2018 PLP 139 (YLRN)

OMAR SIAL, J.

The Appellant has impugned a judgment dated 28-12-2010 passed by the learned 1st Additional Sessions Judge, Ghotki. In terms of the said judgment, the Appellant was convicted and sentenced to imprisonment for life and to pay a fine of Rs. 100,000 (or R.I. of six months more in default). He was also directed to pay Rs. 200,000 as Diyat amount to the legal heirs of the deceased or suffer another six months R.I. in default. Through this judgment I will dispose of the captioned appeal.

1. Brief facts, as narrated in the FIR, are that one Sahib Dino on 14-9-2001 reported to the police station that on 13-9-2001 he was sleeping along with his family in the courtyard of their house. At about 2330 hours they heard a noise and woke up. His father Jiand flashed his torch and on that light they saw the Appellant with two others named Mushtaq and Bhooro standing. The Appellant was armed with a pistol, Mushtaq with a hatchet and Bhooro with a gun. The Appellant reminded the complainant party of a past dispute after which he shot at Jiand. The complainant's brother Hakim Ali grappled with the assailants and was also shot by the Appellant. The complainant was hit several times with the butt of the gun carried by Bhooro whereas his mother Arbab was hit by Mushtaq with his hatchet. Jiand and Hakim subsequently died whereas the other two were injured. Two individuals named Dodo and Attur arrived immediately thereafter and upon seeing them the assailants ran away. A FIR bearing number 209/2001 was registered against the assailants under sections 302, 452, 324, 34, P.P.C. at P.S. Ghotki.

2. The assailants were all arrested on 29-9-2001 and on 8-10-2001 the pistol used in the crime was recovered upon the pointation of the Appellant.

3. A charge against the accused was framed on 6-7-2002 to which the accused pleaded not guilty and claimed trial.

4. In order to prove its case the prosecution examined six witnesses. PW-1 Sahib Dino was the complainant. PW-2 Arbab Khatoon was the mother of the complainant and injured in the incident. PW-3 Ali Nawaz Kolachi was the investigating officer. PW-4 Dr. Moula Bux was the doctor who examined the deceased and injured. PW-5 Loung Khan Shar was the arresting officer. PW-6 Niaz Ali was the police officer who submitted the final report under section 173 in court.

5. On 25-11-2010 the section 342 Cr.P.C. statements of the accused were recorded. All three pleaded innocence.

7. On 28-12-2010 the impugned judgment was announced in which accused Mushtaq and Bhooro were acquitted and the Appellant sentenced as above.

8. I have heard the learned counsel for the Appellant as well as the learned APG. The complainant and his counsel remained absent despite notice. My observations are as follows.

9. The FIR in the case was written by investigating officer PW-3 Ali Nawaz. Ali Nawaz is also the author of the (i) memo of injuries to Hakim and Jiand (ii) memo of inspection of the dead body of Jiand (iii) inquest report of Jiand (iv) memo of inspection of dead body of Hakim (v) inquest report of Hakim (vi) memo of site inspection (vii) memo of seizure of clothes of the deceased Jiand (viii) memo of seizure of the clothes of the deceased Hakim. All were prepared at different times in the period 0030 hours to 0940 hours on 14-9-2001.

10. For the memos listed at serial numbers (i) to (vi) Ali Nawaz cited one Rasheed and one Ali Hasan Bozdar as the witnesses. In his cross-examination Ali Nawaz admitted that there were many people present at each place yet he chose the same witnesses for each memo. Even the dead body of deceased Jindal and Hakim was identified by these two witnesses. According to Ali Nawaz's own testimony, these witnesses lived at a distance of twenty five to thirty kilometers away from the place of incident. The Appellant along with the other two accused were all arrested by PW-5 Loung Khan Shar from the same place on 29-9-2010 but yet again the witnesses to the memo of arrest were the same Ali Nawaz and Rasheed. Choice of these witnesses who had no explainable reasons to be present at every spot the memo was made coupled with the fact that neither of the two, Ali Hasan Bozdar nor Rasheed was examined in trial sheds a suspicious light on the entire investigation process. Similarly, the ostensible witnesses H.C. Allah Bux and P.C. Sher Mohammad who were the witnesses to the memos listed at serial (vii) and (viii) were also not examined in trial.

11. The case of the prosecution is that the Appellant was armed with a pistol and that he inflicted the injuries to the two deceased with the same weapon. PW-4 Dr. Moula Bux who conducted the post mortem on the two deceased deposed that "it is correct to suggest that there are wounds of different types on the person of deceased Jiand and Hakim Ali. The injuries may be caused through different weapons." He went on to depose "I can not say whether the wounds on the body of deceased are the result of firearm through pistol." The medical evidence is therefore not in line with the ocular version.

12. The memo of site inspection details that footprints could not be gathered from the, place of incident as the floor was "pacca". How then did the investigating officer collect earth that was stained with blood remains surprising. The memo also records seizure of a "blood stained hatchet" from the site. PW-1 the complainant in his testimony deposed that the co-accused Mushtaq carried a hatchet that fateful night and that he had hit his mother PW-2 with the "back side" of the hatchet. PW-3 Arbab Khatoon however in her deposition stated that the accused Mushatq hit her left hand with the sharp edge of the axe and her back with the blunt end. The doctor's medical report does not record the injury on the back but instead records an abrasion on her head. The report also records a 0.2 cm x 0.5 cm incision on the middle finger of her left hand. Certainly, the hatched would not be blood stained too with such a hit. Even a lay man could conclude that this is not an injury that a hatchet blow would cause. Apart from the fact that Arbab and Sahib Dino's testimony does not corroborate each others, the medical report does not corroborate with the deposition of both these witnesses. In any case, no forensics was conducted to ascertain whether the blood on the hatchet matched that of Arbab's.

13. The complainant PW-1 deposed that the Appellant made the first fire at the deceased Jiand from a distance of 10-15 feet. This shot hit his penis. The doctor in his report recorded blackening and charring on this injury suggesting that the fire was made from a maximum distance of four-five feet. The learned APE argued that in the heat of the moment a person can not be expected to remember exactly the distance from which an assailant fired. Perhaps, in some situations that is correct; however, in the present one where the complainant remembers with such great detail the events of that night, one would expect him to also remember this detail with the same accuracy. If he is correct about the distance then the medical report negates his story; if he is not correct then what credence can be given to the rest of his narration?

14. No medical report was produced in trial for the ostensible butt blows that the complainant alleged he received at the hands of the assailants. Why would the assailants leave the complainant alive knowing fully well that they would be identified by them is also surprising and creates doubts in the prosecution story.

15. PW-1 deposed that "one policeman had reached the place of incident in a police vehicle, in which we had brought the injured to the taluka hospital Ghotki." Who this policeman was, what was he doing in his official vehicle in that village in the middle of the night is explained only to the extent that he was "attracted by the firing reports." Whoever that policeman was, he was never identified, neither did the police record his statement nor examined in trial. In a compete contradiction to PW-l's deposition, his mother PW-2 deposed that "we had brought the injured in a tanga to the taluka hospital Ghotki." Once again, doubt arises whether the ostensible eye-witnesses were even present on the scene.

16. PW-1 in his testimony deposed that two persons named Dodo and Attur had reached the place of incident in the immediate aftermath. These two persons appeared as defence witnesses instead of prosecution ones. Dodo deposed that when he reached the place of the incident that night after he heard gunshots the "complainant and the injured did not disclose the names of the culprits before me." Dodo also deposed that his police statement on record dated 16-9-2001 was not recorded by him but that "my statement was recorded in my absence." Attur deposed that he only saw Jiand injured when he reached the place of incident and that no name of the assailants was disclosed to him as well. Exactly like Dodo, Attur too stated that he had not given the police any statement and that the one on record was recorded in his absence. Both also deposed that they saw none of the accused on the scene when they arrived.

17. The pistol ostensibly recovered in trial was not produced in evidence. The investigating officer only stated that a separate case was registered for the unlicensed weapon but that he did not know what the fate of that case was. Learned counsel for the Appellant argued that the Appellant has been acquitted in that case.

18. The story as narrated in the FIR does also not sound credible. It is an admitted position that it was a dark night and that the only way the assailants were recognized was on the torch light that the deceased Jiand flashed on the faces of the assailants. It is also the complainant's story that Jiand was shot immediately thereafter. How then could the complainant party narrate with such precision the events after Jiand was shot is rather surprising. The torch, though handed over to the police, was never produced in trial or seized under a memo. The dialogues between the assailants and the complainant party on the spot immediately before the incident also create doubt that the story as narrated by the prosecution is a manipulated one and has been created to make their case stronger.

19. The other two co-accused Mushtaq and Bhooro who are said to have trespassed into the-house and caused injuries to the complainant and his mother were acquitted by the trial court. Their acquittal also works in creating doubt in favour of the Appellant as if those two did not trespass then the Appellant should also be acquitted of that charge and if trespass can not be proved then where did the Appellant murder the deceased?

20. In view of the above, considerable doubt was created in evidence, the benefit of which should have gone to the Appellant. The prosecution failed to prove its case beyond reasonable doubt.

21. Above are the reasons for my short order dated 5-5-2017 in terms of which the appeal was allowed, the Appellant was acquitted of the charge(s) against him and was ordered to be released forthwith if not required in any other case. JK/M-93/Sindh Appeal allowed.