IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-07 of 2019
Appellant : Barkat Ali son of Misri Khan Lashari Through Mr.Athar Abbas Solangi, Advocate
The State : Through Mr.Aitbar Ali Bullo, D.P.G.
Date of hearing: 16-01-2023
Date of decision: 10-02-2023
JUDGMENT
ZULFIQAR ALI SANGI, J;- The captioned criminal appeal impugns the judgment dated 16.01.2019, passed by learned 1st Additional Sessions Judge, Mehar, in Sessions Case No.112/2016 (Re. St. Vs. Barkat Ali Lashari), emanating from FIR bearing Crime No.06/2016, for offence punishable Under Section 302, 34 PPC registered with Police Station, Thariri Muhabat, District Dadu, whereby the appellant has been convicted for an offence punishable Under Section 302 (b) PPC and sentenced to suffer rigorous imprisonment for life as Tazir with fine of Rs.200,000/- to be paid to the legal heirs of deceased and in default whereof to suffer simple imprisonment for six months more, with benefit of Section 382-B Cr.PC.
2. Brief facts of the prosecution case as depicted in FIR lodged by complainant Lal Khan Qambrani on 08.02.2016, at 1800 hours are to the effect that he is farmer and has a son namely Yaqoob aged about 29/30 years who was dealt with milk business. On 06.02.2016, he alongwith his son Yaqoob, brother Wazir Ali and nephew Bhooral after getting free from work at Radhan were returning to Thariri Muhabat, his son was on a motorcycle with milk drums while on another motorcycle he, his brother Wazir Ali and nephew Bhooral Qambrani were seated, when they reached adjacent to village Mitho Machhi Thariri Muhabat on link road leading from Sui Gas towards “English Babool”, at about 1040 hours, two motorcycles carrying four persons, duly armed with pistols came behind them. One of them while raising hakal to his son Yaqoob saying that he will not be spared and will be done to death, then fired from his pistol at his son Yaqoob who fell down from the motorcycle. Thereafter, all the four accused went away towards Sui Gas side while raising slogans. They did not follow the accused owing to fear of weapons. The complainant then saw his son having sustained fire arm injury on his back which was bleeding while he found bruises on right side of his forehead and right knee and he was dead. After reporting the incident with police, they shifted dead body of the deceased towards Taluka Hospital Mehar and after postmortem it was delivered to him for funeral. Thereafter, the complainant came at P.S and lodged FIR against the accused.
3. During course of investigation, the complainant got recorded his further statement before the police wherein the present appellant/accused was nominated and on completion of usual investigation, final report under section 173 Cr.PC was filed against the appellant/accused before the Court of law. Later-on, the present appellant/accused joined the trial after seeking interim pre-arrest bail and on completion of legal formalities the formal charge was framed against him, to which he pleaded not guilty and claimed trial.
4. To establish the charge against the accused, the prosecution examined in all six witnesses i.e PW-01 Tapedar Ali Asghar Buttro, PW-02 Complainant Lal Khan Qambrani, PW-03 eye-witness Bhooral Khan, PW-04 Dr.Kaleemullah Solangi, PW-05 SIO/ASI Manzoor Ali Chandio and PW-06 Mashir Muhammad Sadiq, 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.PC, denied the allegations leveled against him by pleading his innocence, stating therein that he is not nominated in the FIR but his name has been disclosed in further statements. 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 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 is conflict in between the evidence of prosecution witnesses which has demolished the credibility of their evidence; that the FIR recorded with inordinate delay of two days is totally silent about the name of present appellant but he was implicated in further statements of the complainant and PWs which were recorded ten days after the FIR which appears to be significant; that one of the eye-witness has not been examined by the prosecution for no obvious reason; that there is no recovery of any sort from the possession of present appellant/accused to show his involvement in the present case. Concluding his contentions, the learned defence counsel submitted that accused has falsely been arraigned in this case on account of matrimonial dispute which is discernible from further statements of the complainant and PWs. He lastly prayed that the case of prosecution is doubtful and the appellant/accused is entitled to his acquittal in the circumstances of the case. In support of his contentions, he relied upon cases of Riaz Ahmed v. The State (2010 SCMR-846), Abdul Jabbar v. The State (2019 SCMR-129) and Jamal Khan v. The State (2020 PCr.LJ-1589).
8. Conversely, learned D.P.G for the State submits that all the witnesses have fully supported the case of prosecution and no any material contradiction has been noticed in their evidence; that an innocent person has been done to death at the hands of appellant/accused over matrimonial dispute, in that situation, learned trial Court finding the appellant/accused guilty of offence has rightly convicted and sentenced him by way of impugned judgment which calls for no interference by this Court, therefore, the appeal filed by him being devoid of merits is liable to its dismissal.
9. Heard arguments of learned counsel for the parties and perused the material made available on record with their able assistance.
10. The record reveals that FIR of the incident has been lodged with delay of two days after the incident for which no plausible explanation has been furnished and such delay cannot be overlooked, which obviously is reflecting consultation and deliberation. In case of Mehmood Ahmed & others vs. The State & another (1995 SCMR-127), it has been observed by the Hon’ble Apex Court that;
“Delay of two
hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as
the same could be attributed to consultation, taking instructions and
calculatedly preparing the report keeping the names of the accused open for
roping in such persons whom ultimately the prosecution might wish to
implicate”.
11. In addition to this, the name of appellant does not find place in the FIR nor was his description mentioned, though the same was registered with delay of two days after the incident, as is discussed above. Even otherwise, the witnesses in their 161 Cr.PC statements have not given any description of any of the accused. At this juncture, the investigation officer during course of investigation recorded further statements of the complainant and his witnesses wherein they disclosed that they on query came to know that about 7/8 months prior to the incident, complainant’s son Yaqoob was locked in marital tie with Mst.Rehana d/o Abdul Razzaq Rajput whereupon accused Barkat Lashari was annoyed and now he came to know that his son Yakoob has been done to death by accused Barkat Lashari over the above issue. Further statement of the complainant, if any, even otherwise could not be equated with FIR. If further statements of the complainants and his witnesses are believed to be true then why they remained mum and did not nominate the present accused with his name and parentage in the FIR promptly despite the fact that the present accused was known earlier to them. It was done with inordinate delay of twelve days after the incident, as such no much reliance could be placed upon further statements of the complainant and his witnesses. In case of Khalid Javed and another vs. The State (2003 SCMR-1419), it has been observed by the Honourable Supreme Court of Pakistan that;
“---S.161---Supplementary statement by the complainant---Value---Supplementary statement of the complainant is not more than a statement under S.161 Cr.PC.
12. In the present case, the FIR was registered on 06.02.2016 and the supplementary statements of the complainant and that of his witnesses was recorded ten days after the FIR which has no legal value and is inadmissible in evidence, therefore, the same cannot be used to contradict the contents of the FIR. The Honourable Supreme Court in cases of Syed Saeed Muhammad Shah v. The State (1993 SCMR-550), Amir Zaman v. Mehboob and others (1998 SCMR-685), Zulfiqar Hussain v. The State (2011 SCMR-379), Abid Ali v. The State (2011 SCMR-161) and Tahir Abbas v. The State (2003 SCMR-426), has held that supplementary statement recorded subsequently to the FIR can be viewed as improvements made to the witness's statement, therefore, even if the supplementary statement of the complainant is discarded, then too, the contents of the FIR in the case in hand clearly establishes that the case of prosecution is entirely doubtful. It is apparent from the above discussion that the prosecution witnesses including the complainant made dishonest improvements in the case. 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 Shafiqe 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).”
13. The Honourable Supreme Court of Pakistan in case of Muhammad Mansha (supra) also held that “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 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. Further re-assessment of the material brought on record reflects that the prosecution examined complainant Lal Khan and PW Bhooral being the eye-witnesses, while PW Wazir Ali who happened to be brother of the complainant and uncle of the deceased being eye witness to the incident, was given up 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 as per Article 129 (g) of Qanun-e-Shahadat Order, 1984. Moreover, the entire ocular account is exclusively hanged upon the evidence of complainant and one of the 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”.
15. By following the above dictum laid-down by the Honourable Supreme Court of Pakistan, the evidence of the complainant and PW Bhooral on meticulous re-assessment was found to be unreliable, untrustworthy and completely doubtful. In that the complainant in his examination-in-chief deposed that while they were returning from Radhan Town and going towards Thariri Muhabat, the motorcycle of deceased Yaqoob was going in front of them about 50 feet away and when reached near a tree at link road leading from Radhan to village Mitho Machhi where two motorcycles came behind them, they saw and identified accused Barkat Lashari sitting on a motorcycle whereas other accused persons were unknown but his version is belied by his own eye-witness/PW Bhooral who deposed that four unidentified accused came on motorcycle and one of them fired at Yaqoob. Over and above this, the complainant has also failed to bring on record the mode of information or produced any person through whom he received information about murder of his son at the hands of the present accused. Moreover, no independent piece of evidence has been collected by the investigation officer during course of investigation which may justify connectivity of the present accused with commission of the alleged offence. The omissions and inconsistencies between the evidence of the prosecution witnesses, as are pointed above, if are judged in the light of unexplained and un-plausible delay in lodging of the FIR and that of recording further statements of the complainant and his witnesses, then this all exercise obviously has rendered the entire claim of the complainant at stake. 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.
16. 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 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".
17. The sequel of above discussion arrived at conclusion that the learned trial Court has recorded erroneous findings, holding the present appellant as guilty of the alleged offence. Consequently, the instant criminal 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.
18. The instant criminal appeal is disposed of in above terms.
JUDGE
.