IN THE HIGH COURT OF SINDH, CIRCUIT COURT

LARKANA

Crl. Jail Appeal No. S- 69 of 2015.

Appellant:                             Ghulam Nabi Lashari, through Mr. Tahir Abbas Shah, Advocate for appellant.

Complainant:                        Zamir Ahmed Soomro, through Mr. Ahsan Ahmad Quraishi, Advocate.

Respondent:                          The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing:                    08.09.2021.

JUDGMENT

Abdul Mobeen Lakho, J-.     This criminal appeal is directed by appellant Ghulam Nabi son of Ghulam Hussain Lashari against the impugned judgment dated 30.09.2015, passed by learned Additional Sessions Judge, Kamber, in the Sessions Case No.352/2008, arisen out of Crime No.144/2008, registered with P.S Warah (District Kamber-Shahdadkot), for offence under Section 302, 324 and 34 P.P.C., whereby appellant Ghulam Nabi Lashari was convicted and sentenced to suffer rigorous imprisonment for “life” and to pay compensation of Rs.200,00/- and in default where to undergo six months simple imprisonment.  The benefit of section 382-B Cr.P.C. was extended to the appellant. However, learned trial Court acquitted co-accused Nizamuddin.

            2.         The prosecution story, as depicted from para 2 of the impugned judgment, reads as under:

                        “Precisely, the facts of the prosecution case as gleaned from the F.I.R lodged by the complainant Zamir Ahmed at P.S Warrah alleging therein that “he alongwith his family are residing in Soomra Mohalla, Town Warrah, where he has a poultry farm. His cousins Abdul Jabbar and Ghulam Sarwar are working there. Today he and his cousin Abdul Jabbar at noon time went for purchasing articles from Town Warrah and at 153 hours reached at Fazul Rahu Chowk near the shop of Abdul Khalique, where they saw Ghulam Nabi and Nizamuddin both sons of Ghulam Hussain Lashari. The accused Nizamuddin was having a gun. They asked Abdul Jabbar to return their outstanding amount of Rs.2000/- as sufficient time had passed; otherwise he will not be spared. Thereafter, Abdul Jabbar replied them that after the settlement of account in the evening if any amount accrues against him he would pay that; on which hot words exchanged between them. The complainant requested them not to raise dispute and matter will be settled. Meanwhile, accused Ghulam Nabi drew pistol from the fold of his Shalwar and directly fired upon Abdul Jabbar which hit his on his back, as he started running, he fell down raising cries. He (complainant) also raised cries on which Muhammad Ali Kalhoro and Abdul Khalique came running with challenges. Meanwhile, Ghulam Nabi and Nizamuddin from their weapons made fires directly which hit Muhammad Ali on his legs, who also raising cries fell down. The public attracted there, while the accused persons skipped away with their weapons. They saw injured Abdul Jabbar having fire injury on his back through and through and his intestine was out of stomach and blood was oozing from injuries, whereas Muhammad Ali received firearm injuries upon his thighs. Both were shifted to Taluka Hospital, Warah, where Abdul Jabbar succumbed to injuries. The complainant leaving the P.Ws in hospital went to police station and lodged the F.I.R against accused Ghulam Nabi and Nizamuddin.”

            3.         The investigating agency after usual investigation filed challan of the case and the learned trial Court framed the charge against appellant and co-accused Nizamuddin, to which they pleaded not guilty and claimed trial. As such, the prosecution examined Medical Officer Dr. Badaruddin at Ex.5 who had conducted postmortem over dead body of deceased and examined injuries of injured PW Muhammad. Investigation officer ASI Muhammad Yasin was examined at Ex.7. The complainant Zamir Ahmed was examined at Ex.8. PW Abdul Khalique at Ex.9. Injured PW Muhammad was given up. Mashir Mumtaz Ali was examined at Ex.11; he produced on record certain mashirnamas. P.W/ LNC Abdul Raheem was examined at Ex.12. Tapedar Hifz-ur-Rehman was examined at Ex.13, who produced sketch of place of vardat. The learned Prosecutor closed the side of prosecution vide his statement at Ex.16.

            4.         After close of side by the prosecution, the statements of appellant and co-accused were recorded in terms of Section 342 Cr.P.C., in which they denied the allegations of the prosecution leveled against them and claimed their innocence and false implication in this case. However, neither, they examined themselves on oath nor led any sort of evidence in their defense.

            5.         After hearing the parties, the trial Court passed the impugned judgment dated 30^th September, 2015, thereby convicting and sentencing appellant Ghulam Nabi Lashari as above, who has filed the instant criminal appeal. Whereas, co-accused Nizamuddin was acquitted of the charges.

            6.         Learned counsel for the appellant has argued that the judgment of the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellants. He further added that no independent witness was examined and the witnesses examined at trial were interested being closely related to each other and they contradicted each other on very material points; that the prosecution case is full with material contradictions and discrepancies. He further contended that medical evidence, ocular evidence and motive is shrouded in mystery. Learned counsel vehemently contended that, on the basis of same set of evidence the co-accused Nizamuddin has been acquitted of the charges by learned trial Court while present appellant has been convicted. He further contended that the learned trial Court has believed the evidence of witnesses in respect of present appellant while it has disbelieved same evidence in respect of co-accused. According to learned counsel it is well settled law that the evidence of same witnesses could not be believed against the accused, whose evidence has been discarded in respect of co-accused. With regard to this contention the learned counsel he has relied upon 2018 SCMR 344, 2004 SCMR 1185, 2008 SCMR- 06 and PLD 1985 S.C 11.  Learned counsel further contended that the star witnesses i.e. injured Muhammad Ali was not examined by the prosecution, therefore, presumption would be that he was not going to support the prosecution’s case therefore, his evidence was given up. Learned counsel further contended that the impugned judgment suffers from mis-reading and non-reading of evidence. In last he contended that defence has created so many doubts in the prosecution case and benefit of which may be extended in favor of the appellant by setting-aside the impugned judgment and ordering acquittal of the appellant.

            7.         On the other hand, Mr. Aitbar Ali Bullo learned Deputy Prosecutor General and Mr. Ahsan Ahmad Quraishi Advocate for complainant opposed grant of appeal on the grounds that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial evidence and medical evidence. They further added that, the evidence produced at trial is natural and confidence inspiring; that the F.I.R is promptly lodged and name of the appellant was mentioned in the F.I.R with specific role of causing firearm injury to deceased which resulted into his death, so also making murderous assault upon prosecution witnesses; that motive has been given in the F.I.R; and there is also recovery of crime weapon from the possession of appellant. They further argued that the defence has failed to create dents in the prosecution case and that no any important material contradictions and discrepancies have been pointed out by the defence counsel. They contended that prosecution has established its case beyond any shadow of doubt against the appellant and learned trial Court has rightly convicted the appellant. Lastly, they prayed for dismissal of the appeal.

            8.         I have heard learned counsel appearing for the parties and with their assistance have minutely and carefully scanned the evidence.

            9.         Perusal of record reflects that, as per case of prosecution (per contents of F.I.R) the present appellant Ghulam Nabi and co-accused Nizamuddin are alleged to have participated in the commission of the offense; the appellant Ghulam Nabi is alleged to have fired at Abdul Jabbar (deceased). Whereas, the co-accused Nizamuddin and appellant Ghulam Nabi both are also alleged to have made fires at P.W Muhammad Ali Kalhoro, which hit him on his legs. It is matter of record that, vide same impugned judgment the co-accused Nizamuddin has been acquitted by the learned trial Court by disbelieving and discarding evidence of prosecution witnesses and trial Court has believed the evidence of the same witnesses against present appellant Ghulam Nabi and on the basis of such evidence has passed conviction and sentence. It is settled law that, if the eye witnesses have been disbelieved against some accused persons attributed effective roles then the same eye witnesses cannot be believed against another accused person attributed a similar role unless such eye witnesses receive independent corroboration. The Hon’ble Supreme Court of Pakistan, in case of Imtiaz alias Taj v. The State and others (2018 SCMR 344) has held as under:

                        “The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and a reference in this respect may be made to the cases of Ghulam Sikander v. Mamaraz Khan (PLD 1985 S.C 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2009 SCMR 6).

            10.       Another aspect of the case is that, evidence of star witness of the case i.e. injured Muhammad Ali (who prima-facie seems to be dis-interested and independent witness) was not recorded by the prosecution and he was given up for no obvious reason, which is injurious to the prosecution case. Non-examination of this disinterested witness gave inference, as envisaged under Article 129 (g) of Qanun-e-Shahadat Order, 1984, to the effect that in case, this witness had been examined, he would not have supported the prosecution case, rather he would have deposed against the prosecution. It would be advantageous for the purpose of ready reference to reproduce Article 129 (g) of Qanun-e-Shahadat Order, 1984.

“Article 129 (g) of the Qanun-e-Shahadat Order, 1984. That evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it”.

            11.       It is settled law, that non-production of most natural and material witness of occurrence would strongly lead to an inference of prosecutorial misconduct, which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to accused. It is also settled principle of law that act of withholding of most natural and material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution and prosecution in such eventuality must not be in position to avoid the consequence. It has also been settled that non-examination of material witness would seriously reflect upon the credibility of rest of witnesses but also create a reasonable doubt regarding the correctness of the incident set up by the prosecution. Reference in this regard can be made to case of Lal Khan v. The State reported in 2006 SCMR 1846 and 2019 P.Cr.L.J Note 138 (Sindh).

            12.       Moreover, perusal of the F.I.R shows that, the complainant has given names of two accused i.e. present appellant Ghulam Nabi and co-accused Nizamuddin by mentioning that “accused Ghulam Nabi and Nizamuddin made straight fires of their pistol and shotgun which hit on legs of Muhammad Ali Kalhoro who raised cries and fell on road”. However, at the time of recording his evidence, the complainant has taken “U” turn by deposing that “accused Nizam fired straightly upon us, we fell down on road but fires did not hit us”. PW Abdul Khalique (eyewitness) has also followed the complainant by deposing that “accused Nizam also fired with his gun upon us which did not hit us”. The complainant and PW Abdul Khalique have however supported their version in respect of appellant Ghulam Nabi with regard to role assigned to him of making fire upon PW Muhammad Ali. It means, the complainant and PW Abdul Khalique (eye-witnesses) have exonerated the co-accused Nizamuddin from commission of the alleged offence and have resiled away from their own version as disclosed in F.I.R in respect of co-accused of appellant.

            13.       It is observed that, on score of these two grounds only, i.e. exoneration of the co-accused Nizamuddin by both eyewitnesses (complainant Zamir Ahmed and PW Abdul Khalique) from commission of the alleged offence to extent of his role, and non-examination of star injured witness Muhammad Ali, the entire case of prosecution becomes highly doubtful.

            14.       Besides above, on careful scrutiny of evidence of both the eyewitnesses, their evidence does not appear to be trustworthy and confidence inspiring, because it is not only full of contradictions but as well as self-contradictory on very material and crucial points and prove the case of prosecution as doubtful.       

            15.       The nutshell of the above discussion is that the prosecution case is not free from doubt. It is an axiomatic 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 Hon’ble Apex Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of 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 doubt not as matter of grace and concession but as a matter of right.

            16.       For foregoing reasons, the conviction recorded by the learned trial Court against appellant Ghulam Nabi is not sustainable. Consequently, the appeal stands allowed; the conviction and sentence awarded to appellant Ghulam Nabi son of Ghulam Hussain Lashari vide impugned judgment is set-aside and he is acquitted of the charge. The appellant is reportedly confined in jail; he shall be released forthwith, if his custody is not required in any other case.

                                                Judge

Ansari