2002 P Cr (PLP)

Point No.2. Whether accused Dholu, Alisher and absconding co-accused Jumo or anyone of them in furtherance of their common intention, committed Qatl‑i‑Amd of deceased Abdul Majeed by firing gun shots at him on date, time and place as claimed by the prosecution? Point No.

3. What should the judgment be? The learned trial Court after assessing the evidence and the material placed before it, convicted the appellants in terms as stated above. Mr. Muhammad Ayaz Soomro learned counsel for the appellants has assailed the judgment and submitted that it suffers from legal infirmities. He contended that from the evidence on record, the prosecution has failed to prove its case beyond shadow of reasonable doubt against the appellants and they are entitled to acquittal. Mr. Ali Azher Timid, learned Assistant Advocate‑General for the State supported the impugned judgment. I have perused the F.I.R. and then have gone through the evidence of all the witnesses. Furthermore, the question to be considered before me is that whether in fact the P. Ws. saw the occurrence and were they present at the time of incident and whether this Court can interfere in the impugned judgment of conviction passed by learned trial Court, whether the evidence in the case is wholly reliable and from unimpeachable and independent character. To answer these questions, the evidence of complainant Dilmurad and alleged eye‑witnesses namely Ghulam Murtaza and Ghulam Farid is to be scrutinized closely. The case of prosecution in nutshell is that on the date, time and place complainant Dilmurad, deceased Abdul Majeed and the two alleged eye‑witnesses Ghulam Murtaz and Ghulam Farid were going to look after the fish and when at 6‑00 p.m. they reached at Rato Bridge Regulator No.35 at that time appellant Dholu and Alisher alongwith absconding accused Jumo emerged there armed with shotguns and shot dead Abdul Majeed by firing at him. First of all it is to be seen as to whether actually complainant and the alleged eye‑witnesses had accompanied the deceased as stated in the F.I.R. for the sake of arguments if it is believed that the complainant and the P.Ws. were with the deceased, then it is not clear that whether they (complainant and P.Ws.) resisted upon killing of their young, man at the hands of accused persons and if se, then the accused must have fired at the complainant and the P. W s. but there is nothing in the evidence of complainant and P.Ws. that either they did so or not. It does not appeal to reason that the deceased who was nephew of the complainant closely related to him was being done to death but neither they challenge the accused and simply as stated in the F.I.R., remained calm. Even the complainant has not stated in the F.I.R. as to which accused fired at which part of the body of deceased and the P.Ws. are also silent in their evidence in Court and this very factor creates doubt about their presence at the scene of offence. It is also not believable that by killing a person in presence of his close relatives accused would not attempt to cause any injury to the P.Ws. leaving for them evidence to be hanged. Furthermore, complainant stated in his, evidence that absconding accused Jumo fired at the deceased and after that appellant Dholu fired at the deceased. Appellant Dholu thereafter came and stood over the complainant party and appellant Ali Sher went and fired at deceased Abdul Majeed. The P.Ws. Ghulam Murtaza and Ghulam Farid have stated in their evidence that after the accused Jumo fired at the deceased accused Dholu and Ali Sher fired at deceased. There is nothing from the mouth of P.Ws. that they were separated from the deceased or not and so much so P.W. Ghulam Farid has further deposed that all the accused then collectively fired at deceased while complainant has stated that accused Ali Sher fired at the deceased where after all the accused ran away due to their cries. Complainant and P.W. Ghulam Murtaza have stated in their cross‑examination that they have not taken night meals before going to Fish Farm and according to complainant they used to prepare the night meals at Fish Farm. The post‑mortem which was done after 15 hours of the incident clarifies that the stomach contained digested food which supports the version of complainant in this respect. Complainant in his cross‑examination has said that they first saw the accused from the distance of about 2/3 paces when they challenged and emerged and that the accused fired at the deceased from the close range of less than two paces. P.W. Ghulam Farid and alleged eye‑witness says that they saw the accused from 10‑12 paces. It may be mentioned here that the sketch prepared by the Tapedar shows that the point "C" denotes the place where the complainant and the P.Ws. are said to be standing is 40 paces away from the place where the dead body was lying. Complainant in his favour has stated that the deceased was going few paces ahead of them while the P.Ws. Ghulam Murtaza and Ghulam Farid have stated in their cross‑examination that all of them were going collectively. P.W. Ghulam Farid says in his evidence in Court and also in his 164, Cr.P.C. statement that the accused first separated the deceased from them and then fired at him. From the above overall contradictions it appears the complainant and the P.Ws. did not witness the incident and after the deceased was shot dead they rushed to the place of incident and due to their enmity with the accused have nominated them in order to settle the scores of enmity. The very factum of company of complainant and the alleged eye‑witnesses with deceased towards the scene of occurrence is doubtful particularly from the post‑mortem report. Furthermore, there is also improved evidence of P.W.4 Allah Rakhio who in his evidence has deposed that at 6‑00 p.m. of the day of incident he was available at his lands when on receipt of fire‑arm reports he went to the place of occurrence and saw deceased Abdul Majeed (lying on the ground), complainant and the P.Ws. as also the accused persons namely Jumo, Ali Sher and Dholu present. He further stated that he was informed that deceased has been killed due to old enmity. He went with the complainant to police station for recording his statement. In his cross examination he stated that he was available at his lands at 5‑30 p.m. alongwith his peasants namely Wali Muhammad and Asadullah who also accompanied him towards the place of Wardat. While in his 164, Cr.P.C. statement he has given totally another versions stating that at. 6‑15 p.m. he has come to his lands for looking after the same and in the meanwhile he heard gun‑shots from the side of Regulator. He at once rushed there where he found Muhammad Ali Mirbehar, P.W. Ghulam Murtaza and Ghulam Farid raising cries and they informed him that accused Jumo, Dholu and Ali Sher Kharos have killed Abdul Majeed and were going towards eastern side along the path Regulator and they further informed him that complainant Dilmurad had gone to lodge the report. In cross examination he stated that he has stated before police as also in 164, Cr.P.C. statement that he saw accused Dholu. The above two versions one in evidence before the Court and the other in 164, Cr.P.C. statement clarifies that the P.W. Allah Rakhio was not available at the time of incident in his lands. He, due to his relationship with the deceased and the complainant party has given evidence against the accused. The main point of this case is that the complainant and the alleged eye‑witnesses Ghulam Murtaza and Ghulam Farid have stated in their evidence that they and the deceased were the Chwokidars of one Ghazanfar Issani at his Fish Farm and they were going to the Fish Farm for performing their night duty, but Ghazanfar Issani the owner of Fish Farm has neither been examined nor shown as witness in the case in order to prove that whether, actually the complainant, P. Ws. and the deceased were his Chowkidars or not and other evidence has also not come on record to substantiate these statements of the complainant and P.Ws. So far the statements under section 164, Cr.P.C. of the witnesses are concerned P.W. Ghulam Murtaza has stated in his evidence that on their cries only P.Ws. Allah Rakhio and Muhammad Ali came at the place of occurrence while in his statement under section 164, Cr.P.C. he has stated that on their cries Allah Rakhio and Muhammad Ali and other villagers came at place of incident and moreso he has stated that he has no knowledge that after how much period of incident his 164, Cr.P.C. statement was recorded which creates doubt about the recording of statement in his presence. P.W. Ghulam Farid has also belied his statement under section 164, Cr.P.C. as he has stated in his evidence that accused Jumo firstly fired at the deceased and after that accused Ali Sher and Dholu fired at deceased and then all the three accused fired collectively at the deceased and ran away. He, however, states in his evidence that on their cries only P.W. Allah Rakhio and Muhammad Ali came there whom they narrated the incident while in his statement under section 164, Cr.P.C. he has stated that after the departure of accused they went and saw the deceased having fire‑arm injuries and on their cries P.Ws. Allah Rakhio and Muhammad Ali and other villagers came and they narrated the facts to them. The 164, Cr.P.C. statement of P.W. Allah Rakhio is contradictory to his own evidence in Court as he has stated in his evidence that on the day of incident he was in his lands since 5‑30 p.m. and the police came at the Wardat at 6‑00 p.m. while in his statement under section 164, Cr.P.C. he has stated that on the day of incident at about 6‑15 p.m. he came to visit his lands when he heard fires and then rushed towards the side of fires and found there P.Ws. Ghulam Murtaza and Ghulam Farid who were crying and on his enquiry they told him that accused Jumo, Ali Sher and Dholu have committed murder and were going along the bank of canal. In his evidence (P.W. Allah Rakhio) has deposed that he was available at his land alongwith his Hari's namely Wali Muhammad and Haji Asadullah at the time of incident. Be that as it may, the complainant and the alleged eye‑witnesses Ghulam Murtaza and Ghulam Farid have categorically stated in their statements before the Court as also in their 164, Cr.P.C. statements that nobody was available in the nearby lands when the unhappy episode of this incident took place. Prima facie, it appears that this witness in order to overcome the lacunas has tried to give some advanced evidence but thereby he has himself belied his statement under section 164, Cr.P.C. as mentioned above. At this juncture, it may be observed that all these witnesses are closely related to each other and they have even admitted their relationship with each other in their evidence but they have not been able to support the case of prosecution by giving contradictory statement as discussed hereinabove and this factor has rendered the eye‑witness ocular account riddled with serious doubts. The visit of place of incident by the police on the same day is also doubtful for the reason that P.W. Abdul Samad who is Mashir of place of incident; arrest of accused and recovery of crime weapons from the appellants has deposed that police came at the place of incident at 11‑15 p.m. while Investigating Officer Anwar Hussain has stated in his cross‑examination that he had arrived at the place of incident at 10‑00 p.m. Mashir Abdul Samad has further stated in his cross‑examination that he and co‑Mashir were called from their lands, where they were standing through a boy and that police called them in the morning and according to him he might have reached at the place at 7‑00 a.m. (morning) and that there were about 100 persons of his village available at the place of Wardat when he arrived there. Investigating Officer Anwar Hussain has deposed that he arrived at the place of Wardat at 10‑00 p.m. (night) and there he found only 15/20 persons available at the Wardat. Furthermore, on the point of securing empties from the place of Wardat Mashir Abdul Samad has stated in his cross‑examination that few cartridges were lying by the side of dead body while some other empties were lying at the distance of about 25 paces from it. Investigating Officer Anwar Hussain has contradicted the Mashir Abdul Samad by stating in his cross examination that on the night of incident when he visited the Wardat he secured the empties lying at the distance of about 15/20 paces away from the dead body and at that time only 15/20 persons were available at the place of incident. The Mashirs were picked up by him from those 15/20 persons. After having assessed the evidence of the prosecution witnesses I am of the opinion that the case against the appellants Dholu and Ali, Sher is not beyond shadow of doubt as no one from the complainant and P.Ws. has been able to specifically say as to who was responsible for causing fatal injury to deceased Abdul Majeed. The complainant simply said that, "accused Jumo fired gun‑shot which hit Abdul Majeed, accused Dholu also fired which hit deceased Abdul‑ Majeed, accused Dholu then came and stood over us whereas accused Ali Sher went and fired gun‑shot which hit Abdul Majeed". Likewise P.Ws. Ghulam Murtaza and Ghulam Farid have stated in the same way as stated by complainant Dil Murad. While P.W. Allah Rakhio stated that after having received alarm of gun shots he at once rushed towards the place of Wardat alongwith his two peasants and found complainant Dil Murad P.Ws. Ghulam Murtaza and Ghulam Fareed present there while Abdul Majeed lying dead and also found accused Dholu, Ali Sher and Jumo carrying gun and after firing they were going. While he in his 164, Cr.P.C. statement stated that after he went to the place of occurrence he only found P.Ws. Ghulam Murtaza and Ghulam Fareed raising cries who informed him that above accused had committed the murder of deceased Abdul Majeed and were going along path of canal. In his 164, Cr.P.C. statement P.W. Allah Rakhio is silent about the presence of complainant as also the accused which creates doubt about the presence of P.Ws. at the scene of offence. In this view of the matter I am fortified by the Honourable Supreme Court in the case reported as Muhammad Ilyas v. The State 1997 SCMR

25. I venture to quote the observations made therein by his Lordship Raja Afrasiab Khan, as under:‑‑ " .... It is well‑settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation .... " It is pertinent to mention here that the above appellants were also challaned under section 13‑D, Arms Ordinance. Learned counsel for the appellants has placed on record the judgments acquitting both the appellants which also support the version of appellants. Upshot of the above discussion leads me to the firm conclusion that the occurrence was not witnessed by anyone. In the circumstances and the view taken by Honourable Supreme Court in the case of Muhammad Ilyas (supra), I allow the appeal. Consequently the appellants Dholu and Ali Sher are given benefit of doubt and they are acquitted accordingly. The appellants are in custody. They shall be released forthwith if not required to be detained further in any other case. H.B.T./D‑24/K Appeal allowed.