2018 P Cr (PLP)

OMAR SIAL, J.

Through this appeal the Appellant has impugned a judgment dated 24-9-2011 passed by the learned Additional Sessions Judge, Gambat in Sessions Case No. 401 of 2001. In terms of the said judgment the Appellant was convicted and sentenced as follows: R.I. for twenty five years for an offence under section 302(b), P.P.C. and to pay a compensation of Rs. 50,000 to the heirs of the deceased (or S.I. of six months more in default).

2. Brief facts of the case as narrated in the FIR are that on 22-9-2001 at about 2030 hours Mohammad Ibrahim lodged an FIR bearing number 19/2001 under sections 302 and 34, P.P.C. at the P.S. Guloo Siyal. In the FIR he stated that he has seven sons but of whom Nisar Ahmed is the eldest. That same day at 1700 hours Ibrahim along with another son of his named Rafiq Ahmed and one Shahmeer were working on their land when all of a sudden they heard the cries of Nisar. The complainant along with Rafiq and Shahmeer ran towards where Nisar was grazing his goats and saw that (i) the Appellant with a wahaloo (ii) Ghulam Shabbir with a hatchet (iii) Mustafa and (iv) Abdul Latif were present. Mustafa and Abdul Latif pushed Nisar to the ground and then Allah Bux and Ghulam Shabbir delivered blows on the neck of Nisar with the wahaloo and the hatchet. On seeing the complainant party, all four persons ran away. The complainant party saw that Nisar had suffered wahaloo and hatchet injuries and he died in front of the complainant party. The complainant left Rafiq and Shahmeer on the spot with the dead Nisar and himself came to the police station to lodge the FIR.

3. On 10-12-2002 the Appellant along with co-accused Ghulam Shabbir was charged with an offence under sections 302 and 34, P.P.C. Both pleaded not guilty and claimed trial.

4. In order to prove its case the prosecution examined ten witnesses. PW-1 Abdul Sami was the police officer who wrote the FIR and conducted the investigation. PW-2 Dr. Majid Ali was the doctor who performed the post mortem on the deceased. PW-3 Mohammad Ibrahim was the complainant. PW-4 Altaf Hussain was the police officer who handed over the dead body to the relatives of the deceased after the post mortem was done. PW-5 Allahhind Khan was the police officer who handed over the last worn clothes of the deceased to the investigating officer. PW-6 Aziz Ahmed was the tapedar who prepared the site sketch. PW-7 and PW-8, namely Muhammad Chuttal and Mazhar Hussain were the witnesses to the various memos prepared. PW-9 Shahmir was said to be an eye-witness of the incident by the complainant. PW-10 Rafiq Ahmed was another eye-witness in the case.

5. The statement of the Appellant under section 342, Cr.P.C. was recorded on 20-9-2011 in which he pleaded his innocence.

6. On 24-9-2011 the impugned judgment was announced.

7. I have heard the learned counsel for the Appellant as well as the learned APG and examined the record with their able assistance. My observations are as follows.

8. The complainant starts his testimony in court by stating that Rafiq Ahmed and Shahmir are his witnesses in this case. Both are said to be eye-witnesses to the entire occurrence. Indeed, this is what the complainant also recorded in the FIR he lodged. In complete contradiction to the testimony of the complainant and what he stated in the FIR; PW-9 Shahmir deposed "I was in my house where I came to know that Nisar had been murdered. I did not see the incident nor were accused persons present at the time of incident. Complainant Ibrahim brought me at the P.S. where my signature was obtained but its contents were not read over to me by the police as I am uneducated. Accused person in court is not known to me." This witness was not declared hostile by the prosecution thereby accepting the entire testimony. The testimony of this witness was enough to create a major doubt in the prosecution case.

9. PW-7 and PW-8, namely Muhammad Chuttal and Mazhar Hussain were said to be witnesses to the (i) memo of place of occurrence and dead body prepared by PW-1 Abdul Sami on 22-9-2001 at 2200 hours; (ii) the inquest report; (iii) memo of arrest and search of the Appellant; (iv) memo of recovery of the wahaloo prepared by PW-1 Abdul Sami on 11-10-2001 at 0900 hours (v) memo of recovery of the hatchet prepared by PW-1 Abdul Sami on 11-10-2001 at 0930 hours.

10. During trial however, both the witnesses confirmed that the memos listed at serial (i) to (iii) were prepared in their presence and they also owned up to their thumb impressions on them. As regards, the memos listed at serial (iv) and (v), both witnesses stated that these were not prepared in their presence, that nothing was recovered in their presence and that there thumb impressions were obtained on blank papers by the police. Both these witnesses were declared hostile by the prosecution. The odd thing is that neither witness name was mentioned by the complainant in his FIR as being present on the scene. While, their testimony, coupled with that of Shahmir, created a dent in the prosecution case, yet if the intent of the prosecution was that their entire testimony be discarded, it would mean that the testimony of these witnesses in relation to the memos which they owned up too must also be discarded. Accordingly, a doubt is cast on the bona fides and credibility of the investigation conducted.

11. In the FIR that the complainant lodged he narrated that he left Shahmir and Rafiq Ahmed with the dead body and then went to the police station. In trial, the complainant deposed that he had left Muhammad Chuttal and Mazhar Hussain over the dead body and then he went to the police station to lodge the FIR. The contradiction is obvious.

12. The time of the incident as reported in the FIR is 1900 hours on 22-9-2001. The inquest report records the time of incident as 1700 hours. In his testimony, the complainant first cites 1400 hours and then deposes that it was evening time when the incident occurred.

13. PW-1 and PW-10 both deposed quite categorically that the Appellant and co-accused Ghulam Shabbir delivered multiple blows with a wahaloo and a hatchet to the neck of the deceased Nisar. The post mortem report records only one incision on the neck of the deceased. The exaggerated account of the witness and the complainant creates doubt in the veracity of their allegations. Further, the doctor in the post mortem report concludes that the incision was caused either by a wahaloo or an axe. The Appellant is said to have carried a wahaloo whereas it was the co-accused who is said to have carried the axe or hatchet. This report creates doubt as to which accused, if any, caused the fatal blow to the deceased.

14. There was an admitted enmity between the parties and also a dispute regarding the theft of buffaloes between them. This fact coupled with the other circumstances and evidence in this case, does not entirely eradicate the possibility of a false involvement in the case. The police did not investigate the allegation that the motive of the accused to kill Nisar was that he was having an affair with the sister of the Appellant. The learned trial court appears to have erred in its observations regarding the motive in the impugned judgment.

15. The report of the chemical examiner is also rather doubtful. Blood stained earth was collected by the investigating officer on 22-9-2001. The ostensible recoveries of the wahaloo and hatchet were made on 11-10-2001. The chemical report states that the three items were sent to the chemical examiner on 6-12-2002, nearly a year later. The date on the chemical examiners report is written in hand as 2.2.2002. In any case, the blood on the earth and the wahaloo was not matched with that of the deceased. In such a situation, the evidentiary value of the said report is corroded.

16. The learned trial court appears to have erred in its observations regarding the testimony of Shahmir under the heading Ocular Evidence in the impugned judgment.

17. It does not appear that the investigation conducted in this case was fair or honest.

18. The complainant and his witness Rafiq deposed that they were two to three feet away from the assailants when the accused were killing Nisar. The complainant and his witnesses were therefore at the mercy of the assailants but no threat of any nature was extended to them. Such an unbelievable courtesy extended to the complainant party, knowing very well that they will depose against them created further doubt in the prosecution story.

19. From the evidence that was led in trial it appears that this was an unwitnessed murder. The prosecution failed to prove its case against the Appellant beyond reasonable doubt. It is a well settled principle of law that the benefit of doubt, if any, must go to the Appellant.

20. For the above reasons, the appeal is allowed and the Appellant is acquitted of the charge(s). He should be released forthwith if not required in any other case. JK/A-68/Sindh Appeal accepted.