2001 PLP 2423 (YLR)

(3) Right lung is performed. (4) Heart was performed and the foreign body of mataltic density recovered from the right ventricles of heart. (5) Ruptured of right Radial artery, have right fore-arm. The following bones were also fractured:

(1) Fracture of right fifth rib. (2) Fracture of right Radios and ulna. (3) Fracture of right Metacarpal bone of thumb and index finger. All other organs were normal and healthy. The Medical Officer has opined that all the injuries have been caused due to discharge of fire-arm weapon. He further opined that deceased Mumtaz Ali died due to haemorrhage shock as a result have abovementioned injuries. The above injuries were sufficient to cause death in ordinary course of nature.

9. The appellant denied the prosecution case and alleged that he has been falsely implicated in this case as stated under section 342, Cr.P.C. The appellant further stated that he did not produce T.T. Pistol and the same has been foisted at the instance of police and the Complainant party. The appellant has also examined himself on oath in disproof of the charge levelled against him. In the said statement on oath he has stated that he did not commit murder of deceased Mumtaz Ali and due to old enmity he has been falsely implicated in this case with the assistance of Mst. Pathani.

10. I have heard Mr. Abdul Ghafoor Mirani, learned counsel for the appellant and Mr. Ghulam Sarwar Korai, learned counsel on behalf of the State. I have also been taken through the evidence in the case proceedings by the learned counsel.

11. Perusal of the F.I.R. and evidence shows that entire case depends on hearsay evidence as well as circumstantial evidence. According to the F.I.R. Abdul Rasheed had informed the complainant about the incident that four persons have murdered Mumtaz Ali in Insaf Dall Mill then complainant Abdul Rasheed proceeded to Dall Mill and they took Abdul Majeed towards said Mill and the complainant disclosed that Talib Hussain and Karim Bux, Gulsher and Nabi Bux had committed murder of Mumtaz Ali on account of threat and old enmity. According to F.I.R. the complainant has not narrated any part of all the four accused in F. I. R. and the two eye-witnesses namely Abdul Majeed and Abdul Rasheed had not deposed any part of the each accused while committed murder of the deceased Mumtaz Ali, but in the F.I.R. no weapon have been shown which were carried by the accused persons. The statement under section 161, Cr.P.C. of the above said witnesses were recorded after eleven days of the incident and said witnesses were not working as a labourers in the Insaf Dall Mill when the incident has taken place.

12. Learned counsel for the appellant has contended that the accused Talib Hussain has been involved falsely due to previous enmity as the co-accused Karim Bux had filed F.I.R. against complainant and her near relative. It is further urged by the learned counsel that the circumstantial evidence cannot be believed to be true as ocular evidence has been fabricated by the prosecution. He has further contended that there are material contradiction in the evidence of the complainant and other prosecution witnesses. Learned counsel has pointed out that P.W. Abdul Rasheed and P.W. Abdul Majeed were not working as laborer, therefore, there is no question of their presence at the relevant time in the Insaf Dall Mill. It is further contended by the learned counsel that the trial Court has not touched the defence evidence and the said witnesses were cross-examined, therefore, the presence of eye-witnesses namely Abdul Majeed and Abdul Rasheed cannot be termed as material witnesses. It is further stated by the learned counsel that the trial Court has disbelieved the prosecution evidence against the co-accused Nabi Bux who was also shown to be present near dead body and also the appellant at the time of incident and the trial Court extended benefit of doubt to accused Nabi Bux and had acquitted him from the said charges. The learned counsel has further urged that the evidence was brought on record malafidely against the appellant and same evidence is identical to the co-accused Nabi Bux but in respect of co-accused same evidence has been discarded. It is further argued that that the entire case depends on hearsay evidence and the capital punishment cannot be awarded in such circumstances. It is further urged that the T.T. Pistol., which was recovered from the appellant, was not produced before the trial Court and it was neither sealed at the time of recovery nor has been referred for ballistic report. Learned counsel has filed copy of deposition of P.C. Abdul Ghaffar who was examined by the trial Court as a Mashir of recovery. Learned counsel has pointed out that evidence of Tapedar has deposed that there is 600 feet distance from. where the dead body was said to be lying and the evidence of witnesses were said to be sleeping and the witnesses on such distance cannot identify at the night time. The Tapedar had further stated that there is no electricity point A (place of Wardat). It is further stated by the Tapedar that in the present circumstances at 'A' point cannot see a person standing at the office of Mill. In the F.I.R. the complainant has stated that she was informed by someone that Mumtaz Ali has been murdered by the present accused as well as the other accused mentioned in the F.I.R. The Complainant has not disclosed the name of that person while disclosing the names of the accused in the F.I.R. or in the deposition but in the deposition it is stated that Abdul Majeed was not with them when they left the village for Wardat. The complainant in the F.I.R. has not deposed about the Weapon but in the deposition it is stated that witnesses Abdul Rasheed and Abdul Majeed had told that accused Gulsher was armed with K.K. Karim Bux armed with guns, Talib Hussain was armed with T.T. Pistol and Nabi Bux was armed with hatchet. It is further stated in the cross-examination that at the time of visiting the place of Wardat. P.W. Abdul Majeed was with them when they left the village, whereas P.W. Abdul Majeed was examined by the police after eleven days this witness has not seen the incident and stated that he saw the accused persons standing over the dead body whereas P.W. Abdul Rasheed was examined by the police after eleven days and while travelling towards the place of Wardat he accompanied alongwith Mst. Pathani with them who seen the dead body. P.W. Madah Hussain, Investigating Officer in this case had admitted that he came to know during the course of investigation that P.W. Abdul Majeed and Abdul Rasheed are not working as laborer in the Dall Mill. It is further urged by the learned counsel that the D. Ws. namely Srichand, Gul Hassan and Mouj Ali have supported the defence version placed by the accused Talib Hussain and Nabi Bux in the trial Court. It is further urged by the learned counsel that P.C. Abdul Ghaffar was examined by the trial Court in a 'offence under section 13-D for the recovery of T.T. Pistol and trial Court while disbelieving the version of the defence had lodged a complaint through reader of the Court against said Mashir under section 193, P.P.C. The said witness Abdul Ghaffar had deposed in the case of State v. Talib Hussain, in an offence under section 13-E of Arms Ordinance by admitting that the said accused was already under arrest 3/4 days prior to 22-10-1998 in Crime No.32 of 1998, 302, P.P.C. which ex facie reveals that the T.T. Pistol was foisted against the applicant/ accused. P.W. Madah Hussain who was Investigating Officer has stated that on the day lodging of the F.I.R. Mst. Pathani came at the Police Station and told him that four persons have murdered Mumtaz Laghari in Insaf Dall Mill the complainant did not disclosed the names of such persons, who disclose the names. P.W. Abdul Rasheed has told her that accused Talib Hussain armed with hatchet. Karim Bux armed with gun and Gulsher was armed with Kalashnikov, committed the murder of Mumtaz Laghari, but this fact was disclosed by the complainant at Police Station. P.W. further disclosed that accused Gulsher took away barrel of gun of deceased Mumtaz Laghari as he was Chowkidar but they left butt of gun at the spot. He has further stated that on 22-10-1998 he arrested accused Talib Hussain and Nabi Bux and prepared such memo. of arrest in the presence of P.C. Abdul Ghaffar and Faiz Muhammad. D.W. 3 namely Srichand as Exh.16 was examined by the trial Court in defence of the accused and it is stated that he was working as Manager in the Insaf Dail Mill for last 12/13 years. It is further stated by him that the deceased Mumtaz Ali was working as a Chowkidar but at the time of incident he was not present in the said Mill he has further stated that during the day of incident Abdul Rasheed and Abdul Majeed were not serving in Dail Mill as labourers. It is admitted by him that at the time of incident Kodomal and Muhammad Bachal were present on their duties. The learned counsel has further highlighted the evidence of D.W. 4 Gul Hassan as Exh.17 who is said to be Zamindar of the village where accused and the Complainant parties reside. He is Naikmard of both the parties. He has stated that Mst. Pathani the complainant had filed the false case against the accused person and Mst. Pathani was advised to withdraw the case against the accused persons. D.W.5 Mouj Ali was also examined by the accused in defence he has stated that he knows accused and the complainant party from his childhood. He has also stated that Abdul Rasheed has a Parchoon shop and Abdul Majeed is the father of Abdul Rasheed. The above said witnesses have never served in Insaf Dall Mill.

13. That the allegations against the appellant Talib. Hussain is that he was standing near dead body of deceased Mumtaz Hussain being armed with T.T. Pistol. the T.T. Pistol was recovered from' the possession of Talib Hussain alongwith four live bullets loaded in the magazine and he was arrested on 22-10-1998 at about 3-10 p.m. The recovery Mashir P.C. Abdul Ghaffar admitted that accused Talib Hussain was already under arrest 3/4 days prior to 22-10-1998 and this witness has perjured the prosecution evidence and complaint under section 193, P.P.C. was filed. This witness has given contrary evidence and the veracity of this witness cannot be believed and it does not inspire confidence to award capital punishment. Learned counsel for the appellant has placed his reliance on the following authorities:

(1) 1999 PCr.L1 595, (2) 1995 PCr.LJ 25, (3) PLD 1990 Kar. 314, (4) 1996 SCMR 1553, (5) 1993 SCMR 550, (6) 1997 SCMR 438 and 2000 PCr.LJ 1756, 1781 and 1786. Learned counsel further states that in view of the contrary evidence 'of the alleged two eye-witnesses the appellant is entitled for acquittal. .

14. Mr. Ghulam Sarwar Khan Korai learned Advocate on behalf of the State has not supported the judgment passed by the learned trial Court and submits that the P.Ws. Abdul Rasheed and Abdul Majeed have not given names of other accused and present accused to the complainant and their evidence was collected after eleven days of the incident which cannot be termed as truthful witness.

15. The complainant is not an eye witness of the incident and according to F.I.R. the incident was narrated by P.W. Abdul Rasheed son of Abdul Majeed to complainant Mst. Pathani. The statement under section 161, Cr.P.C. of above two witnesses was recorded after eleven days. There is no explanation for delay in recording such statement. Although both witnesses have claimed that they witnessed the accused at the scene of Wardat but the Investigating Officer reached at the Wardat after registration of the F.I.R. and the names of these two witnesses have been mentioned in the F.I.R. but their statement were recorded after delay of eleven days. The Investigating Officer had admitted this fact that these witnesses were not working as labourers in the Insaf Dall Mill, therefore, it is impossible to witness the incident inside Insaf Dall Mill at the time of incident, .all these facts raised by the learned counsel for the appellant and the circumstances would, therefore, lead a reasonable mind to an inference that P.Ws. Abdul Rasheed and Abdul Majeed were not present at the scene of offence at the time of incident. In their testimony both these witnesses have stated that they are serving as labourer in the Insaf Dail Mill and both were on their duties and after performing duties they went to sleep at 12.00 mid-night and at about 3-30 a. m. they woke up to fire report and then both went towards there and saw that Mumtaz Ali was lying dead and accused were standing near dead body of deceased. The evidence of both these eye-witnesses is, therefore, liable to be disbelieved, as they were not in employment of the said Mill. Now coming to the evidence of recovery of T.T. Pistol on the pointation of appellant on 22-10-1998 on which date he was arrested P.W. Abdul Ghaffar, mashir of recovery of T.T. Pistol has been disbelieved by the trial Court in a case under section 13-D of Arms Ordinance. His deposition has been brought on the record and in view of the exaggerated statement trial Court had filed complaint under section 193, P.P.C. against such witness. The said witness has stated that appellant Talib Hussain was also in custody 3/4 days prior to the day for producing the property. It is further admitted by him that the said Pistol was sealed at the Police Station, magazine and the round were also sealed separately at the Police Station, therefore, this piece of evidence cannot be believed and there is no other evidence to connect the accused with the crime. The prosecution has not sent said weapon to the Forensic Science Laboratory for examination. The trial Court has not evaluated the evidence against the appellant and wrongly believed the evidence of P.W. Abdul Rasheed and P.W. Abdul Majeed.

16. The story cooked up by the P.W. Abdul Rasheed and Abdul Majeed being not an eye-witness of the occurrence have falsely implicated the present appellant/accused and narrated wrong version about the commission of the incident, therefore, their evidence is ruled out. The prosecution has not collected the actual evidence inside Insaf Dall Mill from other labourers of the said Mill but prosecution has wrongly accepted the versions of these two witnesses on presumption that these witnesses were present at the scene of offence and on the contrary as such their evidence cannot be believed.

17. As regards the motive it is too flimsy and inadequate and the appellant had stated in 342, Cr.P.C. statement that his maternal uncle Karim Bux, who is also co-accused, had lodged P.I.R. against complainant and her other near relatives and similar statement have been made by him on oath. The trial Court has disbelieved the ocular evidence in respect of Nabi Bux who was acquitted by the trial Court in the same judgment. The only ground that the case against the co-accused has not been believed beyond reasonable doubt, therefore, the trial Court had extended benefit of doubt to Nabi Bux and acquitted him of the charge. The P.W. Abdul Jabbar arid Abdul Rasheed being son and father are related to the complainant party and inimical with the present appellant and their evidence does not bring corroboration to other evidence held by the prosecution.

18. Mr. Ghulam Sarwar Khan Korai learned counsel appearing on behalf of the State has frankly conceded that he did not support the impugned judgment. He further states that entire prosecution case is based on flimsy grounds, therefore, the sentence and conviction be set aside upon such quality of evidence. The presence of eye-witnesses at the place of occurrence at the relevant time was doubtful and co-accused has been acquitted by the trial Court.

19. To convict a person on a capital charge evidence should be of very high quality and good standard which is not available in this case. The ocular evidence had circumstantial evidence should be linked with each other. In this case the trial Court has disbelieved the evidence in case of co -accused, Nabi Bux whereas on the same evidence the trial Court has awarded conviction to the present appellant. The trial Court, has not properly appreciated the evidence while passing the impugned judgment against the appellant. The State counsel has fairly conceded that no case has been established against the appellant.

20. The prosecution primarily is supposed to establish guilt against the accused without shadow of reasonable doubt by bringing trustworthy, convincing and inherent evidence for the purpose of awarding conviction. A plain reading of the prosecution has failed to produce trustworthy, confidence inspiring and consistent evidence against the appellant. The evidence so brought on record appears to have been fabricated to prove the prosecution case. It suffers from material discrepancies, contradictions and for such reasons it has not proved the case against accused/appellant. It is apparent that no one has seen the actual killing of the deceased in side the Dall Mill at the time of incident and due to enmity of the complainant party case was registered against the accused party malal fidely.

21. The case of absconding accused namely Gulsher and Karim Bux are kept on dormant file till their arrest.

22. For the foregoing reasons, that is stated above the prosecution has failed to establish charge of murder against the appellant beyond reasonable doubt. In the circumstances, the appeal is allowed and consequently conviction and the sentence awarded to the appellant are set aside and the appellant may be set at liberty forthwith if not required in any other case. N.H.Q./T-15/K Appeal accepted.