2013 PLP 1184 (YLR)

ABDUL RASOOL MEMON, J.

These two Criminal Appeals bearing No.473 of 2011 and 515 of 2011 are filed by the appellants namely Iftikhar, Murad Khan, Ghulam Azam alias Fuji, Anwar and Deedar against the impugned Judgment dated 28-10-2011 passed by Additional Sessions Judge, Malir, Karachi Sessions Case No.118 of 2005 under sections 302, 201, 342/34, P.P.C. whereby all the appellants have been convicted under sections 302/34 of P.P.C. by awarding R.I. for "Life" and to pay fine of Rs.200,000 (Rupees two lacs) each, in case of default they shall suffer further R.I. for one year more.

2. The prosecution story as narrated in the F.I.R. recorded by one Wahid Bux at Police Station Bin Qasim on 16-3-2005 is that in the evening time on 14-3-2005, his nephew namely Haji son of Saleh and his relative Karmi son of Allah Dino had gone for hunting of rabbits towards jungle, but they did not return back. On 15-3-2005, he started search of them and on 16-3-2005, he saw some suspect foot prints of the persons in jungle and the said foot prints led him to some distance where they found dead bodies of both the relatives to whom they identified. Thereafter, he went to Police Station and recorded the F.I.R.

3. The investigation of this crime was carried out by SIO Ghulam Rasool Solangi, who arrested accused Ghulam Azam, Murad and Sabir under mashirnama (Exh.11/F) on 19-3-2005 and accused Deedar and Iftikhar were arrested on 22-3-2005 vide mashirnama (Exh. 7-A), who pointed out the place of wardat to the I.O. He produced the accused Ghulam Azam alias Fouji, Murad and Sabir before the Magistrate on 28-3-2005 for identification and produced the witness Abdul Hameed Gulzaman, Muhammad Moosa and Bachando Khan before the Magistrate for recording their statements under section 164, Cr.P.C. and after completing the investigation, he submitted challan before the Court against accused Ghulam Azam alias Fuji, Murad Khan, Sabir, Iftikhar, Deedar and Anwar.

4. A formal charge was framed against the accused to which they pleaded not guilty and claimed their trial. Resultantly, the trial commenced against the appellants.

5. In order to prove the case, the prosecution has examined as many as eight (8) witnesses. Complainant Wahid Bux and I.O. Ghulam Rasool have not been examined and the prosecution closed the side vide statement (Exh.16).

6. During the trial, accused Sabir Hussain son of Javed Iqbal became absconder and his case was kept on dormant file.

7. On conclusion of prosecution evidence, statements of accused/appellants were recorded under section 342, Cr.P.C. wherein they specifically denied prosecution allegations and professed innocence. The accused/appellant Ghulam Azam alias Fuji has stated that he has been involved in this case due to suspicion.

8. On the basis of evidence brought before the trial Court, the learned trial Court came to the conclusion that charges against the accused/appellants have been proved and sentenced them in the terms stated hereinabove.

9. I have heard Messrs Rao Muhammad Sharif, Shamsul Hadi and Abdul Razzaq, learned counsel for the respective appellants and Mr. Abrar Ali Khichi, learned A.P.-G. for the State.

10. The learned counsel for the appellants have contended that the prosecution case is based on the evidence of last scene of P.Ws. Gulzaman and Muhammad Moosa, ocular evidence of P.W.4 Abdul Hameed, recovery of belongings of the deceased and the articles used for the commission of alleged offence and identification parade. They have contended that last scene evidence itself is not sufficient to sustain the charge of Qatl. The ocular evidence of P.W. Abdul Hameed is contradictory to his own version given in 164, Cr.P.C. statement. This witness has made improvement and given changing version to bring his case in the line of evidence of P.Ws. Gul Zaman and Muhammad Moosa whose evidence is of the last scene and the improvements, on the very face of it are deliberate, dishonest and cause serious doubt on the veracity of evidence of this witness. There is un-explained inordinate delay in holding identification parade which is a weakest type of evidence. In such circumstances, as per learned counsel for the appellants, the prosecution case is not free from doubt. They have cited the following cases:-- (1) Mir Mat Khan alias Matokai v. The State (2002 PCr.LJ 1914). (2) Muhammad Ramzan and another v. The State (2011 YLR 2379). (3) Muhammad Ashraf v. The State (1986 PCr.LJ 2209). (4) Dhani Bux v. The State (2011 PTD 1419). (5) Rahat v. Muhammad Ismail and 2 others (2002 SCMR 233). (6) Nadir Khan v. The State (PLD 1992 Federal Shariat Court 390). (7) Qassim and others v. The State (2004 PCr.LJ 181). (8) Muhammad Ashiq v. The State 1990 PCr.LJ 368. (9) Esso and 2 others v. The State 2004 MLD 1423). (10) Ghulam Rasool v. The State 2002 MLD 7). (11) Inayatullah v. The State (2002 PCr.LJ 34) (12) Ghulam Akbar and another v. The State (2008 SCMR 1064). (13) Ahmed Jan v. The State (PLD 2005 Quetta 110). (14) The State v. Muhammad Haroon and 2 others (PLD 2006 Karachi 20). (15) Ashraf Ali and another v. The State (2001 YLR 505). (16) Taha v. The State (2003 YLR 166). (17) Abdul Wahid v. The State (2012 YLR 374). (18) Abdul Majeed v. The State (2012 YLR 841). (19) Maqsood v. The State (2012 YLR 986). (20) Dadan alias Allahdad v. The State (2000 MLD 595).

11. Conversely, learned A.P.-G. strongly opposed the arguments advanced on behalf of appellants, to support the prosecution and the impugned judgment, however, he was unable to cope with the inherent infirmities lacking on the prosecution evidence.

12. I have given anxious thoughts to the arguments rendered by the learned counsel for the appellants and learned A.P.G. and minutely scanned the evidence available on record.

13. According to the contents of F.I.R. this incident is unseen. The prosecution has examined two witnesses namely, Gul Zaman at Exh.4 and Muhammad Moosa at Exh.5 as P.W/32. They have stated that they saw Fuji alias Azam, Murad, Iftikhar, Sabir, Deedar and one unknown along with Haji and Karmi, who were going towards jungle in the evening on 14-3-2005 and they saw that a white colour Mazda truck and donkey cart were also standing there. Thereafter, on 17-3-2005, they read the newspaper that the dead bodies of Haji and Karmi were found from the area of Port Qasim. After knowing this, they went to Wahid Bux complainant and narrated the above facts to him.

14. P.W.4 Abdul Hamid is the main witness of this case by believing whose ocular testimony, the trial Court has convicted the accused/appellants. In his deposition he has deposed that on 14-3-2005, he was grazing the goats in jungle and he heard the cries, then he reached near Port Qasim Bridge in the jungle where he saw, 3/4 persons were hanging two men with electric pole by strangulating their neck with rope. They directed him to return back, therefore, he returned back due to fear from them. Thereafter, he read in newspaper that dead bodies of two persons, who have been murdered, were resident of Razzakabad, then he went to Razzaakabad and met with complainant Wahid Bux Baloch, who took him to Bin Qasim Police Station, but police asked him to come to court where he has to identify the accused persons. The identification parade was held in Court wherein he identified the accused persons namely Azam, Murad and Sabir. He has produced the memo of identification parade at Exh.8/A and his 164, Cr.P.C. statement as Exh.8/B.

15. In his cross-examination, he has stated that police recorded his statement under section 161, Cr.P.C. and he went to Police Station only one time. He came to the court after 3/4 days of the arrest of the accused and came to the court of Magistrate only for one time.

16. This witness has also been examined under section 164, Cr.P.C. which is produced at Exh.8-B wherein he has stated that on 14-3-2005, he was grazing goats in the area of Port Qasim Railway. He went to hill of sand and saw that two persons were tied in the neck with rope by four persons and four persons were trying to hang two persons. He went away from the place to his house with goats and sheeps. He told the said story to the villagers. They said him that the police is in his search. He went to police station, recorded his statement before police officials.

17. On perusal of two version of this witness, one given in the deposition and other in 164, Cr.P.C. statement at Ex. 8/B on the face of it suggest that there are material contradictions in his two statements. In deposition he has stated that there were 3/4 persons meaning thereby that he is not sure whether the persons were three or four. Moreover, in his statement under section 164, Cr.P.C. he has stated that he heard cries and then attracted towards the accused, witnessed the incident and then returned to village and narrated the story to the villagers, just on the very day, he came to Police Station and his statement was recorded but in his deposition before the court, he has not stated regarding disclosure of the incident to the villagers or his approach to the Police on the very day but he has stated that on reading newspaper he came to the complainant Wahid Bux at Razzakabad.

18. The improvement in the statement of this witness recorded before the Sessions Court has been purposely made by him in order to bring his evidence in line of statement of P.Ws. namely Muhammad Moosa and Gulzaman that they come to know regarding this incident by reading the newspaper of 17th after two days of the occurrence and thereby this witness has contradicted his previous statement wherein he has stated that he told the story to the villagers who told him that Police is searching him, hence he came to Police station on the same day, therefore, no implicit reliance could be placed on the statement of such witness who make improvement in his statement. Reliance is placed on a case reported as 1980 PCr.LJ

685. Moreover, if deposition of this P.W. recorded in court is to be taken as correct then also many question arise which makes the very statement of this witness doubtful. As per his statement he did not tell anyone and on coming to know after reading the newspaper on 3rd day of this incident he came to complainant Wahid Bux at Razaakabad and narrated the story to him then question arises, when on reading newspaper he came to Razzaqabad and told complainant Wahid Bux regarding this incident then who prevented him not to inform Police on the very day regarding happening witnessed by him on 14-3-2005. There is no explanation of any sort by the prosecution in this regard. This conduct of this witness about not telling anyone about occurrence till third day appears to be, rather unnatural and creates an impression that he had not witnessed the occurrence. In similar circumstances in a case reported in AIR 1996 SC 3471, it was held that the conduct of such witness was to be unnatural and create an impression that he did not witness occurrence.

19. There is another important fact which may also not be lost sight of that admittedly as per prosecution case the deceased were seen by the complainant and P.W. in the evening on 14-3-2005 while going to jungle for hunting the rabbits. Per this witness he was while he witnessed grazing goats in the jungle an incident on 14th in the evening. It is well established fact that the people who are professionally engaged in grazing domestic animals, they used to leave the house in the morning and return back to their houses at about 3/4 P.M. therefore, presence of the present applicant in the evening for grazing goats was not a normal course. Moreover, this witness has no independent corroboration except the evidence of last seen which too is week type of circumstantial evidence for basing conviction. Reliance is placed on PLD 1978 Supreme Court

21. This witness has also belied his statement by stating that he has gone once to the court and identification test of the accused and statement under section 164 were recorded on the same day. The memo of identification parade is produced as Exh.8/A which reveals that identification test of the accused namely Ghulam Azam alias Fuji and Ghulam Sabir was held on 28-3-2005 while his statement under section 164, Cr.P.C. at Exh.8/B is dated 1-4-2005. Thus on the very face of it, it appears that he has given contradictory statement in respect of his recording statement 164 statement and holding of identification on very day which is belied by the documentary evidence.

20. The other piece of evidence is identification parade. As per record, the accused Ghulam Azam, Murad and Sabir were arrested on 19-3-2005 as per mashirnama of arrest at Exh.11/F and their identification before Magistrate was held on 28-3-2005 after about 10 days of their arrest through P.W. Abdul Hameed. Moreover, it has also come on record that accused Deedar and Iftikhar were arrested on 27-3-2005 vide Exh.7/A but they were not put to identification test along with co-accused Ghulam Azam, Murad and Sabir. There is no explanation of any sort for inordinate delay in holding the identification parade. Moreover, perusal of memo of identification parade produced at Exh. 8/A reveals that P.W. Abdul Hamid did not point out at the accused persons by scribing their role during the identification parade. Moreover, the identification parade is weakest type of evidence as held in 1994 SCMR 137 and same on one hand is delayed one and also is not held in accordance with procedure laid down by the honourable Supreme Court in a recent case of Muhammad Ayaz v. The State reported in 2001 SCMR 70, therefore, it also creates shadow of doubt upon the identification of accused.

21. As per mashirnama at Exh.11/H dated 22-3-2005 the property viz. two pairs of black shoes of the deceased, yellow Qameez Shalwar of one person and deceased, yellow Qameez Shalwar of one person and two sash-cord, one white blue gray shirt, five wooden sticks height about 1-1/2 to 2 feets were recovered and same were sealed at spot in presence of mashirs Bachando and Syed Khuda Dino Shah.

22. P.W. Bachando who is mashir of recovery has been examined as Exh.12 has stated that recovery was made in his presence and he has produced the mashirnama of recovery dated 22-3-2005. In his cross-examination he has stated that recovery was made on 14-3-2005 in his presence at 12-30. He was suggested by learned defence counsel that as per recovery memo, recovery was made on 22-3-2005 but he has denied this fact, therefore, on the very face of it his statement is contradictory to the memo of recovery.

23. Per contents of F.I.R. the dead bodies were recovered lying on the open and land whereas as per memo as Exh. 11/A, the dead bodies were recovered from the ditches i.e. the bodies were buried. This contradiction in statement of complainant narrated in F.I.R. and recovery memo of the dead, bodies at Exh.11/A, creates shadow of doubt regarding the actual place of incident.

24. In view of the above discussion, the evidence of P.W Abdul Hameed is not free from doubt and so far the evidence of Gul Zaman and Muhammad Moosa on the point of last scene is a weakest type of evidence and in all circumstances, could not form the basis of sustaining a conviction of the appellants in accordance with the principles and state of evidence brought on record. Reliance in this respect is placed on 2003 YLR 1364 PLD 1991 SC 718 and PLD 1978 SC 21.

25. In view of the above discussion, evidence of P.W. Abdul Hameed is contradictory improbable and un-trustworthy. Identification has been held after un-explained delay, last scene of the deceased in company with the accused/appellants is also not helpful to the prosecution and recovery is also not free from doubt, therefore, the appellants are able to create dent in the prosecution case and its benefit should be given to the accused not as a matter of grace or concession, but as a matter of right in view of the case law reported in 1995 SCMR 1345.

26. In the result, both the above appeals are allowed, conviction and sentence of the appellants recorded by the trial Court vide judgment dated 28-10-2011 is hereby set aside and the appellants are acquitted. All the accused/appellants namely Iftikhar, Murad Khan, Ghulam Azam alias Fauji, Anwar and Deedar are confined in jail, they should be released forthwith if not required in any other case. HBT/I-23/K Appeals allowed.