IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANO
Criminal Jail Appeal No. S- 61 of 2016.
Appellant: Saeedo alias Saindad son of Chakar Ogahi, throughMessrs Ghulam Shabir Baloch and Mujahid Ali Jatoi, Advocates.
Complainant: Jumo, through Mir Ahmed Raza A. Sundrani, advocate
The State: Through Mr. Muhammad Noonari, Deputy Prosecutor General.
Dates of hearing: 12,16 and 26.04.2021.
Date of the judgment: 04.06.2021.
JUDGMENT
ZULFIQAR ALI SANGI, J-. Through this criminal jail appeal, appellant Saeedo alias Saindad son of Chakar Ogahi has impugned the judgment dated 31.05.2016, passed by learned Sessions Judge Kashmore @ Kandhkot, in Sessions Case No.52/2015, re; State v.Saeedo alias Saindad and others, arising out of Crime No.02 of 2011 P.S Katcho Keti; whereby the appellant was convicted for offence under Sections 302 (b) P.P.C. The appellant was sentenced to suffer R.I forlifeand to pay fine to extent of Rs.50,000/- to the legal heirs of deceased Muhammad Ishaque and in case of default of payment of fine to undergo R.I for six months more. He was also convicted and sentenced for offence under Section 324 P.P.C to undergo R.I for five years and for offence under Section 337-F (i) P.P.Cto pay amount of Rs.100,000/- as “Daman” and in case of failure to suffer R.I for twoyears as “Tazir”. All the convictions were ordered to run concurrently. The appellant was however extended benefit of Section 382-B Cr.P.C.
2. The brief facts of the prosecution case are that Complainant Jumo Ogahi lodged F.I.R with P.S Katcho Keti, stating therein that about six months back Muhammad Ishaque lodged F.I.R regarding murder of his brother Bakhsho and causing injuries to him against accused Saeedo and others, on which accused Saeedo and others used to say that they will kill Muhammad Ishaque. On 31.5.2011 complainant Jumo, his brother Gulsher, cousins Muhammad Ishaque and Mehrab were going to Ghotki with some private work and while going by foot at about 09.30 a.m. they reached in the land of Nizamuddin Ogahi, where they saw accused Saeedo, Shouko alias Malook, Saleh, Shabir, Aachar, Goro alias Babo, Rahib accompanying with two unknown persons armed with Kalashnikovs, who intercepted the complainant party and at that time Muhammad Ishaque was ahead of them by ten paces and in the meantime accused Saeedo, Shouko alias Malook and Saleh directly fired Kalashnikov shots upon Muhammad Ishaque, who fell down and died on the spot. Thereafter, accused Shabir, Aachar, Rahib, Goro alias Babo and unknown persons fired at Gulsher and Mehrab causing injuries to them and then all the accused persons fled away while making aerial firing.
3. After completion of usual investigation, the investigation officer submitted the charge sheet under Section 512 Cr.P.C showing all the accused persons as absconders. However, appellant Saeedo and co-accused Mehar alias Abdul Sami were arrested later-on and sent with supplementary challan to face the trial.
4. After completing the legal formalities the charge against appellant Saeedo alias Saindad and co-accused Mehar alias Abdul Sami was framed. The prosecution in order to prove its case produced as many as twelve witnesses. PW-1/ Dr. Abdul Aziz Malik was examined at Ex.18; he is medical officer who examined injured Gulsher and Mehrab as well as conducted postmortem of deceased Muhammad Ishaque. PW-2 ASI Abdul Karim was examined at Ex.19, he arrested accused Saeedo from District Jail Ghotki and produced mashirnama of formal arrest of accused at Ex.19-A. PW-3 P.C Mehar Ali Shah was examined at Ex.20; he is mashir of formal arrest of accused Saeedo. PW-4 H.C Arbab Ali Shaikh was examined at Ex.21; he produced mashirnama of examination of injuries at Ex.21-A and Entry No.5 at Ex.21-B. PW-5 ASI Ghulam Shabir was examined at Ex.22; he arrested accused Mehar alias Abdul Sami and produced mashirnama of arrest at Ex.22-A. PW-6 PC Iltaf Hussain at Ex.23; he is mashir of arrest of accused Mehar alias Abdul Sami. PW-7 Jumo (complainant) was examined at Ex.24, he produced his further statement at Ex.24-A. PW-8/ Injured Gulsher was examined at Ex.25. PW-9 Noor Hassan alias Noor Muhammad at Ex.26; he produced mashirnama of examination of dead body of deceased at Ex.26-A, inquest report at Ex.26-B, mashirnama of recovery of clothes of deceased at Ex.26-C, mashirnama of place of vardat and recovery of blood stained earth/ empties at Ex.26-D and photocopy of CNIC at Ex.26-E. Then, the complainant filed statement vide Ex.27, stating therein that he does not want to examine PWs Mehrab and co-mashir Kashmore. PW-10 Inspector Hassan-u-ddin Gopang was examined at Ex.28; he produced report of chemical examiner at Ex.28-A. P.W-11 SIP Sultan Ahmed Soomro was examined at Ex.29. PW-12 PC Muhammad Bachal Bhayo was examined at Ex.30. Thereafter, the side of prosecution was closed vide Ex.31.
5. The statements of appellant and co-accused were recorded under Section 342 Cr.P.C. at Ex.32 & 33, 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 passed the impugned judgment whereby convicting and sentencing appellant Saeedo alias Saindad as stated above, while co-accused Mehar alias Abdul Sami was acquitted of the charge. Record reflects that no acquittal appeal was filed by the complainant or even the State against the acquitted accused Mehar this fact has also been admitted by the learned counsel for the complainant and the DPG.
6. Learned counsel for the appellant contended that the prosecution witnesses are closely related inter-se, and no independent witness has been examined by the prosecution at trial. Learned counsel next contended that prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, as such their presence at spot is doubtful, therefore, their evidence is un-reliable and un-trustworthy. Learned counsel further contended that prosecution witnesses have also contradicted each other on material points and that there was also conflict in ocular and medical evidence. Learned counsel further contended 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. Per learned counsel the star witness Mehrab 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. Learned counsel lastly submitted that the appellant may be acquitted by extending him the benefit of the doubt. Learned counsel in support of his contentions relied upon case of Ahmad Khan and another v. The State (2007 P.Cr.L.J 117) and Nadeem alias Kala v. The State and others (2018 SCMR 153).
7. Learned DPG duly assisted by the learned Advocate for the complainant opposed the instant appeal and submitted that the prosecution case has rightly been believed by the 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. They further submitted that the conflict in between the ocular evidence and the medical evidence not come in the way as other evidence produced by the prosecution is sufficient to maintain the conviction. Lastly, they prayed that the appeal of the appellant may be dismissed.
8. I have heard the learned counsel for the appellant, learned Advocate for complainant, learned Deputy Prosecutor General and perused the record with their able assistance.
9. After the reassessment of entire evidence and the material produced by the prosecution I am of the view that the prosecution has failed to prove the case against the appellant beyond a reasonable doubt and not produced the reliable, trustworthy and confidence inspiring evidence.
10. The complainant has made improvements in the case by changing allegations against the accused persons mentioned in the FIR at the time of recording his evidence before the trial court which makes the entire case as doubtful. In the FIR complainant stated that accused Saeedo, Shouko @ Malook and Saleh fired upon the deceased Muhammad Ishaque with their KK which hit him and he was died. Complainant at the time of his evidence deposed in his examination-in-chief that accused Saeedo fired upon the deceased Muhammad Ishaque who received injuries at the left eye and chest and left arm so also thigh of left leg and exonerated accused Shouku @ Malook and Saleh from the allegation of firing upon the deceased. He, however, stated during the cross-examination that he do not remember that he has mentioned in the FIR that accused Saeedo, Shouku @ Malook and Saleh fired direct shots upon the deceased.
11. The complainant in the FIR stated that the deceased received one fire arm injury at left eye at near the pupil, two injuries on the left side of the chest, two injuries on the left arm, one injury on the thigh of left leg which are 6 injuries in number and in the inquest report prepared by the police the injuries are total 8 in number, however the post mortem report showed that the deceased received only 05 injuries which are also includes entry and exit wounds. The doctor who was examined by the prosecution deposed that the deceased received only three injuries. In the situation stated above it is very difficult to ascertain as to how many injuries received by the deceased which creates very serious doubt in the case of prosecution. Furthermore the complainant during the cross-examination stated that he received dead body after the post mortem at 6.00 pm, whereas the postmortem report showed that the postmortem was started at 6.00 pm and was finished at 7.00 pm. If the postmortem is correct then how the complainant received the dead body of deceased at 6.00 pm which too makes the case of prosecution as doubtful.
12. The complainant stated in his cross-examination that the accused after causing injury to Ishaque dragged him with the motor cycle and this fact has not been disclosed by the complainant in the FIR which clear the position that the complainant was not an eye witness of the incident. The complainant in his examination-in-chief deposed that he gave the name of Almighty ALLAH to accused and they also made fires upon him but he took himself on earth but during cross-examination he stated that he put himself in the bushes during the course of firing.The complainant stated during cross-examination that he brought dead body to police station from river side in police mobile and in same mobile to the hospital from police station; however the PW Noor Hassan during the cross-examination stated that they remained at police station Gouspur for about one hour when dead body was brought there. Dead body was brought in the car. The injured were brought to Gouspur from river on motor cycles but the dead body was brought in the car. I also notice contradiction in the evidence of witnesses regarding the reaching at the police station from the place of vardat and on using the vehicles/ motor cycles as it was not mentioned in the FIR nor the person who were driving the said motorcycles were examined by the investigation officer. All these contradictions/improvements clearly indicates that the complainant and the other witnesses were not available at the time of incident and they not witnessed the incident and the incident was not took place in the manners stated by the prosecution and the witnesses were telling lie before the police so also before the court hence their evidence is not reliable nor trustworthy and confidence inspiring.
13. The recovery of empties from the place of vardat are not helpful to the prosecution as no weapon was recovered from the possession of the appellant which connect him with the commission of offence and the same cannot be used as supportive evidence against the appellant in absence of strong evidence against the appellant which is lacking in the present case.
14. It is settled principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by Honourable Supreme Court in the case of Tariq Pervez v. The State 1995 SCMR 1345, that for giving the benefit of the doubt, it was not necessary that there should be many circumstances creating doubts. If there is single circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of the doubt not as a matter of grace and concession but as a matter of right and the same principle was followed by the Honourable Supreme court in cases of Muhammad Akram v. The State (2009 SCMR 230) and in the recent (unreported) Judgment dated: 07-12-2020 in the case of Naveed Asghar and two others V. The State.
15. Thus based on the particular facts and the circumstance as has been discussed above the prosecution is not been able to prove the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence, therefore the judgment dated 31.05.2016, passed by learned Sessions Judge Kashmore @ Kandhkot, in Sessions Case No.52/2015, re; State v.Saeedo alias Saindad and others, arising out of Crime No.02 of 2011 P.S Katcho Keti is set-aside and the appellant Saeedo alias Saindad son of Chakar by caste Ogahi is acquitted from all the charges by extending him the benefit of the doubt. The appellant is behind the bar he shall be released forthwith if not required in any other custody case.
16. The above Crl: Jail Appeal is disposed off in the above terms.
J U D G E