IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
(Criminal Jail Appeal No.S-64 of 2019)
Appellants: 1). Sojhro s/o Qaisar @ Roshan Chandio
2). Shah Nawaz @ Basar s/o Ghulam Qadir Chandio, through Mr.Irfan Badar Abbasi, Advocate
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 23-02-2023
Date of decision: 23-02-2023
JUDGMENT
ZULFIQAR ALI SANGI, J;- The listed criminal jail appeal impugns the judgment dated 15.16.2019, passed by learned 1st Additional Sessions Judge/MCTC, Dadu, in Sessions Case No.445/2012 (Re. St. Vs. Sojhro Chandio and another), outcome of FIR bearing Crime No.01/2012, offence U/S.302,114, 337-H(ii), 504, 34 PPC, registered with Police Station, Radhan Station, whereby the appellants were convicted for offence punishable U/S.302(b) PPC r/w Section 34 PPC and sentenced to suffer Rigorous Imprisonment for Life as Tazir with compensation of Rs.100,000/- each and in default whereof, to suffer S.I for six months, with benefit of Section 382-B Cr.PC.
2. Succinctly, the facts of prosecution case are that on 04.01.2012, complainant Ghulam Mustafa Chandio got registered FIR with P.S Radhan Station, stating therein that on the same date, at about 10.00 A.M, the present appellants/accused alongwith co-accused Rajib and Sattar Chandio, duly armed with deadly weapons, in furtherance of their common intention on instigation of co-accused Rajib, committed murder of Gulsher Chandio by causing him fire shot injuries and then went away by making aerial firing to create harassment, for that the present case was registered.
3. After usual investigation, the investigation officer submitted final report under section 173 Cr.PC against the accused before learned Magistrate and later-on the learned trial Court framed the formal charge against both the appellants/accused, to which they pleaded not guilty and claimed trial.
4. In order to establish accusation against the appellants/accused, the prosecution examined in all four witnesses i.e PW-01 Dr.Niaz Ali, PW-02 Tapedar Ali Asghar Butro, PW-03 Mashir Ashique Chandio, PW-04 Complainant Ghulam Mustafa Chandio and PW-05 Eye-witness Rashid @ Shafi Muhammad Chandio, who all produced the relevant certain documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. The appellants/accused in their statements recorded in terms of Section 342 Cr.PC, denied the allegations leveled against them by pleading their innocence stating therein that they have falsely been implicated in this case due to matrimonial dispute with the complainant party as the alleged deceased had abducted the mother of co-accused Abdul Sattar and they were witnesses in that case. They, however, neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced present appellants/accused vide impugned judgment, as detailed above.
7. Per learned defence counsel, there is inconsistency in between the evidence of prosecution witnesses which has shattered veracity of their evidence; that the complainant in his evidence has resiled from version of his FIR while the evidence of remaining witnesses being contradictory has no credibility and thus cannot be relied upon without independent corroboration; that one of the eye witness was not examined by prosecution and that co-accused Rajab and Abdul Sattar have already been acquitted by this Court. Concluding his contentions, the learned defence counsel submitted that present appellants/accused have been arraigned in the present case with malice, therefore, the case of prosecution is doubtful and the appellants/accused are entitled to their acquittal.
8. Conversely, learned D.P.G for the State submits that the present appellants/accused are nominated in the FIR with active role in commission of the offence; that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence, that sufficient material is available on record to connect the present appellants/accused with commission of the alleged offence; therefore, learned trial Court finding the appellants/accused guilty of the offence has rightly convicted and sentenced them by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by them being meritless is liable to be dismissed.
9. Heard arguments of learned counsel for the parties and perused the material made available on record with their able assistance.
10. To substantiate the allegation against the appellants/accused, the prosecution examined complainant Ghulam Mustafa (PW-04) who in his examination-in-chief deposed that on 4th January, 2012, he was present in Radhan Station City where he came to know that at Railway Crossing a murder had taken place. He went there running and saw that his brother Gulsher was lying dead. The persons present there informed him that their relative namely Shah Nawaz @ Basar had committed murder of his brother. He then alongwith other citizens brought the dead body at Radhan Hospital. After postmortem they brought the dead body at Police Station, Radhan Station, where he lodged FIR against accused Shah Nawaz @ Basar. Thereafter, he brought the dead body at his village and later on performed funeral and burial proceedings. He further added that the contents of FIR were not read over to him by the police. He did not identify the accused present in the Court to be same. Again stated that, accused present in the Court are same. He was declared hostile by learned State Counsel and was cross examined, wherein he stated that on 04.01.2012, he, Gulsher, Shafi Muhammad and Roshan alongwith their female were going to Larkana for delivery of wife of his brother Gulsher, when they reached at Wagon Stop and were sitting in the Wagon, his brother Gulsher stepped down from the Wagon for purchasing cigarette because there was sometime in starting of Wagon towards Larkana, when his brother returned back after purchase of cigarette, when accused Basar @ Shah Nawaz, Sojhro, Abdul Sattar and Rajib Ali from whom Shah Nawaz was armed with pistol, Sojhro was armed with repeater, Rajib asked accused Shah Nawaz by pointing towards his brother Gulsher that he is Gulsher and not spare him on that accused Shah Nawaz fired from his pistol upon his brother Gulsher which hit to his brother on left side of stomach. Thereafter, accused Sojhro fired in air from repeater then all accused persons ran away.
11. PW-05 Rashid @ Shafi Muhammad in his examination- in-chief deposed that on 4th January, 2012, he was present at Wagon Stop of Radhan Station alongwith his brother Gulsher, Ashique Ali, his father Roshan and Ghulam Mustafa, meanwhile, some persons attacked upon them, they made fires from repeaters and pistols which hit to his brother Gulsher who died on the spot. He identified the accused persons who were namely Shah Nawaz @ Basar, Sojhro, Abdul Sattar and Rajib. His deceased brother had received injuries on abdomen and chest. Accused persons after committing offence ran away. They informed the incident to police and then brought the dead body at hospital for postmortem. After postmortem, his brother Ghulam Mustafa lodged FIR. Police recorded his statement under section 161 Cr.PC. He identified the present appellants/accused present in Court to be same. Both these eye-witnesses were cross examined by learned defence counsel.
12. From the perusal of statement of the complainant and his eye-witness, it appears that the complainant has given wavering statement which is also in conflict with version of his own FIR and that of his eye-witness and if their version is believed to be true then they have made the credibility of their statements at stake.
13. Turning to the circumstantial account wherein the prosecution examined Mashir Ashiq Ali Chandio who in his examination-in-chief supported the contents of mashirnamas/Danistnama prepared in his presence but he in his cross examination stated that “It is correct that Sobedar obtained his LTIs on 02/03 papers at Police Station, something was written on the papers, but I was unaware about its contents. Police obtained LTIs of Abid at Police Station in my presence. Police obtained my LTIs at Police Station on one and the same day”. This piece of evidence itself smells that all these documents/mashirnamas were prepared at police station which led the circumstantial account under a cloud. All these aspects of the case also suggest that the prosecution witnesses tried to prove the case by making dishonest improvements, which obviously made the credibility of their evidence untrustworthy and rendered it highly doubtful. The Honourable Supreme Court of Pakistan in case of Muhammad Mansha v. The State (2018 SCMR-772), has held as under:-
“Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafique Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).”
The Honourable Supreme Court of Pakistan in case of Muhammad Mansha (supra) also held as under:-
“In that eventuality, the conviction upon the statements of the witnesses who, in the assessment of the High Court, made dishonest improvements and their divergent stances in the FIR and the private complaint made them doubtful then there was no legal justification to convict the appellant Muhammad Mansha on the same set of evidence without independent corroboration conspicuously lacking in the instant case, as held by this Court in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v.The State (2004 SCMR 1185), Akhtar Ali and others v.The State (2008 SCMR 6), Muhammad Ali v.The State (2015 SCMR 137), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v. The State (2016 SCMR 1763). The above principle has been appreciated by the High Court in the instant case, but erroneously convicted the petitioner against the said settled principle.”
14. The medical evidence is in nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not “corroborative evidence” in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not show connectivity of the accused with the commission of offence. It cannot constitute corroboration for proving involvement of accused in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed on the cases of Yaqoob Shah v. State (PLD 1976 SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the case in hand, from the oral evidence produced by the prosecution witnesses it established that they made dishonest improvements and gave contradictory evidence on each point, as discussed above, therefore, the medical evidence alone is not sufficient to maintain the conviction keeping in view that every case is to be decided on its own facts and the circumstance.
15. It is observed that Dr.Niaz Ali in his examination in chief has given the details of 10 injuries (Entry & Exit) while 11th injury is shown by him to be of entry wound and as per his opinion, the death of deceased occurred due to excessive bleeding from rupture of lungs, heart and spleen caused by firearm injuries with note of recovery of two metallic bullets from the body of deceased but it is quite incredible and do not attract to the judicial certainty that when 11th injury singularly is of entry wound then how two bullets could be secured from the body of deceased from a single entry wound and besides this, he in his cross examination stated that parcel contained one fired bullet and two pieces of bullet and that there was no blood stained nor skin particle on the above fired bullets. This piece of evidence also is quite shocking which has discredited the medical account which cannot be used against the appellants/accused and on that basis the conviction cannot be sustained.
16. It is further observed that the Court(s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Honourable Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution. "Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against accused, entitles him/them to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his/their plea in defence does not arise. "Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
17. Looking to the above contradictions and improvements in the statements of the prosecution witnesses, the defence plea taken by the appellants/accused carries much weight but this aspect of the case has not properly been considered by learned trial Court. Over and above this, one of eye-witness namely Roshan was not examined by the prosecution for no obvious reasons, the inference which could be drawn of his non-examination would be that he might not be going to support the case of prosecution. Further, the investigation officer during course of investigation neither recorded statements of the persons who informed about murder of the deceased at the hands of Shah Nawaz @ Basar, nor any independent piece of evidence was collected by him showing the involvement of present appellants/accused with the commission of alleged offence. Furthermore, ASI Mumtaz Ali Chandio who conducted investigation of the case was reported to have died vide statement of process server LNC Allah Rakhio recorded at Exh.32. Moreover, co-accused Rajib and Sattar Chandio who were alleged to have accompanied with the present appellants/accused at the time of incident, have already been acquitted on merits by this Court vide judgments dated 31.10.2018.
18. From the above discussion, it reflects that the prosecution has not been able to prove the guilt against present appellants/accused beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:-
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)”.
19. The sequel of above discussion is that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellants as guilty of the offence. Thus, the conviction and sentence recorded against them by way of impugned judgment could not be sustained, it is set aside, consequently, the instant criminal jail appeal was allowed and the appellants were acquitted of the charged offence.
20. Above are the reasons of my short order dated 23.02.2023, whereby the instant criminal jail appeal was disposed of accordingly.
JUDGE.