2021 PLP 152 (YLRN)

ZULFIQAR ALI SANGI, J.

Through this criminal appeal the appellants/accused challenged their conviction awarded through judgment dated 22.05.2019, passed by the learned 1st Additional Sessions Judge/MCTC, Kambar in Sessions Case No.322/2011, culminating from Crime No.46/2011 registered at Police Station Sijawal, under sections 302, 324, 114, 148, 149, P.P.C.

2. Brief facts of the case as per FIR lodged by complainant (injured) Haji Ahmed Langah on 7.6.2011, are that about 10 years ago his brother Muhammad Hassan had purchased an agricultural land from accused Muhammad Sallah, which they cultivate together. Ghulam Qadir and others were annoyed on it, and they used to ask them "why have they taken land from his son Muhammad Sallah". On the day of incident, he along with his brothers namely Ali Hyder, age around 47 years, who was married, Haji Muhammad and Nazir, Imam Ali, both sons of Haji Mehmood, Hakim son of Ramzan, Khadim Hussain and Abdul Jabbar, both sons of Lal Bakhsh all by caste Langah resident of village Arzi Bhutto Taluka Sijawal went to their agricultural land preparing land for sowing seeds. At around six past thirty, each namely (1) Nazir Hussain (2) Abdul Jabbar (3) Muhammad Sallah (4) Babal Khan all four sons of Ghulam Qadir (5) Akhtiar Ali son of Haji Roshan (6) Naeem (7) Nadeem both sons of Nazeer Hussain (8) Ghulam Qadir son of Peeral, all of them holding pickaxes in their hands, arrived on the spot. The accused Ghulam Qadir instigated all of the accused and said "seize them". On this, the accused Akhtiar and Abdul Jabbar alias Jabal inflicted hatchet blows on front and back side of the head of his brother Ali Hyder with intention to commit murder. The accused Nazeer, Sallah and Akhtiar hatched pickaxe blows on him which hit him on his head and on left and right shoulders. The accused Akhtiar and Babal inflicted hatchet blows on Haji Muhammad on his right and left hand's palm. The accused Nazeer inflicted pickaxe blows on mouth and head of Hakim. The accused Akhtiar inflicted pickaxe blows on head and back of Khadim Hussain. The accused Nadeem inflicted pickaxe blows on head and back of Abdul Jabbar. Accused Ghulam Qadir inflicted hatchet blows on both hands of Imam Ali. They raised cries due to which people standing nearby in land interrupted and beseeched before the accused and got complainant party freed. They all were bleeding due to injuries, as such they came to Govt: Hospital Mirokhan where Ali Hyder died due to injuries. Complainant leaving other injured with his other relatives at hospital went to police station registered the FIR, that the above mentioned accused, with common intention, on being instigated by the accused Ghulam Qadir, inflicted blade blows of pickaxe on them and has injured them and they have murdered his brother Ali Hyder by causing pickaxe blows.

3. After completing the usual investigation, investigation officer submitted final challan against the accused persons and on receipt of the case and after completing the formalities trial court framed the charge against the appellants to which they pleaded not guilty and claimed trial.

4. Thereafter, the prosecution in order to prove its case examined PWs Corpse bearer LNC Abdul Razaque, who produced in evidence a receipt of handing-over dead body of the deceased. Tapedar Muhammad Aslam Bhutto, who produced in evidence Original sketch of place of incident, Dr. Abdul Sattar Langah, who produced in evidence original Provisional MLCs and final MLCs of injured Imam Ali, Jabal Khan, Khadim Hussain, Nazir Ahmed, Hakim Ali and injured Haji Muhammad and Haji Ahmed and original postmortem report and lash chakas form of deceased Ali Hyder at Ex.11/A to 11/P. Author of FIR ASI Nisar Ahmed was examined at Ex.12. Thereafter amended charge after the arrest of accused Nazeer Hussain, was framed and prosecution examined injured complainant Haji Ahmed, Injured PW Imam Ali, injured PW Abdul Jabbar, injured PW Khadim Hussain, injured PW Haji Muhammad, injured PW Hakim Ali and I.O. SIP Nisar Ahmed Brohi at Exs.17 to

22. PW Dr. Abdul Sattar Gopang, Author ASI Nisar Ahmed, Mashir Hajan Langah and Tapedar Muhammad Aslam at Ex. 23 to

26. Mr. Sharjeel Bhatti, the defence counsel for accused did not come forward to defend them in trial court, hence vide order dated: 29-4-2019 trial court appointed a counsel on state expenses as per their joint written application dated:29-4-2019. Thereafter, DDPP filed a statement dated: 17-5-2019 (Exh-27) in respect adopting the earlier evidence of corpse bearer PC Abdul Razaque (Exh-10 dated: 22-01-2014) which was taken on record in view of no objection by the defence counsel and therefore the side of prosecution was closed vide statement dated; 17-5-2019 at Exh-28.

10. The trial court recorded statements of accused under section 342, Cr.P.C at Exh-29 to 33 wherein they denied prosecution evidence and professed their innocence, they neither examined themselves on oath under section 340(2), Cr.P.C nor produced any defence witness.

11. After assessment of evidence and hearing the advocates of the parties learned trial court has passed the above impugned judgment. The appellants being aggrieved by the said judgment have preferred this criminal appeal.

12. Learned counsel for the appellants Akhtiar Ali, Abdul Jabbar alias Jabbar and Muhammad Sallah contended that there is delay of 8 hours in lodging the FIR; that all the PWs are totally inconsistent even in their examination-in-chief and there are material contradictions in between them, hence mere fact that they are injured is not sufficient to believe them to be truthful as for involvement of the appellants is concerned and their testimony cannot be relied upon for conviction without independent corroboration which is totally lacking; that complainant party also concealed the factum of counter case lodged by the appellants party bearing Crime No. 47 of 2011 at Police Station Sijawal; that the enmity over landed property is admitted by the complainant party; that after registration of FIR police found accused Nazeer, Babal, Nadeem as innocent and placed their names in column No.2 of challan sheet and initially notice was issued against them by learned Magistrate Miro Khan which was repeated till 30.6.2011 whereas without service of notice upon them and without hearing them and without passing an appropriate order for joining them in the case, on 16.7.2011 NBWs were issued against them and on 22.9.2015, subsequent report for accused Nazeer Hussain was sent in the Trial Court, as such charge was amended on 27 February 2016 by including Nazeer in the case; that as for appellant Naeem, Naveed is concerned, no role of causing any injury to the deceased Ali Hyder or any of the injured is attributed to him, while as for appellant Nazeer is concerned, a general role of causing injury to complainant Haji Ahmed is attributed to in all three accused namely Nazeer, Sallah, and Akhtiar as well as role of causing injuries to injured PW Hakim is also attributed to accused Nazeer and the complainant and the PWs have given contradictory statements as for the role of appellant Nazeer is concerned; that it is humanly impossible to attribute the pr cised role to each and every accused and it is quiet out of imagination and prudent mind will not accept the story of prosecution the PWs were able to see and specify the locale/seat of the injuries and count the same in the given circumstances.; that there is no recovery of crime weapon from thee Appellants Naeem Naveed and Nazeer; that keeping in view the case of prosecution, since no firearm was used, hence as for the common intention of each appellant is concerned, prosecution has not led any evidence that the appellants had an intention to kill the complainant; that on 9.6.2011 alleged hatchets were shown as recovered on the pointation of accused Akhtiar and Abdul Jabbar and the same were dispatched on 11.6.2011 for analysis with the delay of about two days, no blood group of deceased was matched; that the accused who were placed in the column No.2 were assigned the role of causing injuries but the investigation agencies found them innocent; that there is conflict in ocular and medical evidence as per medical evidence in respect of injured Jabal Khan and injured Hakim the doctor had opined that injuries were caused by hard and blunt substances. Lastly, he submit that the prosecution has not proved the case against the appellants beyond a reasonable doubt and they may be acquitted by extending the benefit of the doubt. He relied upon the cases of Haroon Shafique v. The State and others (2018 SCMR 2118), Muhammad Usman and another v. The State and others [2020 PCr.LJ 1048 (d)], Rashid and another v. Shaman-ud-Din and another (2015 PCr.LJ 1123 Peshawar), Muhammad Rafique v. The State (PLD 2008 Lahore 289), Sarfraz Ahmed and 2 others v. The State (2000 YLR 2553) and Muhammad Asif v. The State (2017 SCMR 486).

13. Mr. Habibullah G. Ghouri, counsel for the rest of the appellants has contended that appellants are innocent, neither they have murdered nor caused injuries to the PWs and the PWs are set up by prosecution but infect the deceased was murdered by one PW Khadim Hussain due to pretext of Karap with his wife but the complainant patched up the matter with him and lodged false FIR against the present accused due to landed dispute; that the trial court had not taken into consideration the improvements and exaggeration made by the prosecution witnesses during their depositions; that the judgment under appeal is in violation for guiding principles laid down by the honourable superior courts for appreciation of the evidence and safe administration of criminal justice; that the impugned judgment further suffers from non-reading and misreading of the evidence brought by the prosecution; that the prosecution also did not prove the charge against the present appellants, hence they may be acquitted. In support of his contentions he relied upon the cases of Taj v. The State (2012 SCMR 43), Qurban Hussain v. The State (2017 SCMR 880), Muhammad Ehsan v. The State (2006 SCMR 1857), Fawad and others v. The State and others (2019 PCr.LJ 443) and Azhar Nawaz and another v. The State (2017 SCMR 1877).

14. Learned DPG contended that the prosecution has proved its case against all the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence; that all the injured witnesses were examined by the prosecution and they are natural witnesses; that ocular evidence is supported by the medical evidence; that medical certificates were not challenged by the appellants at any stage of the trial; that the contradictions pointed out by defence counsel are minor in nature and are not sufficient to acquit the appellants. Lately he prayed that the appeal of the appellants may be dismissed.

15. Mr. Irfan Badar Abbasi, advocate for the complainant argued that appellants are nominated in the FIR with specific role and they have murdered one person and caused injuries to the seven persons; that the PWs and complainant have fully supported the prosecution case; that the Medical evidence also supports the ocular version; that the judgment given by learned trial court not suffer from any misreading or non-reading of the evidence the same may be upheld by dismissing instant appeal.

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

17. On reassessment of the entire evidence produced by the prosecution it is established that the prosecution has not proved the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence evidence. The evidence produced by the prosecution is completely doubtful, the witnesses gave their evidence contradictory to each other on material aspects of the case.

18. The complainant in his examination-in-chief deposed that he had gone to his agricultural land along with Ali Hyder, Muhammad, Nazeer, Imam Ali, Hakim, Khadim and Abdul Jabbar where they were working. However the complainant in his cross-examination stated that the PWs Nazeer, Abdul Jabbar, Muhammad, Ali Hyder, Imam Ali, had gone to land prior to him. Complainant further stated in his cross-examination that he accompanied Badar Din from hotel at bus stop. He also stated during his cross-examination that the PWS left at 06.00 AM in the morning for land. The complainant during his cross-examination stated that he left for land after 15 minutes along with Badar Din Bhutto. All these contradictions make the presence of the complainant at the place of incident as doubtful. Further this would be cleared that the complainant was not present at the place of incident from the fact that he himself stated during cross-examination that the accused had inflicted hatchet blows prior to his arrival at place of incident.

19. The witness Nazeer PW-2 who is also injured witness has not deposed about the time of incident in his examination in chief only he gave the role of the appellants which is also not supported by the other witnesses as being contradictory to each other. This witness also is not supporting the complainant on the point of his arrival at the place of incident and stated in his cross-examination that he alone reached the agricultural land after leaving his house. During cross-examination this witness was also not been able to state that how many injuries were received by the injured Ali Hyder and Akhtiar.

20. The witness PW-3 Imam Ali also not depose the date of incident in his examination-in-chief and deposed that the incident took place 06/07 years back. This witness during the cross-examination stated that deceased Abdul Jabbar sustained injury at his head and testicles from front side, however, there is no any deceased named Abdul Jabbar in the present case. He stated in his cross-examination that in the first instance, he was taken to police station Sijawal and thereafter was taken to the hospital at Larkana, whereas the complainant deposed that he shifted all the injured to Miro Khan hospital.

21. The witness Abdul Jabbar W-4 also not deposed in his examination-in-chief about the month of the incident. During examination-in-chief he also deposed that he do not know who had inflicted blows on him. PW-5 Khadim Hussain also not deposed the month of the incident in his examination-in-chief. PW-6 Haji Muhammad the brother of the deceased Ali Hyder and the brother of complainant during his cross-examination stated that soon after the incident, he became unconscious and regained his senses in the hospital at Larkana on the following day viz 08-06-2011. He also stated during cross-examination that "it is correct to suggest that I was unconscious, hence I have no knowledge that what happened after the incident." The PW-7 Hakim Ali also not deposed the date and time of the incident in his examination-in-chief however he deposed that the incident took place eight years back. He negated the case of prosecution in respect of injuries sustained by PW Nazir and deposed that Nazir had not sustained injuries. He also deposed that he do not remember whether his statement was recorded by the police or not.

22. The place where this incident took place is also doubtful as all the witnesses claiming that the incident took place in their lands and all the witnesses have their separate lands, the witnesses further deposed that they were working in their lands where accused person made attack on them. Death of the deceased in the hospital is also doubtful as the complainant and the witnesses deposed that deceased Ali Hyder was taken by them towards the hospital in injured condition who died in the hospital, whereas the PW-12 the Tapedar deposed that he inspected the place where he was informed by the complainant that the dead body of the deceased was lying the same was the land of complainant which is totally in contradictory with the evidence of complainant and the witnesses.

23. It was the case of the prosecution that all the accused persons were armed with hatchets and they caused hatchet blows to the all the injured witnesses but the doctor who examined the injured persons in his evidence stated that injured Haji Muhammad, Hakim Ali, Haji Ahmed, received the injuries from hard and blunt substance which make the entire case of prosecution as doubtful. I am surprising to see the deposition of the doctor who in his examination-in-chief deposed that "I started the post mortem examination of the deceased at 3:30 PM and finished it at 4:45 PM on the same day. On the external examination of the dead body of deceased Haji Ahmed I found the following injuries.

01. Incised wound 14 cm x 1 cm at scalp deep on left bone at the skull.

02. Incised wound 6 cm x 1 cm @ muscle deep at mid of right upper arm. However, there is no any deceased in the name of Haji Ahmed, but Haji Ahmed was an injured who as per medical certificate received 03 injuries.

24. The contradictions as pointed out above in the evidence of the eye-witnesses and the improvements made by them during the trial in my view are major in nature which cut the roots of the prosecution case and make it doubtful. On the basis of material contradiction this court has allowed the appeals and set-aside the convictions handed down by the trial courts in cases of Taj Mohammad and 2 others v. The State (2020 PCr.LJ 1693) and Ghulam Hyder through Superintendent, Central Prison v. The State (2020 YLR 2411).

25. Another aspect of the case is that none of the witness has deposed that the accused person also received injuries and these facts has been concealed by them from the police and from the court, from the stage of FIR till the evidence was recorded before the trial court, however they admitted during their cross-examination the fact that some of the accused/ appellants also received injuries and counter FIR was registered against the present complainant party which shows that complainant party was telling completely lie before the police and the trial court and not come with clean hands before the court, there evidence in view of the fact is not reliable, trustworthy and confidence inspiring which cannot be made basis for awarding conviction which too is contradictory as has been discussed above. Reliance can be place in the case of Rajmeer Khan and another v. Noor-ul-Haq and others (2019 SCMR 1949).

26. It is a well settled principal of law that the prosecution has to prove its case beyond a reasonable doubt and where even a single circumstance which creates reasonable doubt in the mind of a prudent man comes in the evidence of the prosecution the benefit must go to accused not as a matter of grace or concession but as a matter of right. In this regard reliance is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345).

27. Thus based on the above discussion and on reassessment of the evidence on record I am of the view that the prosecution has failed to prove its case against the appellants beyond any reasonable doubt, therefore, I allow the instant appeal and set-aside the conviction and sentences handed down by the trial court vide judgment dated 22.05.2019 and acquit the appellants by extending them the benefit of the doubt, appellants Akhtiar Ali son of Haji Roshan, Abdul Jabbar alias Jabbar son of Ghulam Qadir, Muhammad Sallah son of Ghulam Qadir, Naeem alias Naveed son of Nazeer Hussain and Nazeer son of Ghulam Qadir all by caste Langah shall be released forthwith unless they wanted in any other custody case.

28. The above Cr. Appeal is disposed of in the above terms. JK/A-59/Sindh Appeal allowed.