2022 P Cr (PLP)

ZULFIQAR ALI SANGI, J.

Through this appeal, appellant Badar Zaman has challenged the Judgment dated 02.07.2018, passed by learned IInd Additional Sessions Judge, Badin in S.C. No. 128 of 2016 re-The State v. Badar Zaman, emanated from Crime No. 11 of 2016 registered at Police Station Khorwah under section 302, P.P.C. whereby he being found guilty of committing offence under section 302(b), P.P.C. was convicted and sentenced to suffer life imprisonment and to pay Rs.2,00,000-00 as compensation to the legal heirs of deceased Mumtaz alias Mumi as provided under section 544-A, Cr.P.C. In case of failure to pay compensation amount he was ordered to remain in jail till realization of compensation amount. The accused was also extended benefit of section 382(b), Cr.P.C.

2. The prosecution story as per FIR is that complainant Mirzo son of Siddique Jamali appeared at police station on 17.5.2016 at 1700 hours and lodged FIR stating therein that on 16.5.2016 at 9.30 hours, he was going behind his wife Mst. Mumtaz alias Mamy to the field for cutting grass. His wife Mst. Mumtaz alias Mamy was ahead of him at some distance. Mst. Mumtaz had many times alleged that accused Badar Zaman is asking her to have friendship with him but she refused, on which accused became annoyed. It is stated in the FIR that when Mst. Mumtaz reached at Sher Wah Link road, Deh Walahr near Land of Mumtaz Jamali at 9.30 a.m., accused Badar Zaman Jamali armed with pistols gave hakal to her and said to stop there and asked her as to why she was not keeping friendship with him. She restrained him, on which accused Badar Zaman made straight fire from his pistol in order to kill her which hit her at right side lumber region and she fell down on the ground. Complainant gave hakals and raised cries on which Shabir son of Allandino Jamali and Mumtaz son of Khan Muhammad Jamali came running, who also saw the accused with pistol. The accused ran away towards sough with pistol. The complainant and P.Ws saw that she sustained fire arm injury on right side of lumber region and she was bleeding. They arranged for vehicle and sent injured along with his relatives to Taluka Hospital and complainant went to police station for obtaining letter for treatment and injured was treated by Golarchi hospital wherefrom she was referred to LUMS Hyderabad. The complainant getting her admitted in Hyderabad came at police station and lodged the FIR under section 324, P.P.C. Later on, the injured expired in Hyderabad Hospital on 2.6.2016 at 7:10 p.m. as such the offence under section 302, P.P.C. was added in the case.

3. After registering FIR, police conducted investigation, arrested accused and on completion of investigation submitted challan against him in the concerned court.

4. After completing all the legal formalities, the trial court initiated trial by supplying copies to the accused as required under section 265-C, Cr.P.C. The charge was framed against the accused to which charge, he pleaded not guilty and claimed trial.

5. The prosecution in support of its case examined P.W.1 complainant Mirzo at Exh.4, who produced copy of FIR at Exh.4-A, receipt of dead body at Exh.4-B, PW.2 Mumtaz at Exh.5, PW.3 Ghulam Shabir at Exh.6, P.W.4 PC Manzoor Ali at Exh.7, P.W.5 Ali Ahmed mashir at Exh.8, he produced the memo of injuries, memo of place of incident, memo of arrest of accused, memo of recovery of pistol from accused, memo of producing clothes, memo of dead body, memo of clothes and Danisnama from Exhs.8-A to 8-H respectively, P.W.6 Dr. Hajran at Exh.9, she produced police letter, provisional medical certificate, referral letter and death certificate of deceased from Exhs.9-A to 9-D, P.W.7 Dr. Sarwat Jabeen at Exh.11, she produced the police letter, dead body inspecting form, postmortem report from Exhs.11-A to 11-C, P.W.8 Abdul Rasheed at Exh.12, he produced the departure and arrival entries of investigation, statement under section 162, Cr.P.C. of deceased when she was in injured condition, departure and arrival entries, Ballistic Expert report, departure and arrival entry regarding deposit of property, reports of Chemical Examiner, letter issued to Mukhtiarkar, arrival entry, letter to SHO, letter to MS Hyderabad from Exhs.12-A to 12 -L-1, 2, 3 and P.W 9 Tapedar Roshan Ali at Exh.13. Thereafter the learned State counsel closed the side of prosecution vide statement at Exh. 14.

6. The statement of the accused was recorded at Exh.15, in which he denied the allegations of prosecution and claimed his innocence. He further stated that deceased Mst. Mumtaz was murdered by her Ex-husband Noor Ahmed and his brother Ali Ahmed in collusion with complainant as she was impeachable for them and they have involved him falsely in this case. However, he neither examined himself on oath nor lead any defence.

7. After recording evidence and hearing the parties, learned trial court convicted the accused as stated above, hence the instant appeal.

8. Learned counsel for the appellant has contended that the prosecution has not been able to proved the case against the appellant beyond a reasonable doubt; that all the witnesses are interested and gave contradictory evidence; that pistol was foisted upon the appellant; that the prosecution has failed to proved dying declaration; that dying declaration and other important evidence was not put to appellant at the time recoding his statement under section 342, Cr.P.C.; that it was an unseen incident however the complainant managed the false story against the appellant; that entire case of the persecution is doubtful and the trial court had not considered the material contradiction which creates very serious doubt in the prosecution case. Lastly he prayed that the appeal of the appellant may be allowed and he may be acquitted by extending him the benefit of the doubt.

9. Learned DPG has fully supported the impugned judgment of the trial court and contended that the prosecution produced reliable, trustworthy and confidence inspiring evidence against the appellant; that no major contradictions have been pointed out by defence counsel and on the basis of some minor contradictions acquittal judgment cannot be passed; that ocular evidence is supported by medical evidence; that dying declaration of the deceased was recorded by the investigation officer and the same exhibited in the evidence; that pistol used in the commission of the offence was recovered from the appellant s such the prosecution proved its case and prayed that the appeal of the appellant may be dismissed.

10. I have heard counsel for the parties and have gone through the material available on the record with their able assistance.

11. On reassessment of the entire evidence produced by the prosecution, I am of the view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

12. The complainant in his examination-in-chief deposed that he and his wife went for cutting grass for cattle and when they reached Sher Wah link road, the land of Mumtaz Jumani, accused Badar Zaman appeared there and asked his wife as to why she was not developing friendship with him, Saying so accused fired from his pistol upon her, on his crises Mumtaz and Shabir arrived at the place of incident. PW-2 Mumtaz during his cross-examination stated that when he reached at place of incident, he had not seen the complainant there.

13. The complainant in his examination-in-chief deposed that his brother Juman and maternal cousin Mehmood took his injured wife to Taluka Hospital Golarchi, whereas, the PW-2 Mumtaz during his cross-examination stated that Ali Muhammad and Juman took the deceased to hospital in Taxi car. PW-5 Ali Muhammad who was also mashir in the case gave another version about the shifting of the deceased towards the hospital and during his cross-examination stated that Khuda Bux and Rashid came at the time of incident and took the injured/deceased Mumtaz alias Mami to hospital.

14. The complainant during his cross-examination stated that the brothers of the deceased had not came at that time at the place of incident, whereas, the PW Mumtaz during his cross-examination stated that Mst. Papna and Rashid, being sister and brother of the deceased, came at the place of incident after the incident. PW-3 Allahdino in his cross-examination stated that Mst. Papna, Imtiaz brother of the deceased, Arif, Hassan, Murtaza, Ameen were available at the place of incident and some women were also available at the place of incident.

15. PW-3 Ghulam Shabir, in his examination-in-chief, deposed that on 16-05-2016 at 9-30 a.m. he was taking bundle of grass from his land. He heard fire report and was slow down thereafter he heard another fire, he rushed there where from he heard fire shots and found 4/5 persons of village had already gathered there. He further deposed that PW Mumtaz was available there they told him that accused Badar Zaman had injured Mst. Mumtaz. PW-8 the investigation officer however negated his evidence and during his cross-examination stated that "It is correct to suggest that P.W Shabir in his statement under section 161, Cr.P.C. has not stated that he heard first fire arm and then second firearm report and then he went there. It is correct to suggest that P.W Shabir in his 161, Cr.P.C. statement (not stated) that 4/5 persons collected there they informed that accused Badar Zaman fired at Mst. Mumtaz."

16. The PW-2 Mumtaz and PW-3 Allahdino stated in their examination-in-chief that after hearing the fire shots they arrived at the place of incident. PW-3 Allandino also deposed in his examination-in-chief that when he arrived at the place of incident Mst. Mumtaz was semi unconscious.

17. The mashir PW-5 Ali Ahmed was also not in position to gave confirm evidence in respect of the recovery of empties from the place of incident and in his examination-in-chief he deposed that police secured two empties of .30 bore pistol from the place of incident and prepared such memo, he changed his version and again deposed that police secured one empty, which creates very serious doubt.

18. The above contradictions in the evidence of prosecution witnesses reflect that they have not witnessed the incident. It is well settled law that statements of eye-witness which are in contradictions to each other and also self-contradictory had no evidentiary value. Reliance in this regard can be placed upon the case of Nazir Ahmed v. The State (NLR 2006 Criminal 184).

19. Know coming to the important aspect of the case which is dying declaration of the deceased recorded by the investigation officer and the same was exhibited in evidence, which reflects a note of doctor showing it that "she (Mst. Mumtaz) is able to give statement" but the same witness, who put the note, has not been examined by the prosecution. There is no evidence other than such note which shows that the deceased came into sense, PW-3 deposed that when he arrived at place of incident he saw Mst. Mumtaz was semi unconscious.

20. It is observed that the evidence in respect of the recovery of empty, bloodstained earth from the place of vardat, recovery of pistol from the appellant and the FSL report so also chemical examiner's report including the dying declaration of the deceased recorded by the investigation officer were not put to the appellant while recording his statement under section 342, Cr.P.C. enabling him to explain the circumstances, and the same cannot be used against him as has been held by Honourable Supreme Court of Pakistan in the cases Imtiaz alias Taj v. The State (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148), Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) and Muhammad Shah v. The State (2010 SCMR 1009).

21. In the last, I would add that the Court(s) must never be influenced with severity of the offence while, appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274).

22. Thus based on the above discussion, I am of the view that prosecution has failed to establish its case against the appellant beyond any reasonable doubt. The concept of benefit of the doubt to an accused person is deep-rooted in our country. For giving the accused the benefit of the doubt there does not need to be many circumstances creating doubts. If there is a single 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 as has been held by Honourable Supreme Court of Pakistan in case Tariq Pervez v. The State (1995 SCMR 1345).

23. Resultantly the appeal filed by the appellant Badar Zaman is allowed and the conviction and sentences awarded by the trial court vide judgment dated: 02.07.2018 are set aside and he is acquitted of the charges by extending him the benefit of the doubt.

24. The above appeal is disposed of in the above terms. JK/B-11/Sindh Appeal allowed.