IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Criminal Jail Appeal No. S- 01 of 2013.

Appellant:                      Abdullah son of Khaman Khan Junejo, through                 MessrsAzhar Hussain Abbasi and Ghulam Rasool M. Narejo, Advocates.

Complainant:                 Akhtiar Ahmed, through Mr. Inayatullah G. Morio, Advocate.

Respondent:                   The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.

Dates of hearing:            01.03.2021.

Date of the decision:       08.03.2021.

JUDGMENT

ZULFIQAR ALI SANGI, J-.      Through this criminal jail appeal, appellant Abdullah son of Khaman Khan Junejo has impugned the judgment dated 22.12.2012, passed by learned Additional Sessions Judge-II, Shikarpur, in Sessions Case No. 413/2008, re; St. v. Abdullah, arising out of Crime No.49 of 2007 P.S Gaheja; whereby the appellant was convicted for offence under Sections 302 (b) P.P.C. The appellant was sentenced to suffer R.I for life and to pay fine to extent of Rs.200,000/- to the legal  heirs of the deceased Hussain Bux and in case of default of payment of fine to undergo R.I for six months more. The appellant was extended benefit of Section 382-B Cr.P.C.

2.       The facts of the prosecution case are that, on 05.12.2007 complainant Akhtiar Ahmed lodged F.I.R with Police-station Gaheja, stating therein that he has got dispute with Jalal Junejo over matrimonial affairs and such “fasila” was held. On the day of incident complainantalongwith his brother Hussain Bux aged 40/42 years and Suhno Junejo and his nephew Mumtaz went to village Mirzanpur to purchase house hold articles and they had sat at the shop of MuneerAhmed Shaikh. It was about 11.00 a.m. the accused Jalal Ahmed armed with gun, Ali Mardan, Abdul Rehman armed with Kalashnikovs, Abdullah having Kalashnikov, Khaman with gun, Bakhshal armed with T.T pistol came there by two motorcycles. Out of them accused Jalal gave “hakal” to Hussain Bux that he may not be spared and on his instigation accused Ali Mardan, Abdul Rehman and Abdullah fired from Kalashnikovs at Hussain Bux who raised cries and fell down and accused Khaman, Jalal and Bakhshal pointed their weapons over complainant party and due to fear of weapons they remained silent. Then, the accused persons ran away towards southern directions by boarding on motorcycles by making firing in the air. The complainant found that Hussain Bux was bleeding and lying dead. Ultimately, the complainant registered F.I.R to the above effect.

3.       After the completion of usual investigation, the investigating officer submits charge sheet under Section 512 Cr.P.C showing all the accused persons as absconders. However, appellant Abdullah was arrested later-on and joined the trial.

4.       After the legal formalities the charge was framed against theappellant at Ex.03, to which pleaded not guilty and claimed to be tried.

5.       The prosecution in order to prove its case produced as many as eleven witnesses. PW-1 Dr. Sham Lal was examined at Ex.5, who produced postmortem report of deceased Hussain Bux at Ex.5-A and inquest report at Ex.5-B. PW-2 ASI Ghulam Rasool was examined at Ex.6, who produced F.I.R at Ex.6-A. PW-3 complainant Akhtiar was examined at Ex.8, who produced receipt of dead-body at Ex.8-A. PW-4 Mumtaz was examined at Ex.9. PW-5 Suhno was examined at Ex.10. PW-6 mashir Ali Sher was examined at Ex. 11 who produced mashirnama of place of vardat at Ex.11-A, danishtnama at Ex.11-B. PW-7 SHO Subhan Ali Shah was examined at Ex.12. PW-8 SIP Sultan Ahmed was examined at Ex.13. PW-9 H.C Ghulam Shabir at Ex.14. PW-10 ASI Sadaruddin was examined at Ex.17, who produced mashirnama of arrest of accused at Ex.17-A. PW-11 Tapedar Manzoor Hussain was examined at Ex.18, who produced sketch of place of vardat at Ex.18-A. Thereafter, the side of prosecution was closed vide Ex.19.

6.       After the evidence of prosecution witnesses was recorded the trial court recorded statement under section 342 Cr.P.C of appellant at Ex.20, the appellant denied the prosecution allegations against him and also denied to examine himself on oath and to lead evidence in his defence.The learned trial Court on conclusion of trial and after hearing the parties passed the impugned judgment whereby convicting and sentencing appellant as stated above.

7.       Learned counsel for the appellant criticized the impugned judgment and argued that, the prosecution witnesses are closely related inter-se, and no independent witness has been examined by the prosecution at trial; that the prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, as such their presence at spot is doubtful and their evidence is un-reliable and un-trustworthy; that prosecution witnesses have also contradicted each other on material points and that there was also conflict in ocular and medical evidence; that the material collected and produced on record by the prosecution against appellant was not put to the appellant in his statement under section 342 Cr.P.C. and it is well settled law that, the material which was not put to accused while recording his statement, could not be used against him while awarding conviction; that the star witness Munir Ahmed Shaikh was not examined by the prosecution, therefore, presumption would be that he was not going to support the case of prosecution; therefore, he was not examined; that  the prosecution has failed to prove the case against the appellant beyond a reasonable doubt. Lastly he prayed that the appellant may be acquitted from the charge by extending him the benefit of the doubt.Learned counsel in support of his contentions relied upon case of The State v. Muhammad Akram (PLD 1985 Peshawar 116), Hakim alias Kaku and another v. The State (PLD 1989 Karachi 396), Sowali and another v. The State (1992 P.Cr.L.J 2284), Ashiq Hussain v. The State (1993 SCMR 417), Ata Muhammad and another v. The State (1995 SCMR 599), Alam Khan v. Swans Khan and 3 others (1996 SCMR 1742), Muhammad Aslam Khan v. The State (1999 SCMR 172), Muhammad Akram v. The State (2009 SCMR 230), AyubMasih v. The State (PLD 2002 Supreme Court 1048), Wajahat Ahmed and others V. The State and others (2016 SCMR 2073), Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596), Muhammad Mansha v. The State (2018 SCMR 772) and Amin Ali and another v. The State (2011 SCMR 323).

8.       Learned Advocate for the complainant and the DPG for the state have opposed instant appeal and 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 eyewitnesses have fully supported the case of prosecution and appellant has been assigned direct role of making fire upon deceased; that ocular evidence gets supported by medical evidence and that no major contradictions appeared in the statements of the eyewitnesses.

9.       I have heard the learned counsel for the appellant, learned Advocate for complainant, learned Deputy Prosecutor General and perused the record and have read the evidence of prosecution witnesses with their able assistance.

10.     On reassessment of the entire evidence produced by the prosecution it established beyond a reasonable doubt that the prosecution hasnot proved the case against the appellant beyond a reasonable doubt.

11.     All the eye witnesses gave their evidence which is full of contradictions in respect of each aspect. Complainant and the witnesses made improvements in the case at the time of recording their evidence which in my view create doubt in the case of prosecution.

12.     Complainant stated in his cross-examination that "it is fact that in result of firing some bullets hit walls, doors and articles of shop. PW-4 Mumtaz stated in his cross-examination that he do not remember whether any bullet hit to wall, door or any article of shop and the PW-5 Suhno also stated the same like Mumtaz. The mashir of inspection of place of vardat and recovery stated during his cross examination that he do not remember whether complainant showed the marks of bullets on walls, door and articles of shop etc or not. The mashirnama of inspection of the place of incident prepared at place of vardat is not showing any bullet marks on the wall and other articles available in the shop.

13.     Complainant stated in his cross-examination that when I.O visited place of vardat the dead body of my brother was lying on earth. PW Mumtaz stated in his cross-examination that they brought cot from their house and put the dead body of his father over the cot when police came there. Mashir Ali Sher stated in his cross-examination that the dead body was lying on the ground floor of vardat. SIO Subhan Ali Shah stated in his cross-examination that the dead body of deceased was lying on the earth of shop of Munir Ahmed Shaikh. Complainant stated that floor of the shop was built with pacca bricks and Investigation officer stated in his cross-examination that floor was katcha floor, there was no bricks on the ground, each witness deposed contradictory to each other.

14.     Complainant stated in his cross-examination that the dead body of Hussain Bux was taken by them on one private Datsun towards taluka hospital Madeji for post mortem, whereas PW Mumtaz stated in his cross-examination that police took dead body of his father Hussain Bux on police mobile towards taluka hospital Madeji for postmortem purpose.

15.     Complainant stated in his cross-examination that all accused persons entered in the shop. All accused had fired upon deceased from front as well as from back side. Further stated that he was standing in the shop and remained silent due to fire arm weapons. PW Mumtaz deposed against the version furnished by the complainant and stated that accused fired upon us where they parked their motorcycles. PW Suhno given another version in this respect by stating that he have stated before police that all accused encircled them and on the direction of the accused he, Mumtaz and Akhtiar sit down there and deceased Hussain Bux was standing and accused fired and the PW Mumtaz stated that all the accused Abdullah, Abdul Rehman and Ali Mardan fired from KK by putting it on the body of deceased Hussain Bux. All the witnesses given their different version in this respect.

16.     Approach of complainant at the relevant time to the police station after the incident is also doubtful as complainant stated in his cross-examination that when he return to place of vardat he was on his personal motorcycle and I.O was on police mobile. PW Mumtaz stated in his cross-examination that police came at vardat after about half an hour after incident. Police came on police mobile complainant was with them in police mobile. PW Suhno in his cross-examination stated that complainant Akhtiar was with police and was on police mobile.

17.     The recovery of the empties from the place of vardat is also doubtful. Investigation officer Subhan Shah stated in his cross-examination that he collected 10 empties of KK from place of incident some of which he collected from outside of the shop and some were from inside of the shop. Complainant on whose pointation place of vardat was visited by the investigation officer not stated a single word about the empties as to whether same were collected by the investigation officer or not?.

18.     No crime weapon was recovered from the appellant, the appellant was arrested in some other case then on information he was formally arrested from the prison. In the FIR as well as deposition the prosecution witnesses alleged that accused also fired from their guns and pistols in the air but no any empty of pistol and gun was recovered from the place of vardat.

19.     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).

20. 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 statementof the appellant recorded under section 342 Cr.P.C. it reveals that the recovery of empties of Kalashnikovs, bloodstained earth from the place of vardat, recovery of bloodstained clothes so also the medical evidence in shape of post mortem was not put to the appellant in his statement under section 342 Cr.P.C. enabling him 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).

21.     It is also a 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.

22.     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).

23.     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 22.12.2012 and acquit the appellant by extending him the benefit of the doubt, appellantAbdullah Junejo S/o Khaman Khan Junejo shall be released forthwith unless wanted in any other custody case.

24.     The above Cr. Jail Appealis disposed of in the above terms.

J U D G E.