IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

 

Crl. Jail Appeal No. S- 37 of 2022.

 

Aijaz Jagirani.                                                                       ……..………...Appellant.

 

Versus

 

The State.                                                                               ….......…..….Respondent.

 

           

            Mr. Habibullah G. Ghouri, Advocate for appellant.

            Mr. Zafar Ali Malghani, Advocate for complainant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

 

Date of hearing:                    25.09.2023.

Date of Judgment:                12.10.2023.

 

Judgment

 

Shamsuddin Abbasi, J-. Through this criminal appeal, appellant Aijaz son of Roshan Ali Jagirani has assailed the judgment dated 26.10.2022, delivered by learned 3rd Additional Sessions Judge, Larkana, in Sessions case No. 371 of 2018, emanating from F.I.R No.03 of 2018 of P.S Dhamrah (District Larkana), whereby the appellant was convicted and sentenced for offences under Section 324 P.P.C to undergo R.I for ten years as “Tazir” and to pay fine of Rs.50,000/- and in case of non-payment of fine to suffer S.I for six months more. The appellant was also convicted for offence under Section 337-D P.P.C and sentenced to suffer R.I for ten years and to pay one third of “diyat” amount to injured Zulfiqar Ali. The appellant was extended benefit of Section 382-B Cr.P.C.

 

2.         The facts of the case of prosecution as depicted from para 2 of the impugned judgment, as reproduced as under:

 

            “On 21.01.2018 at 1500 hours, complainant Ghulam Yaseen lodged the F.I.R at P.S Dhamrah, stating therein that, in the year 2012 murder of his brohter namely Ghulam Sarwar was committed by Ayaz Jagirani and others, in the said case Aijaz and others were absconders, they used to extend threats to withdraw from the case and in case the complainant party would not withdraw from case then they would be done to death. It is further narrated in the F.I.R, that on the fateful day (20.01.2018) the complainant, his cousin Zulfiqar Ali and his brother’s son Tarique Ali Jagirani were going on the Qingqi (Chingchi) from Larkana to their village, when they arrived at Sachay Bux Jagirani bypass near Pir Budhal Shah, their Qingqi became out of order, as such the Qingqi for repair went back to Larkana and they all  three were waiting for conveyance, meanwhile two motorcycles-125 of black colored without number plates came and parked there, from the said motorcycles each one Aijaz son of Roshan Ali, 2. Aftab son of Muhammad Saddique, 3. Riaz son of Aijaz Jagirani, 4. Ahmed Ali alias Loto son of Ishaque, 5. Qasim son of Raza Mohammad all by caste Jagirani resident of village Wali Muhammad Jagirani, Taluka Larkana, at present resident of Hab Chounki Las Bela Balochistan and 6. Dilbar son of Mitho Jagirani, resident of Younis Jagirani, Taluka Larkana got down and all the accused persons took out pistols from their respective folds, the complainant party was without weapons, therefore, they chosen to remain silent, in the meanwhile Aijaz Ali made straight fire with his pistol in order to commit murder of Zulfiqar Ali, which hit him at his stomach, Aftab made straight fire with his pistol upon Zulfiqar Ali which hit him at right side of his stomach, Riaz also made straight fire at Zulfiqar Ali which hit upon his thigh of his right leg, Ahmed Ali alias Loto made straight fire with his pistol upon Zulfiqar Ali which hit at left side of his stomach, Zulfiqar Ali raising cry fell down, in the meanwhile Qasim made straight fire with his pistol at Tarique, the son of brother of complainant which hit to him at the elbow of his left arm who also raised cry and fell down. Thereafter, the accused persons making aerial firing by boarding on their motorcycles went away towards western side. Thereafter, the complainant took his cousin Zulfiqar Ali and Tarique Ali to casualty hospital for treatment where he remained busy for getting their treatment and being free from there, he went to police station and lodged the F.I.R agaisnt the above named accused persons to the above effect.”

  

3.         On completion of usual investigation, the police filed challan of the case against accused persons.

 

4.         The trial Court framed the charge against appellant at Ex.2, to which he pleaded not guilty and claimed to be tried.

 

5.         At trial prosecution examined ASI Sikander Ali (author of F.I.R) at Ex.3; he produced entry No.10 and F.I.R at Ex.3-A and Ex.3-B. Complainant Ghulam Yaseen was examined at Ex.4. PW Zulfiqar Ali (injured eyewitness) was examined at Ex.5. PW Tarique Ali (injured eyewitness) was examined at Ex.6. PW/ P.C Shah Murad (mashir) was examined at Ex.7; he produced mashirnama of arrest and personal search of accused. PW SIP Muhammad Ameen was examined at Ex.8. PW/ Mashir Nasrullah was examined at Ex.9. PW/ Mashir Riaz and Mansoor Hussain were given up by learned Prosecutor. Then, on application of Prosecution filed under Section 540 Cr.P.C the WHC Shahid Hussain of P.S Kanga being well conversant with signature of I.O of the case was called and examined at Ex.13. The learned Prosecutor gave up evidence of PW Liaquat Ali Khajar vide his statement at Ex.14. Then, PW/ SHO Aijaz Ali was examined at Ex.15. PW/ Medical officer Dr. Rabail Ahmed was examined at Ex.16; he produced provisional as well as final medical certificates of both injured witnesses. Thereafter, the prosecution closed its side vide statement Ex.17.

 

6.         Then statement of the appellant was recorded under Section 342 Cr.P.C. in which he pleaded his innocence and false implication in the case. However, neither he examined himself on oath nor led any evidence in his defence. Ultimately, after hearing arguments of learned counsel for the parties the appellant was convicted as stated above.

 

7.         I have heard learned counsel for appellant as well as learned D.P.G. learned Advocate for complainant and with their assistance have minutely and carefully scanned the evidence.

 

8.         Learned counsel for the appellant contended that, there had been admitted murderous enmity between the parties, which fact has not been considered by the learned trial Court while passing the impugned judgment. Per learned counsel the prosecution case is full with material contradictions, discrepancies and improvements. He further contended that medical evidence is inconsistency with the ocular evidence and motive is also shrouded in mystery. He further contended that some material witnesses were given up by the Prosecution; therefore, the presumption would be that they were not going to support the case of prosecution; as such they were not put into witness box. 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. He prayed for acquittal of the appellant.

 

9.         On the other hand learned D.P.G. appearing for the State assisted by learned Advocate for complainant argued that, appellant is nominated in the F.I.R with specific role; that F.I.R has been promptly lodged by complainant and that evidence produced at trial is natural and confidence and that the defence has failed to create any dent in the prosecution case. No material contradictions and discrepancies have been pointed out by the defence counsel. He lastly contended that prosecution has established its case beyond any shadow of doubt against the appellant and learned trial Court has rightly convicted the appellant.

 

10.       Heard learned counsel for respective parties and perused the material available on the record.

 

11.       There is delay of two hours in lodging of the F.I.R and in background of murderous enmity between the parties it cannot be ruled that F.I.R has been lodged by complainant after deliberation and consultation. It is a well-settled law principle of law that F.I.R 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 pay. If there is any delay in lodging of a F.I.R and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused. Reliance in this behalf may well be made to the case of Zeeshan alias Shani v. The State (2012 SCMR 428), wherein it has been held that delay of more than one hour in lodging of F.I.R give rise to an inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful. Moreover, all the prosecution witnesses/ injured are related inter-e, interested and inimical towards the appellant. In the present case complainant Ghulam Yasin is cousin of injured Zulfiqar Ali and uncle of PW Tarique and PW/ injured Tarique is son of injured/ PW Zulfiqar, hence they are close relatives and interested witnesses; however it is now settled principle that the evidence of related and interested witnesses cannot be discarded on the ground of relationship but propriety of safe administration of justice demands to scrutinize their evidence with care and caution.

 

12.       From perusal of record there appears inconsistency in between ocular version and medical evidence. As complainant in his F.I.R stated that appellant Aijaz fired at injured Zulfiqar Ali, which it at his belly; second fire was made by co-accused Aftab which hit to Zulfiqar on his right flank; 3rd fire was made by co-accused Riaz which hit Zulfiqar at his right leg and 4th fire was made by co-accused Ahmed Ali which hit Zulfiqar at his left leg. The complainant has assigned same role to accused in his statement recorded by learned trial Court and same statement has been recorded by PW/ injured Zulfiqar and Tarique Ali in which they have stated that appellant Aijaz fired at him which hit at his abdomen; accused Aftab made dire from his pistol on him which hit on his right side lumber region; accused Riaz made straight fire on him which hit at his right thigh and accused Ahmed Ali fired at him which hit on his left lumber region. This ocular version is belied by medical evidence produced by Dr. Rabail Ahmed. He has produced medical certificate of injured Zulfiqar Ali, available at page 99 of the paper book, which reveals as under:

 

                                    [1]       (i) Lacerated puncture type would 01 cm in diameter circular in shape with inverted margins at right side of iliac orestgoing deep (wound of entry).

 

                                    (ii)        LPTW 2.5 cm x 2 cm into groing deep with everted margins at below umbilicus (wound of exit).

 

[2]       Lacerated punctured type wound 01 cm in diameter at groing deep at right thigh with inverted margins (wound of entry).”

 

13.       According to ocular version four accused, namely, Aijaz (appellant), Aftab, Riaz and Ahmed Ali fired single shot upon PW Zulfiqar Ali but medical evidence belies such fact and stated that only two injuries sustained by PW Zulfiqar Ali, which were attributed to co-accused Aftab and Riaz. This aspect of the case has created serious doubt in prosecution case. This shows that complainant party had tried to implicate huge number of accused party in order to drag them in the case, which created serious doubts in the prosecution case and benefit of single doubt is sufficient to give adverse effect on the prosecution case.

 

14.       Moreover, it is matter of record that according to the complainant, the alleged incident had taken place at 01.00 p.m. (on 20.01.2018). Soon after the incident the complainant shifted both the injured Zulfiqar Ali and Tarique Ali to the hospital, where doctor examined them and per provisional medical certificate available at page-99 shows that doctor examined both the injured at 12.00 noon on 20.01.2018, just before one hour of the incident.

 

15.       Another abnormal behavior on the part of complainant and two eye witnesses is that complainant is cousin and uncle of both the injured witnesses respectively and in his presence the accused persons made murderous attempted upon both the witnesses and even he being real cousin and uncle neither attempt nor tried to save the injured or to catch hold any of the accused. Such a conduct of complainant does not appear to a prudent mind that while in his presence accused persons made murderous assault upon witnesses he did not resist or try his level best to save them. It does not appeal to the logic that by making murderous assault upon persons in presence of their blood relative, he did not attempt to save the injured from accused. The aforementioned conduct since runs contrary to the natural human response, hence, caused a big dent to the prosecution case and also question marked the presence of complainant at the scene of offence. In somewhat similar circumstances the Hon’ble Supreme Court of Pakistan expressed in the case of Pathan v. The State (2015 SCMR 315), to the following effect:-

 

            “The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/ photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue.”

 

16.       I have also found contradiction between the statements of complainant and PW-1/ ASI Sikander Ali (author of F.I.R). According to case of prosecution the alleged incident had taken place at 01.00 p.m., thereafter complainant shifted injured to hospital. Complainant in his cross-examination stated that police of P.S Kanga also came there in the hospital and he remained in hospital for whole day and police consumed one and half hour at hospital but he in his examination-in-chief stated that after shifting the injured he went to P.S Kanga but F.I.R book was not available at P.S Kanga, therefore, he along with PW Sikander Ali went to P.S Dhamrah and lodged the F.I.R at 03.00 p.m.

 

17.       It is a well-settled principle of law that involvement of an accused in heinous nature of offence is not sufficient to convict him as the accused continues with presumption of innocence until found guilty at the end of the trial. All that may be necessary for the accused is to offer some explanation of the prosecution evidence against him and if this appearance to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend of its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation.  Here in this case, the prosecution has not been able to bring on record any convincing evidence. Rather, there are so many circumstances, discussed above creating serious doubts in the prosecution case, which cut the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any 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 person be convicted”, which occupied a pivotal place in the Islamic Law and is enforced strictly in view 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 is punishing an innocent.”

 

18.       These inconsistencies cannot be ignored, which create serious doubt in the prosecution case and it is settled principle of law that for creating shadow of doubt, it is not necessary that there should be many circumstances, if a single circumstances creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused, not as a matter of grace or concession, but as the matter of right. This dictum is laid down in the case of Tariq Pervez vs. The State (1995 SCMR 1345).

 

19.       For the foregoing reasons and discussion, I have come to the conclusion that the case of prosecution against appellant is not free from doubt, therefore, instant criminal jail appeal is hereby allowed and conviction and sentences awarded to the appellant vide impugned judgment dated 26.10.2022 passed by learned 3rd Additional Sessions Judge, Larkana, are hereby set-aside. Resultantly, appellant Aijaz Jagirani is acquitted of the charges; he shall be released forthwith, if his custody is not required in any other case.

 

         

                                                              Judge

 

Ansari