
Mr. Justice Mohammad Karim Khan Agha,
Mr. Justice Zulfiqar Ali Sangi,
Appellant: Sadiqueson of Arz Muhammad Sabzoi,
Through Mr. Habibullah G. Ghouri, advocate
Complainant: Imdad Ali,
Through Mr. Abdul Rehman Bhutto, advocate.
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 03-02-2021
Date of Decision: 18-02-2021
J U D G M E N T
Zulfiqar Ali Sangi, J. The appellant has assailed the impugned judgment dated 28.06.2016, passed by I-Additional Sessions Judge, Shikarpur in Sessions Case No.265/2011, culminating from Crime No. 09/2011, registered at Police Station NaperKot, Shikarpur, under Sections 302,460,459,457,395, 337-A(i), 337-F(i), 337-H(ii),148 & 149 P.P.C, whereby the appellant/accused Sadique was convicted under section 302 (b) PPC, as Tazir read with section 460 PPC for committing Qatl-i-Amd of deceased Ali Muhammad and Muhammad Sharif and was sentenced to death on two counts subject to the confirmation by this court.Appellant was also directed to pay compensation of Rs. 300,000/- (three lacs) to the legal heirs of deceased Ali Muhammad and in case of default in payment of compensation, accused shall suffer S.I. for six months more. Accused was also directed to pay compensation of Rs.300,000/- (three lacs) to the legal heirs of deceased Muhammad Sharif and in case of default in payment of compensation accused shall suffer S.I. for six months. Appellant was also convicted for offence under section 457 PPC and sentenced to suffer R.I. for 10 years and to pay fine of Rs.100,000/-, in case of default to pay fine, accused shall also suffer S.I. for six months. Appellant was further convicted for offence under section 395 PPC and sentenced to imprisonment for life and to pay fine of Rs. 100,000/-, in case of default to pay fine, he shall also suffer S.I. for six months. All the sentences were directed to run concurrently. The benefit of section 382-B Cr.P.C. was also extended to the appellant. The trial court sent confirmation reference under section 374 Cr.P.C.
2. Brief facts of the prosecution case as per F.I.R lodged by the complainant Imdad Ali are that he resides in village Kaloo Khan Odhano, along with his cousins in the same compound wall. He and his cousins owned buffaloes. On 07.03.2011 as usual after tethering the cattle, complainant locked main door of the house and went to sleep along with his father Ali Muhammad, brothers Muhammad Shareef and Piyar Ali, cousin Ghulam Hyder. It was 3.00 a.m, they woke up on the barking of the dogs and shriek of cattle and saw on the bulb light accused namely: (1) Ali Hassan son of Yar Muhammad, (2) Qutib son of Kareem Bakhsh armed with Kalashnikovs, (3) Khabbar son of Yar Muhammad armed with lathi, all three by caste Jagirani, (4) Sadique son of Ariz Muhammad by caste Sabzoi (present appellant) armed with Kalashnikov, (5) Nazeer son of SandoroTeghani armed with Kalashnikov and three unidentified persons, out of them, two were carrying Kalashnikovs and one was armed with hatchet. Complainant party saw that accused were stealing five buffaloes and challenged them. Thereafter, accused Nazeer and Sadique fired from their Kalashnikovs and the fires hit the father of complainant namely Ali Muhammad, who fell down. Accused Ali Hassan and Qutib fired from Kalashnikov which hit Muhammad Shareef(brother of the complainant) who also fell down. It is alleged that accused Khabbar caused lathi blow to Piyaro (brother of complainant) and unidentified culprit armed with lathi, inflicted lathi blows to complainant at his head, arm and leg. Complainant party raised cries which attracted villagers and culprits made their escape good to the southern side while leaving buffaloes. Complainant saw that his father Ali Muhammad and brother Muhammad Shareef had succumbed to injuries while P.W Piyar Ali had sustained lathi blows and he was lying seriously injured. Complainant could not shift the injured and dead bodies to the hospital, due to non-availability of conveyance at odd hours of night. At day time complainant made arrangement of the conveyance and took dead bodies and injured to Police Station and gave information of the incident. Police referred injured Imdad Ali and Piyar Ali for medical examination/treatment and dead bodies of Ali Muhammad and Muhammad Shareef for post mortem examination to Khanpur hospital. Complainant got his brother admitted in the hospital and after post mortem examination he took the dead bodies of his father and brother towards home. On the completion of funeral ceremony he went to Police Station Naparkot and lodged F.I.R against accused.
3. After registration of F.I.R, investigation was conducted. During investigation, appellant was arrested and on completion of investigation, challan/final report was submitted against the appellant under sections 302, 460, 459, 457, 395, 337-A(i), F(i), 337-H(2), 148,149 PPC. Accused Ali Hassan, Khabbar, Qutib, Nazeer and three unknown culprits were shown as absconders. After the legal formalities charge was framed against appellant at Exh.12, to which he pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, examined P.W No.1 Shahmir Khan at Exh.18, P.W No.2 ASI Muhammad Malook at Exh.19, P.W No.3 H.C Faiz Muhammad at Exh.20, P.W No.4 Dr.Ghulam Asghar at Exh.21, P.W No.5 complainant Imdad Ali at Exh.23, P.W No.6 Piyar Ali at Exh. 25, P.W No.7 Ghulam Hyder at Exh.26. P.W No.8 Aftab Ahmed at Exh. 27, P.W No.9 Loung at Exh. 29, P.W No.10 PC Islam at Exh. 30. Investigation Officer of the case Muhammad Malook Samejo expired before his cross examination, therefore, statement of Process Server was recorded by the trial court at Exh.31. Thereafter, the prosecution side was closed at Exh.35.
5. Trial Court recorded statement of accused under section 342 Cr.P.C, wherein he denied the prosecution allegations. He also raised plea that his finger prints did not match with the finger prints available on weapon. All other incriminating pieces of the evidence have been denied by him. Accused has produced photocopy of direct complaint in which according to him, other accused persons have been shown involved in this case. Accused denied to give statement on oath in disproof of the prosecution allegations. Appellant has not produced any evidence in his defence. Accused pleaded innocence and stated that he has been acquitted in connected case under section 13 (d) A.O. by concerned Magistrate.
6. After hearing the parties and after assessment of the evidence, learned trial court has passed the above referred impugned judgment convicting the appellant. Being aggrieved by the said judgment, the appellant above named has preferred this criminal jail appeal.
7. Learned counsel for the appellant has contended that all the eye-witnesses are related to the deceased and interested in the prosecution of the accused, their testimony cannot be believed as no independent witness of the occurrence was produced by prosecution at trial; that actually it was unseen night time incident and the identification of the accused was made on bulb lights, which is weak piece of evidence, even the bulbs were not recovered, it was courtyard and no electric pool was available; that accused was not previously known to the complainant party; that there is delay of 22 hours in lodgment of F.I.R, which has not been explained; that there are contradictions in the evidence of P.W and mashir. Learned counsel for the appellant further submitted that mashirnamas were prepared before the F.I.R hence false implication cannot be ruled out and no entry in roznamcha about the incident was recorded before the FIR was registered. He further submitted that in the case of recovery of Kalashnikov the appellant was acquitted and no acquittal appeal was filed; that direct complaint was filed against other accused persons and the complainant changed the version in direct complaint, hence the complainant is not truthful witness; that there are material contradictions in the prosecution evidence. In support of his contentions, learned counsel for the appellant relied upon the cases of Munir Ahmed and another Versus The State and others (2019 SCMR 79), Abdul Jabbar and another versus The State (2019 SCMR 129), Amin Ali versus The State (2011 SCMR 323), Mehmood Ahmed and 3 others versus The State and another (1995 SCMR 127), Muhammad Irshad and another vs. The State (1999 SCMR 1030), Asadullah and another v/s The State and another (1999 SCMR 1034), Muhammad Javed versus The State(2016 SCMR 2021), Javaid Akbar Vs. Muhammad Amjad and Jameel @ Jeela (2016 SCMR 1241), Mureed Hussain Versus The State (2014 SCMR 1689), Muhammad Rafiq versus The State (2014 SCMR 1698), Muhammad Shah versus The State (2010 SCMR 1009), Noor Muhammad v. State (2010 SCMR 97), Ishtiaq Masih versus The State (2010 SCMR 1039), Muhammad Akram alias Akrai versus The State (2019 SCMR 610) and Haq Nawaz versus The State (2018 SCMR 21).
8. Learned Additional Prosecutor General has submitted that delay in lodging of the F.I.R has been explained by the complainant, that there are no material contradictions in the evidence. He has submitted that incident occurred in the house of complainant and presence of eye witnesses at odd hours of night was quite natural. He has further submitted that ocular evidence is corroborated by the medical evidence and it is fit case for recording conviction against the present accused. Lastly, he prayed that the appeal of the appellant may be dismissed. Learned Additional Prosecutor General has cited the casesof Farooq Khan Versus TheState (2008 SCMR 917), Muhammad Saleem Vs. Mullan alias Nooruddin and 3 others (2019 MLD 1732) and Khadim Hussain Vs. The State (PLD 2010 Supreme Court 669)
9. Learned advocate for the complainant has contended that ocular evidence is trustworthy and natural, there are no material contradictions in the evidence and it is fit case for recordingconviction against the accused. Lastly, he prayed that the appeal of the appellant may be dismissed. In support of his contentions, learned counsel for the complainant has relied upon the cases ofNazir Ahmed alias Na'arah versus The State (2008 MLD 273), Hazrat Bilal versus The State and another (2013 P.Cr.L.J 800), Muhammad Israr Versus The State (2017 YLR Note 185 (Page 133), Muhammad Anwar versus The State (2018 YLR 259), Zulifqar Ali versus Sarfraz Ahmed and another (2018 YLR 970), Hamidullah versus The State (PLD 2018 Bal 71) andYasir and 2 others versus The State (2018 MLD 1014).
10. We have heard learned counsel for the parties and have gone through the material available on the record so also the relevant law including that cited at the bar with their able assistance.
11. On our reassessment of the entire evidence produced by the prosecution we are the view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
12. As per version of complainant, incident took place on 08.03.2011 at 0300 a.m, in the night time and the F.I.R was registered on 09.03.2011 at 1300 hours with the delay of 22 hours and the distance of place of incident is about 8/9 Kilometers from the police station. Record reflects that before the F.I.R police conducted some investigation and prepared mashirnamas. The documents i.e inquest report shows that police received information on 08.03.2011 at 09-00 a.m and thereafter from 09-00 a.m to 09-30 a.mmashirnamas of inspection of dead bodies and injuries of injured person were prepared till that time complainant had not disclosed the names of accused persons to the police nor the alleged incident was disclosed before the police as to in what manner the incident took place which creates very serious doubt in the case of prosecution and in these circumstances consultation, deliberation and false implication cannot be ruled out. It has also come in the evidence of the witnesses that they took foot prints of accused persons. Tracker dogs were called and thereafter F.I.R of the present incident was registered which opened room that said F.I.R was registered after consultations and deliberations. This is because if the complainant knew who the accused were as he had recognized them and where they lived what was the need for tracker dogs to take them to the home of the accused? This aspect of the case we find not to be believable. Reliance is place on the case of Mir Hassan V. The State (2020 YLR 2514).
13. Record reflects that the post mortems of the deceased were conducted on 08.03.2011 from 10-30 a.m to 11-30 a.m whereas the incident took place at 0300 hours (night) the delay of 07 hours in the autopsy was not reasonably explained. The perusal of the medical certificates of both injured showed that injured Piyar Ali reached at hospital at 10-00 a.m, while injured complainant Imdad Ali came at 10-10 a.m. It is noted that though in the night time at 03-00 a.m, injured received injuries but they could not appear at the hospital to save their lives and this fact has not been explained by the injured witnesses including the complainant that where they were from 03-00 a.m to 10-00 a.m, which creates very serious doubt about their presence at the spot and about the manner in which offence was actually committed. In the case of Sufyan Nawaz and another Versus The State and others(2020 SCMR 192), Supreme court has held as under:-
“4. The occurrence in this case, as per prosecution, has taken place on 24.10.2005 at 12.00 (noon), formal FIR whereof was registered on the same day at 2.10 p.m., through a written application of Ghulam Mustafa. As per postmortem examination report, autopsy on the dead body of Kabeer Ahmad was conducted on 24.10.2005 at 10.00 p.m. The unexplained delay of about ten hours in autopsy of Kabeer Ahmad (deceased) alone creates dent in the prosecution story so far as presence of eye-witnesses at the place of occurrence is concerned.”
14. It has come in the evidence of the prosecution witnesses that the foot prints were tracked with the help of Doctor Muhammad Ibrahim Jatoi and as per defence version the appellant was on inimical terms with the said Dr. Muhammad Ibrahim Jatoi. It is also in our view not believable that such an influential person as Dr. Muhammad Ibrahim Jatoi would have personally got up in the middle of the night to come out and track foot prints for the complainant who he barely knew. A man of his status would have at best sent someone else on his behalf as the complainant party was not related to him. Such conduct does not appeal to logic, reason, commonsense or natural human conduct based on the particular facts and circumstances of the case. All these things indicate that incident was an unseen incident but specifically after tracking the foot prints through dogs the present appellant was implicated and even it is not understandable that when the prosecution witnesses had identified the culprits at the time of incident than why the foot prints of the accused persons were traced through dogs. This fact of tracking foot prints of the accused through tracker dogs has also not mentioned in the FIR by the complainant. Reliance is placed on the case of Mushtaq Ahmed alias Mustafa V. The State (2011 YLR 303).
15. We have also noted several major contradictions in evidence of the eye witnesses which cut the roots of the prosecution case and make it doubtful. On the basis of material contradiction this court has allowed the appeals and set-aside the convictions handed down by the trial courts in cases of Taj Mohammad and 2 others V. The State (2020 P.Cr.L.J 1693) and Ghulam Hyder through superintendent, central prison V. The State (2020 YLR 2411). For the sake of convenience the material contradictions in the present case in evidence of the witnesses are pointed out as under:-
a). As per mashirnama of inspection of place of vardat and the recovery police recovered 16 empties of Kalashnikov, however during cross-examination, the mashir Loung stated that police secured 16 empties of G-3 and no empty cartridge was recovered from the place of incident.
b). P.W Piyar Ali has admitted during his cross-examination that Dr. Muhammad Ibrahim Jatoi had accompanied with foot prints trackers and the accused was arrested on the next date on the intervention of Dr. Muhammad Ibrahim Jatoi. P.W Ghulam Hyder has also admitted during cross-examination that co-villagers tracked foot prints which led to Katcha side area. He denied by stating that Dr. Muhammad Ibrahim Jatoi had not accompanied during tracking foot prints of culprits. He further admitted that he was accompanied with co-villagers while tracking foot prints but he did not know that police had arranged tracker dogs. He admitted that police met with them at Chohi minor that when they were tracking the foot prints, this witness has also stated during cross-examination that there were 20 to 25 police personals when they were tracking foot prints and they concluded tracking foot prints at about 11-00 a.m and came back at 02-00 p.m to 02-30 p.m.
c). The complainant had admitted during cross-examination that accused was arrested with the help of Dr. Muhammad Ibrahim Jatoi and he admitted this fact that Dr. Muhammad Ibrahim Jatoi had favorably assisted them in this incident being a notable person.
d). P.W Ghulam Hyder and mashir Loung given contradictory version as regards to the inspection of the dead bodies by the police P.W Ghulam Hyder stated that they brought dead bodies to Police Station and police issued a letter for treatment, thereafter dead bodies were referred to hospital for autopsy, while mashir Loung states that on the day of incident he was called by the police in the house of Imdad (complainant), where dead bodies of Ali Muhammad and Sharif were lying. Police associated Abdul Karim and him to act as mashir and such mashirnamas were separately prepared at the spot.
e). The complainant in his examination in chief deposed that accused Qutib son of Kareem Bux was armed with TT pistol, while injured P.W Piyar Ali has stated that accused Qutibuddin son of Kareem Bux was armed with Kalashnikov.
f). The complainant deposed that due to odd hours of night they stayed in their house and early in the morning they transported dead bodies and injured Piyar Ali to police, while P.W injured Piyar Ali has deposed that after incident the police came within 10/15 minutes at vardat, while mashir Loung has deposed that police reached at the place of incident at 02-00 p.m in police mobile.
g). The complainant has stated during cross-examination that his father Ali Muhammad and brother Muhammad Sharif grappled the thieves, however, this fact has not been disclosed by him in the F.I.R or in his examination-in-chief.
16. The complainant and witnesses admitted that direct complaint in respect of the same offence was filed against some other accused persons by showing that police had not registered their F.I.R as per their verbatim and during cross-examination they admitted that complainant party made compromise with those accused persons and thereafter withdrew the direct complaint which clearly showed that facts mentioned in the F.I.R were concocted and this point alone makesthe entire case of prosecution as doubtful. Reliance is placed on the case of Naseer Ahmed V. The State and others (2020 YLR 488).
17. The appellant was acquitted from the case of recovery of Kalashnikov and during his examination under section 342 Cr.P.C he produced the copy of the judgment of his acquittal and admittedly no acquittal appeal was filed either by the complainant party or the state as such the said acquittal of the appellant attained finality.In view thereof the recovery of weapon cannot be used against the appellant in the present case. The acquittal of the appellant from the case of recovery of the weapon allegedly used in the present incident is fatal to the case of prosecution in the circumstances that the prosecution has not produced the reliable and trustworthy evidence against the appellant. Reliance is placed on the case of Kashif Ali and another V. The State (2019 YLR 1573).
18. It is well settled principal of law that the prosecution has to prove its case beyond a reasonable doubt and where even a single circumstance which creates reasonable doubt in the mind of a prudent man comes in the evidence of the prosecution the benefit must go to accused not as a matter of grace or concession but as a matter of right. In this regard reliance is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345).
19. Based on the above discussion and our reassessment of the evidence on record we are of the view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, we allow the instant appeal and set-aside the conviction and sentences awarded by the trial court vide judgment dated 28.06.2016 and acquit the appellant by extending him the benefit of the doubt, who shall be released forthwith unless wanted in any other custody case. In view of above the confirmation reference sent by the trial court is answered in the NEGATIVE.
20. The above Cr. Jail Appeal and the Confirmation Reference sent by the trial court are disposed of in the above terms.
JUDGE