IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Criminal Appeal No. S- 88 of 2018.
Criminal Jail Appeal No. S- 46 of 2020.
Appellants: 1. HafeezMachhi, through Mr. Ashique Ali Jatoi, Advocate.
2. Fida Hussain Solangi, though Mr. Altaf Hussain Surahyo, Advocate.
Respondent: The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Dates of hearing: 05.04.2021 and 12.04.2021.
Date of the Judgment: 04.06.2021.
JUDGMENT
Zulfiqar Ali Sangi, J-. This common judgment would dispose of the above two captioned appeals. Through these appeals, appellants HafeezMachhi and Fida Hussain Solangi have impugned the judgement dated01.09.2018 passed by the learned 1st Additional Sessions Judge, Mehar, whereby they were convicted and sentenced in Sessions case No.608/2009, arising out of Crime No.162/2009 of Police Station Mehar, as under:-
For offence Under Section 302 (b) PPC to suffer R.I for life and to pay compensation of Rs.100,000/- to legal heirs of the deceased and in default thereof to suffer S.I for six month.
For offence Under Section 353 PPC to suffer R.I for two years and to pay fine of Rs.2000/- each and in case of default to suffer S.I for one month.
The appellants were however extended benefit of Section 382-B Cr.P.C.
2. The facts of the prosecution case as depicted from para 1of the impugned judgment are that on18.4.2009 complainant P.C Gulzar Ali of P.S Mehar lodged F.I.R on behalf of the State, stating therein that on 18.4.2009, he being armed with G-3 rifle alongwith P.C Ghulam Hussain having repeater gun was available on duty at Police-Picket Jatoi-Laro at Indus Highway. They resumed their duty vide entry No.23 and were performing their duty at the police-picket, when at about 2130 hours they heard noise from western side. They saw and identified on torch lights seven armed persons, who emerged on the road; they were Fida Husain alias Fida, Zulfiqar, Hafeez Solangi, Abdul Rasool Janveri and three unidentified persons; all were having Kalashnikovs with them. The complainant party asked those persons to drop their weapons and surrender before police, but they started firing upon the complainant party with intention to commit their murder. The police also fired in their defence and during encounter P.C Ghulam Hussain went near the accused persons and was hit by a fire shot at his left side. Meanwhile, Police Mobile No.2 in which ASI Abdul Rehman, Khoso, H.C Abdul LateefJunejo, P.C Muhammad Essa and Driver P.C Tahir Hussain were available reached there, who also saw the accused persons very well and identified them. The policeparty taken position and retaliated the culprits and in order to encircled the accused persons the police party went near to them, meanwhile P.C Ghulam Hussain went close to the accused persons and in the lights of vehicles the police party saw that accused Fida Hussain alias Fida and Zulfiqar Solangi with their respective Kalashnikovs made straight fires at P.C Ghulam Hussain Jatoi who fell down near the accused persons while raising cry. Such information was conveyed to SHO P.S Mehar and SHO Muhammad Umar Shahani alongwith other staff and police mobiles reached there. Then all the accused persons succeeded in escaping away while taking advantage of dark night and bank of watercourse. The police party found that P.C Ghulam Hussain had received fire shot injuries on right side of chest below nipple and left arm elbow; he was bleeding and martyred on spot. The official repeater gun and its cartridges of P.C Ghulam Hussain were missing. Thereafter the dead body of P.C Ghulam Hussain was sent to Taluka Hospital Mehar for postmortem. Then the SHO went for “Nakabandi” for arrest of accused persons and directed complainant to go to police station and to register the F.I.R.
3. After the investigation was completed, the investigation officer submitted the challan showing the accused persons as absconding, who were ultimately declared as proclaimed offenders. The appellant Hafeezwas arrested and brought before Court to face the charges. The Charge was framed against him at Ex.8, to which he pleaded not guilty and claimed trial. Thereafter, appellant Fida Hussain alias Fida was arrested, as such amended charge was framed against both the appellants at Ex.14, to which they pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case produced as many as nine (9) witnesses. Complainant Gulzar Ahmed Khoso was examined at Ex.10, he produced on record a copy of F.I.R. PW ASI Abdul Rehman at Ex.11. PW ASI Zaheer Ahmed Lakhair the I.O of the case was examined at Ex.18; he produced entries. PW ASI Ameer Ali Khaskhelli was examined at Ex.19; he produced F.I.R, memo of dead body, Lash Chakas Form, Danistnama, memo of last worn clothes/ uniform of deceased. PW ASI Abdul Rasool Siyal was examined at Ex.20. PW SIP Syed Gambal Shah the third I.O was examined at Ex.21; he produced chemical examiner’s report of last worn clothes/ uniform of deceased. PW/ P.C Manzoor Ahmed was examined at Ex.22. Tapedar Wazir was examined at Ex.23 and PW Dr. Muneer Ahmed was examined at Ex.24 (who identified signature of Dr. Muhammad Umar Mahessar who conducted postmortem of deceased).Then, learned Prosecutor closed side of prosecution vide his statement Ex.25.
5. The statements of appellantswere recorded under Section 342 Cr.P.C. at Ex.26 & 27, whereinthey denied the prosecution allegations against them and also denied to examine themselves on oath and to lead evidence in their defence.The learned trial Court on conclusion of trial and hearing the parties passed impugned judgment whereby convicting and sentencing appellants, as stated above.
6. Learned counsel for the appellants criticized the impugned judgment and argued that, the prosecution witnesses are police personnel of the same police station, and no independent witness has been examined by the prosecution at trial; 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; that the incident was of night time and the source of identification was torch light which was not collected by the investigation officer during the investigation not the same was produced before the trial court; that place of incident is also doubtful; that nothing was recovered from the appellants; that identification of the appellant Fida Hussain before the trial court is also doubtful; that no police mobile received scratch during the encounter nor the accused person received any injury thought they were at the closed range; that the appellants may be extended benefit of the doubt and their appeals may be allowed. They in support of theircontentions placed reliance uponcase of Muhammad Khan v. Maula Bakhsh and another (1998 SCMR 570), Mulazim Hussain and 2 others v. The State (2007 YLR 723), Muhammad Amjad and another v. The State (2008 YLR 829), Ghulam Mustafa alias Jari v. The State (2008 YLR 2082), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), AsadRehmat v. The State and others (2019 SCMR 1156), and Mst. Mir Zalai v. Ghazi Khan and others (2020 SCMR 319), Abdul Rahim v. Ali Bux and 4 others (2017 P.Cr.L.J 228), Dr. Khalid Moin and others v. The State and others (2006 P.Cr.L.J 639), Khyal Mir v. Tahir Hussain (2018 YLR 1698), Darya Khan and another v. The State (1979 P.Cr.L.J 625), Khalil v. The State (2017 SCMR 960) and Tariq Pervez v. The State (195 SCMR 1345).
7. Learned D.P.G. controverted the arguments of learned appellants counsel and submitted that the prosecution case has rightly been believed by the learned trial Court and the appellantshave rightly been awarded conviction; that all the witnesses supported the case of prosecution on each aspect; that though the incident was of night time but the appellants were identified on torch light and the head light of police mobile; that there appears minor contradiction in the evidence which are not sufficient to hold that the entire case is doubtful; that the appellants committed a heinous offence therefore they are not entitled for any relief. Lastly, he prayed that the appeals of the appellants may be dismissed.
8. I have heard learned counsel for the appellants and learned Deputy Prosecutor General and also perused the entire record with their able assistance.
9. It is pointed out that the impugned judgment was passed on 01-09-2018 and the jail appeal was sent by appellant Fida Hussain Solangi on 02-09-2020 through Senior Superintendent Central Prison @ In-charge Correctional Facility @ Correction Service Hyderabad which is time barred, however the appellant sent an application wherein he stated that he has given the papers and the fees to his counsel for filling the appeal but his counsel kept him on hopes that he had filed the same and the same will be fixed in the court soon. He further stated in application that he has no relative who may pursue his case therefore on information that his appeal was not filed by his counsel he made a jail appeal. The appellant was treated as pauper vide order dated: 05-03-2021 and this court appointed Mr. Altaf Hussain SurahyoAdvocate to represent him on state expenses. The appeal filed by the appellant HafeezMachi was within time and both the appellants were convicted by the common judgment. Keeping in view the conviction awarded by the trail court as life imprisonment, which is capital one and the appellant was treated as pauper and was represented through advocate on state expenses and the fact that co-accused has also filed an appeal within time against the same judgment, therefore, the delay in filling of the appeal is condoned. Reliance is placed on the case of Nazar Muhammad V. The State (2011 SCMR 1487).
10. After the reassessment of entire evidence produced by the prosecution I am of the view that the prosecution has not proved the case against the appellants. The evidence produced by the prosecution is not reliable, trustworthy and inspiring confidence. The witnesses gave contradictory evidence on each aspect of the case.
11. Admittedly the incident was of night time and the source of identification was torch light and head light of the police mobile, torch light was not produced by the witnesses before the investigation officer nor the investigation officer collected even the same was not produced before the trial court. There is no evidence on record which suggest that the appellants were previously known to the police officials who even in the evidence not gave details as to how they know the appellants only they stated that they see the appellants in the hotel but they not identified them by name and parentage. It is settled law that the identification on the electric light, torch light is weak type of identification when the accused was not previously known to the complainant party and the same cannot be relied upon in the cases of capital punishment, such type of identification is to be looked into with other independent supportive evidence. As regards to the identification on heads lights of the police mobile as alleged in the case, it was the case of prosecution that police mobile came after about five minutes of the encounter and at that time the accused persons took shelter of bank of the water course as stated by the ASI Abdul Rahman in his cross-examination, if the position was same then the identification of the accused by second party of the police on head lights of the police mobile is doubtful.Reliance is placed on the case Mst. Mir Zalai V. Ghazi Khan and others (2020 SCMR 319).
12. The identification of the appellants in the court through the eye witnesses was also doubtful. The complainant during his examination-in-chief firstly identified only one accused as HafeezMachi and thereafter on recalling he identified the accused persons as accused HafeezMachi and accused Zulfiqar, the same is the position of PW Abdul Rehman. It is clarified that the accused Zulfiqar was not arrested at that time when both the witnesses were examined then how they identified accused as Zulfiqar the prosecution has/had no explanation of it, which shows that the incident was an unseen incident and the story was managed.
13. The complainant deposed in his examination-in-chief that PC Ghulam Hussain Jatoi during firing went near to the accused and received fire shot injuries from his left side, he further deposed that then they went there and saw PC Ghulam Hussain had received injuries on his body and was expired, which indicated that the said Police constable leave the picket (Morcha) and went towards the accused person. However, ASI Zaheer Ahmed who collected the blood stained earth deposed in his examination-in-chief that he collected the blood of PC Ghulam Hussain from inside the police picket (Morcho) which creates very serious doubt in the case of prosecution. As regards to the construction of said police picket (Morcho) the witnesses also gave contradictory evidence. Complainant during cross-examination stated that the picket where they were performing duty was open picket and there was no constructed wall over there, while the other witness ASI Zaheer Ahmed deposed during his examination-in-chief that the place of incident is situated at Indus highway Jatoi curve where a police picket (Morcho) with katcha bricks was available. In view of the evidence of these witnesses the place of incident become doubtful.
14. The incident was occurred on 18-04-2009 and all the witnesses of the prosecution were police officials and they were available at their respective police stations and were performing their duties but their statements under section 161 were recorded on 03-05-2009 as admitted by the investigation officer Abdul Rasool Siyal in his examination-in-chief, which are after the 15 days of the incident and the delay has not been explained by the investigation officer which open rooms for consideration and makes the case of prosecution as doubt full. It is settled by now that in the cases where the witnesses are available and their statements under section 161 Cr.P.C are not recorded on the same day or the same are recorded with some delay and the delay has not been explained then the same statements of witnesses cannot be relied upon for awarding convictions and if there is an reasonable explanation for such delay then such statements may be believed but again the same are also subject to the corroboration of other supportive, reliable, trustworthyand confidence inspiring evidence which is lacking in the present case. Reliance is placed on the case of Dr. Khalid Moin and others V. The State and others (2006 P. Cr. L. J 639) andBaqar Shah V. The state (2018 YLR 1422).
15. After reassessment of the material available in the file I found that in the present case there are also number of infirmities/lacunas, which have created serious doubt in the prosecution case. It is settled principle of law that for extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt. If a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in the case of Tariq Pervez v. The State reported as (1995 SCMR 1345), wherein the Hon'ble Supreme Court has held as under:-
"The concept of benefit of doubt to an accused persons is deep-rooted in our country for giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubtin a prudent mind about the guilt of the accused, thenthe accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
16. Thus based on the particular facts and the circumstances of the present case and by relying on the above precedents of the Apex Courts, I am of the view that the prosecution has failed to prove the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. Therefore, I allow the above appeals, set-aside the impugned judgment dated 01-09-2018, passed by the learned Ist. Additional Sessions Judge, Mehar in session case No. 608 of 2009 arising out of FIR No. 162 of 2009, P.S Mehar for offence under section 302, 324, 353, 402 PPC and acquit the appellants Hafeezs/o SukhioMachi and Fida Hussain s/o Shahmeer Solangi by extending them the benefit of the doubt. They shall be released forthwith if not required in another custody case.
17. The above appeal and the jail appeal are disposed of in the above terms.
JUDGE