2013 PLP 885 (YLR)

ABDUL RASOOL MEMON, J.

By this Criminal Jail Appeal the appellant has impugned the judgment dated 19-3-2008 passed by Second Additional Sessions Judge, Malir in Sessions Case No.199 of 1996 relating to Crime No.121 of 1996 under section 302/34, P.P.C. registered with Police Station Gadap, Malir Karachi, whereby the appellant was convicted and sentenced to suffer R.I. for life and to pay fine of Rs.50,000 and in case of default of payment to suffer R.I. for one year more, the benefit of section 382-B, Cr.P.C. was also extended.

2. On 30-6-1996, at about 0115 hours, one Haji Ahmed informed on telephone at Police Station Gadap that Haji Yar Muhammad and his son Aslam Jakhio resident of Haji Yar Muhammad Goth Damloti No.6 came and had informed him that near Khaskheli Goth one person was lying injured, on inquiry he came to know that said injured person was Police Constable Abdul Ghaffar, a quarrel had taken place between him and some people near Khaskheli Goth wherein he sustained injuries and who later on died which was recorded in Roznamcha vide Entry No.37 and subsequently it was incorporated in 154, Cr.P.C. Book by Inspector Choudhry Muneeruddin vide Crime No.121 of 1996 wherein incident was reported. The complainant Inspector Muneeruddin was on patrolling in the area, on receiving such information, reached at place of incident and found S.-I. Sultan Ahmed Gondal who was conducting proceedings under section 174, Cr.P.C. They found the dead body having sharp edge injuries on the right side of his stomach and on left back side lying at the place of incident. The dead body was sent to Jinnah Hospital for postmortem. The complainant recorded statements of Haji Ahmed, Abdul Rehman alias Papoo, Muhammad, Allah Bux and Rasool Bux, who were present at the place of incident, they disclosed in their statements that appellant Ghulam Sarwar and his father Ghulam Muhammad had caused injuries to the deceased at about 12-00 midnight in between 29th and 30th June, 1996 due to which he died and both the accused persons ran away.

3. To substantiate the allegations prosecution examined eight witnesses namely Haji Ahmed P.W.1 Exh. 6, Muhammad Aslam P.W.2 Exh. 11, Allah Bux P.W.3 Exh. 12, Niaz Ahmed P.W.5 Exh. 14, Rasool Bux P.W.4 Exh. 13, Haji Yar Muhammad P.W.6 Exh. 15, complainant Ch. Muneeruddin P.W.7 Exh. 16 and Dr. Manzoor P.W.8 Exh.19. The statement of the accused was recorded under section 342, Cr.P.C. who denied the allegations of the prosecution and claimed innocence.

4. On conclusion of the trial, learned trial Court convicted the appellant as mentioned above in para-1 supra.

5. Heard the learned counsel for the appellant and the learned Assistant Prosecutor General Sindh.

6. Learned counsel for the appellant has argued that this is an unwitnessed incident and case is based on circumstantial evidence but there is no complete chain of events which could connect the accused in the commission of alleged offence. He has further contended that appellant has been implicated in this case simply for the reasons that he and his father Ghulam Muhammad with their family were seen leaving the village by P.Ws. Aslam and Yar Muhammad while the deceased was lying in injured condition at the distance of 20 to 25 feet from the house of the appellant. He has argued that the evidence produced by the prosecution is contradictory creating doubt about presence of alleged eye-witnesses at the place of incident and recovery of alleged chhuri after 8 days of occurrence is also unbelievable and according to the prosecution witness it was stained with blood which ought to have been sent for forensic lab but it was not sent for chemical examination.

7. He has further submitted that the trial Court has illegally shifted the burden of proof upon the accused in contravention of the basic principles of the criminal jurisprudence as it is settled law that prosecution has to prove the cases beyond any reasonable shadow of doubt and the accused is not bound to prove his innocence. In support of his contentions he has placed reliance on the cases of KHALID JAVED and another v. THE STATE (2003 SCMR 1419) and MUHAMMAD ASLAM v. SABIR HUSSAIN and others (2009 SCMR 985), Varun Chaudhary v. State of Rajasthan (AIR 2011 Supreme Court 72) and Paramjeet Singh alias Pamma v. State of Uttarkhand (AIR 2011 Supreme Court 200).

8. Conversely the learned A.P.G supported the impugned judgment on the ground that the evidence brought on record prima facie proved the presence of the accused at the place of Wardat just after occurrence coupled with recovery of chhuri (stained with blood) on the pointation of appellant which is sufficient to establish the charge of Qatal of the deceased against the appellant and absconding accused. However, he conceded that the chhuri with blood-stains allegedly recovered on the pointation of appellant ought to have been referred to forensic lab for chemical examination.

9. I have given careful consideration to the arguments advanced at Bar have perused the prosecution evidence with the assistance of the learned counsel for the appellant and the learned A.P.-G.

10. The evidence of complainant Inspector Chaudhry Muneeruddin, P.W. Haji Ahmed is not ocular but is hearsay-one P.W. Haji Ahmed had only got recorded incident report in police after receipt of information about incident from P.W. Muhammad Aslam P.W. 2 Exh. 11 and Yar Muhammad P.W. 6 Exh.

15. As per these two witnesses they woke up on cries came out from house and noticed one person lying injured on ground and at the same time saw the appellant Ghulam Sarwar and his father Ghulam Muhammad while running away along with their family members from there and on inquiry about the incident they replied that they had no concern with them and fled away. They informed P.W.1 Haji Ahmed about the incident and then they all went to place of Wardat along with Police where they found said injured lying dead whose name was disclosed as PC Abdul Ghaffar he had sustained injuries with sharp-edged weapon on stomach and his back.

11. I have gone through the evidence of these two star witnesses of prosecution, Haji Yar Muhammad and Aslam who are father and son inter se. From close scrutiny it appears that their evidence carries major and material contradictions. As per statement of P.W. Aslam he and his father Yar Muhammad went to inform Councillor Haji Ahmed at his village situated at the distance of 3/4 kilometer from wardat. P.W. Aslam stated in his cross-examination that they went to village of Haji Ahmed on Motorcycle but this statement is contradicted by his father Yar Muhammad by saying that they went to Haji Ahmed on a car. P.W.2 Aslam has deposed that they on commotions came out from the house and on the light noticed one person having sustained injuries lying on the ground but he himself contradicted his own statement in cross-examination by saying that dead body was lying in dark while P.W. Haji Yar Muhammad (Exh.15) who has deposed differently that he saw injured on torch light. These contradictions indicate that either these two witnesses were not present together at the time of alleged incident or the incident had not occurred as is being claimed as such their evidence does not inspire confidence and appears to be un-trustworthy. P.W. Allah Bux and Rasool Bux are brothers inter se admittedly had not seen the appellant at wardat as such their evidence is also hearsay. The remaining evidence is of medical officer namely Dr. Manzoor who had conducted post mortem of the deceased and found six injuries on his body. The medical evidence only confirmed the unnatural death of the deceased but would not connect the accused with the alleged crime.

12. So far recovery of churri is concerned it was effected seven days of the incident. The evidence of both the mashirs of recovery is not consistent. P.W. Haji Ahmed in his examination-in-chief has stated that co-accused Ghulam Muhammad produced the chhuri before police but in cross-examination he has contradicted himself by saying that the present appellant and his father Ghulam Muhammad had jointly produced the chhuri before police from char dewari while P.W. Niaz Ahmed other mashir of recovery has deposed differently that accused Ghulam Sarwar alone led the police party and produced the chhuri from the bushes/hedges of his house. These contradiction made the alleged recovery highly doubtful. Not only this but all the witnesses in an unequivocal manner have deposed that the said chhuri was stained with blood but it is pertinent to mention here that said chhuri was not referred/sent for chemical examination to forensic laboratory and no explanation has been furnished by the prosecution in this regard. In the case KHALID JAVED and another v. THE STATE (2003 SCMR 1419) the honourable Supreme Court did not appreciate or accepted the recovery where the articles stained with blood were not matched with blood group of the deceased. In the instant case even enquiry is not carried out by the prosecution as to why said chhuri was not referred/sent to forensic lab for examination. Learned A.P.-G. has also conceded for this lapse on the part of prosecution.

13. One thing more that the prosecution could not establish the motive for which the deceased was allegedly murdered by the appellant/accused. Of course, it is not necessary that in every case the motive of the accused should be proved. However, in the instant case, the prosecution has also failed to bring an iota of evidence to establish the element of motive which compelled the appellant and his father to commit the murder of the deceased, this aspect also affect the prosecution case. In this regard I am fortified by case of Varun Chaudhary v. State of Rajasthan (AIR 2011 SC 72).

14. It is admitted fact on record that no one had seen the appellant while causing injuries to deceased. All the private witnesses and police arrived at place of wardat after the deceased had sustained injuries and died on spot. The police official have deposed about the proceeding conducted by them. The appellant has been involved simply on the presumption and assumption that he and his father with family were seen going away from their village after the receipt of injuries deceased was lying on the ground at the distance of 20 to 25 feet away from their house. It is held in the case reported in the case of Paramjeet Singh v. State of Uttarakhand (AIR 2011 SC 200) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused but in the case in hand. Nothing probable has been brought on record by the prosecution to complete the chain of evidence which connect the appellant in the alleged commission of crime. The learned trial Court seems to have escaped these points while writing the judgment. Settled law is that if a simple circumstance creates reasonable doubt in the prudent mind about the guilt of accused then he will be entitled to its benefit not as a matter of grace or concession but as a matter of right. This principle is laid down in the cases of TARIQ PERVEZ v. THE STATE (1995 SCMR 1345) and 2008 SCMR 121.

15. The impugned judgment for the reasons recorded above cannot be sustained while allowing this appeal I set aside the same and acquit the accused/appellant after extending benefit of doubt to them.

16. The accused was already acquitted by short order dated 22-11-2012 and hereinabove are the reasons thereof. HBT/G-46/K Appeal allowed.