2018 P Cr (PLP)

OMAR SIAL, J.

The Appellant has preferred an appeal against the judgment dated 31-3-2015 passed by the learned 6th Additional Sessions Court, Mirpur Mathelo. In terms of the said judgment the Appellant was convicted and sentenced as follows. a For an offence under section 147, P.P.C.: two years imprisonment and a fine of Rs.5,000/- (or S.I. for one month more) b. For an offence under section 148, P.P.C.: two years' R.I. and a fine of Rs.5,000/- (or S.I. for one month more) c. For an offence under section 302(b), P.P.C: imprisonment for life and diyat to the legal heirs of the deceased. d. For an offence under section 324, P.P.C. R.I. for ten years and a compensation of Rs.500,000/- for S.I. for one month more). e. For an offence under section 337-H(2), P.P.C.: R.I. for three months. f. For an offence under section 504, P.P.C.: RI. for two years and a fine of Rs.1,000/- (or S.I. for one month more).

2. The brief facts of the case as narrated in the FIR are that on 9-9-2008, the complainant Fateh Mohammad lodged a report at the police station stating therein that there was an ongoing dispute between one Abbas Gabol and the Appellant. The complainant along with his brother Mohammad Khan Cabol and some others had visited the Appellant with a view to reconcile their differences. The Appellant got annoyed with the visitors on the ground that they were supporting Abbas Gabol. On 8.9.2008 while the complainant was in his otaq along with his brother Muhammad Khan Gabol and his cousin Mehrab at about 10:00 p.m. eight persons (which included the Appellant) emerged armed with Kalashnikovs. The assailants first said that the complainant party would be killed because they were supporting Abbas Gabol and then the Appellant proceeded to shoot Mohammad Khan Cabol, who was injured and subsequently died. "The FIR bearing No.218/2008 under sections 302, 324, 337-H(2), 504, 147, 148 and 149, P.P.C. was registered at the Police Station Mirpur Mathelo.

3. The charge against the accused Ghulam Yasin, Manzoor Ahmed, Ghulam Mustafa, Ali Anwar, Munir Ahmed and the Appellant was framed on 31-8-2010 to which the accused pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution examined nine witnesses. PW-1 Dr. Shabbir Ahmed was the doctor who examined the deceased. PW-2 Fateh Mohammad was the complainant. PW-3 Atta Hussain was a witness who had reached the place of incident in its immediate aftermath. PW-4 Mehrab was an eye-witness. PW-5 Mohammad Ramzan Malik was the tapedar who prepared the sketch of the scene of incident. PW-6 Mohammad Suleman Gabol was the witness to the various memos made by the police. PW-7 Pathan Khan Soomro was the Investigating Officer of the case. PW-8. Manzoor Ahmed was the police officer who referred the injured to the hospital. PW-9 Dr. Tariq Abbas was the chemical examiner.

5. The accused recorded their statements under section 342, Cr.P.C. on 13-2-2014 and pleaded their innocence. They further stated that the deceased had enmity with many people and perhaps was killed in a tribal clash between the Mahar and Gabol tribes.

6. On 31-3-2015, a year later, the impugned judgment was announced. All the accused except the Appellant were acquitted.

7. I have heard the learned counsel for the Appellant and the learned DPG. The complainant and his counsel remained absent despite notice. My observations are as follows. i. The motive alleged by the complainant is a dispute between the Appellant and one Abbas Gabol. While absolutely no evidence was led in the trial to prove the motive, it seems strange that while admittedly Abbas Gabol lived in the same neighborhood as the complainant, the assailants chose to come and kill the complainant's brother instead of Abbas Gabol only because the complainant party was trying to reconcile the differences between the parties. The complainant admitted in his cross-examination that the accused had no enmity with them and that the three persons, namely, Abbas, Kaloo and Jabbar, with whom they had the enmity lived in the same village. It appears that the motive for the murder has been construed only in an effort to try and make the case stronger. ii. A heavily armed assailant party killed one person but did not even harm or injure the remaining two persons who were present (although the complainant too had admittedly attempted reconciliation between the parties) knowing fully well that they would implicate them, does not inspire confidence. I also find it unusual that the assailants would first loudly pronounce the reason they were going to kill a person and only then proceed to kill him. iii. The bulb in whose light ostensibly the complainant party recognized the assailants, was not seized by the police nor did the police record any observation about the source or light in any memo that it prepared. iv. The complainant in the FIR reported that the incident had occurred on 8-9-2008 at 10:00 p.m. In his testimony he deposed that it was correct, that they had reached the police station with the deceased at about 10:15 p.m. or 10:20 p.m. and that AS1 Manzoor Ahmed Jhatial was available at the police station when they reached there. The complainant specifically denied that they had reached the police station at 9:30 p.m. PW-8 Manzoor Ahmed Jhatial in his testimony deposed that the complainant had come to the police station with the injured at 9:30 p.m. on 8.9.2008. Such an entry was made in the roznamcha. Jhatial also deposed that the complainant had not disclosed any names as to who had caused the injuries. The very strange thing that happened in this trial was that Manzoor Ahmed Jhatial who was summoned as a prosecution witness was allowed to be cross-examined by the prosecutor without him being, declared hostile. The learned judge noted that as the witness had been summoned by the defence, he could be cross-examined by the State. The learned judge erred as the record clearly shows that Jhatial was summoned as a witness on the application of the prosecutor. In cross-examination the prosecutor posed questions to his witness suggesting that the roznamcha entry which he said he entered at 9:30 p.m. was a fake. Subsequently, the original roznamcha was produced by PW Abid Hussain and it turned out that the entry made at 9:30 was genuine. The entire prosecution case became doubtful with this final blow. v. Further, PW-4 Mehrab deposed that they took the injured from Mirpur Mathelo to Sukkur the same day i.e. 8-9-2008 at "7:00 or 8:00 at night". The FIR states that the incident occurred at 10:00 p.m. on 8-9-2008. vi. The medical report of the deceased shows that he had three punctured wounds on the left side or his abdomen which were designated as the wounds of entry whereas he had one wound on the left side of the abdomen which was designated as the exit wound. This would mean that two bullets were inside the body of the deceased. No such observation is given by the doctor of any bullet recovered from inside the deceased. vii. The injured Mohammad Khan was said to have been taken from the hospital in Mirpur Mathelo to the hospital in Sukkur to the hospital in Karachi. It is Karachi where the injured died on 20-9--2008 at about 6:30 p.m. No evidence was produced in trial to establish the link in Karachi. A dubious looking certificate was produced at the trial by the investigating officer this was said to have been issued by the hospital in Karachi with a stamp of an anaesthesiologist. No death certificate and cause of death from the Karachi hospital was produced. It could not be conclusively established that it was the firearm injury that actually led to the death of the deceased. The post mortem of the deceased for some unexplainable reason was conducted in Ghotki. PW-4 Mehrab who was said to be present with the injured in Karachi when he died deposed that the injured died at "20-9-2008 at about 6:30 p.m. then he was taken back in ambulance." The post-mortem in the Mirpur Mathelo hospital was started by the doctor at 8:00 p.m. on 20.9.2008. It is impossible to have reached Mirpur Mathelo from Karachi in one and half hour by any mode of transport let alone in an ambulance by road. The dishonesty of the prosecution witnesses becomes apparent. viii. The recovery of three empties of a Kalashnikov is also doubtful as the memo pertaining to the same made on 10-9-2008 at 9:35 a.m. states that the complainant came and handed over the empties to the police saying, that these were found from the scene of the incident. ix. The witnesses to all the memos prepared by the police are the same i.e. Mir Hasan and Suleman. They are close relatives of the deceased and interested witnesses. They had no logical reason to be at the place where the memo was made each time by the police. While being related to the complainant is no bar on these persons being witnesses, yet, in the circumstances of the case coupled with the other observations made above, their testimony cannot be completely relied upon. x. The prosecution case is kill of doubts and inconsistencies and appears to have been initiated and investigated dishonestly. The benefit of such doubt should have gone to the accused. xi. On the same set of evidence all other accused were acquitted of all charges against them.

8. Above are the reasons for my short order dated 24-5-2017 in terms of which the appeal was allowed, the Appellant acquitted of the charge and ordered to be released forthwith if not required in any other case. JK/T-14/Sindh Appeal allowed.