2022 PLP 36 (YLRN)

FAHIM AHMED SIDDIQUI, J.

This single judgment will suffice for disposal of the aforementioned appeals as both are arising out of the common judgment, i.e. the judgment dated 05.09.2013 pronounced by the learned 3rd Additional Sessions Judge, Shaheed Benazirabad in Sessions Case No.281 of 2010 and Sessions Case No.281-A of 2013 emanating from Crime No.35/2010, for the offence punishable under sections 302, 364, P.P.C., registered at Police Station 60th Mile, District Shaheed Benazirabad. Through the impugned judgment, appellants namely, Ghulam son of Izat Lashari and Asif son of Nawaz Lashari were convicted for the offence under section 364, P.P.C. to suffer R.I. for 10 years and to pay fine of Rs.50,000.00 [Rupees fifty thousand only] each; in default thereof, they shall suffer S.I. for six months more. They were also sentenced for the offence under section 302(b), P.P.C. to death, with order to pay Rs.2, 00,000.00 [Rupees two hundred thousand only] each as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. While appellant Rajab son of Izat Ali Lashari was sentenced for the offence under section 302(b), P.P.C. to life imprisonment, with order to pay fine of Rs.2,00,000.00 [Rupees two hundred thousand only] as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. He was also sentenced for offence under section 364, P.P.C. to suffer R.I. for 10 years and to pay fine of Rs.50,000.00 [Rupees fifty thousand only]; in default thereof, to suffer S.I. for six months more. All sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to the appellants. A reference for confirmation of death sentence awarded to appellants Ghulam and Asif was also sent to this Court for confirmation.

2. The factual matrix of the case is that on 02.08.2010, complainant Haji Arbab lodged FIR stating therein that he and his nephew Jabir Hussain were running hotel and Jabir Hussain used to bring meal from his house usually. On 30.05.2010, when Jabir Hussain was bringing meal towards hotel situated at 60th Mile stop, he was found missing and disappeared at village Baharo Khan Lashari situated in deh 18- Nusrat and his whereabouts could not be traced out but later on complainant came to know that accused Izat Khan and his sons namely Ghulam, Asif, Rajab and three unknown persons had abducted Jabir Hussain. On approach, the accused admitted their guilt and promised to return Jabir Hussain and to make private faisla but after false hopes they refused. Consequently, the complainant lodged FIR for the offence under section 364, P.P.C.

3. During course of investigation, appellants namely Ghulam and Asif were arrested on 08.08.2010, they admitted their guilt stating that they killed and buried deceased Jabir Hussain and on their pointation, incriminating articles viz. knife and lathi were recovered. While on 23.08.2010, appellant Rajab and acquitted accused Izat were arrested and on the pointation appellant Rajab, police recovered lathi, which was allegedly used in the commission of offence.

4. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence. The learned trial Court framed the charge against the accused, who pleaded not guilty and claimed trial. Since the appellant Rajab was declared as 'Juvenile' by the Medical Board, hence, his case was tried separately.

5. In order to establish their case, the prosecution examined complainant Haji Arab, who produced FIR; PW Rashidullah, mashir Muhammad Ibrahim, who produced mashirnamas of place of incident, arrest of appellants Ghulam and Asif, place of burial, place of incident where deceased was murdered, recovery of incriminating lathi and dagger, grave of deceased Jabir, recovery of last wearing cloths and plastic bag, arrest of appellant Rajab, recovery of lathi. PW ASI Arab was also examined. PW Dr. Ali Gohar was examined, who produced letter of Director General, letter of MS, Exhumation of deceased, letter to Chemical Examiner, final Exhumation and postmortem report, Chemical Examiner's Report and letter of permission of appearance. PW SIP Muhammad Tahir was also examined, who produced letter of Chemical Examiner report, letter of SHO to Civil Judge, entries Nos.5, 15, 8, 9, 7, 10, 2 and

15. PW Syed Paryal Shah SDM was also examined, who produced letter of concerned Magistrate, letter of DDO. PW Khadim Hussain Tapedar was examined, who produced sketch of place of incident. After closure of side through Statement of learned DDPP, statements of appellants under' section 342, Cr.P.C. were recorded. In their statement, the appellants denied all the allegations levelled against them by the prosecution and claimed their innocence. The appellants examined themselves on oath under section 340(2), Cr.P.C. however, they did not examine any witness in their defense.

6. After observing all the legal and requisite formalities, trial Court found the appellants guilty of the offence with which they are charged and pronounced the sentences as stated above while acquitted accused Izat Khan.

7. Learned counsel for the appellants after going through the entire prosecution evidence pointed out certain contradictions in the deposition recorded before the trial Court. They contended that the incident is unseen and whole case is based on circumstantial evidence. According to them, the prosecution could not establish the allegations against the appellants through their evidence even the evidence of complainant and his witness is not in the line which is very much contradictory with medical evidence as medical evidence with regard to the stand taken by complainant is silent. The appellants in their statements on oath established their innocence and their evidence could not be shaken by the prosecution but the trial Court has ignored the same. They prayed for acquittal of the appellants.

8. On the other hand, learned Additional Prosecutor General Sindh has stressed that the murder of deceased is un-natural but after scrutinizing the whole material of the case admitted that the prosecution could not connect the appellants in the commission of offence with resembling chain.

9. We have heard the arguments advanced and have scanned the entire material in the light of valued submissions made before us.

10. In the instant case, complainant has booked the acquitted accused Izat Ali and his three sons, the appellants namely, Ghulam, Asif and Rajab with allegation of the abduction of deceased Jabir Hussain on 30.05.2010, and in this regard, he lodged report of the incident on 02.08.2010 after two months and three days; however, subsequently, on captivity and pointation of appellants, the complainant came to know about the murder of deceased Jabir Hussain, hence, the accused were also charged under section 302, P.P.C. The complainant during his cross-examination has stated that the deceased informed his wife and mother regarding meeting with acquitted accused Izat Khan and appellants before going to hotel of complainant and after disappearance of the deceased, the complainant met with Izat Khan on the next day. It is important to note that if this fact for meeting of the deceased with accused party was in the knowledge of the complainant, mother and wife of the deceased then why they did not lodge report promptly instead waiting for two months even the mother and wife of deceased have not been examined. PW Rashidullah in his deposition also deposed regarding the incident. Another very important aspect of the case is that the incident is admittedly unseen, hence, the investigation carries very significance to dig out the truthfulness as to whether the deceased was murdered by the accused party. The Investigating Officer in this regard after arrest of the appellants and recovery of incriminating articles got exhumed the grave of deceased allegedly on the pointation of appellants in presence of Special Magistrate and thereafter Dr. Ali Gohar being Convener/Member of Medical Board for conducting the post mortem of deceased, was examined, who produced the post mortem (Exhumation) report. After examination of the dead body, the Medical Board opined as under:-- "The SMB is of the unanimous opinion that the soft tissues findings were absolete / destroyed due to advanced stage of de composition. The hard tissues (Bones) do not reveal any external mark of violence leading to fracture. However the blackish mass and other material mentioned above were sent to the chemico Bacterial Laboratory at Rohri for the toxicological examination. The final opinion will be given after the reports received from the concerned authority." Following articles contained in the parcel were sent to the Chemical Examiner, Chemico-Laboratory Sukkur at Rohri for analysis:

1. Mud outside the grave . Bottle No.1.

2. Mud above the coffin Bottle No.2.

3. Mud below the coffin Bottle No.3.

4. Nail and Hairs . Bottle No.4.

5. Bone Parcel No.5.

6. Preservative sample Bottle No.6.

7. Blackish Mass Thoraco abdomen .. Bottle No.7. The Chemical Examiner, Chemico-Laboratory Sukkur at Rohri after analysis submitted his report as under:- "No any above said poison has been detected from the viscera and other material of the above said bottles Nos.2, 3, 4 and 7 and parcel No.5."

11. It is very noteworthy to mention that the evidence of the prosecution witnesses must be in line with the medical evidence and the complainant party must establish the last movement of the deceased with the persons against whom the allegation of his murder are levelled. As already stated above, the last conversation of the deceased was made with his mother and wife but both have not been examined by the prosecution, hence, non-examination of said ladies smashed the continuity/meeting of deceased with the appellants. Not only this has dented the prosecution case but the Investigating Officer of the case SIP Muhammad Tahir [Exhibit-20] deposed in his evidence that appellants Ghulam and Asif led him voluntarily at fence and produced dragger like knife and lathi, which were allegedly used in the commission of offence and the case property was sealed by him and prepared such mashirnama, however, neither the Investigating Officer or such mashirnama say regarding the case property as to whether it was stained with blood. Even no mud was secured from place of incident for chemical analysis. Though the motive of incident is suggested by the prosecution during cross-examination of accused regarding receipt of goats on profit is denied but it is not established by the prosecution witnesses during their examination.

12. It is prime duty of the prosecution to establish the case against the accused beyond shadow of doubt but in the instant case irrespective of illegalities as well as contradictions pointed above, the case property i.e. knife and lathi allegedly recovered from appellants Ghulam and Asif on 08.08.2010, lathi allegedly recovered from appellant Rajab on 23.08.2010 and clothes of deceased sealed on 20.08.2010 were sent by SIO PS 60-Mile through P.C. Habibullah on 21.09.2010 after one month and 1-1/2 month of respective recoveries and received by the Chemical Examiner on 22.09.2010, however, there is no explanation for such long delay in sending the case property even the carrier of the case property P.C. Habibullah was not examined in order to substantiate that the case property was in safe custody during the period of its seizer till receipt before Chemical Examiner. As far as extra-judicial confession of the appellants is concerned, it is inadmissible as per the provision of Article 38 of Qanun-e-Shahadat Order, 1984.

13. It is worth mentioning that when the factual matrix of the case is judged by considering the circumstantial evidence keeping the medical evidence in juxtaposition, the case against the appellants appears not free from doubt. In the instant case, the prosecution also remained failed to explain about the delay in lodging FIR especially when the complainant known the conversation of the deceased with his mother and wife who were informed by the deceased regarding meeting with the accused. Prosecution also could not explain about non-examining of the mother and wife of the deceased.

14. It is well settled principles of criminal administration of justice that no conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story is adduced by the prosecution. We are of the opinion that in the present case, the prosecution story engulfed under the thick clouds of doubt, as such, we are of the considered view that prosecution failed to establish the guilt of appellants at home without reasonable doubt.

15. In these circumstances, we have no other option but to allow the appeals, as such, the appeals are allowed through our short order dated 27.11.2018, whereby the appellants were acquitted of the charge and ordered to be released forthwith if not required in other custody case. These are the reasons for our aforesaid short order.

16. As a result of our above findings, the reference as provided under section 374, Cr.P.C. submitted by trial Court for confirmation of death sentence to the appellants Ghulam and Asif is declined. SA/G-19/Sindh Appeals allowed.