2013 PLP 2742 (YLR)

AFTAB AHMED GORAR, J.

This criminal jail appeal is directed against the judgment impugned hereinabove, dated March 4th, 2010, delivered by III-Addi-tional Session Judge, at Karachi-South in Session Case No.745 of 2001, in connection with Crime No.196 of 2001, registered under sections 397, 302 and 34, P.P.C. of Police Station, Saddar, Karachi. The appellant was convicted and sentenced under sections 397 and 302 P.P.C. to undergo seven years' rigorous imprisonment coupled with fine of Rs.10,000 in default whereof further undergo three months' S.I; secondly appellant was also awarded compensation with regard to the murder of Mulazim Hussain, convicted under section 302(b), P.P.C. with compensation of Rs.50,000 under section 544-A, Cr.P.C., in default thereof further undergo three months' S.I.; both the sentences awarded to the applicant shall run concurrently as is observed in the impugned judgment. Benefit of section 382-B, Cr.P.C., was also extended in favour of the appellant as is apparent from the judgment.

2. Briefly, the prosecution story as is cooked-up in the first information report gathered with the following set of facts are as follows:-- "On 3-9-2001, he and his friend Mulazim had come to Saddar for shopping. At about 7-45 p.m., when he was purchasing medicines from Sabir Medical Store, his friend Mulazim Hussain went on a little ahead, in the meanwhile he heard firing and came out of the Store and saw his friend in injured condition fallen in the store, people gathered and police arrived. People raised shout that a person involved in firing has caught hold whose name is Nadeem Ahmed son of Inayat Ali and disclosed the name of his companions to be Gulzar and Habib. It has come to know that both have looted Sabir Medical Store. One T.T.Pistol was also recovered from the apprehended assailant. Thereafter complainant took injured Mulazim Hussain to Jinnah Postgraduate Medical Centre Hospital in a rickshaw, who later on expired. He claimed against assailant Nadeem Ahmed and his companions Guzlar and Habib to have killed deceased Mulazim Hussain by firing"

3. After obtaining bail, accused Gulzar Ali son of Ali Muhammad and Habibullah son of Muhammad misused concession of bail and jumped from the proceedings, the court declared both the accused as absconders thereafter formal proceedings had taken place; therefore, trial was initiated against accused Nadeem.

4. Prosecution in order to establish charge levelled against the accused examined following witnesses to testify the crime:-- (i) P.W.1 ASIP Taj Muhammad at Exh.10, produced memo of arrest and recovery of accused Nadeem Exh.10/A. (ii) P.W.2 Lawrence alias Naurus at Exh.11, produced copy of his statement recorded under section 164 Cr.P.C. at Exh.11/A. (iii) P.W.3 Chanzeb at Exh.12, produced memo of inspection of dead body Exh.12/A, inquest report at Exh.12/B, and superdiginama of dead body at Exh.12/C. (iv) P.W.4 Mohammad Sabir at Exh.13, produced memo of inspection of place of occurrence at Exh.13/A. (v) P.W.5 Inspector Wajahat Hussain at Exh.14, produced Entry No.45 dated 3-9-2001 at Exh.14/A, statement of complainant under section 154 Cr.P.C. at Exh.14/B, letter to MLO at Exh.14/C, Medical Certificate of Cause of Death Exh.14/D, Road Certificate Exh.14/E, Post Modem report at Exh.14/F, Entry No. 26 dated 4-9-2001 at Exh.14/G, F.I.R. at Exh.14/H, application to Judicial Magistrate at Ex.14/I, original statement under section 164, Cr.P.C. of P.W. Sabir at Exh.14/J original statement under section 164, Cr.P.C. of P.W. Muhammad Salman at Exh.14/K, original statement under section 164 Cr.P.C. of P.W.-Lawrence at Exh.14/L, original memo of identification parade at Exh.14/M, letter to incharge FSL at Exh.14/N, letter to Chemical Examiner for report at Exh.14/O and chemical examiner report at Exh.14/P respectively. (vi) P.W.6 ASIP Muhammad Tahir at Exh.15, produced Ballistic Expert report at Exh.14/Q-1) (vii) P. W. 7 Judicial Magistrate Mr. Rehmatullah Moro at Exh.16, produced letter to Investigating Officer at Exh.16/A, list of number of dummies at Exh.16/B, Photostat copy of NIC of witness Sabir at Ex.16/C, Photostat copy of NIC of P.W. Salman at Exh.16/D, Photostat copy of P.W-Lawrence at Exh.16/E. Thereafter prosecution closed his side vide statement dated 26-1-2010 at Exh.21.

5. Appellant recorded his statement under section 342 Cr.P.C., to which accused denied the allegation with which accused is charged.

6. I have heard learned counsel for the appellant and learned A.P.-G. for the State.

7. Learned counsel for the appellant has contended that case against the appellant is only made out on the basis of fabricated and foisted evidence and elements, learned counsel had shaken the evidence of all prosecution evidence turn by turn; and it has been pointed out that the flaws and discrepancies found therein. Per learned counsel Exh.10/A (memo of arrest and recovery); as per memo of arrest and recovery pistol was not recovered from the possession of appellant; prosecution has examined only three eye-witnesses of the incident i.e. P.W.-Lawrence who in his evidence did not state that present appellant had fired upon the deceased. P.W-Sabir, owner of "SABIR MEDICAL STORE" did not identify appellant before the learned trial Court; P.W.3 HC-Sarwar did not adduce his evidence before the trial court. Both precious prosecution witnesses did not state in their evidence that, appellant fired upon the deceased Mulazim Hussain; he further submitted that from evidence of the learned Judicial Magistrate, it transpires that accused was put for identification parade in muffled face instead of open face; and complainant did not visit police station for a single moment to register the F.I.R.; and the prosecution story is based on his statement recorded under section 154 Cr.P.C. Learned counsel for the appellant stress his arguments that prosecution story is seemed to have been doubtful inasmuch as case of present appellant is also covered. Per learned counsel, it is a cardinal principle of administration of criminal justice that a single infirmity creating doubt in the prosecution story is sufficient to hold the accused innocent. Lastly, learned counsel prayed acquittal of the appellant.

8. Learned A.P.-G. has frankly stated that no direct evidence connecting the appellant with the murder of deceased Mullazim Hussain had come on record; only evidence against the appellant as per Forensic Expert Opinion, pistol recovered from the appellant and empty was recovered from the place of occurrence would match to each other. Learned APG has lastly contended that he has no objection, if the sentence awarded to the appellant is reduced under the circumstances.

9. Having gathered respective arguments advanced and I have also perused the material available on the file. After bare perusal of record, it is apparent that as per prosecution case, three eye-witnesses of the case; out of them one is HC-Sarwar who caught hold of the appellant is/was not examined by the prosecution intentionally and deliberately; being an employee/police official in-service was bound to adduce his evidence before the learned trial court to suffice the totality of things. P.W-Sabir, owner of "SABIR MEDICAL STORE" deposed that three persons entered into his shop and robbed from the customers; he also identified accused before the learned Judicial Magistrate during his identification parade; though identification as was held was that, appellant was muffled face together with dummies but not with an open face; this criteria of evidence itself makes the prosecution case a week type of evidence and it is crystal clear on the surface of evidence. P.W.3 Lawrance Nursus would reflect a lot of discrepancies and contradictions miracle to his statement recorded under section 161, Cr.P.C., by the police respectively. This witness did not utter a single word with regard to the present appellant that he had fired upon deceased Mullazim Hussain; these prosecution witnesses are not the eye-witnesses of the scenario of occurrence; but are formal witnesses likewise. Apart from above, complainant Muhammad Salman adduced his evidence and just moving as star-witnesses to the path of prosecution story; his evidence would reflect that he has not seen the appellant at the place of occurrence but appellant was shown to him at Police Station; he further admitted that his statement was recorded under section 154 Cr.P.C. at Jinnah Postgraduate Medical Center but he did not visit the Police Station for a single moment for a particular purpose to register his F.I.R.; he further stated in his evidence that he had not seen the incident with his own eyes.

10. In the case of Allah Bux Shammi and others v. the State reported in PLD 1980 SC Page 225 and Sarfaraz alias Sappi and two others vs. the State reported in 2000 SCMR Page 1758, it has been held that:- "Prosecution must produce best kind of evidence to establish acquisition against accused facing trial but simultaneously it is not obligation to a good number of witnesses to substantiate the charge. Indeed, it is not the quantity but quality of the evidence, which get preference." In this case, Hon'ble Supreme Court of Pakistan had discussed the evidence and reduced sentence from life imprisonment to fourteen years. Apart from above, as per jail roll, appellant is behind the bars since 11-9-2001, he has served out sentence excluding remissions up to 13-3-2013 i.e. Eleven years, six months and two days and sentence served including remissions comes fourteen years, eleven months and twenty seven days.

11. The upshot of above discussions; I altered the sentence of the appellant from 302(b), P.P.C. to section 302(c), P.P.C. and reduce the sentence from life imprisonment to fourteen years and compensation of Rs.50,000 in default, appellant would further undergo three months' S.I. Both the sentences are substantial imprisonment will run con-currently, as the benefit of section 382(b), Cr.P.C. has already been awarded to the appellant.

12. For what have been discussed above; the instant criminal jail appeal is disposed of accordingly. MH/N-20/K Order accordingly.