2013 PLP 1193 (YLR)

FAROOQ ALI CHANNA, J.

The above two criminal jail appeals have been preferred against the same judgment dated 12-10-2009 passed by IInd Additional Sessions Judge, Khairpur in S.C. No. 272 of 2004 culminating F.I.Rs. No. 49 of 2002 of Police Station Pir-jo-Goth under sections 302, 324, 147, 148, 149, P.P.C. and 13(d).A.O whereby both the appellants were convicted under section 302(b), P.P.C. and sentenced to imprisonment for life and to fine of Rs. 50,000 each which on recovery was ordered to be paid to the legal heirs of the deceased Allah Jurio. However, in default thereof the appellants were ordered to undergo R.I for 6 months more. Both the appellants were also convicted under section 324, P.P.C. and sentenced to 7 years' R.I and to fine of Rs.5000 each, in default thereof to further undergo R.I. for three months. In addition to above sentences appellant Shahnawaz was also convicted under section 337-F(iii) and sentenced to undergo R.I for three years and to pay Daman at Rs.10,000 to injured Muhib. All the sentences were ordered to run concurrently, with benefits under section 382-B, Cr.P.C.

2. Succinctly the facts leading to file the above criminal jail appeals are that on 29-6-2002 complainant Abdul Hameed lodged F.I.R. at Police Station Pir-jo-Goth District Khairpur regarding the Qatl-e-Amd of his son Allah Jurio aged about 30 years and his cousin Gul Hassan aged about 70 years and causing fire shot injury with intention to commit Qatl-e-Amd of his cousin Muhib Ali alias Mehboob Ali. It is stated in F.I.R. that about six months prior to the incident his brother Abdul Majeed divorced his wife on the allegation of her illicit relations with accused Rahim Bux who about one month thereafter also abducted her daughter-in-law Mst. Zaibul wife of Qurban and gave her in marriage to his nephew Anwar. Due to above allegations the accused persons along with their relatives shifted away leaving their houses abandoned. Accused Rahim Bux and his relatives were sending message to the complainant for Faisla so as to they could return back to the village, however, since the complainant party was made victim repeatedly by the accused persons therefore, they were not ready for faisla immediately on which accused were issuing threats that if the faisla is not held, they would not spare their single family member. During the night of incident it is alleged that when the complainant, deceased and prosecution witnesses were available at the Poultry Farm of deceased Gul Hassan they saw and identified accused (1) Hussain Bux, (2) Rahim Bux, (3) Anwar alias Mushki, (4) Niaz son of Hussain, (5) Ali Raza son of Ali Sher, (6) Ayaz alias Mullan with Kalashnikovs (7) Rab Nawaz (8) Shahnawaz (9) Muhammad Nawaz all armed with rifles, (10) Ali Sher, (11) Hussain both armed with guns, and (12) Niaz son of Ali Bux armed with pistol came there and over annoyance stated above started firing directly upon the complainant party. The complainant and Manzoor Ahmed saved themselves by taking the shelter of the wall of Poultry Farm and saw accused Rahim Bux made direct firing upon his uncle Gul Hassan who fell down, accused Shahnawaz caused fire shot to his cousin Muhib Ali with intention to commit his Qatl-e-Amd whereas accused Anwar and Niaz caught hold his son Allah Jurio, dragged him towards South and when reached at the Nala of Sewerage water accused Anwar alias Mushki and Niaz fired direct bursts upon his son Allah Jurio who after receiving fire shot injuries fell down. All the accused thereafter ran away while raising slogans and making aerial firing towards East. The complainant thereafter, saw his uncle Gul Hassan and son Allah Jurio lying dead and Muhib Ali alias Mehboob having fire shot injury on right thigh and was bleeding, he was in senses and removed to Civil Hospital for medical treatment. Complainant thereafter appeared at Police Station and lodged the F.I.R.

3. The Investigating Officer carried on the investigation, visited the place of incident sealed the empties and blood-stained earth, arrested the accused, recovered the weapons used in the above crime, on their pointation and after completing the investigation submitted the challan in the court of law.

4. It is pertinent to mention that during pendency of trial the legal heirs of deceased Gul Hassan and Allah Jurio and injured Muhib Ali alias Mehboob Ali entered into compromise with accused Niaz Ahmed son of Ali Bux and Rahim Bux son of Doulat, compromise application was filed, the trial Court accepted the compromise and acquitted both the accused under section 345(6), Cr.P.C. vide order dated 23-6-2009, however, after trial the appellant Niaz son of Hussain Bux and Shahnawaz son of Rab Nawaz were found guilty to the offence therefore, convicted and sentenced as stated hereinabove while rest of the accused were acquitted by extending them benefit of doubt.

5. Learned counsel for the appellants has contended that the accused are innocent and have falsely been implicated due to family dispute, between both the parties, the false involvement of the appellant also appears from the admitted fact that the statements under section 161, Cr.P.C. of prosecution witnesses including injured Muhib Ali alias Mehboob were recorded on 30-8-2002 after 62 days of the incident without plausible explanation and such belated statements are fatal to prosecution case cannot be relied upon as held by honourable Supreme Court in a case reported as Rahat Ali v. The State, 2010 SCMR page

584. The learned counsel in support of his above contentions has also relied upon the cases of (1) Muhammad Saddiq v. The State PLD 1960 Supreme Court 223, (2) Sahab Gul v. Ziarat Gul 1976 SCMR 236, (3) Muhammad Iqbal v. The State 1984 SCMR 930 and (4) Syed Muhammad Shah v. The State 1993 SCMR

550. Learned counsel has further contended that the prosecution has examined three eye-witnesses of the occurrence whose evidence is inconsistent and full of contradictions. Learned counsel has further contended that the allegations against the appellant Shahnawaz is that he caused fire shot injury to Muhib Ali alias Mehbob but no empty bullet of rifle was recovered from the place of wardat and the empties recovered were of 7.62 bore. He has further contended that the alleged recovery of weapon was made after three months of the incident and 6 days after the arrest of the appellant Shahnawaz which seems to be doubtful as there was no reason to keep the weapon used in crime safely as proof against him though he had enough time to destroy the incriminating evidence. Learned counsel has further contended that per prosecution case the source of identification of accused persons was the electricity light which is not shown in the mashirnama of wardat. The I.O during cross-examination has also admitted this fact. Learned counsel during arguments has also pointed out various contradictions in the evidence of prosecution witnesses that as per the evidence of complainant and prosecution witness Manzoor they all were sitting on one cot giving the detail of their seating position whereas, the injured P.W. Muhib Ali alias Mehboob has falsified their version and has categorically stated that they were sitting on two cots, he has also given the detail and stated that he and deceased Gul Hassan his father were sitting on one cot and others were sitting on other cot.

6. Conversely learned A.P.-G. has argued that both the appellants are nominated with specific allegations that appellant Niaz along with absconding accused Anwar alias Mushki dragged deceased Allah Jurio and caused his Qatl-e-Amd by firing from their respective weapons. The appellant Shahnawaz is specifically alleged that he caused fire shot injury on the right thigh of injured P.W. Muhib Ali alias Mehboob. The prosecution case consisting of the evidence of the eye-witnesses of the incident out of which one is injured, his presence at the time of incident being injured is free from doubt. Learned A.P.-G. has further contended that the prosecution case regarding the injury on the person of both the deceased and injured Muhib Ali alias Mehboob is also supported by medical evidence. The recovery of weapon used in the crime on the pointation of appellant Shahnawaz also supports the prosecution case. The contradictions pointed out by defence counsel are minor in nature and will not spoil the evidence of the prosecution witnesses whose presence at the time of occurrence is proved without any doubt. Learned A.P.-G. has also contended that the trial Court while passing the impugned judgment has considered all the aspects of the case including the evidence of the prosecution witnesses and found the appellants guilty of Qatl-e-Amd of Allah Jurio and causing fire shot injuries to P.W. Muhib Ali alias Mehboob with intention to commit his Qatl-e-Amd, hence the appeals are liable to be dismissed.

7. I have perused the record, evidence of the prosecution witnesses and considered the legal aspects of the case with the assistance of submissions made by both the learned counsel. Per prosecution case there are three eye-witnesses of the occurrence out of which the presence of injured witness Muhib Ali alias Mehboob having injury on his person, is proved, however, the stamp of fire arm injury on his person is not per se tantamount to stamp of credence of his testimony and is not proof of credibility and truth of his evidence, his evidence is to be considered keeping in view the circumstances of the case and other evidence collected by the Investigating Officer during investigation.

8. In the instant case 12 accused were nominated in F.I.R. with specific allegations. The allegation of causing the Qatl-e-Amd of Gul Hassan was assigned to Rahim Bux he was acquitted in terms of compromise. Causing the Qatl-e-Amd of another deceased Allah Jurio was specifically attributed to absconding accused Anwar alias Mushki who is not the appellant before this Court. All other co-accused except the appellants Niaz son of Hussain Bux and Shahnwaz son of Rab Nawaz, were acquitted by the trial Court by extending them benefit of doubt.

9. The allegations against appellant Niaz son of Hussain Bux is that he and absconding accused Anwar alias Mushki dragged Allah Jurio towards south and when reached at Nala of sewerage water caused his Qatl-e-Amd by firing. Per prosecution case, at the time of occurrence appellant Niaz was armed with Kalashnikov but no recovery of crime weapons i.e. Kalashnikov was made from him or on his pointation as such a valuable corroborative evidence against him is missing. The father of deceased Allah Jurio who is the complainant of this case during cross examination although has stated that deceased Allah Jurio was caught hold by absconding accused Anwar and Niaz and was fired from a close range, however, he voluntarily has stated that accused Niaz caught hold deceased Allah Jurio and Anwar fired at him. SIP Nisar Ahmed the Investigating Officer during cross examination has also admitted that injured P.W. Muhib in his statement recorded under section 161, Cr.P.C has stated categorically that accused Shahnawaz did fire shot upon deceased Allah Jurio.

10. The allegation against appellant Shahnawaz is that he fired from his rifle on the right thigh of injured Muhib Ali alias Mehboob who during cross examination has stated that accused Shahnawaz fired upon him putting the barrel on his thigh, this version of injured is not supported by the medical evidence which confirms the fire shot injury on the thigh of injured Muhib Ali alias Mehboob, however, does not reflect the blackening on the injury which indicates that fire shot was not caused from a close range. The Doctor Pervez Ahmed during cross-examination has also not supported the version of injured and has stated that the fire shot was made from the distance of more than three meters. Furthermore, per prosecution case the complainant in F.I.R. and all the eye witnesses in their evidence have identified the weapons i.e. Kalashnikovs holding by each accused namely Hussain Bux, Rahim Bux, Anwar alias Mushki, Niaz Ahmed son of Ali Bakhsh, Ali Raza and Ayaz alias Mullan, Rifles by Shahnawaz and Muhammad Nawaz, Guns by Ali Sher, Hussain Bux and pistol by Niaz son of Ali Bux which shows that all the witnesses were fully aware having the knowledge of the kind of weapons and it was alleged against appellant Shahnawaz that he was armed with Rifle caused Rifle fire shot injury to injured Muhib Ali alias Mehboob whereas per prosecution one Kalashnikov was recovered on his pointation and not Rifle, the said recovery was also made with delay of three months after the incident and six days after his arrest.

11. Besides the contradictions pointed out by learned counsel for the appellants the mashirnamas of recovery of weapons does show the weapons were sealed at spot, no forensic report regarding the working conduction of weapon has been exhibited during trial, however, the Investigating Officer S.I.P Nisar Ahmed in his evidence has deposed that he sent the recovered crime weapons as well as blood-stained earth to the Chemical Examiner for certification of working status of weapons, this justification apparently has been given only to cover up the lacuna left during interrogation otherwise there was no reason for sending the weapons used in crime to chemical examiner instead of Forensic Expert. The prosecution has also not produced the report of chemical examiner during trial. The next point is the delay of 62 days in recording the statements under section 161, Cr.P.C of prosecution witnesses. Learned A.P.-G. while confronted to the above fact could not controvert the same rather admitted the delay. The honourable Apex Court have mostly discarded such belated statements recorded by Investigating Officer during investigation and ruled out of consideration as the delay in recording the statements under section 161, Cr.P.C causes serious suspicion on the credibility of the witnesses. The next evidence per prosecution case is the motive behind the incident that Abdul Majeed the brother of complainant divorced his wife declaring her kari with acquitted accused Rahim Bux having developed illicit terms and abduction of daughter in law of the complainant by acquitted accused Rahim Bux and thereafter her marriage with absconding accused Anwar alias Mushki, such motive is double edged weapon which could be reason for accused to commit the crime it could also be reason to charge accused falsely or on suspicion. If the said motive is kept and considered in juxtra-position, the complainant party seems be the victim compelling them for revenge and not the accused, however, the said motive was specifically alleged against acquitted accused Rahim Bux and absconding accused Anwar alias Mushki. It is also pertinent to mention that deceased Gul Hassan had enmity with Doongrani community. The injured P.W. Muhib Ali alias Mehboob during cross-examination has admitted that his father deceased Gul Hassan and brother Ghulam Nabi are the main accused in murder case of Atta Muhammad Doongrani and there is enmity between them and Doongrani by caste over the above murder. In the above circumstances this incident may be the revenge of admitted enmity with Doongrani community as such the false or suspicion involvement of appellant cannot be overlooked.

12. For the reasons discussed herein-above I have come to the conclusion that trial Court did not appreciate the prosecution evidence according to settled principle of law. On same evidence, co-accused were acquitted while the appellants were convicted without assigning sound reasons though the prosecution case against the appellants more or less to some extent was also in the same line as that the case of co-accused who have been acquitted. I therefore, set aside the impugned judgment dated 12-10-2009 whereby the appellants were convicted and sentenced as stated hereinabove and acquit the appellants Niaz and Shahnawaz by extending them benefit of doubt. They may be released forthwith if not required in any other case. Both the appeals are allowed. MH/S-3/K Appeal allowed.