2018 PLP 15 (YLRN)

SYED MUHAMMAD FAROOQ SHAH, J.

Abdul Sattar son of Abdul Wahid, the Appellant was convicted and sentenced under section 302(b) read with section 34, P.P.C. for life imprisonment and to pay a fine of Rs.50,000/- to the legal heirs of deceased Muhammad Ali, as compensation under section 544-A, Cr.P.C. or in default whereof to further undergo RI for two years: the Appellant has been given the benefit of section 382-B, Cr.P.C.

2. A perusal of record reflects that initially four accused persons namely, Abdul Hakeem son of Muhammad Ali, Qadir Bux son of Gul Muhammad and two Abdul Sattars son of Ghulam Qadir and son of Abdul Wahid (the Appellant) were charge-sheet for commission of murder of Muhammad Ali by means of Carbine pistol of 12 bore. During trial proceedings, three accused persons had been died and the impugned judgment was pronounced against only Appellant namely Abdul Sattar son of Abdul Wahid. The role in commission of offence assigned to the Appellant Abdul Sattar son of Abdul Wahid by the prosecution is that he with his common intention along with remaining three accused persons namely accused Abdul Hakeem, Qadir Bux and Abdul Sattar son of Ghulam Qadir encircled the deceased Muhammad Ali.

3. Briefly the stated facts of the prosecution case, as narrated in the FIR No.111 of 1990, under section 302/34, P.P.C. lodged at Police Station Gaddap, Malir are that on 11.04.1990 at about 12:45 noon, the Complainant Sabir Ali was standing outside his shop along with PWs Azeem son of Muhammad Ali and Soomar son of Dost Muhammad when deceased Muhammad Ali was going to his house and reached at Jokhio Hospital, when all of sudden accused Abdul Hakeem and three other nominated accused came out of bushes and intercepted the deceased Muhammad Ali. The accused Abdul Sattar son of Ghulam Qadir instigated the accused Abdul Hakeem to kill deceased Muhammad Ali, who insulted him in the Bazar, whereupon the accused Abdul Hakeem took out .12 bore pistol from the fold of his shalwar and fired on Muhammad Ali, which hit his chest, who had fallen down and expired. This incident was witnessed by the PWs and villagers and on their cries all four accused persons decamped from the place of occurrence. After lodging the FIR, SHO/Inspector Faheem Ahmed prepared memo of site inspection and place of incident. He arrested accused Abdul Hakeem and recovered one Carbine along with three live cartridges. He had also arrested accused Qadir Bux; Abdul Sattar son of Abdul Wahid and Abdul Sattar son of Qadir Bux on 23.04.1990 and on completion of usual investigation, charge-sheeted all four accused by submitting final reports under section 173, Cr.P.C.

3. On commencement of trial, the accused persons did not plead guilty to the charge. At the trial, prosecution examined all material witnesses. The proceedings against remaining three accused namely Abdul Hakeem, Qadir Bux and Abdul Sattar son of Qadir Bux were abated due to their demise. Thereafter, statement of accused Abdul Sattar son of Abdul Wahid under section 342, Cr.P.C. was recorded, in which the accused/Appellant professed his innocence in disproof of charge but he did not adduce defence evidence. 4 Arguments heard. Record perused.

5. Learned counsel appearing for the Appellant argued that no specific role in commission of offence is assigned to the Appellant excepting his presence at the place of occurrence. It is next submitted that the prosecution has failed to establish the motive against the Appellant as there is no evidence on record that the Appellant had any enmity with the deceased Muhammad Ali. He further argued that the prosecution witnesses stated in their evidence that the Appellant, present on the spot neither instigated the accused Abdul Hakeem nor facilitated him or caught hold the deceased for murder; that the trial Court has also failed to appreciate that all three witnesses allegedly present on the spot are very interested witnesses, they have acted as mashirs of wardat, inquest report inspection report, memo of arrest and recovery and weapon and memo of arrest of present Appellant, as admittedly these witnesses are close relatives of the deceased and servants of the father of the deceased and actually they were not present at the spot when the deceased was murdered. It is argued that the Complainant Sabir Ali is a Government servant and at the relevant time, his presence on the spot is totally doubtful and according to the Complainant Sabir Ali, the house of deceased is situated just half kilometer away from the place of incident but no one came forward to lodge the FIR or to participate in the investigation, that on the other hand, father of deceased Jam Sultan has introduced his relatives and servants as witnesses to implicate the innocent peoples of the locality, who were not supporting him in the alleged offence. More so, the medical report is totally against the ocular evidence of prosecution. In his defence, the Appellant has clearly stated in his statement under section 342, C.R.C. that the witnesses are interested and are very much inimical and they had filed application and their affidavits for cancellation of bail before this Court. To sum-up his contention, by pleading innocence of the Appellant, learned counsel submitted that there is no evidence on record that the Appellant had any enmity with the deceased Muhammad Ali. That the only allegation against the Appellant is that a day before the incident, the deceased had disgraced the accused Abdul Sattar son of Qadir Bux (now deceased), but the prosecution failed to produce any witness of such incident.

6. Conversely. Mr Zahoor Shah, the learned Assistant Prosecutor General, representing the State supported the impugned judgment and submitted that with his common intention, the Appellant encircled the deceased to facilitate other co-accused to cause murder of the deceased Muhammad Ali.

7. On considering the submissions of the learned counsel for the respective parties and perusal of the impugned judgment by scanning the evidence brought on record, it is an admitted position that no specific role in commission of offence is assigned to the present Appellant excepting his presence at the time of alleged occurrence. The penultimate paragraph of the impugned judgment reflects that the appellant has been held guilty, who shared common intention with accused Abdul Hakeem, (since deceased), who caused fire arm injuries to deceased Muhammad Ali on the instigation of other co-accused Abdul Sattar son of Ghulam Qadir (since deceased). The learned trial Court has observed that the accused had gathered with deadly weapons but such fact does not transpire from the record through the prosecution evidence. There is nothing on record that the deceased Muhammad Ali had tried to rescue himself from accused then question of encircling to him does not arise. The impugned judgment appears to be authored by the learned trial Judge in slipshod manner without dilating upon the cross-examination of all witnesses. A cursory examination of elaborate cross of prosecution witnesses transpires that the Complainant Sabir Ali (Ex.10) admitted that the cloth bag in the hand of the deceased Muhammad Ali was not produced nor mentioned in the mashirnama of wardat and it was not recovered. He has further stated that Jokhio Hospital may be at a distance of 4/5 paces from the place of wardat. He has further stated that the petrol pump may be about 20/25 paces from the Jokhio Hospital and actually it is not a petrol pump of the Complainant but it is a petrol depot in a shop. He has further stated that the distance in between the place of wardat and service station is about 200 to 300 feet and his shop is also at the same distance; meaning thereby that the Complainant being silent spectator, heard the hot words and instigation of accused persons with the deceased Muhammad Ali from a distance of 200 to 300 feet, which is not humanly possible. The Complainant has admitted to be a Government servant, working as Chowkidar of school. He has admitted that PW Soomar is also a Government servant and they all are living in the same village. He has also admitted that in the mashirnama (Ex.13) no specific place has been given. He has further admitted in his cross-examination that Jam Sahab is the Sardar of their tribe and he is uncle of deceased PW Soomar who is also an eye-witness, by stating the similar conversation of accused persons with the deceased, stated that he and the Complainant are putting in the same village, but he did not know the accused persons though the Complainant has stated that the accused are living with them in the same village. This witness further stated in his cross that the clothes, shown to him in the Court, were not the same, which were in the hands of the deceased at the time of his murder. PW Azeem is also an eye-witness, who was allegedly present at the shop of the Complainant and witnessed the alleged incident stated identical stereotype story of prosecution.

8. In his statement recorded under section 342, Cr.P.C., the Appellant has vehemently denied the prosecution evidence and stated that all three eye-witnesses namely, Sabir Ali, Soomar and Azeem are closely related to each other and they are relatives of Jam Ghulam Qadir; more so, PW Azeem is driver of Jam Ghulam Qadir, they are interested witnesses and the Complainant has also filed application for cancellation of bail. He claimed his innocence.

9. The cross-examination, more particularly, afore-discussed cross-examination of the prosecution witnesses in paragraph-7/ante has not been discussed by the learned trial Court in its impugned judgment. It need not to be reiterated that Article 133 of Qanun-e-Shahadat Order, 1984 postulates that witness shall be examined in chief and the party calling him suggest of his claim and the adverse party to cross-examine the witnesses, to dig out the truth, as the cross-examination is valuable right guaranteed by the legislature to challenge the veracity of witnesses more particularly, Article 133(2), reads as under. "(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witnesses testified on his examination-in-chief."

10. The above reproduced sub-Article (2) of Article 133 provides the scope of cross-examination, which shall not be limited to the facts, which witness states in examination-in-chief. The impugned judgment does not reflect that the trial Court has gone through the elaborate cross-examination of prosecution witnesses, more particularly cross of the ocular account, brought by the prosecution on record.

11. By no stretch of imagination, the impugned judgment could be considered as speaking one and elaborate. Under the criminal administration of justice, the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story. Many doubts, are not needed in the prosecution case: rather any reasonable doubt arising out of the prosecution evidence attracting to a prudent judicial mind is sufficient for acquittal of the accused. If need arises, reliance in this respect may conveniently be placed on the cases of 1995 SCMR 1345 (Tariq Pervaiz v. The State); 2009 SCMR 230 (Muhammad Akram v. The State); and 2000 SCMR 1086 (Nadeem Butt v. Special Court Constituted Under Anti Terrorism Act, 1997).

12. For what has been discussed above, the prosecution has failed to prove the active participation or presence of the Appellant at the place of occurrence. Consequently, the appeal is allowed and the impugned judgment is set-aside. The Appellant is present on bail his bail bond stands cancelled and surety discharged. JK/A-76/Sindh Appeal allowed.