2018 PLP 216 (YLR)

MUHAMMAD IQBAL KALHORO, J.

By means of this judgment instant appeal filed by appellant Lal Dino alias Laloo against his conviction and sentence of life imprisonment awarded by learned II-Additional Sessions Judge Khairpur in Sessions Case No.154 of 2000 (The State v. Long and others) bearing Crime No.205/1998 of Police Station Mirwah, under Sections 302, 324, 148, 149, P.P.C. is disposed of.

2. Brief facts of the prosecution case are that the complainant namely Haji Mithan lodged FIR in above crime and offences on 22.12.1998 at 1800 alleging therein that he has enmity with Noor Muhammad Somaro over a government plot No.564 situated in his village Jogi near Thari taluka Mirwah. On the date of incident viz. 22.12.1998 at 1700 hours, he along-with his sons Bahadur, Ali Hassan (the deceased), Hamadullah and PW Mulakat Ali were returning to their houses after grazing the livestock and when they reached said government vacant plot in their village, the appellant duly armed with a gun along with ten (10) other co-accused (named in the FIR) who were also armed with different weapons including rifles, hatchets, etc. came over there and started firing upon them with intention to kill. Fire of appellant Lal Dino hit his son Ali Hassan, as a result of which he fell down and died, but in the meantime co-accused caused hatchet blows to him and Hamadullah. On their hue and cry, the appellant and other accused fled away, but meanwhile P.W. Mohammad Din and other villagers came running over there, who also saw the accused. After the said incident, the complainant appeared at Police Station and registered the FIR.

3. After the FIR, the investigation started during which co-accused were arrested on 11.01.1999 and from them lathies and hatchets were recovered. The appellant was arrested on 12.01.1999 from his Otaq situated in his village and from him a gun and five live cartridges were recovered. After completion of the investigation, the challan was submitted and the trial of the appellant and other co-accused commenced. The charge was framed against the appellant and other co-accused but they pleaded not guilty and claimed trial.

4. The complainant namely Haji Mithan Khan expired during the trial before his evidence could be recorded. However, the prosecution in order to prove its case examined PW-1, Bahadur at Exb.16, PW-2, Mulakat Ali at Exb.17, PW-3, Talib Hussain at Exb.18, PW-4, Medical Officer Dr. Ansar Ali Gopang at Exb.20 and Exb.33 as PW-8, PW-5, Haji Ali Nawaz Jogi at Exb.21, PW-6 Inspector Ghulam Ali Jumani at Exb.24, PW-7 SP Investigation Ghulam Akber Wagan at Exb.29, PW-9 Kaleemullah Memon, and Reader of II-Judicial Magistrate at Exb.34. These witnesses have produced all the relevant documents e.g. FIR, necessary Memos i.e. of place of incident, of recovery of incriminating weapons, of arrest, etc., Chemical Report, Death Certificate, Post Mortem report and Confessional Statement of accused Lal Dino, etc. Thereafter, the statements of the accused including the appellant were recorded under section 342, Cr.P.C. at Exh. 36 to 45, in which they have denied the allegations. However, neither of them examined themselves on oath nor led any evidence in their defence.

5. At the conclusion of the trial, the appellant vide impugned judgment dated 05.07.2013 was convicted for committing the offence under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life and to pay Rs.40,000/- as compensation to the legal heirs of deceased as required under section 544-A, Cr.P.C., in default thereof to suffer' simple imprisonment for four months more with benefit of section 382-B, Cr.P.C. extended to him. The trial Court has, however, acquitted all the co-accused by extending them benefit of doubt. Being aggrieved by his conviction and sentence, the appellant has preferred this appeal.

6. Mr. Abdul Wahab Baloch, learned counsel for the appellant has argued that appellant is innocent and has been falsely implicated in this case on the basis of enmity; that the prosecution although has alleged motive in the case but has miserably failed to substantiate the same by any reliable evidence; that there are major contradictions in the evidence of the eye-witnesses, which make the case against the appellant doubtful but the learned trial Court has ignored all such contradictions and has convicted the appellant; that the ocular evidence is in conflict with the medical evidence: that in the FIR it is alleged that the deceased not only received a fire arm injury but he also sustained injuries by sharp-cutting weapon but no evidence as to who caused such injuries has come on record, which strongly suggests that the prosecution witnesses were not present at the time of incident; that statement of the appellant under section 342, Cr.P.C. has not been recorded properly and the entire incriminating evidence, as required under the law, was not put to him for the purpose of seeking his explanation thereon, therefore, such evidence cannot be considered against the appellant; that during the investigation confession of the appellant was recorded but surprisingly no question about it was asked from him in his statement under section 342, Cr.P.C. and such omission has seriously prejudiced the appellant. In support of his contentions, learned Counsel has relied upon the case law reported in 1999 SCMR 697, 2010 SCMR 1009.

7. On the other hand, learned Counsel for the complainant and learned DPG have supported the impugned judgment. Their argument is that the appellant has been assigned a specific role of causing murder of the deceased in the FIR, which the witnesses have supported in their evidence; that from the appellant the crime weapon was also recovered; that he confessed committing the offence before learned Judicial Magistrate. Regarding omission of not putting the factum of his confession to the appellant in his statement under section 342, Cr.P.C. learned DPG contended that said omission is immaterial, because neither it has been challenged in the trial, nor is shown to have caused some prejudice to the appellant. In support of his arguments, learned DPG has relied upon the case law reported in 2004 PCr.LJ 42, 2001 SCMR 56 and PLD 1978 SC 1.

8. I have considered the submissions of the parties and have perused the material on record and sought guidance from the case law cited at bar. In the FIR, it is stated that appellant was armed with a gun, co-accused namely Sikandar and Noor Muhammad were armed with rifles, whereas the remaining accused who were eight (8) in number and are identified in the FIR were armed with lathis and hatchets. The accused having fire-arms fired upon them, out of which the fire of the appellant hit the deceased Ali Hassan. This particular piece of statement that co-accused armed with fire-arms fired at the complainant party does not appear to be supported by any evidence. The memo of place of incident indicates that only one crime-empty was recovered from there, which suggests that only one fire-shot was made. P.W.1 Bahadur Exb.16, who is brother of the deceased, has not supported the factum of firing upon them by the accused having fire arms. He in his examination-in-chief has disclosed that the appellant caused fire arm injury to the deceased, whereas the remaining accused (having fire arms) fired in the air. This assertion i.e. co-accused firing in the air is not only in contradiction with the story in the FIR, but is not corroborated by any other evidence because as discussed above, from place of incident only one crime-empty was recovered. And P.W.2 Mulakat Ali Exb.17 in his cross-examination has revealed that the accused armed with fire arms also fired but the fire of accused Laldino hit the deceased. He does not state specifically whether the said accused fired in the air or upon them. But the emphasis of his statement appears to be on the latter situation, that is, they fired on them but fire of the appellate hit the deceased. This statement although seems to be in line with the story of FIR but is not corroborated by recovery of any bullet shells from the place of incident, and more so it contradicts the evidence of P.W. Bahadur, who has revealed that remaining accused had fired in the air. This witness Bahadur in his cross-examination has disclosed that he did not receive any injury in the incident because he saved himself by running (from there). But when P.W. Mulakat Ali was asked the same question in his cross-examination, he has replied that he did not receive the injury, though he was armed with hatchet but did not use it and they including Bahadur raised cries but did not run. The above discrepancies are not ignorable and put a question mark over presence of these two prosecution witnesses at the spot at the time of incident. This assumption that these witnesses were not available at the time of incident gets further fortified firstly from the fact that the Tapedar, an important witness who prepares the sketch of place of incident to show exact location of the accused, the witnesses and the deceased, was given up by the prosecution vide statement dated 11.05.2006, meaning thereby that he was not supporting the case in the manner as presented by the prosecution in the trial. Due to absence of sketch and evidence of the Tapedar to that effect, the location of the incident and positions of the accused, the eye-witnesses (thereby their presence) and the deceased at the time of the incident has remained shrouded in mystery. P.W. Hamudullah has not been examined in the trial. He was injured in the incident and thus was a natural witness to support the prosecution case in the manner as described in the FIR and in the evidence. His was the best evidence available to the prosecution but for the reasons best known to the prosecution his evidence has been withheld. The postmortem of the deceased shows that besides a fire-arm injury, he sustained three (3) incised wounds caused by sharp side weapon, but these two witnesses who claim to have seen the incident have not attributed specifically those wounds to any of the accused in their depositions, which further strengthens the impression that they were not present at the time of incident, because, otherwise, there would be no other explanation to their shaky evidence in this regard. The motive i.e. the enmity on a government plot is although alleged in the case but it has not travelled beyond a bald statement as no proof thereof has been brought on record in the trial. All the accused, except the appellant, on the basis of same set of evidence have been acquitted by the trial court which indicates that even the trial court was not sure about worthiness of evidence of the witnesses in respect of them. And it is also worth noting that their acquittal has not been challenged by the complainant party, although its case is that all the accused with their common object committed murder of the deceased.

9. This incident took place on 22.12.1998. The first investigating officer was Inspector Ghulam Ali P.W.06. Exb.24. from him the investigation was transferred to second I.O. Inspector Ghulam Akbar P.W.07 Exb.29 on 15.01.1999, but till that time he did not record the statements of witnesses under section 161, Cr.P.C. It was only second I.O. who happened to record such segments on 18.01.1999 after the delay of almost one month of the incident. This delay in recording the statements of the witnesses who are either family members or close relatives of the deceased and therefore must be interested in pursuing the case is completely inexplicable. The appellant as per record was arrested on 12.01.1999 and from him allegedly a gun used by him in the crime was recovered, but Mashir of his arrest Haji Nawaz Ali P.W.05 Exb.21 has disclosed in his evidence that appellant was arrested from his Otaq on the day of incident i.e. 22.12.1998 and from him a SBBL gun was recovered, whereas in the case a DBBL gun is shown to have been used and recovered from the appellant. This witness in the trial was declared hostile by the prosecution because he did not support the prosecution case qua arrest of the appellant and other accused, recovery from them and preparation of all the memos as postulated in the prosecution papers. And most importantly the alleged recovered gun from the appellant was never sent for examination along with the crime-empty to Forensic Science Laboratory to find out whether that empty was fired from the same gun or not. So virtually there is no evidence with the prosecution to show that whether it was a SBBL gun as disclosed by the Mashir of recovery, or a DBBL gun as produced in the trial that was used in commission of the offence. The DBBL gun allegedly recovered from the appellant in absence of FSL report in this regard cannot be opined to be the crime weapon, and thus cannot be considered as supporting evidence against him.

10. The statements of the all the accused under section 342, Cr.P.C. have been recorded in stereotype manner by putting a similar question regarding death of the deceased to all the accused, which has been replied alike by all the accused. Although the appellant is attributed a specific role in the evidence by the witnesses, but he has not been put to the said piece of evidence specifically, which definitely has prejudiced him to explain the said circumstance appearing in evidence against him. More so, neither the medical evidence, nor the recovery of crime-empty form the incident or his confession or even the motive part of the story have been put to him while recording his statement under section 342, Cr.P.C. It is by now a settled law that any piece of evidence that is relied upon by the prosecution, but not put to the accused in his statement 342, Cr.P.C. cannot be considered for the purpose of convicting him. The evidence of two eye-witnesses, because of reasons discussed above, on the one hand does not inspire confidence and on the other it was not put to the appellant in his statement under section 342, Cr.P.C. as required under the law. Therefore, if the above pieces of evidence are taken out of the consideration, there would be left no reliable and confidence-inspiring evidence to maintain conviction of the appellant. For such a view, the unreported judgment dated 17.03.2017 of the Honorable Supreme Court in Criminal Appeal No. 456 of 2012 (Nawab alias Muhammad Nawaz v. The State) can be relied upon.

11. For foregoing discussion, I am of the view that prosecution has not been able to prove its case against the appellant beyond a reasonable doubt. Resultantly, the appeal is allowed, the conviction and sentence awarded to the appellant by the learned trial court vide impugned judgment is set aside and the is acquitted. He shall be released from jail forthwith, if not required in any other custody case. JK/L-6/Sindh Appeal allowed.