2019 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

By this judgment, I intend to decide the instant appeal whereby Appellant/Convict Haji Khan Devro has assailed the judgment dated 20.09.2017, passed by the learned VI-Additional Sessions Judge, Larkana, in Sessions Case No.186/2012, (State v. Haji Khan Devro and others), emanating from Crime No.169/2011 of P.S. Waleed, for offences under sections 302, 114, 34, P.P.C., whereby the appellant has been convicted for offence under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.100,000/-, if realized to be paid to the legal heirs of deceased Javed, and in default in payment thereof to suffer S.I for two years more. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. The prosecution case as narrated by the complainant Rajib Ali Kharal, who lodged the FIR at P.S Waleed on 07.12.2011 at 1700 hours, are that the marriage of his nephew Sajjan Ali was solemnized with the daughter of Abdul Fatah Devro about 7/8 years back and due to said marriage, the nephew of Abdul Fatah namely Ghulam Abbas son of Haji Jagan Devro and his relatives were annoyed and used to send the threatening messages. It is further stated in that on 07.12.2011, the complainant, his relatives, namely. Akhtiar Ali son of Ameer Bux Kharal and Roshan Ali son of Mohammad Peeral Kharal, were sitting at the vegetable shop of the complainant and were chatting, while son of the complainant Javed Ali, age about 19 years, was sitting at the counter of the shop, where at about 4000 p.m. two motorcycles came and stopped in front of the shop. From one of these motorcycles, accused Ghulam Abbas son of Haji Jaggan Devro and Haji Khan son of Qadir Bux Devro, got down while from the other motorcycle accused Baqa Mohammad son of Lal Khan Devro and one unidentified person got down. Out of them, accused Ghulam Abbas and one unidentified person were armed with pistols and as soon as the accused persons got down from the motorcycles, they challenged Javed Ali, the son of the complainant, by saying that he was previously prohibited from contracting marriage of his cousin Sajjan with the daughter of Abdul Fatah but the complainant party did not do so and contracted the marriage, therefore, he (son of the complainant) would not be spared and would be done to death. By saying so, at the instigation of accused Mohammad Baqa Devro, accused Ghulam Abbas Devro made straight fire at Javed Ali which hit him; and at the instigation of accused Haji Khan, unidentified accused made straight fire at Javed Ali which also hit him and due to such injuries, Javed Ali fell down and blood started oozing from his wounds. The complainant party raised cries, and on the fire reports and their cries some people came running and seeing them, all the accused persons with pistols went away riding on the same motorcycles. Then the complainant party saw that Javed had sustained one fire arm injury at right side of his chest through and through and another fire arm injury at the back side bone and exited from right armpit; however, he was alive and taking breath as such he was immediately taken for treatment to Causality where he expired at 4.30 pm. The complainant, leaving dead body under the supervision of the witnesses, went to Police Station and lodged the FIR on the same day at 5-00 p.m. To such effect present FIR was lodged.

3. After usual investigation, I.O. submitted charge sheet before the trial court showing accused Haji Khan and Baqa Mohammad (since dead and proceedings against him already abetted vide order dated 30.03.2016) in custody while co-accused Ghulam Abbas and Abdul Jabbar as absconders and after completing the codal formalities the learned trial court declared the co-accused Ghulam Abbass and Abdul Jabbar as proclaimed offenders.

4. Copies of the police papers were delivered to the accused by the learned trial court under receipt at Ex.4, formal charge was framed at Ex.5, to which accused pleaded not guilty and claimed to be tried vide their pleas placed at Ex. 6 and 7.

5. To prove its charge, the prosecution examined PC Allahdad (corpse bearer) as PW-1 at Ex.8. he produced receipts at Exs.8/A and 8/B; SMO Dr. Mohammad Nawaz as PW-2 at Ex.9, he produced post mortem report at Ex.9/A; complainant Rajib Ali as PW-3 at Ex.10, he produced FIR at Ex.10/A, further statement at Ex.10/B; Eye-witness Akhtiar Ali as PW-4 at Ex.l1; another eye-witness Roshan Ali as PW-5 at Ex.12; PC (process server) Mohammad as PW-6 at Ex.13, his statement regarding conducting enquiry in connection with death of accused Mohammad Baqa was recorded; Mashir Qamaruddin as PW-7 at Ex.14, he produced Danishtnama Mashirnama of inspection of dead body, Mashirnama of place of occurrence, recovery of empties as well as collection of blood stained earth and Mashirnama of arrest and personal search of accused Haji Khan at Exs.14/A to 14/D, Tapedar Nisar Ahmed Zangejo as PW-8 at Ex.15, he produced sketch at Ex.15/A, ASI Abdul Ghaffar (author of FIR and I.O.) as PW-9 at Ex.16. The learned DDPP for the State closed the side of the prosecution evidence vide his statement at Ex.17.

6. The appellant/convict was examined under section 342, Cr.P.C. at Ex.19 to which he denied the allegations of prosecution levelled against him; however neither he examined himself on oath nor did he lead any sort of evidence in his defense.

7. I have heard Mr. Nadeem Ahmed Qureshi, learned counsel for appellant/convict, Mr. Sharafuddin Kaanhar, A.P.G for the State, Mr. Sarfraz Ali Abbasi for complainant and have scanned the record carefully, and the evidence adduced by the prosecution before trial court with able assistance.

8. Learned counsel for the appellant/convict has argued that role attributed to appellant is that he allegedly had instigated the unknown culprit to shoot the deceased and that unknown person latter was introduced as Abdul Jabbar who is son of the appellant. He next submits that parties are related inter se therefore non-identification of co-accused Abdul Jabbar, the son of appellant, by the complainant party later on show either the complainant was not available at the time of alleged offence or the same had not occurred in a manner as reported if the complainant was available at the time of offence and had the co-accused Abdul Jabbar been one of the companions of the accused, he should have recognized the accused. He next submits the motive as shown in the FIR was over the giving of hand of daughter of one Abdul Fatah who is also close relative to both parties, however, said Abdul Fatah had not been made as witness of the case nor was he examined by the prosecution before the trial court. He next submitted that co-accused Baqa Mohammad Devro (since died), was assigned role of instigation to co-accused Ghulam Abbass who allegedly caused murder of the Javed Ali, the deceased. He next submits that the role of causing murder of deceased Javed Ali is attributed to co-accused Ghulam Abbas and one unknown culprit, who later was introduced to be Abdul Jabbar son of appellant, and both are absconding. He next submits that police in order to please the complainant party have implicated these two elders of the community only to exert illegal pressure upon absconding accused so that they may be compelled to surrender. He; however, argued that it is settled law of the criminal jurisprudence that son cannot be punished for the sin committed by his father and vice versa father cannot be penalized for the offence committed by his son. He next submits that mechanism adopted by the police to rope the elders of the accused show their inefficiency; although the police being a State machinery is less with high range weapons beside heavy contingency as well high technology, particularly nowadays when everything has been made computerized, therefore; it is not beyond the approach of police to trace and apprehend the absconders, if they are not capable to deliver or to perform their paramount functions and need any assistance with regard to mechanism for apprehending the absconders, the case of Nasrullah v. SHO PS Jacobabad and others vide PLD 2016 Sindh 238 provides complete mechanism. He has also criticized that the roping of appellant in a case of this nature, particularly when no specific role is assigned to appellant and only to please the complainant party, such action of the police falls within the ambit of third degree which has not been recognized by the law of the land yet the police have been adopting such old methods bestowed to them through colonization system, he therefore; prayed that no case for maintaining conviction is made out and the trial court has wrongly convicted the appellant, hence, prayed for allowing for the appeal and acquittal of the appellant.

9. On the other hand, learned APG appearing for the State vehemently opposed the appeal and supported the impugned judgment; however, he could not controvert the roll attributed to the appellant particularly when the place of incident being a vegetable market, where, as admitted by the PWs, many people were available, none of them, being independent witnesses, was associated as witness in these proceedings.

10. Learned trial Court, after hearing the learned counsel for the parties formulated three points for consideration as under:

1. Whether on 7.12.2011 deceased Javed Ali expired due to unnatural death?

2. Whether on 7.12.2011 at about 4.00 p.m. at the shop of complainant Rajib Ali Kharl situated in Wakeel Colony opposite Fauji Foundation School, Larkana, the present accused along with accused Baqa Mohammad (proceedings against whom already abated), absconding accused Ghulam Abbas and Abdul Jabbar duly armed with pistols in furtherance of their common intention at the instigation of accused Baqa Mohammad fired from their respective pistols at Javed Ali, the son of the complainant and committed his murder by causing him fire arm injury?

3. What offence, if any, committed by accused?

11. The factum of unnatural death of deceased Javed Ali is not in doubt as has been discussed by the learned trial Court in the impugned judgment. Therefore, there is no dispute on this issue. However, Point No.2 needs consideration as to whether the present appellant has played any role in the murder of deceased Javed Ali.

12. In a murder case motive plays a vital role as without a strong motive nobody will take the life of an innocent person. In the present case the motive is shown to be the marriage of daughter of one Abdul Fatah Devro with Sajjan. Sajjan is stated to be the nephew of complainant Rajib Ali. In such type of cases only the person who wants to marry with the girl, whose marriage with some other persons annoys him, takes the revenge. However, the elders are not usually party to such cases. Both appellants i.e. Haji Khan Devro and Baqa Muhammad (since deceased) were old persons and it could hardly be believed that they would take part in such dispute, if there is any. In all this affair an old man of about 70 years does not fit properly as in such issues usually the young ones are interested.

13. There are also a lot of discrepancies and contradictions in the prosecution case. In the FIR it is alleged that "Hakal was given to my son Javed Ali and said that we have already restrained you from getting marriage of your cousin Sajjan with daughter of Abdul Fatah but you did not give heed and got them married, hence you will not be spared today." This story seems to be very odd and unbleiveable given the fact that Sajjan was cousin of Javed and Javed himself was only 19 years of age, therefore, neither he was the guardian of Sajjan nor one of the elders so that he could have any say in the marriage of Sajjan. It is quite natural to presume, as nothing has been brought on record to the contrary, that the marriage of Sajjan must be arranged by his parents or elders and not by Javed Ali. Therefore, it does not appeal to a prudent mind that hakal would be given to Javed Ali by the appellant/co-accused in this regard. Then, if the accused were not happy by marriage of daughter of Abdul Fatah with Sajjan, they must by annoyed with Sajjan and his parents or his elders and not with Javed Ali or his father. It is also to be noted that if any member of the accused party was infatuated with the daughter of Abdul Fartah he would take revenge himself from Sajjan and not from any other person who has nothing to do with the same. It is also not clear as to why the accused party was allegedly against the said marriage i.e. whether the daughter of Abdul Fatah was earlier engaged to any one of them or any of them intended to get married to her. It does not appeal to a prudent mind that someone will object to a marriage without any reason. In view of the above, the motive as shown by the complainant in his FIR has not been established as the person named Abdul Fatah, who being father of the girl whose marriage with Sajjan was the bone of contention due to which the incident, as alleged was not made a witness in the case to prove the motive for the incident.

14. Apart from the above, there are also contradictions in the evidence of the prosecution. In this regard reference may be made to the contents of the FIR, wherein the complainant states that "Today I along with my relatives namely Akhtiar Ali son of Ameer Bux Kharal and Roshan Ali son of Muhammad Peeral Kharal were sitting at my vegetables shop, we were chatting and my son namely Javed Ali aged about 19 years was sitting at counter of shop, when at 4-00 p.m. two motorcycles came at shop, out of which accused Ghulam Abbas son of Haji Jagan Devro and Haji Khan son of Qadir Bux alighted from one motorcycle and from second one motorcycle accused namely Baqa Mohammad son of Lal Khan Devro and one unidentified person got down, out of them accused Ghulam Abbas and unidentified accused were armed with pistols. However, the complainant, Rajib Ali, when entered the witness box to record his evidence, stated that on the said date "At about 4.00 p.m. four persons came on two motorcycles namely Haji Khan, Baqa Muhammad, Ghulam Abbas and Jabbar. Ghulam Abbas and Jabbar were armed with pistols." Thus, it would be seen that while in the FIR the complainant states that from the two motorcycles Ghulam Abbas son of Haji Jagan Devro and Haji Khan son of Qadir Bux alighted from one motorcycle and from second one motorcycle accused namely Baqa Mohammad son of Lal Khan Devro and one unidentified person got down; however, in his deposition he states that four persons came on two motorcycles namely, Haji Khan, Baqa Muhammad, Ghulam Abbas and Jabbar, now, he replaces "unknown person" with "Jabbar" who is said to be the son of the appellant. It has come on record that both the parties are related inter se and knows each other well. It is for this reason that name with parentage of all the accused have been mentioned in the FIR except for the name of the fourth person who was stated to be unidentified. There is no explanation for this substitution. A doubt creeps in here as to why in the FIR the complainant stated that along with the three named person one unidentified person came, while in his deposition he names the fourth person as Jabbar. The question arises as to whether Jabbar was known to the complainant or not. If he was not known to him then how he came to know that the fourth person who was armed with pistol was Jabbar. In his further statement also, the complainant has referred to the fourth person as "unidentified person" and has not named him as Jabbar. This creates a serious doubt in the prosecution case.

15. There is yet another contradiction in the FIR and deposition of the complainant with regard to giving of hakal. While in the FIR as well as in the further statement, it is alleged that "they while getting down gave hakal to my son Javed Ali and said that we have already restrained you from getting marriage of your cousin Sajjan with daughter of Abdul Fatah but you did not give heed and got them married, hence you will not be spared ...." However, in the deposition this very person states that "the accused Baqa Muhammad also give me hakal and also say that we have restrained you do not marry with the daughter of Fatah with Sajjan and all accused persons also give threats to us and also give hakal and also say that we will not spare you." In his deposition he is silent about the hakal given to his son Javed Ali. This also is a clear contradiction in the evidence.

16. On the point of instigation also there is contradiction in the evidence on record. While in the FIR it is alleged that at the behest of Baqa Muhammad Devro, accused Ghulam Abbas Devro made fire from his pistol at Javed Ali while Haji Khan instigated the unidentified person for making fire at Javed Ali. However, in his deposition (Exh. 10), the complainant deposed that "On the instigation of the accused Baqa Muhammad accused Jabbar made direct fire from his pistol upon which hit to my son Javed Ali..." This is also a contradiction as in the FIR he alleges that at the behest of Baqa Muhammad accused Ghulam Abbas made fire at Javed Ali while in his deposition he states that on the instigation of Baqa Muhammad, Jabbar made direct fire from his pistol which hit Javed Ali. From the deposition sheet of witness/complainant Rajib Ali it appears that at the time of recording his evidence he was 46 years of age, therefore, the contradiction cannot be attributed to old age. In case he was at the spot at the time of the incident all the events would be ingrained in his mind because of the gravity of the incident.

17. There is yet another important factor which needs consideration. In the FIR it is mentioned that "Complaint is that my nephew Sajjan Ali was wedded with daughter of Abdul Fatah Devro about 07/08 years ago, for which Abdul Fata's nephew Ghulam Abbas son of Haji Khan Devro and other relatives were annoyed." Thus, it is to be taken note of that the incident which annoyed Ghulam Abbas and his relatives i.e. marriage of Sajjan with daughter of Abdul Fatah, took place seven or eight years ago and retaliation occurred after such a long period of time when the parties are related inter se and live in close vicinity. It has also come on record by way of deposition of complainant Rajib Ali, that Sajjan and his wife are passing happy life. In case Ghulam Abbas was interested in marrying with said daughter of Abdul Fatah, then he would have targeted Sajjan Ali and not Javed Ali, a 19 years old boy who has no role in the marriage of Sajjan with daughter of Abdul Fatah. It has also come on record that Sajjan as well as Ghulam Abbas both are married to daughters of Abdul Fatah i.e. they are married to two sisters, both of whom are daughters of Abdul Fatah. This also creates serious doubt in the prosecution case.

18. PW Akhtiar Ali in his deposition has stated that "I have identified the accused persons by name namely Ghulam Abbas, Baqa Muhamad, Haji Khan and Abdul Jabbar." It does not appeal to mind that though he identified Abdul Jabbar but did not tell complainant about his identity. This is subject to presumption that the complainant did not know Abdul Jabbar previously which in itself is highly doubtful.

19. There is also force in the submission of the learned counsel for the appellant that no independent person from the locality was made witness in the case although many were available at the spot. The complainant in his deposition admitted that near his shop there are other shops also and after the incident so many people gathered there; however, he was unable to name any person whom he identified from the gathered people. It is very strange that he was unable to identify any of persons who gathered at the spot after the incident. There is no doubt that all the shop keepers near his shop would be known to him personally due to routine interaction. This also creates a dent in the case of the prosecution and in spite of availability of independent witnesses no one was made a witness in the instant case.

20. Similarly, PW Akhtiar Ali also stated that it is fact that incident took place at a busy place; however, even he was unable to give name of any person who gathered at place of vardat after the incident. This witness also stated that he is a property dealer and has a shop at Octroi Post No.7, Larkana. He stated that he gives full time to his shop. It is stated in the FIR that the complainant along with Akhtiar Ali and Roshan Ali were chatting with each other at the time of incident. It may be mentioned that the time of the incident is about 4-00 p.m. when the business is in full swing. However, Akhtiar Ali did not give any reason for his sitting and chatting with people at such time while leaving his shop. Therefore, it cannot be said that he was a natural witness. PW Akhtiar Ali in his cross-examination states that he was not examined by the police on the same day i.e. on the day of the incident and voluntarily stated that after expiry of 03 days he was examined by the I.O. at the PS at 2.00 p.m. In his examination-in-chief he stated that "After four days of the incident complainant Rajib Ali bound us that you will appear before the police on 11.12.2011. Where police recorded my statement and statement of PW Roshan Ali under section 161, Cr.P.C." This witness is also a chance witness and his presence at the spot when the incident took place is very doubtful as no explanation for his presence at such place and time is given.

21. PW Roshan Ali, who is also relative of complainant Rajib Ali, deposed that for the last 16 years he was residing in Larkana and was a mason by profession. This witness clearly stated that Abdul Fatah gave one daughter to one Sajjan and another daughter to accused Ghulam Abbas. This witness also stated that after the incident "a few persons were gathered" but was unable to give name of any such person. He also stated that his 161, Cr.P.C. statement was recorded after four days of the incident i.e. on 11.12.2011 at about 1.00 p.m. Since this witness states that he lives in Larkana and is mason by profession, therefore, his presence at the place of incident is also highly doubtful as he is not a natural witness. No explanation whatsoever has been given for his presence at the place of vardat.

22. On the factum of registration of FIR also there is contradiction in the statements of the witnesses. Complainant Rajib Ali, who lodged the FIR at PS Waleed, states that "I left Akhtiar and Roshan over dead body of Javed [and] approached the Police Station Waleed...", same statement was made by him in his further statement recorded on 11.12.2011, while PW Akhtiar Ali also states that the complainant left him and Roshan with the dead body of his son Javed Ali and went to PS Waleed where he has lodged FIR. However, PW Roshan Ali on the point of registration of FIR by the complainant stated as under: "We were accompanying complainant while he proceeded to PS Waleed for registration of FIR. I, PW Akhtiar Ali and mashir were accompany with complainant on the day of registration of FIR."

23. The first sentence of above quoted portion from the deposition of PW Roshan Ali contradicts the statements of the Complainant as well as PW Akhtiar Ali, that the complainant left PWs Akhtiar Ali and Roshan Ali with the dead body of his son Javed Ali and left for PS Waleed to record FIR as he states that he and Akhtiar Ali as well as the mashir accompanied him to the PS Waleed for recording the FIR. The second sentence, particularly the words on the day of registration of FIR" clearly suggest that the FIR was not registered on the day of the incident, as claimed by the prosecution. It seems that the FIR was registered after some delay on another day when Complainant was accompanied by PWs Akhtiar Ali and Roshan Ali as well as by mashir to the PS. This is a huge contradiction for which there is no explanation.

24. PW-7, Qamaruddin is the mashir of arrest. He also stated that he is close relative of complainant Rajib Ali. He admitted that there is vast difference in his signatures on the mashirnamas as well as his signatures available on his CNIC although he claimed to be educated person. He stated that he resides at Miro Khan Chowk, Larkana. He stated that nobody called him to act as mashir. However, he voluntarily stated that since the complainant was his uncle therefore he came forward to act as mashir. He did not remember whether the I.O. or the complainant called him to act as mashir. He stated that "I came into knowledge regarding availability of accused and proceeded with the I.O. on the day of arrest." He further states that "We left PS Waleed while time was 11.00 or 11.30 a.m. We stayed in Police Mobile at Shaikh Zaid Curve for waiting of accused persons as we had already information. I do not remember the time stayed at Curve. The accused persons were arrested from northern side of Aabri-Wah. I.O. prepared the mashirnama at the spot in standing condition. I do not remember the time consumed by I.O. at the spot in whole "karvai". We just parked our Police Mobile where both accused were standing at Aabri-Wah. Police jointly arrested the accused persons. Accused were tied by police with "Romal" [handkerchief]. I do not remember whether both accused were tried jointly or separately."

25. From the above deposition of PW Qamaruddin, the mashir of arrest, it transpires that the police mobile was parked at a place and the police party waited for the arrival of the said accused. Thus, it becomes doubtful that information was received by the police about presence of the accused at certain place because in that case the police party would have raided the spot and arrested the accused and there would have been no question of waiting for about two or more hours at the said Curve.

26. Apart from the above unexplained contradictions in the prosecution case, it also creates doubt in the case of the prosecution that despite availability of a number of people at the place of incident, as admitted by the complainant as well as by the PWs Akhtiar Ali and Roshan Ali, no independent witness was associated and all the witnesses are related to the complainant. It has come in the evidence of the complainant as well as PWs that at the place of vardat, apart from the shop of the complainant, there were other shops also and a number of people gathered at the place of vardat after the incident; however, neither the complainant nor the PWs were able to name any person out of the crowd which gathered at the spot nor any one was associated as witness in the case. This also goes against the prosecution as despite availability of independent witness no one was associated as witness and only relatives of the complainant were cited as witnesses of the prosecution. As discussed above, the presence of such witnesses is also highly doubtful as they are not natural witnesses and there was no explanation for their presence at the spot at the time of incident.

27. In view of the above contradictions in the evidence of prosecution witnesses and infirmities/flaws in the prosecution case, serious doubts have been created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:- "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

28. Accordingly, vide short order dated 31.01.2019, instant appeal was allowed and the impugned judgment dated 20.09.2017, passed by VI-Additional Sessions Judge, Larkana in Sessions Case No.186/2012, (State v. Haji Khan Devro and others), arising out of crime No.169/2011 of P.S. Waleed, Larkana, was set-aside to the extent of conviction and sentence of present appellant Haji Khan son of Qadir Bux Devro, and he was acquitted of the charge. He was in custody, and was ordered to be released forthwith if his custody is not required to be detained/kept for the purpose of any other criminal case.

29. Above are the reasons for the above short order. Instant appeal is disposed of in the above terms along with listed applications. JK/H-5/Sindh Appeal allowed.