2020 PLP 78 (YLRN)

AMJAD ALI SAHITO, J.

The above-named appellants/ convicts were tried by learned Additional Sessions Judge, Matiari in Sessions Case No.167/2013, for offences punishable under sections 302, 337-H(2), 34, P.P.C., vide Crime No.123/2013, registered at Police Station Hala whereby appellant Khamiso was awarded death sentence as Tazir under section 302(b), P.P.C. and to pay Rs.600,000/- to the legal heirs of deceased Anwar Hussain Memon as compensation under section 544-A, Cr.P.C. However appellant Babar Ali alias Raju was sentenced to suffer life imprisonment for offence under section 302(b) read with section 34, P.P.C. and to pay Rs.600,000/- to legal heirs of deceased Anwar Hussain Memon as compensation under Section 544-A, Cr.P.C. Both the appellants were also convicted under section 265-H(2), Cr.P.C. of the charge under section 337-H(2), P.P.C., and sentenced to pay fine of Rs.5000/- each. The benefit of section 382-B, Cr.P.C. was also extended to appellant Babar alias Raju.

2. The appellant Khamiso was also tried by learned Additional Sessions Judge, Matiari in Sessions Case No.74/2013, for offence punishable under section 25 Sindh Arms Act, 2013 vide Crime No.142/2013, registered at Police Station Hala whereby he was convicted and sentenced to suffer R.I. for five years to pay fine of Rs.10,000/- and in case of default in payment of fine he shall further undergo S.I. for six months. The benefit of section 382-B, Cr.P.C. was also extended to him.

3. Briefly stated facts of Crime No.123/2013 of Police Station Hala (Sessions Case No.167/2013) are that on 08.10.2013 at 0900 p.m. at Gulshan Faheem Colony near Allied Bank Hala, accused Khamiso and Babar Ali alias Raju, duly armed with pistols, in furtherance of common intention, came on motorcycle and opened straight fire upon Anwar Memon at his backside who fell down on the ground. The complainant party raised Hakals whereupon they went away while making aerial fires. The said Anwar Memon was taken to hospital at Hala where he succumbed to injuries.

4. Briefly stated facts of Crime No.142/2013 of Police Station Hala (Sessions Case No.74/2013) are that on 15.12.2013 at 1430 hours accused Khamiso while in custody in Crime No.123/2013 under section 302, P.P.C. of Police Station Hala during investigation volunteered to produce weapon used in the offence and led the police party headed by complainant SIP Tharoo Khan Bhatti of Police Station Hala to city graveyard, Deh Hala near his house wherefrom he dag out one unlicensed TT pistol 30 bore used in crime with magazine bearing No.3118, three live bullets, one mobile phone of MEGAGATE china company of black colour and one mobile phone of NOKIA company of red colour, hence FIR was registered.

5. After completing the investigation, charge-sheet was submitted against the appellants. Statements were supplied to appellants vide Ex.1. The formal charge against both the appellants was framed at Ex.02, to which they pleaded not guilty by their respective pleas recorded at Ex.2/A and 2/B and claimed their trial.

6. The prosecution in order to prove its case has examined the following witnesses:- PW-1 complainant Tehseen Hussain at Ex-3, who produced FIR as Ex-3/A and his further statement as Ex-3/B. PW-2 Muhammad Aslam at Ex-4, who produced mashirnama of clothes of deceased as Ex-4/A, Danishnama as Ex-4/B, mashirnama of injuries of deceased as Ex-4/C. mashirnama of examination of dead body of deceased as Ex-4/D. mashirnama regarding recovery of blood-stained soil and crime empties as Ex-4/E, mashirnama of place of incident as Ex-4/F. 164, Cr.P.C. statement as Ex-4/G, mashirnama of arrest of accused Babar and recovery of crime weapon and mobile phones as Ex-4/H and mashirnama of arrest of accused Khamiso and recovery of crime weapon and mobile phones as Ex-4/1. PW-3 Tapedar Ashiq Hussain at Ex-5, who produced sketch of wardat as Ex-5/A. PW-4 Dr. Abdul Jabbar at Ex-6, who produced police letter as Ex-6/A, Lash Chakas Form of deceased as Ex-6 B and post mortem report as Ex-6/C. PW-5 Jawad Hussain at Ex-7, who produced his 164, Cr.P.C. statement as Ex-7/A. PW-6 SIP Tharo Khan at Ex-8, who produced roznamcha entries Nos. 12, 13 and 14 as Ex-8/A, roznamcha entry No.13 regarding departure from PS for recovery of crime weapon from accused Babar Ali as Ex-8/B, roznamcha entry No. 11 regarding departure from PS for recovery of crime weapon from accused Khamiso as Ex-8/C and report of ballistic expert as Ex-8/D. PWs PC Sajjan Khan, PC Waheed Murad and SIP Muhammad Khan were given up by the learned DDPP vide statements as Exs-9 and 12 respectively. PW.7 Muzzamil at Ex-10, who produced mashirnama of arrest of both accused and recovery of motorcycle as Ex.10/A. PW.8 SIP Muhammad Aslam Bullo at Ex.11, who produced receipt regarding delivery of dead body of deceased to his relatives as Ex.11/A, letter issued to Mukhtiarkar Hala for preparing sketch of wardat as Ex.11/B and report of the chemical examiner as Ex.11/C. Thereafter learned DDPP closed the side of prosecution evidence vide statement as Ex.13.

7. Statements of both appellants were recorded under Section 342, Cr.P.C. at Exs.14 and 15 whereby they denied the allegations of prosecution but they did not opt to examine themselves on oath or examine witnesses in their defence.

8. The learned trial Court, after hearing the learned counsel for the parties and going through the material brought on record, awarded conviction and sentence to the present accused/appellants as stated above, vide separate judgments dated 20.10.2016, which the present appellants have impugned before this Court by way of filing instant appeals.

9. Learned counsel for appellants mainly contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been involved in this case by the complainant party; that the incident had taken place in dark hours of the night and identification of the appellants was made on light of bulb which was not produced at trial; that the FIR is delayed about two days for which no plausible explanation has been given by the complainant; that in this case motive is not proved and witnesses are interested; that place of incident is thickly populated area but not a single person from locality witnessed the incident to believe the presence of witnesses at the place of incident; that there are several contradictions in the evidence of the witnesses which are fatal to prosecution case; that the prosecution has miserably failed to prove the case against the appellants and thus under the abovementioned facts and circumstances, appellants are entitled to their acquittal.

10. On the other hand, Mr. Mumtaz Ahmed Lashari, advocate for complainant while rebutting the above contentions argued that though the names of the appellants were not mentioned in the FIR but subsequently, the complainant has implicated the appellants in this case; that the ocular evidence is consistent with medical evidence; that FIR has been lodged promptly and all the witnesses have supported the version of complainant; that there is no material contradiction in the evidence of prosecution witnesses and in that situation learned trial Court has rightly convicted the appellants in accordance with law. He lastly prayed for dismissal of captioned appeals.

11. Learned Assistant Prosecutor General has adopted the arguments advanced by learned counsel for the complainant and prayed for dismissal of captioned appeals.

12. We have heard learned counsel for the parties and have minutely perused the record. A perusal of the evidence of witnesses reflects that it is not only in contradiction to each other but it is also self-contradictory. As per statement of the complainant on 08.10.2013 he, Jawad Hussain, and Muhammad Aslam were present at Allied Bank street Hala town at 9.00 pm when this unfortunate incident took place, whereby deceased Anwar Hussain who was carrying articles in shopping bag reached near the street of Aisha Hospital, in the meanwhile two persons on motorcycle intercepted him, exchanged words with him and suddenly they heard fire sounds. They saw both the culprits on the light of bulb but could not identify them. Anwar Hussain was lying on the road of street, and they noticed that he had received firearm injury at his chest and bullet crossed out of his body. Jawad and Muhammad Aslam carried him on motorcycle towards hospital and he went to inform his brother Gul Muhammad subsequently Anwar Hussain had succumbed to injuries. On 10.10.2013 he lodged FIR, on same night police visited place of incident. On 11.12.2013 police called him and Jawad and Muhammad Aslam at police station and they accompanied with them upto Hala old Naka where they were checking the vehicles in the meanwhile same two culprits were found coming on motorcycle, they identified them and subsequently police arrested them. Such Mashirnama was prepared on the spot. "Whereas, the complainant in his further statement which was recorded on 11.12.2013 has disclosed that on 10.10.2013 he lodged FIR vide Crime No.123/2013 under sections 302, 337H(2), P.P.C. at Police Station Hala for murder of his sister's husband Anwar Hussain Memon and was kept on searching the accused and he came to know that accused Khamiso son of Rasool Bux by caste Jamali resident of near Girls College Hala Market Road Hala city and Babar Ali alias Raju son of Mulazim Hussain by caste Shah or Shaikh had committed murder by firing from pistol and they are real culprit hence they may be arrested". He further disclosed on 11.12.2013 police called PWs/eye-witnesses for arrest of accused persons. It is astonishing to note here that on 11.12.2013 in his further statement complainant/PW-1 had disclosed the names of accused persons along with addresses but police had not bothered to conduct raid on the given addresses but called the PWs at police station for arresting the accused when no spy information was with them about the accused/appellants. Further in cross-examination PW-1/complainant admitted that he had not mentioned the source of information. He has further deposed that "Voluntarily says that incident was also seen by one other eye-witness who identified the accused and disclosed their names but he refused to be the witness against appellants before police and Court as well and said person had disclosed the names of the accused persons/appellants". PW-6 Tharo Khan I.O. of the case given another story in his evidence, on 11.12.2013 "I received information on a telephone that real culprits in this crime Khamiso Ali, Babar Ali alias Raju".

13. In the FIR the complainant simply disclosed that Anwar Hussain who had gone to Hala city for some work was coming back towards his house on foot when at about 0900 p.m., they saw two persons on one motorcycle, one person sitting on rear seat of motorcycle fired upon Anwar Hussain which hit at his back. But in his evidence, he has given another story, that two persons intercepted deceased Anwar Hussain who was carrying article in a shopping bag in his hand and exchanged hot words with them and suddenly they fired upon him. His version was belied by eye-witness/PW.5 Jawad Hussain who has disclosed in his evidence that two persons on motorcycle came and attempted to rob Anwar Hussain. They snatched his mobile phone. Anwar Hussain resisted them whereupon they heard fire sounds, they saw Anwar Hussain received firearm injury. Anwar Hussain was conscious he and Aslam shifted him to Civil Hospital Hala where he succumbed to his injury at hospital. On 11.12.2013 police called him, complainant Tehseen and Aslam at old Hala Naka where police started checking and during checking two persons on motorcycle were coming and they were identified, subsequently they were arrested. His statement under section 164, Cr.P.C. was also recorded by Magistrate at Civil Court Hala. In Examination-in-chief he further disclosed that on 11.12.2013 police recovered motorcycle, pistol and mobile phone from accused Khamiso in his and presence of Mehboob. In continuation of his evidence he has disclosed that police also recovered pistol, magazine, and bullets from accused Babar alias Raju and also recovered mobile in presence of Aslam. In cross-examination he has admitted that he and Aslam had taken away the deceased on motorcycle towards hospital. The accused opened 4/5 fires including one which hit deceased others were aerial fires. We were sitting there for 45 minutes in the meanwhile incident took place. It is important to note here that witnesses Jawad was working as "Constable" in the police department and was posted in police line. On eventful day, he was on leave but no such proof was produced by him to believe that he was on leave. In his evidence he has shown his occupation as "student". On 15.10.2013 his statement under section 161, Cr.P.C. was recorded with delay of seven days, but no such explanation was offered by him. While recording his evidence the learned trial court has observed: "witness is not giving answers to the questions confidently."

14. The complainant disclosed that on 11.10.2013 first they came at police station, whereas PW Jawad Hussain submits that first police came at Hala Naka and then they reached by following them. In his examination-in-chief he disclosed that on 11.12.2013 police recovered mobile phone, pistol, and motorcycle, whereas in his cross-examination he admitted that on 17.10.2013 police recovered pistol and mobile phone from accused Khamiso. Things do not end here, the complainant had not disclosed in the FIR that at the time of committing offence, any article was robbed by the accused persons and in his examination in chief he stated that deceased was carrying articles in a shopping bag in his hand. PW Jawad Hussain has deposed that they snatched mobile phone from deceased Anwar Hussain. Memo of arrest and recovery of accused Babar Ali alias Raju Ex.4/H shows date and time as 15.12.2013 @ 1600 hours whereas memo of arrest and recovery of accused Khamiso shows date and time as 15.12.2013 @ 1400 hours, hence the arrest and recovery from accused creates doubt. The prosecution also examined PW.2 Muhammad Aslam, eye-witness of the incident, who also identified the accused persons in the light of bulb and deposed that on 08.10.2013 two persons on motorcycle intercepted Anwar Hussain and exchanged words, suddenly they heard fire report and saw that Anwar Hussain was lying on the road of street. He and Jawad carried him to hospital on motorcycle but Anwar Hussain succumbed to his injuries. The evidence of this prosecution witness is also not helpful to the prosecution. Both the witnesses complainant and Muhammad Aslam have deposed that after exchange of hot words they committed murder of deceased Anwar Hussain whereas PW Jawad Hussain disclosed that after committing robbery the applicants committed his murder. Witnesses Muhammad Aslam and Jawad Hussain shifted the injured Anwar Hussain on motorcycle to hospital and further disclosed that in the hospital he succumbed to injuries. Whereas PW.4 Dr. Abdul Jabbar deposed in his evidence that "The duration between death and injuries was instantaneous". Further PW-4 Dr. Abdul Jabbar submitted that all the clothes were stained with blood and mud. If it is so then naturally the clothes of PWs Muhammad Aslam and Jawad Hussain should be blood stained. Both the witnesses have failed to produce blood-stained clothes before the I.O. to believe that both the witnesses were present and witnessed the incident. Furthermore, the recovery of 30 bore pistols was affected from appellant Khamiso and Babar Ali alias Rajo on 15.12.2013 and I.O. of the case sent the same to Forensic Science Laboratory, Hyderabad on 20.01.2014 along with empties allegedly collected on 9.10.2013 from the place of incident. Crime empties were kept in the police station for about two months, no explanation in that regard had been offered as to why said crime empties were not dispatched immediately to the forensic laboratory after its recovery, hence, recoveries are also not helpful in this case, the reliance is placed upon the case of Muhammad Irshad v. Allah Ditta and others (2017 SCMR 142), wherein the Hon'ble Supreme Court of Pakistan has held that; "Alleged recovery of weapon from the custody of accused was legally inconsequential because admittedly the crime-empties had been sent to the forensic laboratory after the arrest of accused and after recovery of the weapon from his custody."

15. The prosecution has also examined PW.6 SIP Tharo Khan, I.O. of the case. He deposed that on 07.11.2013 he was posted as SHO P.S. New Hala and investigation of crime was given to him and he conducted investigation, two culprits in this crime were unknown persons he could not trace them, and on 23.11.2013 he after getting opinion from high officials submitted the report under section 173, Cr.P.C. for disposal of case under "A" untraceable class. On 11.12.2013 he received information on telephone that real culprits in the case are Khamiso Ali and Babar Ali alias Raju and they were coming from Hala Old to Hala New on motorcycle. Thereafter, he called complainant and witnesses at police station meanwhile complainant Tahseen Memon and witnesses Jawad Hussain and Muhammad Aslam came at police station and they left police station and arrested the appellants. In his chief he deposed that he came to know through telephone that the appellants are real culprits of the present case whereas the claim of the complainant is that he had been informed by some unknown person being an eye-witness of the case. The occurrence, in this case, had taken place at 09.00 pm at night and all prosecution witnesses have identified the culprits under the light of electric bulb but I.O. failed to secure the bulb during the investigation. In this context, the reliance is placed upon the case of Muhammad Ashraf Javeed and another v. Muhammad Umar and others (2017 SCMR 1999) wherein the Hon'ble Supreme Court of Pakistan has held that:- "

7. The Investigating Officer did not take into possession the Bulb, source of light, allegedly lit at the crime spot and no reason has been shown for such omission which was the only source of identification." In another case of Haroon Shafique v. The State and others (2018 SCMR 2118) the Hon'ble Supreme Court of Pakistan has held that:- "

3. The occurrence in this case had taken place during a night and although the prosecution had mentioned availability of electric light at the spot yet admittedly no electric bulb had been secured during the investigation of this case."

16. All the above material contradiction in the statement of the alleged eye-witnesses would lead to obvious inference that the occurrence was not witnessed by them and their presence at the spot was doubtful. The evidence of PWs does not appear to be trustworthy and inspire confidence. In this context, the reliance is placed upon the case of Zafar v. The State (2018 SCMR-326), wherein the Hon'ble Supreme Court of Pakistan has held that:-

11. Having discussed all the aforesaid aspects of the case, it has been observed by us that medical evidence, motive, recovery and for that matter absconding of appellant are merely supportive/corroborative piece of evidence and presence of eye-witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/ corroborative piece of evidence to convict the appellant on capital charge.

17. It is a settled proposition of law that prosecution is bound to prove its case beyond a shadow of a doubt. If a reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as grace or concession, but as a matter of right. Likewise, it is also a well-embedded principle of criminal justice that it is not necessary that there must be so many doubts in the prosecution case if there is a reasonable doubt arising out of the prosecution evidence pricking the judicious mind, the same would be considered sufficient for giving its benefit to the accused. In this respect, reliance can be placed upon the case of Mohammad Mansha v. The State (2018 SCMR 772) wherein the Hon'ble Supreme Court of Pakistan has held that:- "

4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."

18. In this case, the learned trial Court has not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding the appellants guilty of the offence. Resultantly, by our short order dated 28.08.2019 the instant jail appeals were allowed. The conviction and sentence awarded to the appellants were set-aside and they were acquitted of the charge by extending them benefit of doubt.

19. These are the reasons of our short order dated 28.08.2019 whereby the following order was passed:- "For the reasons to follow, these criminal jail appeals are allowed. The conviction and sentence awarded to the appellants are set-aside and they are acquitted of the charges. The appellants shall be released forthwith if they are not required in any other custody case. In view of the above, confirmation case No.20 of 2016 is replied in negative and is accordingly disposed of." JK/K-25/Sindh Appeals allowed.