IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-02 of 2019
Appellant Ashique son of Ghulam Sarwar Chandio
Through Mr.Altaf Hussain Surhayo, Advocate
The State: Through Mr.Aitbar Ali Bullo, D.P.G.
Date of hearing: 13-01-2023
Date of decision: 06-02-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- Through instant criminal jail appeal, the appellant has assailed the judgment dated 24.07.2015, passed by learned 1stAdditional Sessions Judge, Mehar, in Sessions Case No.197/2011 (Re. St. Vs. Ashique Chandio), outcome of FIR bearing Crime No.150/2010, for offence punishable Under Section 302, 34 PPC registered with Police Station, Thariri Muhabat, whereby he has been convicted for an offence punishable U/S. 302 (b) PPC and sentenced to suffer rigorous imprisonment for life with fine of Rs.100,000/- to be paid to the legal heirs of the deceased and in default whereof to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.P.C.
2. Concise facts of the prosecution case as unfolded in the FIR lodged by complainant Tahmiz Ali on16.08.2010, at 1930 hours are to the effect that he is labourer by profession and are two brothers. His younger brother Rafique Ahmed had altercated over domestic matter with Ashique Ali Chandio (present appellant) whereupon said Ashique Ali was annoyed with him. On 15.08.2010, he alongwith his brother Rafique Ahmed, uncle Shahban and paternal cousin Mukhtiar Ahmed were available in the house of his brother Rafique Ahmed, in the meantime, at about 01.45 P.M, they saw and identified accused namely Ashique Ali Chandio with DBBL gun and Azam Hussain Chandio with pistol who entered in the house. On coming, accused Ashique Ali Chandio asked his brother Rafique Ahmed that he has altercated with him therefore he will not spared him, saying so, he fired two rounds straightly at him with intention to commit his murder which hit him and he fell down, thereafter, both the accused fled away. The complainant then saw and found his brother having firearm injuries on his neck and armpit which were bleeding and he was lying dead. He intimated the incident to the police who after getting conducted the postmortem, handed over the dead body of deceased to the complainant and after funeral ritual, he came at police station and got registered the FIR against the accused.
3. On completion of usual investigation, the police submitted final report under section 173 Cr.P.C against the accused. The formal charge was framed against the present appellant/accused to which he pleaded not guilty and claimed trial.
4. To establish the accusation against appellant/accused, the prosecution examined in all five witnesses i.e PW-01 SIO/SHO Khalid Hussain Lakhair, PW-02 Complainant Tahmiz Ali, PW-03 Tapedar Fayaz Ahmed, PW-04 medical officer Dr.Niaz Ali and PW-05 ASI Akram Ali Janwari, who all produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed its side.
5. The present appellant/accused in his statement recorded in terms of Section 342 Cr.P.C, denied the allegations leveled against him by pleading his innocence. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as discussed above.
7. Per learned defence counsel, there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence having no credibility, cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove motive; that some of the eye witnesses including mashirs were not examined as they were not going to support the case of prosecution; that there is no recovery of any sort from the appellant/accused which may show the involvement of the present appellant in commission of the offence. Summing up his contentions, the learned defence counsel submitted that the present accused has been arraigned in this case on account of earlier grudge which is discernible from narration given in the FIR itself. He lastly concluded that the case of prosecution is doubtful and the appellant/accused is entitled to his acquittal in the circumstances of the case.
8. On the other hand, learned D.P.G for the State submits that the appeal is time barred for more than three years and no explanation in this regard has been furnished, nor any application for condonation of such delay is filed; that all the witnesses have fully supported the case of prosecution and no major contradiction has been noticed in their evidence; that an innocent person has been done to death at the hands of appellant/accused over domestic matter; that the ocular evidence is consistent with medical as well circumstantial account; that the chemical examiner’s report has fully supported the case of the prosecution, in that situation, the learned trial Court on being finding present appellant guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which requires no interference by this Court, hence, the appeal filed by him is liable to be dismissed.
9. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on the record with their able assistance.
10. The broad features involved in the present case are that the impugned judgment was passed on 24-07-2015 and the appeal was sent by the appellant from jail on 02-01-2019 which was being presented in the office on 07-01-2019 with inordinate delay of more than three years and that too without any application for condonation of such delay. Before discussing the issue of limitation and its condonation, the facts in respect of the trial are necessary to be pointed out here just to clear the position. The appellant was booked in the present case on 15-08-2010. The investigation officer submitted final challan U/S.512 Cr.PC showing all the accused as absconders and learned trial Court after observing codal formalities declared the accused as proclaimed offenders and then kept the case against them on dormant file till their arrest vide order dated 18-01-2012. Subsequently, the present appellant was apprehended by the police and produced before the Court of concerned Judicial Magistrate under supplementary report who then sent up the case under section 190 (b) Cr.PC to the Court of Sessions where the main case was pending. Thereafter, it was being adjourned for want of tracing out the R & Ps of main case. On 08-01-2013, it was observed by learned trial Court that the offence involved, was entailing capital punishment, therefore, the charge could not be framed against the accused on account of his failure to engage a counsel. However, on 22-02-2013, the formal charge was framed without being engaging a counsel by the accused and thereafter three adjournments were granted to accused for engaging a counsel but he also failed. The perusal of case dairies dated: 07-6-2013, 21-6-2013 and 05-07-2013 reflects that defence counsel was present and on 20-09-2013 and 04-10-2013 learned defence counsel was reported to be absent and later-on the evidence of PW-01 SHO Khalid Hussain was recorded while observing that despite several chances the appellant failed to engage his counsel. If this was the position then on 07-06-2113 and 05-07-2013 who appeared before learned trial Court to represent the appellant, being his defence counsel. Again on 11-10-2013 and 25-10-2013, it was observed from the case diaries that the defence counsel was called absent but it was also observed that the accused had not yet engaged his counsel. Ultimately, on 01-11-2013 the accused engaged his counsel and further evidence was recorded.
11. The accused was behind the bars during entire proceedings of the trial and after conviction he remained in the jail wherefrom he filed the instant criminal appeal. From the facts and circumstances, as discussed above, it is clear that the appellant was not defended before learned trial Court in proper manner. This Court vide order dated 28.03.2022 has appointed a counsel for him on state expenses who mainly contended that the appellant was/is in jail since date of his arrest and had no knowledge about the law of limitation and no one was pursuing his appeal, therefore, it was beyond his knowledge/control to file the same within the time prescribed in law. The appeal against conviction is to be decided on merits rather on technicalities, as the fundamental right of life and liberty of a person is involved. The Honourable Supreme Court of Pakistan in case of Mst. Asia Bibi v. The State and others (PLD 2019 SC-64), observed that the appeal should not be dismissed mere on technicalities and had condoned the delay in filling the appeal. The Honourable Supreme Court of Pakistan in another case of Nazar Muhammad v. The State (2011 SCMR-1487) has also condoned the delay of 446 days in filling of appeal against the conviction. Moreover, the right of appeal was a substantial right which normally should not be denied on technical counts/reasons particularly when it came to administration of criminal justice. Normally, condonation of delay would do nothing with merits of the case but would only require the Court to decide the lis on merits. Condonation of delay was normally subject to giving a reasonable explanation which might have prevented party in approaching the Court, while examining the question of limitation, the circumstances claimed to have prevented one in approaching the Court in time, would always be a decisive factor. It is observed that if the pleaded circumstances appeared to be justified or even likely to be believable though no proof was offered, then the delay must be condoned, as has been held by the Honourable Supreme Court of Pakistan in case of Fazli Hakeem and another v. Secretary, State and Frontier Division and others (2015 SCMR-795). Looking to the facts and circumstance of the present case, as discussed above and while relying upon the above precedents of Honourable Supreme Court of Pakistan, the delay in filling jail appeal against the conviction is condoned.
12. Turning to merits of the case, the prosecution has examined complainant Tamiz Ali as PW-02 being the eye-witness who in his evidence deposed that such incident was also witnessed by PWs Mukhtiar and Shahban but they were not examined at trial on the pretext that they were not going to support the case of prosecution and such statement filed by learned State Counsel is available on the record. Now, here the entire ocular account is exclusively hanged on the evidence of complainant/eye-witness. No doubt, the sole evidence of a material witness i.e an eyewitness is always sufficient to establish guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge. The accused can be convicted if the Court finds the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, the reliance is placed on cases of Muhammad Ehsan v. The State (2006 SCMR-1857) and Niaz-Ud-Din v. The State (2011 SCMR-725). Further, the Honourable Supreme Court of Pakistan in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC-225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable."There can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as ‘not proved’ but where the direct evidence holds the field and stands with test of it being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance can safely be placed on case of Muhammad Ehsan v. the State (2006 SCMR-1857), wherein the Honourable Supreme Court of Pakistan has held that;-
“5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence”.
13. By following the above dictum laid-down by the Honourable Supreme Court of Pakistan, the evidence of the complainant on meticulous re-assessment was found to be unreliable, untrustworthy and completely doubtful. For the instance, the complainant in his examination-in-chief deposed that the present accused was armed with DBBL gun who fired upon his brother Rafique which hit him on his chest and he also fired another fire which also hit his brother on his chest but his version is totally in conflict with the averments made by him in his FIR which reveals that the present accused fired three rounds from his DBBL gun at the deceased which hit him on his neck and armpit. Further, the complainant in his cross examination deposed that they were at distance of about five feet from the deceased when the accused fired at him but it was quite incredible and do not attract to the judicial conscience that number of rounds were fired from DBBL gun at the deceased who available with witnesses and not a single pellet injury was received either by the complainant or his witnesses which rendered the entire claim of the complainant to be highly doubtful. Furthermore, the complainant in his evidence deposed that he saw the accused persons while firing at the deceased, however, during cross-examination, he stated that at the time of incident they were in the room and the deceased was in veranda and after receiving fire shots he fell on the coat and the accused went away, thereafter, he and the others came out from the room and saw the deceased lying dead. From perusal of mashirnama of inspection of place of vardat it appears that the place of incident where murder was allegedly committed was not a courtyard but it was a straw-made-hut which was situated towards western side of the said room and from above the narrative it can safely be concluded that the complainant has not witnessed the incident with his own eyes but has given a false evidence. None from the inmates of house though witnessed the incident had come forward to depose against the appellant. The complainant also admitted this fact during his cross-examination by stating that “It is a fact that P.ws who were mentioned in the charge sheet are avoiding to give evidence”.
14. The medical officer on examination of dead body of the deceased found four injuries (entry and exit) on chest and neck but he in his cross examination admitted that he came to conclusion that injuries were fire arm injuries of pellet. According to medical jurisprudence, the pellets fired from gun spread but here the medical evidence is totally silent about receipt of even a single pellet from the body of deceased. Thus, this singular infirmity in this case itself has demolished the whole case of prosecution and rendered the version of the complainant at stake. In addition to this, the investigation officer in his examination-in-chief deposed that he secured two empty cartridges from the venue of occurrence but the mashirnama of vardat is totally silent to it while memo of inspection of dead body shows the recovery of empty cartridges of white colour but without showing its exact quantity. Moreover, there is no recovery of any incriminating article from the possession of present accused even on his arrest which may connect the present appellant with commission of the offence. Over and above this, the eye-witnesses namely Shahban and Mukhtiar Ahmed including mashirs were not examined by the prosecution which is also apparent from the statement filed by learned State Counsel to the effect that they were not going to support the case of prosecution. Thus, without going into other contradictions and/or plea of false implication put forth by the appellant in his statement, it can safely be concluded that the prosecution has miserably failed to prove the charge against the present appellant beyond shadow of reasonable doubt.
15. It is an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that the conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Hon’ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of Ayub Masih v. State (PLD 2002 SC-1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused 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 case of Tariq Pervez v. The State (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-
"The concept of benefit of doubt to an accused person 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 any circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
16. The over-all discussion has arrived at judicious conclusion that the learned trial Court has committed illegality while recording conviction/sentence erroneously, holding the present appellant as guilty of the alleged offence. Consequently, the instant criminal jail appeal is allowed; the conviction and sentence awarded to the appellant by learned trial Court vide impugned judgment are set-aside and he is acquitted of the charged offence. Office is directed to issue release writ, directing the concerned jail authority to release the appellant forthwith in the present case if he is no more required in any other custody case.
17. The instant criminal jail appeal is disposed of in above terms.
JUDGE
.