2019 P Cr (PLP)

AFTAB AHMED GORAR, J.

The instant Criminal Jail Appeal is directed against the Judgment dated 17.01-2015 delivered by the learned Additional Session Judge Tando Allahyar; whereby appellants have been convicted for the offence punishable under section 302 and 109 Pakistan Penal Code in Crime No. 44 of 2010, Police Station Chambar Tando Allahyar to suffer rigorous imprisonment for life with benefit to section 382-B, Cr.P.C. and they are also burdened with Rs.1,00,000/= each in term of section 544-A, Cr.P.C. which if recovered, be given to the legal heirs of Manthar Solangi in default thereof appellants shall suffer six months more simple imprisonment.

2. Brief facts as narrated in the prosecution story as is envisaged in the FIR are that on 11-05-2010 at 1145 hours complainant Zaman lodged FIR at Police Station Chamber alleging therein that:- "He is cultivating the lands of Ali Nawaz Pitafi. His father Manthar and brothers Ali Muhammad and Naawaz also reside with him. It is further submitted that accused Muhammad Ibrahim son of Alan Solangi is residing in village Fazil Shah, and where his uncle Abdil Solangi also residing. About one year back he went to the village of his uncle Abdil Solangi where Ibrahim Solangi had quarrelled with him and said that why he is coming in his village, and they are not on good terms. It is alleged that Ibrahim Solangi was sending threats to him and said that he saw him. On last night there was marriage ceremony of Qasim Solangi. It is further alleged that Qasim Solangi had also invited accused Mohammad Ibrahim for party, upon which, he (complainant) had not attended the party of Qasim Solangi. On night time, there was water rotation and his brothers namely Ali Mohammad and Nawaz went for water rotation. While complainant was also sleeping in his house and his father Manthar woken him up to go for water rotation. It is further submitted that he had taken the hoe (Kodar) for the purpose of water rotation, and his father Manthar had remained to look after the cattle when they were passing from the street at 0300 hours Ibrahim son of Alan Solangi was coming, who was armed with Desi Pistol in his hand, and straight fire upon his father Manthar with intention to kill him which hit on his chest, who fell down on the land and that time electricity was on. He (complainant) raised cries. On his cries and noise of firing Haji son of Usman Solangi, and his brother Irshad and other villagers had gathered there and seen the accused with pistol in his hand. Accused threatened them not to come near him and due to fear they were running thereafter accused left the post and boarded on motorcycle with pistol with one person and fled away. His father Manthar had received injury on his right side of chest behind Breast nipple and blood was oozing and his father in few moments had died at the spot."

3. Compliance of section 265-C, Cr.P.C. were carried out vide Ex.8. A formal charge was framed wherein appellants did not pleaded guilty and claimed for trial. Prosecution to substantiate the charge examined PW-1 Zaman (complainant) at Ex.12, PW-2 Irshad Ali at Ex.15. PW-3 Haji Khan at Ex.17. PW-4 Mashir Sajjan at Ex.19. PW-5 ASI Wali Mohammad at Ex.27, PW-6 Dr. Anwar-ul-Huq, PW-7 Mohammad Fazal Tapedar at Ex.32.

4. Learned counsel for the appellants contended that the appellants are innocent and have been falsely implicated in the present case with ulterior motives and mala fide intention; per learned counsel the learned trial Court had misread the entire evidence as available on record and could not apply judicial mind while appraising the evidences on record; per learned counsel there seems to have been only source of identification posed as lightening bulb but source of identification bulb had never been produced before the Court; per learned counsel there is no eye-witness of the occurrence but the entire evidence is hearsay; per learned counsel there are series of contradiction in the statement of prosecution witnesses, per learned counsel there is delay in lodgment of the FIR which is not explained properly: per learned counsel there is no direct evidence which would connect the appellants with the commission of a9eged offence; per learned counsel the appellants. are entitled to be released from the charged offence. Learned counsel relied upon 1971 SCMR 432, 2003 PCr.LJ 1847, 1995 SCMR 1345, 2002 PCr.LJ 1312, PLD 1995 SC 1, 1979 PCr.LJ 460, 2017 SCMR 344, 2017 SCMR 960, 2018 SCMR 772, 2017 SCMR 956.

5. Learned APG contended that learned trial Court had correctly convicted the appellants by appraising all the evidences available on record; per learned APG there is sufficient material available with the prosecution which would ultimately connect the appellants with the commission of offence; per learned APG all the eye witnesses have correctly identified the accused persons; per learned APG there the medical evidence is positive in nature; per learned APG deceased died due to fire arm injury; per learned APG the appeal of the appellants may be dismissed and conviction and sentence awarded to the appellants may be upheld.

6. Heard and perused.

7. It is now by settled provisions of criminal law that this Court has to reappraise the entire evidence for safe administration of justice. PW-1 Zaman (son of deceased) deposed in his examination-in-chief as follows:- "I saw accused Ibrahim who had pistol in his hand and who was present outside my house and was going. On commotion, my brother-in-law Haji came there so also other neighbourers. I notice that my father had died at the spot. I also noticed accused Mazhar Shah was standing in the street on the motorcycle upon which accused Ibrahim boarded and ran away." In the cross-examination PW-1 admitted as follows:- "It is a fact that I had not seen accused Ibrahim while firing upon my father. Voluntarily says that I had seen him soon after firing outside my house duly armed with pistol. The bulb was lightening of the vardanda of our house. It is fact that I did not notice the colour and number of the motorcycle due to night time." PW-2 Irshad Ali [brother of PW-1 and son of deceased) in the examination-in-chief deposed as follows:- "At about 3-00 a.m. I heard a fire shot and awakened. I rushed out and saw my father was lying in the varanda just adjacent to the wall of our street. I further notice that accused Ibrahim was there and had country made pistol in his hand. I also noticed accused Mazhar on the motorcycle in the street and they both fled away on the motorcycle. I noticed that my father had received firearm injury over left side of his chest." In the cross-examination PW-2 admitted as follows:- "It is fact that in my statement under section 164, Cr.P.C. I deposed that I had seen accused Ibrahim while running away from the scene. At the time of running, the accused also seen his behind and I saw him clearly duly armed with pistol. My brother complainant Zaman reached within 5/6 minutes so also PW-Haji Khan. The motorcycle was standing at the place where marriage ceremony was going on, which was at the distance of about 20 paces from our house. Since the marriage ceremony was going on, the bulbs were lightening and I saw the accused in the light of those bulbs. I did not see the colour of the motorcycle. It is a fact that I am Hari of Imdad Pitafi who is MPA. It is fact that I have not seen accused Ibrahim while firing upon my father. PW-3 Haji Khan [posed himself like chance witness] deposed in the examination-in-chief as follows:- "I heard fire shot and woke up. I rushed and saw in the street that my uncle Manthar was lying on the ground and also saw accused Ibrahim who had pistol in his hand and was running in the street. In the cross-examination, PW-3 admitted as follows:"- "It is fact that I had seen accused Ibrahim while running from the scene with pistol. Accused Ibrahim was coming from my opposite side and crossed me, therefore, I saw him clearly. Deceased Manthar was my father-in-law as well. My house was at the distance of 50 feet from the house of deceased Manthar. I reached at the place of incident after I heard fire shot within seconds. It is fact that I had not seen accused Ibrahim while firing upon the deceased. PW-4 Sajjan at Ex.19 deposed in the examination in chief as follows:- "On 10.05.2010, the police visited the place of offence on the point of complainant Zaman, which is situated in the street on the backside of house of complainant, Goth Mir Khan Thoro. The police collected blood stained earth and one empty cartridge of .12 bore. The police prepared such memo of place of offence in my presence. Co -mashir was Muhammad Hashim. In the cross-examination. PW-4 admitted as follows:- "It is correct that three live cartridges and one empty cartridge recovered in one sealed parcel. The parcel bears my signature. The police informed me that the empty cartridge was of .12-bore, 8/10 other people also gathered at the time of visiting place of offence. I did not see footprint mark of any person at the place of offence. The complainant brought me from the house to act as mashir."

8. PW-5 Wali Muhammad at Ex.27, PW-6 Anwar-ul-Haq at Ex.28 and PW-7 Tapedar Muhammad Fazal at E-33 are formal witnesses, if the evidence is reproduced no fruitful purpose either way would be resolved. The medical evidence could not bring the accused in the home of guilt, if it is reproduced time and again. It is worth mentioning that neither the Civil Judge and Judicial Magistrate has been examined to testify the statements of both eye-witnesses of the prosecution. PW-1 deposed when he reached at the scenario he saw injuries on the right side of deceased father and PW-2 deposed that when he reached at the spot he saw injuries on the left side of his deceased father; PW-1 and PW-2 are blood related inter se and are brothers, eye-witnesses, prime witnesses both have contradicted their version by making injuries on the person of the deceased dubious. Suffice to say that there was marriage ceremony in the village near by the place of incident but no independent person has been invited to act as a mushir of wardat; in absentia of cogent, reliable and independent evidence, prosecution has totally failed to bring true account of the scenario at all. Apart from above it can be said that PW-1 and PW-2 both are interested witnesses and their testimony cannot be relied upon altogether being sons of deceased Manthar. It is astonishing that there was inordinate delay in lodgment of the FIR; the distance between place of incident and the Police Station as alleged is said to have been of only ten kilometers and there is approximately eight/nine hours which also entails prosecution case calls for due deliberation and consultation. Be that as it may, the only source of identification are electronic bulbs which have never been collected by the Investigating Officer because the incident as alleged was happened in odd hours of the night i.e. 3:00 a.m. therefore in absentia of such type of evidence how it is possible to prove the version of complainant for identification on the source of lightening bulbs. PW-2 deposed that deceased was lying in the varanda [courtyard] just adjacent to the wall of the street. PW-3 deposed that he saw deceased on the ground in the street backside of the house; both these witnesses have collided from their statements being were eye-witnesses and did not offer true account of the scenario that where deceased was killed and the dead body was lying either inside the house i.e. courtyard [vardanda] or at the dwelling street of the village. In a case reported as 2017 SCMR 344 in the case of Sardar Bibi and another v. Munir Ahmed and others, the Hon'ble apex Court has held as follows:- "

Ss. 302(b), 148 & 149

Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly

Reappraisal of evidence

Benefit of doubt

Prosecution alleged that sufficient light of bulbs was available at the spot of occurrence but during investigation, no bulbs were taken into possession by the investigating officer

Identification of the assailants became doubtful in such eventuality

Complainant's house was at a distance of 3 acres from the place of occurrence whereas the house of one of the eye-witnesses was at the distance of 1-1/2 mile from the place of occurrence, therefore, their presence at the scene was a sheer chance because at such odd hour of the night they were supposed to be present in their residences which were far away from the place of occurrence

Witnesses of the ocular account were also closely related to the deceased and were chance witnesses

Other witnesses of the ocular account in their statements before the court claimed that they were sleeping on the roof top of the cattle shed of the complainant, however site plan totally negated such version

No specification of firearm weapons were given in the FIR or in the statement under S. 161, Cr.P.C., however for the first time during trial, some accused persons were shown to be armed with a pistol and a rifle-Such wilful and dishonest improvement was made by the witnesses in order to bring the prosecution case in line with the medical evidence

Accused and co-accused had no motive or reason to commit murder of the deceased persons and the asserted motive had not been proved

Although occurrence took place at 2:00 a.m., and police station was at a distance of 9 kilometer but report had not been lodged at the police station rather at the spot at about 6:00 a.m. which gave inference that FIR had been lodged after deliberation and consultation

Subsequent statement of complainant in the police station after the occurrence further confirmed the deliberation and consultation on the part of complainant and the police

According to prosecution, the matter was reported at 6:a.m. but postmortem', examination on the dead body was conducted at 1:00 p.m. i.e. after 7 hours of the lodging of FIR, which fact raised suspicion regarding the registration of the FIR at the given time

Defence was unable to cross-examine the investigation officer through whom all the facts and circumstances favoring the accused and co-accused persons could have been brought on the record

In the absence of any independent corroboration, the accused and co-accused persons were acquitted of the charge by extending them benefit of doubt

Appeal was disposed of accordingly." It has also been held in 1995 SCMR 127 in the case of Mehmood Ahmad and 3 others v. The State and another, the Hon'ble apex Court has also held as follows:- "

Ss. 302/34 & 323

Appreciation of evidence

Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate

Non-explanation of the delay in making the report to might wish to implicate

Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye- witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence

Medical evidence by itself was unable to establish the identity of the accused

Non-association of any independent respectable witness from the locality with the recovery proceedings, in the absence of any explanation this behalf by the prosecution, had made the recovery of the carbine and the empties unreliable and consequently the Ballistic report was of no importance

Picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable having no evidentiary value

Accused were acquitted in circumstances." It has also been held in a case reported in 1995 SCMR 127, which reads as follows:- "

Ss. 302/34 & 323

Appreciation of evidence

Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate

Non -explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence

Medical evidence by itself was unable to establish the identity of the accused

Non-association of any reliable independent respectable witness from the locality with the recovery proceedings, in the absence of any explanation in this behalf by the prosecution, had made the recovery of the carbine and the empties unreliable and consequently the Ballistic report was of no importance

Picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable having, no evidentiary value

Accused were acquitted to circumstances. Reliance has also been place in the case of Muhammad Iqbal v. Abdul Hussain reported in 1994 SCMR 1928.

9. There is clear violation of mandatory provisions of section 103, Cr.P.C., because Investigating Officer did not bother to invite independent source from general public out of marriage ceremony as was going on to witness the scenario only sons of deceased Manthar acted as eye-witness of the incident. It would be appropriate to reproduce herein below the requisite and legal requirement of mandatory provisions of section 103, Cr.P.C. which have been flatly violated in present case. The pre requisite of mandatory provisions of section 103, Cr.P.C. entails as follows:-

103. Search to be made in presence of witness. (1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such office or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code.

10. No doubt the alleged incident as happened in which an innocent person has lost his life, on the contrary it is well settled principle of law that always Blood stained earth, crime weapon, human blood for serologist report must be sent altogether. The Investigation Officer has sent the blood stained clothes as alleged recovered to the Forensic Science Laboratory; said report also could not find place in the record. The alleged country made pistol and the empty cartridges as recovered have not been sent to the Forensic Science Laboratory for report either the alleged murder had been caused with the said pistol or otherwise. There is no such report available on record with regard to the recovery of alleged blood-stained clothes of deceased and the alleged earth therefore the question would be arisen whether it was of the same group which was available on the clothes of the victim or otherwise. In this context we have been fortified with the case law reported in the case of Muhammad Asif v. The State reported in 2017 SCMR 486, reads as follows:

S. 302(b)

Qatl-i-amd

Articles sent to Chemical Examiner and serologist for examination

Practice to be followed by police-- Mere sending of blood stained crime weapons to the Chemical Examiner and Serologist would not serve the purpose of the prosecution nor would it provide any evidence to inter link different articles

Unless the blood-stained earth or cotton and blood-stained clothes of the victim were sent with the crime weapon for opinion of Serologist it could not be conclusively opined that it was human blood on the crime weapon, and that it was of the same group which was available on the clothes of the victim and the blood-stained earth/cotton

Failure to follow such practice would make the opinion of Chemical Examiner inconclusive, which could not be used as piece of corroboratory evidence. [The underline is mine]

11. The motive behind the murder as set forth by the prosecution is also dubious in nature because it has never been proved by an independent, corroborative piece of evidence at all. It has also been held in the case law reported in 2003 PCr.LJ 1847 in the case of Abdul Husain v. The State it has been held as follows:- "

S. 302(a)

Appreciation of evidence-Motive alleged against accused had not been proved through independent evidence to corroborate interested testimony of eye-witnesses

Acceptance of motive through such witnesses would not be safe for corroboration

Crime empty which was seized form the place of wardat after four days of arrest of accused and after 22 days of occurrence, was not sent to Ballistic Expert for examination

Recovery of pistol had not been proved by prosecution witnesses-Such recovery could not be relied upon to furnish corroboration as pistol recovered was not sent for examination-Houses of persons who were attracted to Wardat, were in the same street, but they were not examined during the investigation and at the trial

Ocular testimony furnished by brother and cousin of the deceased, was not corroborated by any independent piece of evidence and story tailored by them did not fit in circumstances of the case

Neither motive had been proved from the independent source nor recovery of crime weapon could furnish corroboration to evidence of said witnesses and had been disbelieved to the extent of co-accused

Case of prosecution, in circumstances, was not free from doubt

Possibility could not be ruled out that deceased had been done to death in the manner other than as stated by the prosecution witnesses

Accused, was entitled to benefit of doubt which was withheld by Trial Court without support of sound reasons

Basic principle of Sharia was that conviction must be based on evidence beyond any shadow of doubt

Prosecution having failed to prove its case against accused beyond any shadow of doubt, conviction recorded by Trial Court, was set aside, in circumstances."

12. It has also been transpired from the record that after bare perusal of statement recorded under section 342, Cr.P.C. the ingredients thereof are missing because the learned trial Court Judge has failed to formulate necessary question with regard to the arrest of accused, collecting blood stained earth, blood-stained clothes and the weapon as alleged was used in the commission of offence which had caused unnatural death of deceased Manthar. In absentia of all the incriminating pieces of evidence which if not put to accused at the time of recording of his statement under section 342, Cr.P.C., the same could not be used against him. In this respect reliance may be placed to the cases reported as Imtiaz alias Taj v. The State and others (2018 SCMR 344), Qaddan v. The State (2017 SCMR 184), Muhammad Nawaz v. State (2016 SCMR 267) and Muhammad Shah v. The State (2010 SCMR 1009).

13. The case property viz. motorcycle which as alleged was used in the commission of offence by the accused persons has never been taken into possession by the Investigation Officer not same has been produced before the Court to testify the truth of prosecution story as is envisaged in the FIR, therefore there are series of dents in the prosecution case which needs to be proven. In failure thereof, I am fortified with the case law reported as 2003 SCMR 1466, it has been held as follows:- "C) Non-production of Vehicle

The prosecution failed to produce the vehicle in question wherein the victim was allegedly abducted and during such course the firing happened in such vehicle-Thus, production of vehicle was material so as to establish happening of the incident in the manner, as claimed by the prosecution

Non-production of such vehicle also had brought serious cloud over the prosecution story and benefit whereof was also to be given to the accused but the learned trial Court held otherwise."

14. The case of prosecution hinges upon testimony of PW-1 and PW-2 who claimed to have been eye-witnesses of the scenario as are blood related inter se with deceased Manthar being sons whereby both seems to have been interested witnesses. There is no such corroboration by producing an independent source of evidence; motive as set up in the evidences so recorded before the trial Court is FIR No. 59 of 2010 registered under sections 324 and 34, P.P.C. at Police Station Chamber District Tando Allahyar registered by mother of accused Ibrahim against Zaman, Umar and Sajjan [witness in present case] which itself is not sufficient to believe version of that FIR being motive; if for the sake it could be believed. it needs an independent corroboration by adducing respective evidence which in the case in hand are wondering. After evaluating all the evidences so brought on record, the case of the prosecution suffers from material irregularities and illegalities which creates heavy doubts in the prudent mind and it is also well settled principle of law that benefit of doubt always goes in favour of the accused persons not as a matter of grace and concession but as a matter of right. I am fortified with the case law reported in 1995 SCMR 1345 in the case of Tariq Pervez v. The State it has been held as follows:

Art. 4

Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."

15. The upshot of the above discussions is that there being no satisfactory basis for upholding the conviction and sentence of the appellants, the Criminal Jail Appeal is allowed, the conviction and sentence awarded to the appellants is set aside, appellants are acquitted of the charge. These are the reasons of the short order dated 09-08-2018. JK/M-151/Sindh Appeal allowed.