IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
CriminalJail Appeal No. S-91 of 2011
Appellants Jan Muhammad and another,
Through Mr. Rafique Ahmed K. Abro, Advocate.
Complainant Maqbool Ahmed Niazi, through Messrs Abdul Faheem Thaheem and Abdul Rehman Bhutto, advocates.
The State: Through Mr. Muhammad Noonari, D.P.G for the State.
Date of hearing: 08-02-2021 &12-02-2021.
Date of Judgment: 26-02-2021.
J U D G M E N T
Zulfiqar Ali SangiJ. Through instant criminal jail appeal, the appellantsJan Muhammad and Abdul Rehman have assailed the judgment dated 23.08.2011, passed by the learned Add: Sessions Judge, Kashmore in Sessions Case No.69/2009, re: State V/s Jan Muhammad and another, culminated from Crime No. 129/2009 of P.S. Kashmore, for the offence under Sections 460,459,149 P.P.C, whereby the trial court has convicted the appellantsU/S 460 P.P.C and sentenced them to suffer imprisonment for life and to pay Rs.200,000/- each to the legal heirs of both the deceased as compensation, as provided U/S 544-A Cr.P.C. In case of default of payment of amount of compensation, they shall suffer R.I for six months. The amount of compensation recovered be paid to the legal heirs of both the deceased Muhammad Akram and Muhammad Akbar with common share. The accused were also convicted for an offence of causing JurehJaifah to P.W Niazi and Madad Ali and sentenced to suffer R.I for ten years on each count and to pay an amount of Rs.100,000/- each to both injured as Arsh. In case of default of payment of Arsh, they shall remain in jail till payment of Arsh. They were also convicted for causing JurehGhayerJaifahMutalahimah to P.W Madad Ali and sentenced to suffer R.I for seven years, each and to pay an amount of Rs.100,000/- each to the injured Madad Ali as Daman. In case of default of payment of amount of Daman, they shall remain in jail till payment of Daman. The benefit of Section 382-B Cr.P.C was also extended to the appellants by the trial court.
2. Brief facts of the prosecution case as per FIR are that the complainant lodged the F.I.R at P.S. Kashmore stating therein that he used to reside with his father Madad Ali, brothers Muhammad Akram, Muhammad Akbar, Niazi and uncle Shah Nawaz and Zahid Hussain in village Madad Ali Niazi. On 26.6.2009, after taking meals, and tethering their cattle in the courtyard, they went to sleep on separate cots, the electric bulbs were on. On 27.6.2009, at about 3:00 am, they woke up on barking, they saw 10 culprits armed with Kalashnikovs, who were un-tethering their cattle from the courtyard. The complainant’s brother Muhammad Akram grappled with one culprit to apprehend him, but accused made Kalashnikov fire upon Muhammad Akram with intention to kill him, which hit him, he cried and fell down. As complainant, his father Madad Ali, brothers Niazi and Muhammad Akbar proceeded ahead, the accused made straight fires upon them with intention to commit their murder, the Kalashnikovs fires hit complainant’s father Madad Ali, brother Niazi and Muhammad Akbar, who cried and fell down. In the meantime, complainant’s uncle Shahnawaz and cousin Zahid Hussain rushed at the scene. Seeing them coming, the accused fled away. The complainant party saw Muhammad Akram had received Kalashnikovfire through & through on his chest, was lying dead. The PWs Madad Ali, Niazi and Muhammad Akbar had also received Kalashnikov fire injuries on various parts of their bodies. Then complainant having arranged conveyance took the dead body of deceased Muhammad Akram to the hospital and went at Police Station along with injured PWs, wherefrom got letter for first aid and after their first aid, lodged his complaint, as stated above. As per record injured Muhammad Akbar also succumbed his injuries on 28.6.2009.
2. After completing the investigation, the challan was submitted against the appellants/accused. Formal charge was framed against the appellants/accused, to which they pleaded not guilty and claimed to be tried.
3. The prosecution in support of its case, examinedcomplainant Maqbool Ahmed at Ex.3, who produced FIR at Ex.3-A, PW-eye witness Zahid Hussain at Ex.4, PW-3 eye witness Shahnazawaz at Ex.5, PW 4 HC Kamand Ali, author of FIR at Ex.6, who produced mashirnama of inspection of injuries at Ex.6-A, PW-5 Mukhtiar who is the mashir at Ex.7 and has produced mashirnama of place of vardat at Ex.7-A, Danishtnama of dead body of deceased Muhammad Akram at Ex.7-B, mashirnama of inspection of dead body of deceased Muhammad Akram at Ex.7-C, Danishtnama of dead body of deceased Muhammad Akbar at Ex.7-D and mashirnamaof inspection of dead body of deceased Muhammad Akbar at Ex.7-E respectively, PW-6 PC Azizullah, who brought the dead bodies of deceased Muhammad Akram and Muhammad Akbar to hospital for postmortem at Ex.8, who produced such receipts of delivery of dead bodies after postmortem to legal heirs at Ex.8-A respectively. PW-7 Medical Officer, Dr. Manzoor Ahmed Kalwar at Ex.9, who produced medical legal certificates of Muhammad Akbar, Niazai and Madad Ali at Ex.9-A, 9-B and 9-C respectively. He also produced postmortem report of deceased Muhammad Akram at Ex.9-D and deceased Muhammad Akbar at Ex.9-E, PW-8 SIO SIP Ziayd Ali Noonari, at Ex.10, who produced mashirmama of arrest of both present accused and securing TT pistols at Ex.10-A PW-9 eye witness/injured Niazai at Ex.11. Learned I/C ADPP gave up co-mashir Habib Ahmed vide his statement at Ex.12. Thereafter, incharge ADPP appearing on behalf of the State closed the side of prosecution vide his statement at Ex.14.
4. Trial Court recorded statement of accused under section 342 Cr.P.C, wherein they denied the prosecution allegations levelled against them.They have neither examine themselves on oath as required under section 340(2)Cr.P.C nor led any evidence in their defence.
5. Thereafter, learned trial court after hearing the parties passed the impugned judgmentdated 23.8.2011 whereby appellants were convicted and sentenced as stated above, which has been impugned before this court by way of filing instant jail appeal.
6. Learned counsel for the appellants submits that prosecution has failed to prove the case against the appellants beyond a reasonable doubt; that prosecution given up the injured witness Madad Ali and also not produced any evidence in respect of the injuries sustained by him; that the Tapedar was also not examined by the prosecution; that blood was not sent for chemical examination; that incident is of night time and identification of accused was shown on the light of bulbs and the bulbs were not collected nor produced at the trial by the investigation officer; that identification on light of bulbs is weak type of identification; that none was nominated in the FIR and no identification parade was held; that in the FIR all the accused were armed with Kalashnikov is mentioned however during the evidence pws contradicted the same; that no role has been assigned against the accused persons in the FIR so also in the statements under section 161 Cr.P.C recorded during the investigation but complainant party improved the case during their depositions; Lastly he prayed that based on the above submissions the appellants may be acquitted by extending them the benefit of the doubt. He relied upon the cases of 2018 SCMR 772, 2020 YLR Note 111, 2020 MLD 952, 2019 SCMR 129, 2019 SCMR 631, 2017 SCMR 1189, 2017 SCMR 960 and 2006 SCMR 1846.
7. Learned DPG contended that the prosecution proved its case against both the appellants beyond a reasonable doubt; that ocular evidence is supported by the medical evidence and other circumstantial evidence; that recovery of crime weapons was effected form the appellants at the time of their arrest; that all the eye witnesses supported the case and deposed against the appellants with their respective role, that all the important witnesses were examined by the prosecution and it is for the prosecution to examined the witnesses of choice and it is settled law that case is to be decided on the basis of the quality of the evidence and not on the basis of quantity of the witnesses; Lastly, he prayed that the appeal of the appellants may be dismissed.
8. Learned counsel for the complainant have adopted the arguments of DPG and further contended that all the eye witnesses deposed against the appellants with their role; that recovery of crime weapon used at the time of incident by the appellants was effected from them at the time of their arrest; that no enmity or ill-will was suggested against the complainant party for false implication; that no major contradictions were pointed out by defence counsel which suggest that the case is doubtful; that the incident took place in the house of complainant and the appellants were identified by the complainant party; lastly they submits that the appeal of the appellants may be dismissed.
9. I have heard learned counsel for the parties and have gone through the entire evidence red out by them and the relevant law including that cited at the bar with their able assistance.
10. On reassessment of the entire evidence produced by the prosecution I am of the view that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
11. None of the accused nominated in the FIR nor the descriptions of any of the accused are mentioned. There is no evidence on the basis of which both the appellants were arrested in the present case. No identification pared was held after the arrest of the appellants. Only the eye witnesses including the complainant after their arrest deposed before the trial court against them during their examination-in-chief.
Complainant improved the case during his examination-in-chief by giving the names of the accused persons without furnishing any explanation as to how he came to know about the names of these appellants, however during cross-examination he stated that “It is correct to suggest that I did not mention the name of any culprits in my FIR. The DSP Munir Ahmed Phulpoto of Kashmore arranged snifering dogs, who also traced out the foot prints marks towards the houses of the culprits.”All these facts had not been disclosed by the complainant in the FIR nor did the witnesses disclose in their statements under section 161 Cr.P.C. The DSP Munir Ahmed Phulpoto was not examined by the investigation officer nor was produced before the trial court. The incident took place on 27-06-2009 at 0300 hours and the FIR was registered at 0900 hours and the complainant admitted during his cross-examination that they came at police station at 4-00 am night. It clearly indicates that after the incident complainant party at first 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 they have 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 I find not to be believable. Reliance is place on the cases of Mir Hassan V. The State (2020 YLR 2514) and Mushtaq Ahmed alias Mustafa V. The State (2011 YLR 303).
12. Complainant in the FIR stated that all the accused persons were armed with Kalashnikovs and they fired from theirKalashnikovs upon the deceased persons and the injured witnesses but he while improving the case before the trial court during his examination-in-chief deposed that accused Abdul Rehman fired from his pistol upon Muhammad Akram, which hit him on the chest, he further deposed that his brother Muhammad Akbar also proceeded towards the culprits to which accused Jan Muhammad fired from his TT pistol upon him.PW-2 Zahid Hussain, PW-3 Shahnawaz and PW-09 Niazialso deposed the same. Complainant deposed during the examination-in-chief that his brother Muhammad Akram tried to capture one of the culprit, PW-2 Zahid Hussain deposed during his examination-in-chief that Muhammad Akram grappled with one culprit and Muhammad Akbar tried to apprehend the other culprits, PW-3 Shahnawaz deposed during his examination-in-chief that Muhammad Akram tried to apprehend culprits having Kalashnikovs and Muhammad Akbar grappled with culprits armed with TT pistol. All these witness given contradictory evidence which make the entire case as doubtful.
13. Complainant stated during cross-examination that the accused entered into the house from main entrance and return by the same way. PW-2 Zahid Hussain stated in his cross-examination that the accused came at place of vardat from eastern side and after committing the offence escaped away towards southern side from place of vardat. PW-9 Niazi stated during his cross-examination thatthe accused entered in the house by cutting the chain of the door and they all are not supporting each other on this point also. Even the broken chain of the main gate was not taken by the investigation officer nor was the main gate inspected.
14. Complainant deposed during his examination-in-chief that they took the injured to PS Kashmore and after getting refer latter brought all the injured to Rahimyar Khan Hospital. PW-9 Niazi deposed during the examination-in-chief thatthey were taken to Taluka Hospital Kashmore where from they were brought to police station Kashmore. This witness further stated in his cross-examination that they were taken to hospital from the place of vardat to Taluka Hospital on the donkey cort and on the way the police mobile reached there and then taken to the same police mobile to Taluka Hospital Kashmore. They again are not supporting each other on this point.
15. The contradictions in the evidence of the eye witnessesas has discussed above and the improvements made by them during the trial in my view are major in nature 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).
16. It is settled by now that all the incriminating piece of evidence available on record in shape of examination-in-chief, cross-examination or re-examination of witnesses are required to be put to the accused, if the same are against him, while recording his statement under section 342 Cr.P.C in which the words used “For the purpose of enabling the accused to explain any circumstances appearing in evidence against him.” which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. From the careful perusal of statements of the appellants recorded under section 342 Cr.P.C. it reveals that the portion of examination-in-chief about the recovery of empty cartridge, empties of Kalashnikovs, bloodstained earth from the place of vardat, recovery of bloodstained clothes so also the pistols recovered from both the appellants was not put to the appellants in their statements under section 342 Cr.P.C. enabling them to explain the circumstances, as has been held by Honourable Supreme Court of Pakistan in the case of Muhammad Shah v. The State (2010 SCMR 1009).
17. It is well settled principle of law that the piece of evidence or a circumstance not put to an accused at the time of recording his statement under Section 342 Cr.P.C. could not be considered against him as has been held by Honourable Supreme Court in the cases of Imtiaz @ Taj v. The State 2018 SCMR 344, Qadan and others v. The State 2017 SCMR 148 and Mst: Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710.
18. It is also a 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. The prosecution also failed to produce the evidence as to the identity of the appellants as they were not named in the FIR nor the identification parade was held. The incident was of a night time incident the accused were shown to have been seen on the bulb light, the bulb was not taken into the possession by the investigation officer nor was the same produced before the trial court. The case of prosecution was not of that the accused persons were previously known to the complainant party. Tracing of foot prints of the accused admitted by the complainant through sniffer dogs and all these aspects of the case creates very serious doubts in the prosecution case.
20. Based on the above discussion and on reassessment of the evidence on record I am of the view that the prosecution has failed to prove its case against the appellants beyond any reasonable doubt, therefore, I allow the instant jail appeal and set-aside the conviction and sentences handed down by the trial court vide judgment dated 23.08.2011 and acquit the appellants by extending them the benefit of the doubt, appellantsJan Muhammad S/o Abdul Rehman and Abdul Rehman S/o Noor Muhammadshall be released forthwith unless wanted in any other custody case.
21. The above Cr. Jail Appealis disposed of in the above terms.
J U D G E.