IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
[ CriminalAppeal No.S-44of 2020 ]
Appellants: 1). Bajhi s/o Faqeer Muhammad,
2). Abdul Hakeem s/o Houran, by caste Buledi
Through Mr.Rafique Ahmed K. Abro, Advocate
Complainant: Rahib Ali s/o Foujo Khan Buledi,
Through Mr. Muhammad Afzal Jagirani, Advocate.
The State: Through Mr.Aitbar Ali Bullo, Deputy
Prosecutor General, Sindh.
[ Criminal Appeal No.S-45 of 2020 ]
Appellants: 1). Ghulam Fareed s/o Alif Khan,
2). Abdul Rasool s/on Faqeer Muhammad
3). Alif Khan s/o Ghulam Fareed, by caste Buledi.
Through Mr.Rafique Ahmed K. Abro, Advocate
Complainant: Rahib Ali s/o Foujo Khan Buledi,
Through Mr. Muhammad Afzal Jagirani, Advocate.
The State: Through Mr.Aitbar Ali Bullo, Deputy
Prosecutor General, Sindh.
Date of hearing: 10.04.2023
Date of Judgment: 26.05.2023
JUDGMENT
ZULFIQAR ALI SANGI,J;- This single judgment shall dispose of listed Criminal Appeals filed separately by above named appellants, which are directed against Judgment dated 05.05.2020, passed by learned Additional Sessions Judge-II, Jacobabad,in Sessions Case No.345/2018(Re.The StateV/s.Ghulam Fareed and six others), outcome of FIR bearing Crime No.44/2018, for an offence punishable U/S.302, 324, 148, 149 PPC, registered with P.S. Mouladad, whereby the present appellantswere convicted and sentenced as under;-
Accused Ghulam Fareed, Alif Khan and Abdul Rasool are sentenced to imprisonment for life for offence punishable under Section 302(b) read with Section 149 PPC with direction that each out of these three accused shall pay Rs.300,000/- (Rupees Three Lacs) each (total nine Lacs rupees) as compensation to the legal heirs of deceased Sultan; in case of default, let it be recovered as arrears of land revenue and in default of payment, they shall suffer further S.I for six months each.
Accused Alif Khan, Bajhi and Abdul Hakeem are convicted under Section 337-A(ii) read with section 149 PPC and sentenced R.I for three years as Tazir with direction to pay 5% of Diyat amount as Arsh, jointly or severally to injured Mir Hassan.
The sentences against accused Alif Khan shall run concurrently with benefit of section 382(b) Cr.PC to all accused.
2. Succinctly, the facts leading to disposal of instant Criminal Appeals are that on 10.07.2018, at 1800 hours, Complainant Rahib Ali Buledi reported the incident with P.S Mouladad, to the effect that on 09.07.2018,at about 05.00 p.m, the present appellants/accused accompanied with rest of the culprits, duly armed withdeadly weapons including lathi, hatchet and iron rods, in prosecution of their common object, came near village Bhaee Khan Buledi Chowk and on restraint of stoppage of watercourse to their land, committed murder of complainant’s brother Sultan by causing him injuries with hatchet and iron rods, besides inflicting injuries to PW Meer Hassan with lathies, for that the instant FIR was lodged against the accused.
3. On completion of the usual investigation, a report under Section 173 Cr.PCwas submitted by the police before the Court of Learned Judicial Magistrate. Thereafter, the formal charge was framed against the present appellants/accused including co-accused Abdul Rasheed and Ameer Jan by the learned trial Court, to which they pleaded not guilty and claimed trial.
4. The prosecution in order to substantiate the accusation against the accused examined in all nine witnesses, who produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of the prosecution.
5. The present accused in their statements recorded U/S.342 Cr.PC denied the allegations leveled against them by pleading their innocence,stating therein that they have been implicated in this case falsely due to old enmity. However, none of them examined themselves on oath, nor led any evidence in their defence.
6. The learned trial Court on appraisal of material brought on record and hearing counsels for the parties,acquitted co-accused Abdul Rasheed and Ameer Jan while convicted and sentenced the present appellants/accusedby way of 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 there is no recovery of any incriminating article from the possession of the appellants to show their involvement in the present case; that there is conflict in between the medical and ocular evidence; that accused Alif Khan caused sharp side of hatchet blow to deceased Sultan but as per doctors opinion there was no injury of sharp edge weapon but learned Trial Court has failed to consider such important aspect of the case; the FIR has been lodged with an inordinate delay of more than 24 hours which reflects consultation, therefore, the false implication of the accused cannot be ruled out; that learned trial Court has acquitted co-accused Ameer Jan and Abdul Rasheed on the same set of evidence, therefore, the case of the prosecution is doubtful and the appellantsare entitled to their acquittal in the circumstances of the case. In support of his contentions,he relied upon the cases of Ameer Bakhsh and another v. The State (P.Cr.L.J Note 71),Ghulam Shabir and others v.The State (2020 P.Cr.L.J. Note 176),Muhammad Ilyas v.The State (1997 SCMR 25), Abid Hussain and others v.The State and others (2020 MLD 1785),Muhammad Mansha v.The State (2018 SCMR 772),Muhammad Asif v.The State (2017 SCMR 486), Muhammad Nadeem alias Nadeem Hussain v.The State and another(2017 YLR 2291)and Tariq Hussain and another v.The State and 4 others (2018 MLD 1573).
8. On the other hand, learned counsel for the complainant as well as learned D.P.Gfor the State submitted that all the witnesses have fully supported the case of the prosecution and no major contradiction has been noticed in their evidence, therefore, the learned trial Court finding the appellants guilty of the offence has rightly convicted and sentenced them by way of the impugned judgment, which does not call for any interference by this Court, hence, the appeal filed by the appellants being meritless is liable to its dismissal.In support of his contentions, learned counsel for the complainant relied upon cases ofTaj v.The State (2012 SCMR 43),Ghulam and another v. Murtaza and another (2005 SCMR 1318), AnwarulHaq v.The State (2004 SCMR 252),Muhammad Afzal v. Ghulam Asghar and others (PLD 2000 Supreme Court 12),Ghulam Mustafa and others v.The State(2005 SCMR 1823), Ghulam Mohy-ud-din alias Haji Babu and others v.The State(2014 SCMR 1034).
9. I have heard learned counsel for the parties and perused the material available on record with their able assistance.
10. The meticulous re-appraisal of the evidence brought on record is entailing that no doubt 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 motive is always a double-edged weapon. No doubt, the previous hostility could have been made a reason for the appellants to have committed the alleged offence but it can equally be a reason for the complainant side to falsely implicate the appellants in this case for previous grouse.The prosecution witnesses admitted the enmity with the accused persons and they during cross-examination also admitted thatbefore the incident,the accused had lodged FIR against the complainant and his brothers including the deceased Sultan. They further admitted that the complainant party also received injuries in the incident, which happened between the same parties one year prior to the incident of the present case.The complainant also admitted during cross-examination that before the present incident, there was an exchange of harsh words between accused Alif Khan and SHO Arslan and the said accused was put into the lockup by the said SHO. It has also come in the evidence that there was an old enmity between the parties and several cases were registered against each other.In such a situation, the evidence so produced by the prosecution cannot be relied upon safely to make a basis tomaintain the conviction. The Supreme Court of Pakistan in the case ofMuhammad 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 them while extendingthe benefit of the doubt.
11. The prosecution witnesses who gave contradictory evidence and made dishonest improvements in the case have createda very serious dent in the present case and rendered it highly doubtful. The complainant while registering the FIR has concealed the real facts; however, the same was brought on record by the defence counsel at the time of cross-examination. The complainant denied that accused Bajhi received injuries at the time of the incident and further stated that no one from the accused persons received any injury. PW-02 Meer Hassan (injured) admitted during his cross-examination that accused Bajhi received injury on his head in the occurrence of the present case which reflects that they gave false evidence. The place of incident is also doubtful, as per the FIR, the incident took place near the village BhaeeKhan Buledi Chowk whilethe complainant deposed the same place of incident at the time of his evidence. PW-02 Meer Hassan deposed that the incident took place at the lands of the complainant and he during cross-examination stated that the water was opened by the deceased Sultan and the accused who were already hidden, came in front of them and caused injuries.PW-03 Imran also stated the same facts as stated by PW-02. PW-03 Imran during his cross-examination stated that the Chowk of Bhaee Khan village would be about 50 Jarebs from the watercourse on which the dispute took place. From the evidence so produced by the prosecution, the place where the incident took place is doubtful. One place of the incident stated by them is Chowk of Bhaee Khan village and the other stated by them is the land of the complainant where watercourse is available and it also comes in the evidence that the distance in between both the place of incident is about 50 Jarebs which on measurement would be about half kilometer. The above contradictions and improvements made by the prosecution witnesses on reassessment were found to be dishonest and on such dishonest improvements, the conviction cannot be maintained. The Supreme Court of Pakistan in the 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 SupremeCourtofPakistaninthe case of MuhammadMansha(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.”
12. All three eye-witnesses which include the complainant categorically deposed that accused Alif Khan caused a hatchet blow to the deceased Sultan by using its sharp side but the medical account does not support such an assertion.The medical officer Dr. MotiKumar who examined the deceased at the time when he was still alive, deposed that all the injuries received by the deceased Sultan were caused to him by hard and blunt substance.Another Dr.AghaWaseem who conducted the postmortem of the deceased Sultan deposed that the deceased Sultan received injuries from a hard and blunt substance. The doctor during cross-examination stated that“All the injuries on the body of deceased were caused by hard and blunt substance. If sharp side of hatchet is used resulting to injuries, would be declared to be caused by sharp cutting weapon and if the blunt side of hatchet is used, the injuries would be declared to be caused by hard and blunt substance.” The Supreme Court of Pakistan in the case of Muhammad Ali v. The State (2015 SCMR 137), has acquitted the accused persons while observing that“The role ascribed to Noor Muhammad and Riaz is in contradiction with the medical evidence, as the complainant in his supplementary statement has mentioned that Noor Muhammad gave a hatchet blow on the head of the deceased from the sharp side whereas the said injury was declared by the doctor as caused by a blunt weapon.”
13. The ocular account,so furnished by all three eye-witnesses is further contradicted by the medical evidence in respect of injuries received by PW Meer Hassan. The complainant in his FIR and PWs in their 161 Cr.PCstatements stated that accused Bajhi Khan and Abdul Hakeem caused soti blows to PW Meer Hassan which hit him but when the injured was examined by the police, only one injury was found on his person. After that when the PWs appeared before the learned trial Court they also deposed the same fact. The injured was examined by the doctor who also confirmed that the injured PW received only one injury and a medico-legal certificate was issued. The doctor when examined before the learned trial Court supported his MLC issued by him which reflects that only one injury was available on the person of injured PW Meer Hassan. Two persons were charged by the prosecution for a single injury, which creates doubt in the case.In such circumstances, the Supreme Court of Pakistan (comprising of four Judges) in the case of Darey Khan and another v. The State (1972 SCMR 578), has acquitted the accused while extending the benefit of the doubt.The Supreme Court of Pakistan in another case ofMuhammad Shafi aliasKhudoo v. The State and others (2019 SCMR 1045) has also acquitted the accused while observing that“Ocular account is in conflict with medical evidence in-as-much as according to the crime report both the appellant, as well as, Abdul Razzaq, co-accused, are assigned one blow each to the deceased, whereas according to the initial medical examination, Medical Officer noted solitary injury on the head, its impact on the eye has been utilized by the witnesses to array the latter in the crime.”
14. The circumstantial account against the appellants is only to the extent of recovery of crime weapons from them, the same on deeper analysis of the evidence has also become doubtful. Accused Ghulam Fareed, Abdul Rasool, Bajhi and Abdul Rasheed were apprehended on 11-07-2018 and it is alleged that on 15-07-2018 (four days after their arrest)during the interrogation, they became ready to hand over the weapons used by them in the commission of the offence and the police party together withthe appellants proceeded toward the pointed place for recovery and as per prosecution version, iron rods and lathi were recovered. As per the mashirnama of recovery prepared on 15-07-2018, the police took accused Ghulam Fareed, Abdul Rasool and Bajhi for interrogation and brought them to theotaq of accused Ghulam Fareed wherefrom they tookout iron rods and lathi, whichwere handed over to the police. When the evidence of Mashir PW-8 PC Gulsher was scanned thoroughly,it was found to havematerial contradictions to the said mashirnama, he deposed in his examination-in-chief that on15-07-2018, accused Ghulam Fareed, Abdul Rasool, Bajhi and Abdul Rasheed were interrogated and were brought at the otaq of accused Ghulam Fareed for the recovery, whereas as per the mashirnama, only three accused namely Ghulam Fareed, Bajhi and Abdul Rasool were brought at the otaq for recovery. The mashir further deposed that accused Ghulam Fareed took one Lai tree lathi and accused Bajhi produced two iron rods. PW-09 ASI Muhammad Saifal who interrogated the accused persons and was leading the police party for recovery of the alleged crime weapons also gave contradictory evidence in respect of such recovery and stated that accused Ghulam Fareed and Bajhi took out two iron rods from the otaq and accused Abdul Rasool took out lathi from the otaq.Both these witnesses are not in consonance in respect of the recovery of crime weapons, which suggests that the recovery was not affectedby the accused persons but was foisted against them just to strengthen the case.It is settled law that 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 guilty of the charged offence. When the substantive evidence fails to connect the accused with the commission of the offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence by itself cannot 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 appellants produced the iron rods and the lathi is by itself plainly insufficient to prove that the appellants committed the murder of the deceased and caused injuries to the injured,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).
15. The overall discussion concludedthat the prosecution has miserably failed to establish the guilt against present appellants 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 dispensingjustice 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 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 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 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).
16. The sequel ofthe above discussion is that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion byholding the present appellants as guilty of the offence.Consequently, instant Criminal Appeals are allowed; the conviction/sentence awarded to the appellantsby way of impugned judgment could not be sustained, it is set aside and they are acquitted of the charged offence. The appellants in custody are directed to be released forthwith in the present case if they are no more required in any other custody case.
17. The instant Criminal Appeals are disposed of accordingly.
JUDGE