IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Criminal Jail Appeal No. S- 72 of 2018.
Appellants: 1. Nazir Ahmed Brohi
(Acquitted vide order dated 04.01.2021, by way of compromise).
2. Muhammad Ismail son of Ghous Bux Brohi, through Mr. Noor Muhammad Soomro Advocate.
Respondent: The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Dates of hearing: 12-02-2021.
Date of the decision: 01-03-2021.
JUDGMENT
Zulfiqar Ali Sangi, J-. Through this criminal jail appeal, appellants Nazir Ahmed and Muhammad Ismail have impugned the judgment dated 31.07.2018, passed by learned Additional Sessions Judge-II, Mehar, in Sessions Case No.207/2016, re; St. v. Nazeer Ahmed & others, arising out of Crime No. 02/2016 of P.S Bhand Maari (District Dadu); whereby the appellantswere convicted and sentenced as under:
Under Section 302 (b) P.P.C.
To imprisonment for life for each murder as “Tazir”.
Under Section 324 P.P.C.
To undergo R.I for seven years each.
Under Section 504 P.P.C.
To undergo one year with fine of Rs.5000/- each, and in case of non-payment of fine to undergo S.I for three months more.
Under Section 506 (2) P.P.C.
To undergo R.I for three years each with fine of Rs.5000/- each and in case of failure in payment of fine to undergo S.I for three months more.
Under Section 337-A (i) P.P.C.
In respect of injuries to injured Meer Muhammad to undergo R.I for one year each as “Tazir”.
Under Section 337-L (ii) P.P.C.
In respect of injuries No.2 and 3 to PW Meer Muhammad to undergo R.I for one year each.
Under Section 337-F (v) P.P.C.
In respect of injury to PW Nizamuddin, Mst. Bibi Khatoon to undergo R.I for three years each as “Tazir” and to pay “Daman” of Rs.20,000/- to injured Nizamuddin and Mst. Bibi Khatoon by each of them.
Under Section 337-F (iii) P.P.C.
In respect of injuries to injured Muhammad Asif, to undergo R.I for three years each as “Tazir”.
The benefit of Section 382-B Cr.P.C. was also extended to the appellants.
2. The facts of the prosecution case are that, on 03.3.2016 complainant Meer Muhammad Brohi lodged F.I.R at P.S Bhand Maari, alleging therein that he used to cultivate the land of one Suhail Ahmed Soomro situated in Deh Sona Bindi. The complainant, his brohter Siddique, Ramzan and brother-in-law Nizamuddin were residing in separate katcha houses and about three years prior to the incident the accused Ibrahim Brohi and others had leveled allegation of “Karap” against Nizamuddin, as such Nizamuddin had given them such “fasila” on Holy Quran before Nekmards of locality, but brohter of accused Ibrahim, namely, Ismail had not accepted such “fasila” and he used to ask complainant not to allow Nizamuddin to reside with him, otherwise he will cause them harm. On 01.3.2016, the complainant alongwith his mother Mst. Fatima, his wife Mst. Zeenat and other family members after having night meals went to sleep and the lights were glowing. On 02.3.2016 at about 12.30 night the complainant, his mother, his wife, his brothers Siddique, Ramzan and Nizamuddin, his sister Bibi Khatoon, her minor son Asif woke up on barking of dogs and came out of their respective houses, and noticed accused Ibrahim having Kalashnikov type rifle, Hyder having repeater gun, Nazir armed with gun accompanying one unidentified person with open face; all of them were standing in the courtyard of complainant’s house. Out of them, accused Ibrahim asked complainant that he had restrained him do not give stay to Nizamuddin with him, who is their “Karo”, hence they will teach them lesson, saying so, accusedIbrahim caused butt blows of Kalashnikov type rifle to complainant on his head, on which complainant’s mother Mst. Fatima and his wife Mst. Zeenat intervened and tried to rescue him and in the meantime accused Ibrahim fired fromKalashnikovtype rifle shots at mother of complainant Mst. Fatima which hit her and she fell down on the ground. Accused Hyder fired repeater gun at complainant’s wife Mst. Zeenat with intention to commit murder; she also fell down rising cries. Accused Nazir fired gun shot at complainant’s brother-in-law Nizamuddin and his sister Mst. Bibi Khatoon and her minor son Asif, who also fell down on the ground. Thereafter, accused persons presumed them to be dead and left scene of offence by raising slogans and firing in the air. After departure of the accused persons, the complainant saw that all the persons who were fired at were lying in injured condition and out of them Mst. Fatima and Mst. Zeenat succumbed to injuries on the spot. The dead-bodies were left in house, while injured were removed to police-station and then to hospital. Ultimately, the F.I.R was registered to the above effect.
3. After the matter was investigated, the investigation officer submittedthe charge sheet against the appellants, thereafter on completing formalities the charge against the appellantswas framed at Ex.6, to which they pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution examined as many as 10 witnesses who exhibited various documents in support of the prosecution case where after the prosecution closed its side. The appellants/accused recorded their statements under Section 342 Cr.P.C. No appellant gave evidence on oath or called any DW in support of their defence case. Thereafter the trial court, after hearing the parties and on assessment of the evidence, convicted and sentenced the appellants through the impugned judgment dated 31.07.2018 as mentioned earlier in this judgment. Hence the appellants have filed the instant appeal against their conviction.
5. It is pertinent to mention here that, during pendency of appeal the legal heirs of the deceased, as well as injured persons entered into compromise with appellant Nazir Ahmed. Such joint applications to the effect of compromise were filed and after fulfillment of all the legal formalities applications were allowed and appellant Nazir Ahmed was acquitted of the charge by way of compromise vide order dated 04.01.2021. Therefore only the appeal in respect of appellant Muhammad Ismail is heard.
6. Learned counsel for the appellant contended that the prosecution witnesses are closely related inter-se, and no active role has assigned to the appellant Muhammad Ismail but he was convicted and sentenceonly on the charge of conspiracy. Learned counsel next contended that prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, therefore, their evidence is un-reliable and un-trustworthy. Learned counsel further submitted that prosecution failed to prove the case against the appellant Muhammad Ismail beyond a reasonable doubt therefore the appellant may be acquitted by extending him the benefit of the doubt.
7. Learned D.P.G. while supporting the impugned judgment submitted that the prosecution case has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction. He further added that all the prosecution witnesses fully supported the case and there are no material contradiction in their evidence and the prosecution proved its case against the appellant beyond a reasonable doubt and therefore, he prayed that the appeal of the appellant may be dismissed.
8. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General Sindh and perused the record and the evidence which was read over by them with their able assistance.
9. On reassessment of the entire evidence produced by the prosecution I am of the view that the prosecution has not proved its case against the appellant Muhammad Ismail beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
10. As per FIR the allegation against the appellant Muhammad Ismail is that three years prior to the incident Ibrahim Brohi (co-accused and the brother of appellant) made allegation of Karap upon Nizamuddin the brother in law of the complainant, such faisla was held and Nizamuddin took oath on Holy Quran for clarification but the appellant did not accept the faisla and was saying that if complainant allowed the Nizamuddin to reside with them he would cause harm to them.
11. No date and time of allegation of karap is mentioned in the FIR nor any of witness deposed in their evidence before the trail court in this respect. No date of faisla is mentioned nor the person (nek-murd) before whom the faisla was held was examined by the investigation officer nor the same was examined before the trial court by the prosecution. The date and time of the threats allegedly issued by the appellant is also not mentioned in the FIR, S.161Cr.PC statements of the witnesses and none of the witnesses deposed such fact before the trial court.
12. It is observed that after the investigation the investigation officer submitted the report under section 173 Cr.P.C before concerned Magistrate against accused Nazir Ahmed showing him in the custody, Ibrahim and Hyder as absconders, however the name of the appellant was not mentioned in any of the column of the report under section 173 Cr.P.C. Learned Magistrate on the report under section 173 Cr.P.C took the cognizance of the offence U/S 190 Cr.P.C and passed the following order:-
"Cognizance is taken. Admit and register. I.O will submit final medical certificates in trial court. Interim report is treated as final.
Sd/- 02.04.2016"
13. The appellant Muhammad Ismail was not joined by the Learned Magistrate and after issuance of proclamation u/s 87 and 88 Cr.P.C and having declared the accused Ibrahim and Hyder as proclaimed offenders supplied the papers to accused Nazir Ahmed and keeping in view that the case was triable by the court of Sessions sent up the case to the court of Session U/S 190(3) Cr.P.C vide order dated 06.05.2016. On 10.5.2016 the R & Ps was received by the court of Sessions Judge by showing that the matter is already fixed on 18.5.2016. Again on 18.5.2016 the case was adjourned with directions to the accused to engage his counsel and on 29.6.2016 the case was transferred to court of II-Additional Sessions Judge, Mehar for disposal according to law. It is observed that learned Magistrate, learned Sessions Judge Dadu or 2nd Additional Sessions Judge, Mehar has not joined the appellant Muhammad Ismail in the proceedings.
14. On 29-12-2016 I.O P.S Bhand Mari submitted an application before the trial court i-e 2nd Additional Session Judge Mehar (Mr. Ghulam Ali Kanasiro) for joining the accused (appellant Muhammad Ismail) in the charge sheet which is reproduced as under:-
IN THE COURT OF 2ND ADDITIONAL SESSIONS JUDGE, MEHAR
The State
Versus
Nazir and others
Crime No. 02/2016 P.S Bhand Mari
U/S 302, 324, 109, 337-H(2), 504 and 34 PPC
APPLICATION FOR JOINING OF ACCUSED IN CHARGE SHEET.
It is respectfully submitted that Sessions Case Crime No.02/2016 police station Bhand Mari is pending on the file of this Honourable Court.
That sir, the charge sheet in this case was submitted before learned concerned Magistrate against accused Nazeer, Ibrahim and Hyder but accused Ismail s/o Ghous Bakhsh was not shown in the charge sheet. Although accused Ismile s/o Ghouls Bakhsh is also shown/nominated in the F.I.R and 161 Cr.P.C statements of witnesses but due to oversight mistake the name of accused Ismail s/o Ghous Bakhsh was not inserted in the charge sheet presented before learned Magistrate.
It is therefore, requested that the name of accused Ismile s/o Ghous Bakhsh may kindly be inserted in the charge sheet.
Sd/-
I.O Bhand Mari P.S
Crime No.02/2016
15. Learned trial judge without issuing notice or giving an opportunity of hearing to the appellant passed the following order on the aboveapplication:-
“Order”
I.O is directed to submit supplementary report in court of concerned Magistrate.
Sd/=
29.12.2016
16. Record reflects that investigation officer under the direction of the trial court submitted supplementary report before the concerned Magistrate on 04.01.2017 however the appellant was arrested on 03.01.2017 without any order or issuance of warrants from any court of law. The learned Magistrate on the subsequent report passed the order without issuing notice to the appellant and assigning any reason and the same is reproduced as under:-
ORDER
"Subsequent report is accepted
Sd/-04.01.2017"
17. Learned Magistrate after the above order sent up supplementary reportto the court of Session U/S 190(3) Cr.P.C. and on 07-01-2017 Sessions Judge, Dadu passed the following order on the supplementary challan:-
"Supplementary Challan received from the Court of Civil Judge & Judicial Magistrate-II, Mehar U/s 190(3) Cr.P.C. Case is already fixed on 17.01.2017. This supplementary challan is transferred to the court of learned Additional Sessions Judge-II, Mehar for disposal according to law, as the main case was already transferred.
Sd/-
Sessions Judge, Dadu
Surprisingly the 2nd Additional Judge did not pass any order in respect of the joining of the appellant and started the trial against the appellant.
18. Not only the appellant's right of hearing by passing the above orders for joining him as an accused was violated but the right of defence was also not given to him during the trial. The charge against the appellant was not framed properly and the whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offences with which the accused is convicted is not brought out in the charge, then the charge is defective.In other words it can be said that the main object of framing of charge is to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue so that evidence could be confined to such points.The charge must allege all facts which are essential factors of the offence in question. But no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon circumstances of each case.The appellant was charged for the offence for which no material was available with the trial court against the appellant Muhammad Ismail even the allegation of not accepting the Faisla of nek murd in my view was and is not an allegation which constitute any offence and the same is not mentioned in the charge.
19. The witnesses whose evidence was used against the appellant were not cross examined on his behalf. The complainant, PW-2 Nizamuddin, PW-3 Muhammad Ramzan and PW-4 Mst. Bibi Khatoon who are all eye witnesses were examined on 22-07-2017, 15-08-2017 and16-12-2017 respectively and on all the dates their cross-examination was reserved for the appellant. Record reflects that they were not called again for the said purpose but Ex. 13 the statement on behalf of the appellant was taken on record showingthat cross was adopted and the same was adopted without re-calling of the witnesses.
Turning to the merits of the case on the basis of evidence produced by the prosecution.
20. The incident took place on 02-03-2016 at 0300 hours and the FIR was registered on 03-03-2016 at 1530 hours. After the incident complainant immediately approached the police and police came at the place of vardat took the dead bodies and referred the injured persons to the hospital. Investigation was started before the FIR and on 02-03-2016 mashirnama of inspection of injuries, mashirnama of inspection dead body and the inspection of the place of vardat and recovery of the empties and other articles from the place of vardat was papered on 02-03-2016 before the FIR and in all these documents the complainant has not named any of the accused. The investigation officer however produced the entry dated 02-03-2016 recorded at 0130 hours which is reproduced as under:-
"This time it is noted, we were present at the P.S that a person namely Muhammad Ramzan s/o Abdul Rehman Brohi r/o Ghar Penhja Sona Bhindi Forest came present at the P.S and stated the reality that some people of their Brohi community have trespassed in their house and started arm firing. In that firing, his mother Mst. Fatima and his brother's wife are murdered. And his sister Mst. Bibi Khatoon his brother in law Nizamuddin Brohi his brother Meer Muhammad and Muhammad Asif have also got injured in the firing. That they have brought the injured at the P.S and they are asking for the medical letter. The medical letter is given to them. Such entry is made."
On careful scrutiny of the entry and the material available on record coupled with the unexplained delay in registration of FIR it is established beyond a shadow of reasonable doubt that the FIR was registered with consultation and the deliberations and which cut the roots of prosecution case and make it doubtful. Reliance is placed on the case of Zeeshan @ Shani V. The State (2012 SCMR 428), wherein the Supreme Court has held as under:-
Delay of more than an hour in lodging the report would also give rise to the inference that the occurrence has not taken place in the manner projected by the prosecution and that this time was consumed in making an effort to give a coherent attire to the prosecution case, which hardly proved successful. This delay is all the more fatal when admittedly the Police Station, besides being connected with the scene of occurrence through a mettalled road, is at a distance of 11 kilometers from the latter. Such delay would also militate against the veracity of the prosecution witnesses when it is not their case that they had no vehicular means to reach the Police Station soon after the occurrence.
21. The complainant was examinedas PW-01 who deposed the same as stated by him in the FIR that on 02-03-2016 he was present in the village Sona Bindi in his house, it was 0030 hours of mid night when this incident took place. About three years prior to occurrence of this incident Nizamuddin the husband of his sister was declared Karo and the allegation of adultery was hurled by one Ibrahim and such faisla was held by nekmurd namely Muhammad Brohi on Holy Quran, however, that faisla was not accepted by Muhammad Ismail and was stating that he will fight with them. He further deposed that on 02-03-2016 at 0030 hours he along with his brother Muhammad Ramzan, Muhammad Siddique, his mother Mst. Fatima, his wife Mst. Zeenat, Nizamuddin and his wife Mst. Bibi Khatoon and his son Asif were available in their house and were sleeping. On the barking of dogs they woke up and noticed accused Ibrahim with K.K, Hyder with repeater gun, Nazeer with SBBL gun and other unidentifiedculprits with SBBL guns were available in the courtyard of their house. He further deposed that Muhammad Ibrahim asked him that since he have given stay to Nizamuddin, hence they will teach him lesson and accused Muhammad Ibrahim gave hakal and caused him butt blows of K.K which hit him on his head, on which his mother Mst. Fatima came to rescue to which accused Muhammad Ibrahim fired upon her mother which hit her at her chest and by crying fell down. Accused Hyder fired repeater gun shot on his wife which hit her on right side of neck who also by crying fell down. Accused Nazeer fired from his SBBL gun upon Nizamuddin which hit him on right leg toe and that shot also hit Mst Bibi Khatoon on toe of her right leg so also hit to Asif on his buttock. Accused then went away.
22. The prosecution examined eye witnesses namely Nizamuddin as PW-02, Muhammad Ramzanas PW-03, Mst. Bibi Khatoon as PW-04 and they have deposed almost same facts as deposed by the complainant. None of the above eye witnesses deposed that on 02-03-2016 at the time of incident appellant was present at the place of incident nor they have assigned any role against him. None of the witness even deposed that the incident took place on the instigation of the appellant during their examination-in-chief.It is observed that during the examination-in-chief the eye witness namely Muhammad Ramzan deposed that Accused Nazeer present in court is same. Whereas accused Muhammad Ismail present in court was not available on spot but he has instigated other accused and occurrence had taken place on his instigation. There is no evidence on record that the appellant instigated any of the accused for the commission of present offence.
23. The investigation officer namely Abdul Hameed was examined as PW-08 he had not deposed a single word against the appellant Muhammad Ismail nor he deposed that the name of appellant was not mentioned in the final report under section 173 Cr.P.C due to any mistake. Investigation officer has also not stated a single word about the application for joining the appellant as accused in the case before the trial court.
24. Nothing was recovered from the possession of appellant and he was arrested without collecting evidence against him.
25. The trial judge i-e 2nd Additional Session Judge Mehar(Mr. Ghulam Ali Kanasiro) put the appellant the evidence in his statement under section 342 Cr.P.C which was against the co-accused Nazeer and was not against the appellant Muhammad Ismail the saidNazeer was acquitted by this court by way of compromise. In my view there was no material against the appellant. For ease of reference Q.No.1 from the statement under section 342 Cr.P.C is reproduced as under:-
Q.No.1 It has come in evidence of prosecution witness that on 02.03.2016 at 0030 hours at the land of Suhail Ahmed situated in Deh Sona Bindi Bello (Forest), you along with co-accused Nazeer Brohi, absconding accused Ibrahim and Hyder, armed with deadly weapons with your common intention hurled abusive language to complainant, co-accused Ibrahim Brohi directly fired K.K rifle shot at Mst. Fatima, the mother of complainant, with intention to commit her murder, which hit in her chest, accused Hyder fired repeater gun shot at Mst. Zeenat, the wife of complainant with intention to commit her murder, the fire hit to her on neck, in result both ladies expired away, accused Nazeer fired shots of P.Ws Nizamuddin, Mst. Baby and minor Asif with intention to commit their murder, fire hit to P.W Nizamuddin on his right leg and foot, Mst. Baby on her right foot and minor Asif received firearm shot at his buttock as well as you all accused fired shots in air in rash and negligent manner. What you have to say?
Ans. It is all false sir.
26. It is a settled principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly, mere heinous or gruesome nature of crime shall not detract the court of law in any manner from the due course to judge and make the appraisal of evidence in a letdown manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the judges to patently wrong collusion. In that event, justice would be the casualty.
27. On careful scrutiny of the entire evidence produced by the prosecution I find no evidence at all against the appellant Muhammad Ismail which connects him with the commission of the offence. It is a well settled principle of law that one who makes an assertion has to prove it. Thus, the onus rests on the prosecution to prove guilt of the accused beyond reasonable doubt throughout the trial. Presumption of innocence remains throughout the case until such time the prosecution on the evidence satisfies the Court beyond reasonable doubt that the accused is guilty of the offence alleged against him. There cannot be a fair trial, which is itself the primary purpose of criminal jurisprudence, if the judges have not been able to clearly elucidate the rudimentary concept of standard of proof that prosecution must meet in order to obtain a conviction. Two concepts i.e., "proof beyond reasonable doubt" and "presumption of innocence" are so closely linked together that the same must be presented as one unit. If the presumption of innocence is a golden thread to criminal jurisprudence, then proof beyond reasonable doubt is silver, and these two threads are forever intertwined in the fabric of criminal justice system. As such, the expression "proof beyond reasonable doubt" is of fundamental importance to the criminal justice system: it is one of the principles which seeks to ensure that no innocent person is convicted. Where there is any doubt in the prosecution story, benefit should be given to the accused, which is quite consistent with the safe administration of criminal justice. Further, suspicion howsoever grave or strong can never be a proper substitute for the standard of proof required in a criminal case, i.e. beyond reasonable doubt.
28. 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).
29. 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 appellant 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 31.08.2018 and acquit the appellant of the charge by extending him the benefit of the doubt, appellantMuhammad Ismail shall be released forthwith unless wanted in any other custody case.
30. The above Cr. Jail Appeal is disposed of in the above terms.
J U D G E.