IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA
Crl. Appeal No. S- 11 of 2020.
Appellant: Miandad Chandio son Ghulam Muhammad Chandio ThroughMr. Razi Khan Nabi Bux R. Chandio, Advocate.
The State: Through MrAitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 18.04.2023.
Date of decision: 18.04.2023.
Date of reasons: 16.05.2023.
JUDGMENT
Zulfiqar Ali Sangi, J-.This criminal appeal is directed against the impugned judgment dated 31.12.2019, passed by learned 1st Additional Sessions Judge/ Model Criminal Trial Court, Dadu, in Sessions Case No.98/2018, arising out of Crime No.09/2017, registered with P.SMado, for an offence under Sections 302, 452, 504, 337-H (2), 114, 147, 148 and 149 P.P.C, whereby the appellant was convicted and sentenced to suffer rigorous imprisonment for life as “Tazir” under Section 302 (b) P.P.C and to pay compensation of Rs.100,000/- to the legal heirs of deceased and in default whereof to suffer simple imprisonment of six months more. The appellant was also convicted for an offence punishable under Sections 452 and 148, 149 P.P.C. to suffer R.I. for five and two years respectively. The benefit of section 382-B Cr.P.C. was extended to the appellant.
2. The brief facts of the prosecution case are that on 25.09.2017, complainant Mst. Nooran Chandio lodged F.I.R at Police Station Mado, alleging therein that she has four minor sons namely Madad, Himat, Imam Ali and Asif Ali. Her brother Bhai Khan and brother-in-law Shah Muhammad reside in separate houses within the same boundary. Taj Muhammad Chandio and others also reside in their village and there is a dispute between them over matrimonial affairs and they were annoyed with them and used to say that they would cause them damage. On 21.09.2017, her husband had gone to his relatives, while her son Madad, brother Bhai Khan, brother-in-law Shah Muhammad and other house inmates after having night meal were chitchatting while sitting on the cots lying in the courtyard of the house. At 11.00 p.m. on the light of solar bulbs, they saw and identified accused Mian Bakhsh, Miandad, Allahdad armed with hatchets, Taj Muhammad alias Tajoo and Manthar alias Manoo both armed with hatchets trespassed into their house. On arrival, accused Miandad abetted his companions not to spare Madad, at his abetment accused Mian Bakhsh to commit qatl-e-amd made fire from his gun upon Madad, which hit on his right arm, accused Allahdad to commit qatl-e-amd made fire from his gun upon Madad and pellets hit him on right side of chest and accused Taj Muhammad alias Tajoo with the intention to commit qatl-e-amd caused sharp side hatchet on top of his head, who fell raising the cry, then accused while making aerial firing and chanting slogans went outside. Due to fear of weapons, they did not go near the accused nor followed them and saw that Madad was dead. Due to the night, non-availability of conveyance beingthe Kacho area they remained with a dead body and early in the morning after arranging conveyance the dead body was brought to Taluka Hospital K.N. Shah and on the way Police of Mado Police station was informed; the police came at the hospital, completed proceedings and after the postmortem, the dead body was handed over to them. After the funeral and burial, the complainant remained at condolence and then lodged F.I.R.
3. On completion of the usual investigation, the police submitted a challan of the case against the appellant, showing the rest of the accused as absconders. The charge was framed against the appellant, to which he pleaded not guilty and claimed trial. Consequently, the prosecution examined five witnesses who in support of their evidence produced certain documents and items. Theside of the prosecution was closed by the state counsel.
4. The statement of the appellant under Section 342 Cr.P.C. was recordedwherein he denied all the allegations of prosecution leveled against him and claimed innocence. He did not examine himself on oath in terms of Subsection (2) of Section 340 Cr.P.C., nor lead any evidence in his defence.
5. After the conclusion of the trial, and hearing the parties, the learned trial Court passed the impugned judgment wherein the appellant was convicted. The appellanthas preferred instant appeal against the impugned judgment.
6. Learned counsel for the appellant has argued that the judgment passed by the trial Court is perverse and liable to be setaside; 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, as it consists of interested and related witnesses and it is insufficient to warrant conviction of the appellant. He further added that material contradictions appeared in the statements of the prosecution witnesses on crucial points, but those have not been taken into consideration by the learned trial Court while passing the impugned judgment. Learned counsel further contended that the impugned judgment suffers from misreading and non-reading of evidence. He also added that the defence has created so many doubts in the prosecution case and benefit of which may be extended in favour of the appellant by settingaside the impugned judgment and ordering acquittal of the appellant.
7. Learned D.P.G. appearing for the State opposed grant of appeal on the ground that the prosecution has fully established its case by producing trustworthy ocular as well as medical and circumstantial evidenceagainstthe appellant and he was rightly convicted based on such evidence. He next contended that crime weapon (gun) was recovered from the appellant and the empties and gun sent for analysis which returns with positive FSL.Lastly, he submits that the prosecution proved the motive as asserted in the FIR hence the appeal of the appellant may be dismissed.
8. 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.
9. The meticulous perusal of the evidence brought on record is entailing that all the witnesses have tried to support the case of prosecution but their evidence on deeper analysis was found unreliable coupled with material improbabilities. The FIR is always treated as a cornerstone of the prosecution case to establish guilt against those, involved in a crime; thus, it has a significant role to play. If there is any delay in the lodgement of an FIR and commencement of the investigation, it gives rise to doubt, which, of course, cannot be extended to anybody else except to the accused. In the case of Iftikhar Hussain and others v. The State (2004 SCMR 1185), it was held that the FIR lodged after conducting an inquiry loses its evidentiary value. In the case of Zeeshan @ Shani v. The State (2012 SCMR 428), it was held that a delay of more than one hour in the lodgement of FIR gave rise to the inference that the occurrence did not take place in a manner projected by the prosecution and the time was consumed in making effort to give a coherent attire to the prosecution case, which hardly proved successful.In the case in hand, the incident took place on 21-09-2017 at 2300 hours and the distance between the place of the incident and the police station is 18/19 KM and the FIR was registered on 25-09-2017, even otherwise, after the incident police was not informed whole the night and in the morning complainant party brought the dead body at Taluka hospital KN Shah where they called the police. On the approach of the police, the FIR was not registered but the police started the investigation and later on after four days FIR was registeredsuch delay in the FIR has not been explained by the complainant. The complainant admitted during her cross-examination that she lodged the FIR after consultation with her elders. The Supreme Court of Pakistan in the case of Noor Muhammad v. The State(2010 SCMR 97) has held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in the lodgment of FIR, such time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. It was also held by the Supreme Court of Pakistan in the case of Muhammad Fiaz Khan v. Ajmer Khan(2010 SCMR 105) that when the complaint filed after a considerable delay, was not explained by the complainant then in such a situation it raises suspicion as to its truthfulness. Thus, I am of the considered view that in the facts and circumstances of the case at hand, the explanation so furnished by the prosecution is not plausible and such delay in the registration of FIR makes the entire case doubtful.
10. The incident took place at 2300 hours in the night and the identification of the accused is stated to be on the light of the solar bulb. The solar or the bulb was not taken by the investigation officer nor was produced by the complainant party nor does the sketch/mashirnama of the place of wardat reflect the availability of the said solar bulb. In such circumstances, the identification of the accused persons at the time and place of the incident in the present case is also doubtful. The Supreme Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) has held that “The source of light i.e. bulbs etc. was not taken into possession during the investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case. Further in the case of Abdul Rahim v. Ali Bux and 4 others, (2017 P Crl. L J 228), the Division Bench of this Court has held as under:-
“11. Record further reveals that the incident is alleged to have taken place in dark hours of the night and Complainant and PWs/eye-witnesses seen and identified the culprits/Respondents on 7 torch lights, but the said Torches were not produced in evidence, since the source of identification of the culprits is shown as torchlight, which as per verdicts of Superior Courts is weak type of source and unsafe to be relied upon. In this regard reference is made to the case of Hakim Ali, reported in 1996 P.Cr.LJ 231 (DB-Kar), and case of Aurangzeb, reported in 2008 PSC (Cr.).
11. The motive is always a double-edged weapon. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse. The complainant who is a lady during her cross-examination admitted the enmity with the co-accused persons on the Khulla obtained by her daughter from the person of the accused party through the court same is also admitted by her in the FIR however,she stated that there is no enmity with the present accused. In the absence of any enmity with the complainant party, the role assigned against the appellant that he abetted the co-accused for murderingthe deceased creates very serious doubt and is unbelievable. The co-accused who has assigned the direct role has enmity with the complainant party and the appellant has no enmity, even though the appellant had not played any active role at the time of the incident though he was stated to be armed with a gun.In such circumstances, the evidence so produced by the prosecution cannot be relied upon safely and cannot be made a basis to maintain the conviction. The Supreme Court of Pakistan in the case of Muhammad Ashraf alias Acchu v The State 2019 SCMR 652 has discarded the evidence of witnesses who have inimical terms with the accused persons and acquitted the accused while extending the benefit of the doubt.
12. The prosecution witnesses gave their contradictory evidence and made dishonest improvements in the case which creates very serious doubt. The complainant during cross-examination stated that the deceased was brought by her tothe hospital at 4-00 to 5-00amand they came to their village with the dead body at 4-00 or 5-00 pmwhereas the PW Bhai Khan who is the real brother of complainant stated during cross-examination that they brought the dead body at hospital at 9-00 am and the doctor started postmortem at 9-30 am, they return to their village at 11-00 am.It established that the incident was an unseen incident and the story alleged in the FIR was managed one and this was the reason that on the same day, FIR was not registered and it was registered after four days after due deliberation and consultation. Even after the registration FIR, the witnesses made improvements in the case in respect of the role assigned against the accused persons and their participation which on reassessment found to be dishonest, based on such dishonest improvements conviction cannot be maintained. The Supreme Court of Pakistan in the case ofMuhammad 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 the 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.”
13. Here only remain the evidence of recovery of a gun from the appellant against him which he had not used in the commission of offence nor the prosecution witnesses alleged that the appellant used the same only presence of the appellant at the place of incident is shown with the role of abetment to co-accused who had direct enmity with the complainant party and role assigned against them is direct one of fringing upon the deceased. It is not alleged by the prosecution that the appellant has caused any firearm injury to the deceased or any of the witnesses. The recovery of a weapon of offence is only a corroborative piece of evidence; and in the absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of the offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case. In the cases where two out of three circumstances had not been proved while the third, namely, recovery of the weapon had been proved which is alleged to be a weapon of offence, was insufficient to form the basis of a conviction. The circumstance that the appellant produced the gun is by itself plainly insufficient to prove that the appellant committed the murder in question as has been held by the Supreme Court of Pakistan in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).So far as the allegation of abetment against the appellant is concerned, a perusal of section 107, P.P.C. reveals that three ingredients are essential to establish/charge any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of said abetment. However, all these three ingredients of section 107, P.P.C. are squarely missing. Further the admission of the complainant in respect of the consultation with the elders for registration of FIR and assigning no direct role of the firing upon the deceased against the appellant though he was alleged to have a gun in his hands coupled with the delay of four days in registration of FIR cut the roots of the prosecution case and makes it doubtful.
14. The overall discussion concluded that the prosecution has miserably failed to establish the guilt against the present appellant beyond the 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 Mansha v. The State (2018 SCMR-772).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 Islamic Law and is enforced strictly because of the saying of the Holy Prophet (Peace Be Upon Him) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". The prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the 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 the case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Supreme Court that "In the criminal trial it is the duty of the 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". The Supreme Court in another case of ShamoonaliasShamma 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 the 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 the prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise.” Reliance is also placed on the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
15. The sequel of the 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 the present appellant guilty of the offence; consequently, the instant criminal jail appeal wasallowed; the conviction/sentence awarded to the appellant by way of impugned judgment could not be sustained, it was set aside and the appellant was acquitted of the charged offence. The appellant was in custody he was ordered to be released forthwith if not required in any other custody case.
16. These are the reason for my short order dated: 18-04-2023.
JUDGE