IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Appeal No. S-62 of 2022
NAZEER @ RAJA SON OF DIN MUHAMMAD BROHI
VERSUS
THE STATE
Appellant through : Mr. Ahsan Ahmed Qureshi, Advocate
Complainant through : Mr. Ajmair Ali Bhutto, Advocate
State through : Mr. Khalil Ahmed Metlo, APG
Dates of hearing : 23.11.2023, 30.11.2023 & 07.12.2023
Date of judgment : 18.12.2023
Muhammad SaleemJessar, J.:- By this appeal under section 410 Cr.P.C, appellant Nazeer @ Raja son of Din Muhammad Brohi has assailed the judgment dated 13.10.2022 passed by learned 1st Additional Sessions Judge/MCTC Larkana in Sessions Case No. 324 of 2020 arising out of Crime No. 01/2020 of PS Rasheed Wagan under section 302, 34 PPC, whereby he was convicted under section 302(b) PPC and sentenced to suffer RI for life with fine of Rs.300,000/- as compensation in terms of section 544-A Cr.P.C. in default whereof to suffer SI for six months more.
2. Concise facts of the prosecution case as per FIR lodged on 10.01.2020 by the complainant Imam Ali are that his brother Muhammad Ayoob who was a Primary Teacher had a dispute with accused Nazir alias Raja over a plot. Yesterday i.e. on 09.01.2020, when Complainant, Muhammad Ayoob, Ali Gul and nephew Sadam Hussain were available in front of their house at 2:30 pm, they saw and identified accused Nazir alias Raja, Khan Muhammad, Mukhtiar and Huzoor Bux being armed with pistols came there and accused Nazir alias Raja raised ‘hakal’ by saying to Muhammad Ayoob, that they would not spare him and kill him, as he was annoyed with him over a dispute of plot. It is further alleged that saying so, accused Nazir alias Raja made straight fire from his pistol upon Muhammad Ayoob with intention to kill him, which hit him. Similarly accused Khan Muhammad, Mukhtiar and Huzoor Bux have also made straight fire from their pistols upon Muhammad Ayoob with intention to kill him which hit him. Thereafter, Muhammad Ayoob fell down on earth, raising cries and due to fear of weapons, complainant party remained silent. Thereafter, all accused went away along with their weapons towards western side. Thereafter, complainant party noticed that Muhammad Avoob had sustained firearm injuries, blood was oozing and he was lying dead. Thereafter, complainant by leaving eyewitnesses over dead body went to PS, informed police and at his request, police got conducted postmortem of the dead body and after burial of dead body, complainant went to PS Rasheed Wagan and lodged instant FIR.
3. After completing investigation, police submitted Challan by showing present accused Nazir alias Raja and Mukhtiar in custody while accused Khan Muhammad and Huzoor Bux were shown as absconders before the Court of Civil Judge and JM-I, Larkana, who after completing necessary formalities and supplying case papers to both accused sent up the case to the court of Sessions Judge, Larkana wherefrom, this case was transferred to the Court of V-Additional Sessions Judge, Larkana. Both accused stood for their trial, case papers were supplied to them and charge against them was framed at Ex.11, to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.12 and 12/A respectively. Thereafter, prosecution in order to prove its case, examined complainant Imam Ali at Ex. 13, he produced FIR at Ex.13/A, PW Sadam Hussain at Ex.14 and PW Ali Gul at Ex.15. Subsequently, co-accused Khan Muhammad was arrested by police and sent up to face his trial, case papers were supplied to him and an amended charge against all three accused was framed at Ex.17, to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.18 to 20 respectively.
4. The prosecution in order to prove its case examined PW-1 ASI Rabail at Ex.21, who produced Entry Nos.6 and 7 at Ex.21/A, PW/Tapedar Yasir at Ex.22, who produced Police Letter and Sketch of Place of Incident at Ex.22/A and 22/B. PW ILNC Jhando Khan at Ex.23 who produced Receipt at Ex.23IA, Medical Officer Dr.Ashok Kumar at Ex.24, who produced Lash Chakas Form and Post Mortem Report at Ex.24/A and 24/B, complainant Imam Ali at Ex.25, PW Sadam Hussain at Ex.26, PW Ali Gul at Ex.27, PW/PC Gulzar Ali at Ex.28, who produced Road Certificate (RC) No.02 at Ex.28/A, PW ASI Gul Hassan at Ex.29, who produced Entry No.9, Memo of Arrest and Recovery, Entry Nos.12,13, copies of FIR Nos.4 and 5/2020 at Ex.29/A to 29/F respectively, Mashir Mujahid Hussain at Ex.30, who produced Memo of dead body. Danishnama, Memo of clothes of dead body, Memo of Place of Incident at Ex.30/A to 30/D respectively. PW HC Muhammad Ali at Ex.31, who produced Receipt at Ex.31/A, PW/SIP Tai Muhammad at Ex.32, he produced attested copy of Memo of Arrest of accused at Ex.32IA PW IHC Meer Muhammad at Ex.33, PW/SIO SIP Shahmeer Ali at Ex.34, who produced Entry No.10, attested copy of RC No.8, Forensic Science Laboratory (FSL) and Chemical Examiner reports at Ex.34/A to 34/E respectively. Thereafter learned DDPP for the State closed the side of prosecution case vide his statement at Ex.35.
5. In their statements recorded under section 342 Cr.P.C at Ex.36 to 38 accused have denied the allegations of prosecution leveled against them. They have further claimed their false implication and innocence in above case. Accused have not examined themselves on oath as required u/s 340(2) Cr.P.C nor led evidence in their defence. Accused Nazir alias Raja has produced Verification of Duty Report and Police Station copy of office Attendance Register at Ex.36/A and 36/B respectively.
6. I have heard learned counsel for the parties and examined the material available on record.
7. Record shows that during proceeding of trial against accused Nazeer@ Raja and Mukhtiar Ali, one of absconding accused namely Khan Muhammad was arrested and sent up to face the trial through supplementary Challan and case was proceeded against all the three accused personsand after full-fledged trial, co-accused Mukhtiar Ali and Khan Muhammad were acquitted U/S 265-H(i) Cr.P.C while present appellant Nazeer @ Raja was convicted for life imprisonment and the case against the absconding Hazoor Bux was kept on dormant file.
8. Learned counsel for the appellant submits that in all four accused namely, Nazir @ Raja (present appellant), Khan Muhammad, Mukhtiar and Hazoor Bux had allegedly fired one by one upon the deceased; however, specific seat of injury was not mentioned in the FIR nor the prosecution had led any evidence at the time of trial. The co-accused Mukhtiar Ali, Khan Muhammad and Hazoor Bux have been acquitted of the charges by way of impugned judgment as well as judgment dated 18.01.2023 as the co-accused Hazoor Bux was arrested later. He while going through the medical evidence submits that ocular version was corroborated by the medical evidence but the acquittal of co-accused depicts something else. He further submits that the appellant has been convicted by the trial Court on the ground that the empties shown to have been recovered from the spot were found by the Laboratory to be matching from the pistol allegedly recovered from him. Learned counsel for the appellant further pointed out that though the incident occurred on 09.01.2020 and empties were shown to have been recovered on 10.01.2020, whereas pistol was allegedly recovered from appellant on 26.01.2020 and all the empties and pistol were sent to Ballistic Expert on 28.01.2020 and no plausible explanation was furnished by the prosecution for such an inordinate delay in sending the same. He further submitted that complainant had also filed Crl. Acquittal Appeal No.D-35/2022 against co-accused which too was dismissed on 02.11.2022; besides the complainant filed Crl. Revision Appln. No.D-17/2022 before this Court which too was dismissed on 02.11.2022, whereby learned Bench has held that the prosecution evidence was full of contradictions; he further submitted that acquittal of co-accused has attained finality and the enhancement sought by the complainant had also been declined, therefore, case of appellant is at par with co-accused hence submitted that by granting instant appeal he may also be treated at par. In support of his contention, he placed reliance on the case law reported as Muhammad Aslam v. Khursheed alias Bago, etc. (2004 SD 58), Imtiaz alias Taj v. The State and others (2018 SCMR 344), Walayat v. The State (2005 PCr.LJ 447), Jan Muhammad v. The State (1969 PCr.LJ 588), Bashir Ahmed v. The State (2018 MLD 1072), Akhiar-ul-Hassan v. The State (2003 CrLJ 694), Muhammad Younis v. The State (1986 MLD 2422) and Muhammad Ashraf v. The State (1975 PCr.LJ 787). He also submits written arguments, which are taken on record.
9. Mr. Khalil Ahmed Maitlo, Deputy Prosecutor General, opposed the appeal on the grounds that as far as case of co-accused is concerned, nothing incriminating was recovered from their possession and the empties allegedly recovered from the place of incident were found matching with the offensive weapon recovered from possession of the appellant, therefore, their case was different from the case of present appellant hence acquittal of co-accused is no ground for seeking acquittal. He next contended that there is sufficient material available on record which connects the appellant with the commission of crime, hence prays for dismissal of appeal. He, however, is not in a position to substantiate his arguments with any law.
10. Mr. Ajmair Ali Bhutto, counsel for the complainant also opposed the grant of appeal on the ground that the appellant has committed murder of deceased and the appellant at the time of arrest was with weapon for which separate FIR was registered. He next added that co-accused were assigned similar role as well as weapon yet nothing was recovered from their possession and even the empties allegedly secured by the police from the spot have been found similar which were fired from weapon produced by the appellant. He contended that the prosecution has adduced sufficient evidence, which has rightly been appreciated by the trial Court, therefore, the appeal in hand merits no consideration. To support his contention he placed reliance upon the case of Khair Muhammad and another v. The State (2019 P.Cr.L.J 26) and Nabi Gul v. The State another (2016 YLR 1013 [Peshawar]). Mr. Bhutto further submitted that while acquitting co-accused by the trial Court, no such appeal against their acquittal has been filed by the complainant. He still stands by that the prosecution has established its charge against the appellant, therefore, prays for dismissal of the appeal. He admits that criminal revision application filed by the complainant seeking enhancement of sentence of the appellant was also dismissed.
11. Perusal of record shows that complainant has alleged in the FIR that accused Nazeer @ Raja 2. Khan Muhammad, 3. Mukhtiar and 4. Hazoor Bux fired from their respective pistols one by one upon the deceased, which hit him and he fell down having four injuries (1) on his chest exited from backside (2) at chest exited from back (3) at chest exited from back and (4) left side chest superficial and hit left forearm through and through. Motive of the incident was a dispute over a plot. During investigation, police recovered four empties of 30 bore pistol on 10.1.2020 from place of incident, which were sent to the FSL on 14.1.2020 vide report at Exh: 34/C indicating that four 30 bore crime empties now marked as "C-1 to C-4" are fired empties of 30 bore firearm/weapon. Accused Nazeer @ Raja and Mukhtiar were arrested on 26.1.2020 and recovered one pistol of 30 bore alongwith four lives bullets from each accused. The pistols were sent to the ballistic expert on 28.01.2020 and subsequently both accused were sent up to face the trial while showing accused Khan Muhammad and Hazoor Bux as absconders and later on acquitted.
12. It appears that allegation of firing upon the deceased was made against all four accused persons. But rest of three accused persons namely Mukhtiar, Khan Muhammad and Hazoor Bux were acquitted; however, only present appellant was convicted by the learned trial court on the ground that according to FSL report, out of four empties from the place of incident, one empty was matched with the pistol allegedly recovered from the possession of appellant/accused Nazeer, which clearly shows that the learned trial court not considered the ocular evidence of the eye-witnesses of the incident as such, rest of co-accused were acquitted, when it is well settled principle of law that the recovery memos, and reports of experts are read in support of the direct evidence, if any. If ocular or direct evidence up stands the test of proof in a criminal case, the supporting corroboratory evidence lends support to the prosecution case. The evidence of FSL report is subsequent to the occurrence. Similarly the recovery of pistol and empties are also subsequent evidence and the same is necessary that the occurrence is not witnessed by the eye-witnesses and case entirely depends upon the circumstantial evidence. The recovery of empties of .30 bore pistols and the blood stained earth in absence of any other direct or corroborative piece of evidence alone would not be sufficient to connect the appellant with the commission of offence or to convict him in the case as it is a corroborative piece of evidence. When ocular account of the case becomes doubtful then mere recovery of empties alone or blood stained earth can in no way be made basis for conviction. Moreover, there is nothing on record which demonstrates that the death of deceased was caused by the bullet fired by the present appellant.
13. The complainant and PW Sadam Hussain have admitted in their evidence that the dead body of deceased was kept on cot whereas PW Ali Gul says that the dead body was lying on the road. The complainant had admitted that appellant Nazeer fired at the deceased first and thereafter other accused persons fired upon the deceased one by one whereas PW Ali Gul says that all accused persons fired together. It is also well settled principle of law that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused persons attributed the similar role unless such eye-witnesses received independent corroboration, which is lacking in instant case. Since same set of evidence was disbelieved by the trial Court against co-accused and same set has been believed against appellant.
14. Needless to emphasize that ‘rule of consistency’ demands that if an accused has been acquitted from the charge by disbelieving evidence of prosecution witnesses, other accused charged with similar allegations is also entitled to the same concession / treatment and the evidence of that particular witness cannot be made basis for convicting other accused. In this connection it would be advantageous to refer to a judgment of Honourable Supreme Court in the case of Mohammad Asif Vs. The State reported in 2017 SCMR 486 wherein it was held as under:
“It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence, independent source and shall be unimpeachable in nature but that is not available in the present case.”
15. Yet in another case reported as Mohammad Akram vs. The State (2012 SCMR 440) the Apex Court while holding that same set of evidence which was disbelieved qua the involvement of co-accused could not be relied upon to convict the accused on a capital charge, acquitted the accused.
16. In another case reported as Umar Farooque v. State (2006 SCMR 1605) Honourable Supreme Court held as under:
“On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted.”
17. In present case FIR was lodged after a preliminary investigation by the police. The ocular account of the case comes from the mouth of highly interested witnesses out of them two are the brothers and one is son of the deceased. Such nature of evidence requires a careful perusal and consideration. In such like situation, prosecution is also required to establish its case through other corroborative evidence. So far as motive is concerned in respect of dispute over plot, the complainant has admitted that it was plot situated in their village, while both eye-witnesses have stated that the same is their house, hence the motive is also not proved. Under the law, it is not necessary for the prosecution to set up a motive and absence of motive would not be fatal for the prosecution if the case of the prosecution is proved through unimpeachable and confidence inspiring evidence. But once a motive is alleged by the prosecution then it becomes the duty of the prosecution to prove the same. All the witnesses have stated that number of peoples from the village had attracted at the scene of offence on fire shot reports but none of them had disclosed the name of any single person, how it is possible that they are not knowing the names of co-villagers. Perusal of entire evidence would reflect the material contradictions in their statements which make the case against the appellant doubtful.
18. It is needless to mention here that the recovery of incriminating articles could only be used to corroborate the ocular evidence or any other incriminating circumstance in the evidence against him and the same alone itself could not be used to base his conviction. During the course of his submissions, learned counsel for the appellant while claiming innocence of the appellant pointed out that though the incident occurred on 09.01.2020 and empties were shown to have been recovered on 10.01.2020, whereas pistol was allegedly recovered from appellant on 26.01.2020 and all the empties and pistol were sent to Ballistic Expert on 28.01.2020 and no plausible explanation was furnished by the prosecution for such long delay in sending the same. It may be noted that the delay in sending the weapon to FSL has always been considered fatal to prosecution case by the superior courts. In the case of Kamaluddin alias Kamala vs. The State (2018 SCMR577) the Hon'ble Supreme Court has observed as follows:-
“4. As regards the alleged recovery of Kalashnikov from the appellant’s custody during the investigation and its subsequent matching with some crime-empties secured from the place of occurrence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulged before the trial court that the recoveries relied upon in this case had been affected by Ayub, Inspector in an earlier case and thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.”
19. Likewise, in the case of Samandar alias Qurban and others v. The State (2017 MLD 539), a Division Bench of this Court held as under:
“15. …………………………………….. Apart from above, sending of the crime weapons to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case. Thus, in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapons was not made from the possession of the appellants as alleged by the prosecution.”
20. In the case reported as Yaqub Shah v. The State (1995 SCMR 1293), the Apex Court was pleased to hold as under:-
“7. ………………………. The crime empties allegedly recovered from the spot on 12.5.1985 were sent to the Forensic Science Laboratory on 22.5.1985 i.e. two days after the arrest of the accused persons. The fire-arms (including gun P.13) were allegedly recovered on 31.5.1985 and went sent to Forensic Science Laboratory on 13.6.1985. The date of depositing the weapons in the Malkhana was found missing in the statement of S.H.O. and concerned Head Constable. The report of the Fire-Arm Expert was, therefore, of no avail to the prosecution. …………………………………..”
21. In view of the above facts and evidence, I have no hesitation to hold that there are several circumstances/infirmities in the prosecution case as discussed above, which have created reasonable doubt about the guilt of appellant. By now it is settled law that for giving benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If there is a 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. In the case of Muhammad Mansha vs. The State (2018 SCMR 772), the Hon’ble Supreme Court has observed as follows:-
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”
22. Under the criminal dispensation of justice, a single doubt appearing in the mind of a Judge would be sufficient to discard the entire evidence on the record and the benefit of the same would go to the accused. In view of the above discussion when the prosecution has already failed to prove its case against the appellant beyond any reasonable doubt, I have no hesitation to hold that the prosecution has failed to prove charge against the appellant. Hence, this appeal is allowed, the conviction and sentence awarded to the appellant by the trial court is hereby set aside. The appellant is acquitted of the charge(s) leveled against him. He be set free forthwith if not required in any other case.
Larkana
Dated. 18th December, 2023 JUDGE