IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Jail Appeal No. D-33 of 2018 a/w
Cr. Conf. Case No. D-04 of 2018
Cr. Acq. Appeal No. D-09 of 2018
Cr. Rev. Appln. No. D-05 of 2018
Cr. Jail Appeal No. S-44 of 2018
Present :
Mr. Justice Mohammad Karim Khan Agha,
Mr. Justice Zulfiqar Ali Sangi,
Appellant In Cr. Appeal No. D-33/2018
Gulzar Sanghro,
Through Mr. Ahsan Ahmed Qureshi, advocate
Appellant In Cr. Appeal No. S-44/2018
Muhammad Sharif and others,
Through Mr. Ahsan Ahmed Qureshi, advocate
Applicant/ In Cr. Revision Appln. No. D-05/2018
Appellant/ Cr. Acq. Appeal No. D-09/2018,
Complainant Wali Dino,
Through Mr. Anwar Ali Janweri, Advocate
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing : 23-02-2021
Date of Announcement : 05-03-2021
J U D G M E N T
Zulfiqar Ali Sangi, J.- Through this common judgment, we intend to dispose of five cases, viz. Cr. Jail Appeal No. D-33/2018 along with Criminal Confirmation Case No. D-33/2018, filed by the appellant Gulzar Sanghro against his conviction, Cr. Jail Appeal No.S-33/2018, filed by the appellants Muhammad Sharif and others, Criminal Acquittal Appeal No. D-09/2018, filed by the complainant Wali Dino against the acquittal of accused, Zulfiqar Ali Sanghro and Cr. Rev. Appln. No. D-05/2018, filed by the appellant/complainant for enhancing the sentence of Muhammad Sharif and Akhtiar Ali stating that they have been given lesser punishment of life imprisonment. All the cases pertain to one common judgment dated 24.05.2019, passed by the learned Sessions Judge, Kambar-Shahdadkot @ Kambar in Sessions Case No.281/2005, culminating from Crime No. 04/2005, registered at Police Station Nasirabad, under Sections 302,148,149 P.P.C., whereby the appellantGulzar Ali s/o HaleemullahSangroo was convicted U/S 302 PPC and was sentenced to death as Tazir subject to the confirmation by this court. He was also directed to pay compensation of Rs.200,000/- (Rupees Two Lac only) to the legal heirs of deceased Abdul Hameed in terms of section 544-A, Cr.P.C. In default thereof, hewas directed to suffer simple imprisonment for one year.AppellantsMuhammad Sharif s/o HaleemullahSanghroo and Akhtiar Ali s/o Muhammad Qasim Sanghroo were convicted and sentenced for offence punishable U/S 302 (b) PPC read with Section 149 PPC for imprisonment of life. They were also directed to pay compensation of Rs.100,000/- (Rupees One Lac Only) each to legal heirs of deceasedAbdul Hameed in terms of section 544-A, Cr.P.C. In default thereof, they were directed to suffer one year simple imprisonment more. The appellants were extended the benefit of Section 382-B Cr.P.C. Trial Court acquitted the accused Zulfiqar Ali s/o ShaffanSanghroo by extending him the benefit of the doubt.
2. Brief facts of the prosecution case as per F.I.R lodged by complainant Bakhshal at P.S. Nasirabad are that the accused Muhammad Sharif had declared complainant's son Abdul Hameed as KARO with his daughter Mst.Surya Khatoon. Complainant Bakhshal with his ‘brothery’ people approached accused Muhammad Sharif for clarifying the position regarding false allegation of KARO against his son Abdul Hameed. Accused Muhammad Sharif did not come in private Faisla and asked that he will take revenge of it. On fateful night of 28-01-2005, complainant Bakhshal, his son Wali Dino, Badal and Abdul Hameed were sleeping in the room of their home. At about 12:30 (midnight) they woke up on a firearm report. They saw on the light of an electric bulb accused Gulzar with gun, Muhammad Sharif with hatchet, Zulfiqar with rifle, Akhtiar with gun and one unidentified person with hatchet were standing over them. Accused Muhammad Sharif asked that since Abdul Hameed is ‘KARO’ therefore, they will commit his murder. Accused asked complainant and his sons for remaining silent and due to fear of weapons they remained silent. Meanwhile, accused Gulzar directly fired from his gun upon Abdul Hameed, which hit him on his chest. Accused Akhtiar also fired from his gun upon Abdul Hameed, which hit him on his right arm. Accused Muhammad Sharif and unidentified person caused hatchet blows on the legs of Abdul Hameed. Thereafter, all accused with their weapons went away. The complainant and his both sons noticed that Abdul Hameed was bleeding and had died. The complainant leaving his sons over dead body of Abdul Hameed went to Police Station, where he lodged FIR of incident at 01.45 am (Midnight) of 28-01-2005,
3. On 09.02.2005, all four accused surrendered themselves at P.S. Nasirabad before S.I.O Mumtaz Ali Janweri. Accused Gulzar Ali and Akhtiar produced guns and accused Muhammad Sharif produced hatchet to S.I.O, allegedly used by them in commission of offence. After completing all the legal formalities, Investigation Officer submitted the challan of this case before the court. Charge was framed against the appellants/accused to which they pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, examined complainant Bakhshal at Exh.7, who produced FIR at Exh.7/A; PW Wali Dino at Exh.8; ASI Akhtiar Ali, author of FIR at Exh.9; SIO Mumtaz Ali Janwri at Exh.11, who produced mashirnama of arrest of accused and recovery from them, statement of PW Wali Dino u/s 164 Cr.P.C, report of chemical examiner regarding blood stained mud, roznamcha entry No.7 and report of Ballistic Expert Exh.11/A to Exh.11/E; PC Mahboob Ali, the corpse bearer at Exh.13, who produced receipt of dead body Exh.13/A; ASI Muhammad Hassan, the Investigation Officer at Exh.14, who produced Danistnama, Lash Chakas Form of dead body; Mashir Muhammad Ismail at Exh.15; Tapedar Abdul Ghani at Exh.16, who produced sketch of vardat in triplicate at Exh.16/A; Medical officer Dr. Jai Kirshin Exh.17, who produced post mortem repot of deceased Abdul Hameed Exh.17/A; Judicial Magistrate, Mr. Ahsan Ahmed Durani at Exh.18, who produced statement of PW Badal u/s 164 Cr.P.C, recorded by him Exh.18/A. Thereafter, learned DDPP for State closed the side of prosecution case vide his statement at Exh.19.
5. Trial Court recorded statements of accused under section 342 Cr.P.C, wherein they denied the prosecution allegations, claimed their false implication. They opted to examine themselves on oath but did not lead any defence evidence to disprove their case.
6. After assessment of evidence, learned trial court has passed the above impugned judgment and awarded sentences to the accused as mentioned above, however, acquitted the accused Zulfiqar by extending him the benefit of the doubt. Being aggrieved by the said judgment, the appellants/accused above named have preferred their criminal appeals. The son of complainant P.W Wali Dino filed criminal revision application for enhancing the sentences awarded to the appellants/accused Muhammad Sharif and Akhtiar Ali from life imprisonment to death. He also filed the criminal acquittal appeal against acquittal of accused Zulfiqar Ali.
7. Earlier, the appellants/accused were also convicted by the learned Sessions Judge, Kambar-Shahdadkot vide judgment dated 30.06.2010. The accused filed Cr. Appeal No.D-97/2010 before this court and the same was set-aside vide Judgment dated 22.01.2018 and remanded case to the trial court for deciding afresh after re-calling and re-examining PW PC Mahboob Ali and thereafter record the statements of accused by putting specific questions in respect of all the incriminating evidence which has come on record against them in accordance with law.
8. After remand of case, fresh Statements of accused were recorded Exh.32 to Exh.35, wherein they denied allegations of prosecution leveled against them. They claimed their innocence in this case. Accused Muhammad Sharif, Zulfiqar and Akhtiar neither opted to examine themselves on oath U/S 340 (2) Cr.P.C nor led evidence in their defence. However, accused Gulzar opted to examine himself on oath and led evidence of two defence witnesses, namely, Muhammad Idress and Mahi Khan in his defence. Statement of accused Gulzar Ahmed was recorded on oath Exh.36, DWs Muhammad Idress and Mahi Khan were examined Exh.37 & Exh.38 respectively. Thereafter, learned defence counsel closed side of defence at Exh.39.
9. Learned counsel for the appellants has contended that the appellants are innocent and have falsely been implicated in this case; that the complainant Bakhshal had expired; that it was night time incident and the identification on bulb light is weak type of evidence; that there is no eye witness of the incident and the witnesses are cooked up witnesses; that there was no recovery of the light bulb under which the accused were allegedly identified which is also not mentioned in mashirnama of vardat and even the Tapedar has not shown the same in his sketch; that complainant, P.Ws and mashirs are related to each other and are interested; that the appellants are behind the bars since last 13 years; that the learned trial court has not appreciated the evidence brought on record and there are major contradictions in the evidence of the witnesses; complainant is father and PW Wali Dino is brother of deceased Abdul Hameed, therefore, their evidence cannot be relied upon. He next argued that nothing was recovered from accused Zulfiqar Ali and no role has been assigned to him except of his presence at place of incident. He has pointed out some contradictions in the depositions of PWs. He next argued that both DWs have deposed that accused Gulzar was in village Seehar, where he stayed on the fateful night. Therefore, presence of accused Gulzar at place of incident appears to be doubtful. Concluding his arguments, he submitted that accused have falsely been implicated in this case, therefore, they may be acquitted by giving them the benefit of the doubt.
10. On the contrary, learned advocate for the complainant has contended that all four accused jointly came in the house of complainant and they committed murder of deceased Abdul Hameed; that from the conduct of all four accused, it was very much clear that they had common object in their minds for committing murder of deceased Abdul Hameed, which they did. Therefore, all four accused are equally responsible for charge of murder of deceased Abdul Hameed; that prosecution has proved its case against all four accused but trial court has erred by acquitting the accused Zulfiqar Ali. In fact in earlier round of litigation, all four accused were found guilty and they were convicted and sentenced to death by the trial court vide judgment dated 30.06.2010. In response to the criminal acquittal appeal, he has submitted that applicability of Section 460 P.P.C has been fully supported by the ocular version through evidence, hence the respondent/accused Zulfiqar is fully liable for the same punishment as awarded to co-accused Gulzar Ali; that trial court has misconceived the concept of common intention as described in 34 P.P.C with lurking house trespass as mentioned in 460 P.P.C. In response to his criminal revision application, he submits that trial court has not considered the fact that the normal sentence of murder is death and if trial court having another sentence, it has to give reasoning as to why lesser sentence is given to the accused; that trial court has observed that prosecution has proved the case against respondents/accused beyond any shadow of the doubt, still appellants were sentenced for life imprisonment; that role of both accused/respondents Muhammad Sharif and Akhtiar Ali has been specifically mentioned and proved, but the trial court has taken lenient view and awarded only life imprisonment to both the accused. In the end, he has prayed that all four accused may be convicted and death penalty may be awarded to them.
11. Learned Additional Prosecutor General has submitted that prosecution has established its case against all four accused; medical evidence is completely in a line with the ocular version furnished by complainant and P.W Wali Dino; Ocular and medical evidence is corroborated by circumstantial evidence as well as recovery of crime weapons with guns from the possession of accused Gulzar Ali and Akhtiar, which were matched with two empties of 12 bore, recovered by I.O from the place of incident. Lastly, he prayed that appeal against the conviction may be dismissed.
12. We have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.
13. The Evidence produced by the prosecution is reassessed by us and the main prosecution witnesses gave their evidence as under:-
14. Prosecution has examined complainant Bakhshal as PW-1 (Eye witness), who has deposed that on 28.01.2005, he, his sons Badal, Wali Dino and deceased Abdul Hameed were sleeping in their house. At about 12.30 (night) they woke up on firearm report and saw that five accused had entered into their house. They identified accused to be Gulzar and Akhtiar with guns, Zulfiqar with rifle, Sharif with hatchet and an unidentified accused with hatchet. Accused Sharif directed them for remaining silent. Due to fear of weapons, they remained silent. Accused Gulzar fired upon his son Abdul Hameed, which hit on his chest. Accused Akhtiar also fired upon his son Abdul Hameed, which hit on his right arm. Accused Sharif and unidentified accused caused hatchet blows to his son Abdul Hameed on his legs. Accused Zulfiqar over powered them. Thereafter, accused went away. They noticed that his son Abdul Hameed succumbed to his injuries on spot. Leaving his sons over dead body, he went to PS Nasirabad, where he lodged FIR. After lodging of FIR, police came at place of vardat. Police secured blood stained earth and two empty cartridges from place of vardat. He identified accused present in court to be same. In his cross examination, he deposed that his house is opened from southern side. He went to PS by foot for lodging of FIR. His FIR was registered at 01.45 am (mid night). He showed the light bulbs at place of incident to the police which had enabled him to identify the accused. He denied the suggestion of learned defence counsel that he had not identified accused at place of incident and he is deposing falsely. His evidence was not dented despite a lengthy cross examination.
15. Prosecution has examined P.W-2 Wali Dino (eye witness), who was also eye witness of the incident and has deposed that on 28.01.2005, he with his brothers Badal, deceased Abdul Hameed and their father Bakhshal were present in their house. At about 12.30 am (night), they woke up on firearm reports and saw five accused with deadly weapons entered into their house. They identified accused to be Gulzar, Akhtiar with guns, Zulfiqar with rifle, Sharif with hatchet while fifth was unidentified with hatchet. They identified accused on light of bulbs, which were glowing in their house. Accused Sharif declared his brother Abdul Hameed as “Karo” with his daughter Mst. Surya. Accused Gulzar fired from his gun upon his brother Abdul Hameed which hit on his chest. Accused Akhtiar also fired upon Abdul Hameed which hit on his right arm. Accused Sharif and unidentified accused caused hatchet blows on legs of his brother Abdul Hameed. Accused Zulfiqar over powered them. Thereafter, all accused went away. They saw that his brother Abdul Hameed had died. His father Bakhshal leaving him and his brother Badal over dead body of deceased Abdul Hameed went to PS Nasirabad for lodging of FIR. At 07.00 am police came at place of vardat and secured blood stained earth and two empties. On same day, his statement was recorded by police. On 13th day of incident his statement u/s 164 Cr.P.C was recorded before Civil Judge-I, Warrah. He was cross examined but defence counsel could not succeed to bring the case of appellants as one of doubtful.
16. Prosecution has examined A.S.I. Akhtiar Ali PW-3 (author of the F.I.R), who has deposed that on 28.01.2005, he was posted as SHO at PS Nasirabad. On same day complainant Bakhshal appeared before him. He lodged his FIR vide crime No.04/2005 u/s 302, 148-149 PPC. After lodging of FIR, he handed over the same to Investigation Branch of PS Nasirabad.
17. Prosecution has examined SIO Mumtaz Ali as PW-4 who deposed that on 28.01.2005, he was posted as SIO at Sub Division Warrah. On same day ASI Muhammad Hassan handed over him case papers for investigation purpose. On 09.02.2005 accused Gulzar, Akhtiar, Muhammad Sharif and Zulfiqar voluntarily surrendered themselves in this case before him at PS Nasirabad. Accused Gulzar and Akhtiar produced guns before him. Accused Muhammad Sharif produced hatchet before him. Guns and hatchet were crime weapons of this case. He sent crime weapons to Ballistic Expert for its opinion. After completing legal formalities he submitted challan of this case on 24.02.2005 before the court of learned CJ & JM-I, Warrah. He identified all the four accused to be same, who had surrendered before him at PS Nasirabad.
18. PC Mahboob Ali PW-5, the corpse bearer deposed that on 28.01.2005, he was posted as PC at PS Nasirabad. On that day, he shifted dead body of deceased Abdul Hameed from place of vardat to Nasirabad Hospital for its autopsy. Medical Officer after having conducted post mortem examination of dead body, returned it to him, which he delivered to complainant Bakhshal, under receipt. He brought blood stained cloths of deceased and handed over the same to S.H.O P.S. Nasirabad.
19. ASI Muhammad Hassan, the Investigation Officer was examined by the prosecution as PW-6. He has deposed that on 28.01.2005, he was working as ASI at PS Nasirabad. On same day he received investigation of crime No.04/2005. He proceeded to place of incident at 07.30 hours, which was situated near village Muradi. He saw dead body of deceased Abdul Hameed lying on a cot. He saw injuries on person of deceased and prepared its Lash Chakas Form and inquest report in presence of mashirs Khair Muhammad and Ismail. He collected blood stained earth and two empties of 12 bore of gun, one red coloured and one white coloured from place of incident. He handed over dead body to PC Mahboob for its post mortem examination. On same day he examined PWs U/S 161 Cr.P.C. He sent blood stained earth to chemical examiner. Thereafter, investigation of this case was handed over to SIO Mumtaz Ali.
20. Prosecution has examined Muhammad Ismail as PW-7 (mashir of the case). He deposed that about 4½ years back, police came at place of vardat, situated in their village near Muradi and saw dead body of deceased Abdul Hameed, which was lying on a cot. Police saw injuries on person of deceased. Police secured blood stained earth and two empties, one in red colour and other white coloured and prepared such mashirnama in his presence.
21. Tapedar Abdul Ghani was examined by the prosecution as PW-8 who deposed that he visited place of incident, which was shown to him by PW Wali Dino. He prepared sketch of vardat with help of inches tape by showing therein measurements and distances of points A, B & C.
22. Prosecution has examined Medical Officer Dr. Jai Kirshin as PW-9 who deposed that on 28.01.2005, he was serving as Medical Officer at RHC Nasirabad. On same day, he received dead body of deceased Abdul Hameed, referred to him by Nasirabad police for its post mortem examination and report. He conducted post mortem examination of dead body. On external examination of dead body, he found following injuries on the person of deceased Abdul Hameed:
i) One lacerated type punctured wound 5 cm x 4.5 cm x diameter x cavity deep at the mid of chest interiorly as wound of entry. Blackening was present.
ii) One lacerated type punctured wound 6 cm x 2.5 cm x diameter through and through on posterior side of right lower arm blow elbow joint as wound of entry. Blackening was present.
iii) One lacerated type punctured wound 12 cm x 6 cm x bone deep as wound of exit entry No.2 at interior side of lower arm, fracture radius ulna are visible.
iv) One incised wound 12 cm x 2 cm x bone deep interiorly on left knee joint, fracture of left femur.
v) One incised wound 9 cm x 2 cm x bone deep above injury No.4 on left leg, fracture of left femur (2) is visible.
vi) One incised wound measuring 9.5 cm x 4 cm x bone deep medially on right knee joint, fracture of right femur bone.
vii) One incised wound 6 cm x 2 cm x bone deep medially above injury No.6, fracture of right femur, bone No.2 visible.
On internal examination of dead body, he found walls of thorax were perforated at the side of injury. Pleura, trachea, right lung, left lung, pericardium and heart were found perforated. Blood vessels were ruptured at the side of injuries. Membranes, bones and joints were ruptured and fractured. All other organs were found healthy.
On external as well as internal examination of dead body of deceased Abdul Hameed, he was of the opinion that death had occurred due to hemorrhage and shock resulting from damage of vital organs like lungs and heart. Injuries No.1, 2 & 3 were caused by discharge from firearm. Injury No.4 to 7 were caused by sharp cutting weapon. All the injuries were anti mortem in nature. Injury No.1 individually and collectively was sufficient to cause death normally in ordinary course of nature.
23. Civil Judge & JM-I, Warrah Mr. Muhammad Ahsan Durani was examined by the prosecution as PW- 10 who deposed that on the day of incident Inspector Mumtaz Ali Janwri appeared before him and filed application for recording statement u/s 164 Cr.P.C of witnesses Badal and Wali Dino. Such notice of 24 hours was given by him to accused. On 11.04.2005 he recorded statements of both witnesses in presence of accused Gulzar, Muhammad Sharif, Zulfiqar and Akhtiar Ali. He produced attested copies of statement of PW Badal U/S 164 Cr.P.C, Exh.18/A.
24. The prosecution examined two eye witnesses who were the natural witnesses and are on blood relation with the deceased. They fully supported the prosecution case and both were cross examined at length but nothing favourable to the appellants who were convicted by the trial court was brought on record on their behalf. They being the inmates of the house are natural witnesses and their presence is established from their evidence. Where the prosecution proved its case against the accused by producing reliable, trustworthy and confidence inspiring evidence then mere relationship of these eye-witnesses with the deceased alone is not enough to discard the testimony of the complainant and his witnesses. In the matters of capital punishments, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record that there had been such a dispute/enmity which could be believed to have motivated the “natural witnesses”in involving the innocent at the cost of the escape of “real culprits”. We would mention here that where the natural witnesses are in blood-relations then normally the possibility of substitution becomes rare. Thus, no material has been brought on record by the appellants to show that the deep-rooted enmity existed earlier between the parties, which could have been the reason for false involvement of the appellants in this case. Reliance is placed on the case of Zahoor Ahmed v. The State(2007 SCMR 1519), wherein Honourable Supreme Court has held as under:-
6. The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.”
25. The appellants surrendered themselves before the investigation officer and they also themselves produced the crime weapons. We observed that during cross examination it was admitted that the gun was produced by the appellants but the empties were disputed. The reply of investigation officer on the suggestion made on behalf of accused was “It is incorrect to suggest that after providing guns I had fired cartridges in the same guns and then I sent the guns and empty cartridges to the ballistic expert.”
26. On our reassessment of the evidence the important part of which we have discussed above, we find that the prosecution has proved its case against the appellants for the offences charged beyond a reasonable doubt, the eyewitnesses fully supported the case of prosecution who were the natural witnesses, and the evidence of witnesses is fully supported by medical evidence so also other supportive evidence.
27. learned counsel for the appellants pointed out some minor contradictions in the evidence which in our view are not sufficient to discard the evidence of natural witnesses as the same always remain available in every case as no one can give evidence like photograph and the minor contradiction if available in the case such may be ignored, further the evidence of the prosecution witnesses was recorded after lapse of time and such minor contradictions are natural due to lapse of such time. Reliance is placed on the case of Zakir Khan V. The State (1995 SCMR 1793) wherein honorable Supreme court of Pakistan has held as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
28. We have also considered the statement of appellant on oath so also the evidence of the DWs. The appellant/Accused Gulzar deposed that he was driving a tractor of Idress Khaskheli. On 28.01.2005 at 08.30 pm, came in the village Seehar of Idress Khaskheli and stayed there the whole night. On next morning of 29.01.2005 at 07.30 am he went to work by driving the tractor. On 09.02.2005 he was arrested from his village Gul Sanghroo by police of PS Nasirabad. He has falsely been implicated in this case. DW Muhammad Idress was examined at Exh.37. He has deposed that accused Gulzar was driving his tractor and used to stay in his otaq. On 28.01.2005 he and Mahi Khan were sitting in their otaq. Meanwhile driver Gulzar came there and parked tractor in his otaq. They three took meal and chitchat upto 03.30 am (mid night). Thereafter accused went away on tractor for work. DW Mahi Khan was examined at Exh.38. He has deposed that on 28.01.2005 at evening time he came at the otaq of Idress Khaskheli and stayed there. At night time, driver Gulzar Sanghroo (accused) came there. They stayed at otaq, took dinner and chitchat upto 03.30 am (mid night) and then went to sleep. At morning hours accused Gulzar Sanghroo went on tractor. We scrutinized the defence evidence from the evidence of the prosecution witnesses and have not found that any such evidence was put to the eye witnesses and the investigation officer in their cross examination nor the same defence was ever taken during the investigation stage, therefore we cannot believe the defence witnesses and find their evidence as being concocted.
29. It is a well-settled principle of law that a criminal case is to be decided based on the totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had been expressed by the Honourable Supreme Court of Pakistan in the case of State v. Rab Nawaz and another (PLD 1974 SC 87) wherein Honourable Supreme Court has observed that a criminal case is to be decided based on the totality of circumstances and not based on a single element.
30. As regards to the alleged motive we are of the unanimous view that the prosecution has not proved the motive as setup in the FIR. The complainant stated in the FIR that his son Abdul Hameed was declared Karo by accused Muhammad Sharif with his daughter Mst. Suraiya Khatoon and he (complainant) was ready to clarify the said allegation that his son was not Karo either by oath or by any arbitration but accused Muhammad Sharif refused and asked the complainant that he will take the revenge. However when complainant appeared before the trial court for recording his evidence he did not state a single word in his examination-in-chief about the motive he asserted in the FIR. We have carefully examined the evidence of both the investigation officers and found that they had not taken any efforts to collect independent evidence about the asserted motive and the same was even not investigated.
31. It has been held by Honourable Supreme Court of Pakistan in many cases that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on a capital charge. Reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). In the instant case, we find that in the absence of proof of the asserted motive the real cause of occurrence had remained shrouded in mystery and such factor has put us to caution in the matter of the appellant's sentence of death.
32. Thus, based on the particular facts and circumstances of this case and by relying on the above-cited precedents and the evidence of the prosecution witnesses as discussed above these appeals are dismissed to the extent of the appellant's conviction for the offence under section 302(b), P.P.C. but the appeal of the appellant Gulzar is partly allowed to the extent of his sentence of death which is reduced to imprisonment for life. The order passed by the trial court regarding payment of compensation by the appellants to the heirs of the deceased as well as the order in respect of imprisonment in default of payment of compensation is, however, maintained. The benefit under section 382-B, Cr.P.C. shall be extended to the appellants. The confirmation reference made by the trial court is answered in the negative.
33. Turning to the Acquittal appeal filed by the son of the complainant against the acquitted accused Zulfiqar Ali we find that the trial court in point No. III para No.48 and 49 of the judgment had reached to the conclusion which is in favour of the acquitted accused and the same are reproduced as under:-
48. On this point, prosecution has failed to bring on record, if accused Zulfiqar Ali shared his common objection with co-accused Gulzar, Muhammad Sharif and Akhtiar in committing the murder of deceased Abdul Hameed. Per FIR, this accused Zulfiquar Ali was armed with rifle but, admittedly, he did not use it. In prompt lodged FIR nothing has been alleged against accused Zulfiquar Ali but mere his presence with rifle at place of incident has been shown. Even it is not alleged in FIR if accused Zulfiquar did overt act or instigated etc to co-accused. However, deposition, complainant Baxial and P.W Wali Dino have exaggerated and deposed that this accused Zulfiquar overpowered upon them. Had he was armed with rifle at the scene of occurrence, he could have used it during occurrence. But he did nothing. A perusal of case file shows that this accused Zulfiquar had voluntarily surrendered himself before police on 09.02.2005. During investigation, nothing was recovered from him. On account of mere his presence at place of incident he is facing agony of trial since long and has also remained in custody for about 121/2 years. Even otherwise, material available on record does not appeal to my mind, if this accused Zulfiquar Ali had shared his common object with co-accused Gulzar, Muhammad Sharif and Akhtiar in commission of charged offence (Exh.2). On account of mere presence of accused at place of incident, if any, is not sufficient to attract the provisions of common object/intention against him Reliance is placed on case of Noor Muhammad and others v/s The State, reported in PLD 2005 Karachi-177, wherein Honorable High Court of Sind has been pleased to hold as under:-
"---S.34---Common intention---Proof---Whether presence of accused at the scene of incident was sufficient to attract the provision of S.34, P.P.C---Mere such presence of the accused was not sufficient to attract the provisions of S.34 P.P.C, there must be proof of some overt act on the part of each accused done in furtherance of common intention [p.187] F"
49. In light of above discussion as well after taking guidance from case (supra), I am of the considered view that case against accused Zulfiquar Ali is doubtful. It is well settled principle of law that even slightest possible doubt, if any, in prosecution case its benefit should go to accused. Reliance is placed on case of Saddat Ali and another v/s The State, reported in 2009 SCMR-230. In attending circumstances, case of prosecution against accused Zulfiquar Ali seems to be doubtful, benefit of which is hereby extended to him. Thus, point No.III is answered as doubtful.
34. We have carefully scrutinized the evidence of the prosecution and the findings of the learned trial court in the impugned judgment as reproduced above and we have found no case for interference in the judgment to this extent mainly for the reasons that no overt act has been attributed to the acquitted accused. Principle offalsus in uno, falsus in omnibus is not applicable to the facts and circumstances of this case. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Supreme Court in the case of State Versus Abdul Khaliq and others (PLD 2011 SC 554). In these circumstances and the evidence discussed above the Cr. Acq. Appeal No. D – 09 of 2018 is dismissed.
35. Since we have already reduced the sentence of death awarded to appellant Gulzar into imprisonment for life as discussed above therefore we do not find any substance in the revision filed by the son of the complainant for enhancement of the sentence from the life imprisonment to death to the appellants Muhammad Sharif and Akhtiar and dismiss the same.
36. In the above terms Cr. Jail Appeal No. D – 33 of 2018, Conf. Case No. D – 04 of 2018, Cr. Jail Appeal No. S – 44 of 2018, Cr. Acq. Appeal No. D – 09 of 2018 and Cr. Rev. No. D- 05 of 2018 are disposed of. Confirmation reference No. D- 04 of 2018 is answered in NEGATIVE.
JUDGE
JUDGE