IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl.  Jail Appeal  No. S-60      of   2021

Appellant                 :  Sabz Ali Jatoi,

                                       through Mr. Habibullah G. Ghouri, Advocate.

Respondent              :  The State, through Mr. Aitbar Ali Bullo,

                                       Deputy Prosecutor General.

Date of hearing      :  20.01.2025.

Date of Judgment  :  28.01.2025.

J U D G M E N T

Omar Sial, J.- On 07.08.2017, Mst. Khanzadi appeared at PS Naparkot and recorded that on 31.07.2017, she and her brothers, Qalandar Bakhsh, Akhtiar, and Karim Dino, left their houses to graze cattle. At around 1200 hours, the armed accused, Ahmed Ali, Noor Hassan, Sabz Ali, Wahid Ali, Ali Haider, Rahmoon, Rasheed, and three unidentified individuals came to the scene. Ahmed Ali first instigated Ali Haider to kill Qalandar Bakhsh, upon which Ali Haider fired from his Kalashnikov and hit Qalandar in his face. Ahmed Ali then instigated Sabz Ali to kill Akhtiar, upon which Sabz Ali fired his gun and hit Akhtiar on his stomach and the finger of his hand. Finally, Ahmed Ali instigated Noor Hassan to kill Karim Dino, upon which Noor Hassan fired his Kalashnikov, which hit Karim Dino on his elbow. Qalandar Bakhsh died, while the remaining two were injured. F.I.R. No. 33 of 2017 was registered under sections 302, 324, 337-F(iii), 148, and 149 P.P.C. at the Naparkot police station.

2.         Only Sabz Ali was arrested; however, he pleaded ‘not guilty’ to the charge against him and claimed trial. At trial the following witnesses were produced and examined by the prosecution: Qamaruddin (the first police responder); Dr. Kaleemullah (who had examined the injured and did the post-mortem on the deceased); Roshan Ali (handed over the dead body to its relatives); Abdul Jabbar (who prepared the sketch of the place of incident); Inspector Zahid Ahmed Abro (who was the investigating officer); Karim Dino and Akhtiar (the two injured persons) and Karimdini (who witnessed various steps the police took in the investigation). In his section 342 Cr.P.C. statement, Sabz Ali professed innocence and denied all allegations against him.

3.         The learned 1^st Additional Sessions Judge, Shikarpur, found Sabz Ali guilty, convicted him under section 302(b) P.P.C., and sentenced to life imprisonment. He was also sentenced to seven years for an offence under section 324 P.P.C. and for three years for an offence under section 337-F(iii) P.P.C. Sabz Ali was also fined various amounts and ordered to pay a compensation of Rs. 500,000 to the legal heirs of the deceased.

4.         I have heard the learned counsel for the appellant and the learned Deputy Prosecutor General. None affected an appearance on behalf of the complainant. For brevity, the arguments are not being reproduced but are reflected in my observations and findings below.

5.         Khanzadi is said to have gone to the police station on 31.07.2017 with the deceased and the two injured. Although A.S.I. Qamaruddin (PW-1) testified that he had examined the deceased and the two wounded; the entry that was kept in the Daily Diary did not disclose the name of any of the accused. Why the F.I.R. was not registered that same day remained unexplained at trial. Eight days later, Khanzadi returned alone, and the F.I.R. was registered. The delay in lodging the F.I.R. created doubt regarding the events' accuracy. Doubt is amplified when a supposedly simple and rural woman (Khanzadi) has identified with great accuracy all the accused together with their parentage and the type of weapon each carried. I also find it unnatural that Ahmed Ali would instigate, one at a time, the other accused in a loud voice to kill a particular identified man. It seems that Khanzadi stood there and noted who did what. It is also pertinent to mention that Khanzadi did not appear at trial because she had moved to an undisclosed place and could not be found. Her absence gives rise to a presumption under Article 129 illustration g that had she testified at trial, she would not have supported the prosecution case. It is equally pertinent to note that although the prosecution claims that the two injured were also examined on 31.07.2017, no memo of inspection of injuries was made by Qamaruddin. He gave no reason why he did not do the same and only examined the deceased. This lapse gives rise to doubt about whether the two injured persons were even present at that time.

6.         The record reflects that Dr. Kaleemullah of the Rural Health Centre, Khanpur, did examine the deceased on the same day, i.e., 31.07.2017. The doctor did notice the injuries as recorded in the F.I.R. He, however, was inclined to opine that the injuries sustained were from a “TT pistol or any such like weapon”. The prosecution case was that one assailant fired a Kalashnikov while the other had fired a gun. Quite surprisingly, Inspector Zahid Hussain, in his testimony, said that he had examined the injuries of the injured on 07.08.2017 when they had come to the police station. He said the wounded had received injuries “on their hands”. No mention was made by him that there was a bullet wound on the stomach of one injured and the elbow of the other. Although he testified that he had examined the injured on 07.08.2017, the memo of inspection of injuries is dated 15.08.2017 and does not reconcile with the Inspector’s testimony.

7.         Now, averting to the testimonies of the injured. As a general observation, their testimonies are unnatural, stereotypical, and tutored, and they are replete with contradictions over basic things. It seems that the complainant and the two injured, all in great peace, stood and watched what unfolded and were able to precisely identify who shot whom and on which part of the body. The F.I.R. was delayed for 8 days, but the statements under section 161 Cr.P.C. were not recorded for another seven days after the registration of the F.I.R., i.e., on 15.08.2017. They were not in the hospital during this period, nor did they explain why it took them two weeks to record their respective statements. Their presence on the scene is doubtful. The Supreme Court has held that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses could not be safely relied upon. Reference can be made to Sajid Hussain alias Jogi vs The State (PLD 2021 SC 898), Abdul Khaliq vs The State (1996 SCMR 1553); Noor Mohammad vs The State and another (2020 SCMR 1049) and Muhammad Asif vs The State (2017 SCMR 486). Karim Dino said at trial that the complainant resided in another village; she happened to be there on the fateful day as she had come to visit him for five or six days. Coincidentally, the only day she brought him lunch was the fateful day. The place of the incident was two kilometers away from Karim Dino’s village, and even though he admitted that there was a cattle grazing ground close to their home, he had walked his cattle to the place of the incident, which took him one hour and fifteen minutes. It simply does not make any logical sense. Karim Dino, after noting meticulously the details of the incident, fainted soon thereafter and claimed that he “I gained conscious at RHC Khanpur.” This begs the question that if he had fainted, then who was the conscious person who is said to have accompanied the complainant to the police station to record his injuries immediately after the incident? He said that he was admitted to Chandka Hospital but could not remember the ward's details or the bed he was on. According to him, only the complainant had come to visit him, and the other injured Akhtiar while lying in the same ward. He could not remember when he was discharged from the hospital but said that no police officer had come to the hospital. When the two were discharged, they took a rickshaw to the bus stand and boarded a bus to bring them back home. He could not remember who paid the bus fare. In contrast to his testimony, Akhtiar said that the complainant had visited them two days before the incident and had brought them lunch on both days. He also, after his meticulous noting of events, fainted and, like Karim Dino, became conscious at the RHC Khanpur. Once again, the same observation I made regarding Karim Dino is applicable. According to him, they were in Chandka Hospital, and the only person who came to visit them was their cousin Morio. He, too, did not remember when they were discharged from the hospital, and surprisingly, according to him, he and Karim Dino had hired a car to take them from the hospital, but he could not remember where the car dropped them off. No record of the injured being admitted and treated at Chandka was produced as evidence, nor was cousin Morio examined. Karimdini, the supposed witness to the various steps taken in the investigation, could not remember whether her thumb impressions/signatures were taken on a blank paper or whether something was written on it.

8.         No recovery from the appellant was affected. Bullets seized were not sent to the ballistic examiner to determine what type of weapon they had been fired from.

9.         Given the above, the prosecution could not prove its case against the appellant beyond reasonable doubt. He had not allegedly fired upon the deceased, and no evidence to establish common intention, which could have made him vicariously liable for the acts of the accused said to have fired upon and killed the deceased, was produced at trial. Sufficient doubt crept into the prosecution case to give the appellant its benefit for the injury he is said to have caused Akhtiar.

10.       The appeal is allowed, and the appellant is acquitted of the charge. He may be released forthwith if not required in any other custody case.

                                                                                     JUDGE