2022 P Cr (PLP)

SHAMSUDDIN ABBASI, J.

Through this criminal appeal, appellant has assailed Judgment dated 30-06-2018, passed in Sessions Case No.763 of 2011 [re: The State v. Fareed and another] emanating from Crime No.03/2011 registered at Police Station Sita Road, District Dadu for the offences punishable under sections 302, 324, 452, 337-A(iv), 337-F(vi), 34 P.P.C., whereby the appellant/accused has been convicted and sentenced as under: i. Under section 302(b), P.P.C. read with section 34, P.P.C. to suffer R.I for 7 years and to pay fine of Rs.20,000/= and in case of default in payment of fine he shall further undergo S.I for four months'. ii. Under section 337-A(iv), P.P.C. to pay an amount of Rs.2,90,000/= as Arsh to injured Shahan Chandio. iii. Under section 337-F(vi), P.P.C. to pay an amount of Rs.100,000/= as Daman to injured Shahan Chandio. iv. Under section 452, P.P.C. to suffer R.I for 5 years and to pay fine of Rs.10,000/= and in case of default in payment of fine he shall further undergo S.I. for three months. v. Appellant/Accused is further directed to pay an amount of Rs.200,000/= as compensation to the legal heirs of deceased Shoeban Chandio in terms of section 544-A, Cr.P.C. All the sentences awarded to the appellant/accused are directed to run concurrently and the appellant has also been extended the benefit of section 382(b), Cr.P.C.

2. Briefly facts of the case are that on 09.1.2011 complainant Ghulam Rasool Chandio lodged FIR at Police Station Sita Road, alleging therein that on 6.1.2011. his brothers Shahan and Ghulam Nabi came to visit him and stayed at his house. They all after taking dinner went to sleep. On 7.01.2011 early in the morning. the complainant woke up on the cries of his son Shouban and brother Shahan but due to darkness and fog nothing was visible. In the meantime his brother Ghulam Nabi son of Asif and other house inmates also woke up and they went inside the room where they found his son Shouban Ali was lying on cot straightly having bullet injuries on his person, blood was oozing from his injuries and he was dead, while his brother Shahan was lying injured in the thatched built shelter (Manah) in the courtyard of the house, he was unconscious and had sustained firearm injuries on his face, left hand and right arm near shoulder. It is alleged that they saw that exit door of the house was open hence they went outside the house in the street but could not see any perpetrator. After completing funeral and burial rites of his deceased son, complainant appeared at Police Post Sita where his statement was recorded by police vide entry No.14 dated 09.01.2011 and same was incorporated in the book under section 154, Cr.P.C. at Police Station Sita Road.

3. After completing legal requirements the police submitted report under "A" class which was accepted by the learned Civil Judge and J.M-I, K.N. Shah.

4. Thereafter, on 26.4.2011 police recorded supplementary statements of complainant and injured PW Shahan wherein they nominated appellant Fareed and co-accused Azam as accused implicating them in the commission of offence with an explanation that accused Azam Chandio had levelled false allegation of karap against complainant's son Shoeban with his daughter Mst. Bilqees for which on 05.1.2011 complainant along with children and ladies taking Holy Quran with them had gone to Azam Chandio and told them that his son Shoeban Ali was not their karo and prayed for faisla on which he kept on hopes. On 06.01.2011 complainant's brothers Shahan and Ghulam Nabi came to his house in evening and they both also went to Azam Chandio as Merr/deputation (with same request) but they were also refused. Then complainant along with brothers and family members after having dinner went asleep. Complainant further stated in his further statement that on 07.01.2011 they woke up early in the morning and at 6.00 a.m. accused Azam and Fareed armed with K.Ks barged into the house and started firing in order to create harassment and said Shoeban Chandio is their karo and they will kill him. Shoeban was sitting inside the room. Accused Azam entered in the room and killed his son Sheoban by making straight fires of his K.K while accused Fareed caused injuries to Shahan by making straight fires of his K.K. Complainant party besought accused on Holy Quran not to kill Shoeban on which they went away while extending threats not to disclose their names to police else whole family of complainant would be killed. Later it was seen Shoeban Ali having received firearm injuries was lying dead and his brother Shahan was lying injured having received injuries. Then injured Shahan was taken to hospital by Ghulam Nabi. Later on Seeta Road Police came and conducted necessary formalities on the corpse of deceased Shoeban Ali. Complainant further stated that accused party had developed pressure upon him not to disclose their names therefore, in the FIR lodged by him on 09.1.2011 he did not mention their names and later they shifted to Kotri due to threat to save their lives and then on returning recorded this further statement to the above effect.

5. Charge sheet against accused/appellant Fareed and co-accused was presented before the learned Civil Judge and J.M-I, K.N.Shah, showing both accused as absconders. Later-on both accused succeeded to get pre-arrest bail and joined their trial. Thereafter learned Magistrate sent up the case to the court of Sessions Judge, Dadu, for disposal according to law.

6. Learned Trial Court framed charge at Ex:2 against the accused/appellant and co-accused Azam to which they pleaded not guilty and claimed to be tried.

7. Process was issued against the complainant and private P.Ws which returned un-served with the endorsement that they have shifted to some unknown place and such statement of process server was recorded at Ex.3. During trial accused jumped the bail, hence their bail bonds were cancelled and sureties forfeited. NBWs issued against them returned un-executed hence such statement of process server was recorded at Ex.4. Proclamation under section 87, Cr P.C. and warrant off attachment under section 88, Cr.P.C. were also received duly complied at Exs.5 and

6. Thereafter accused persons were declared as proclaimed offenders and case against them was ordered to be kept on dormant file vide order dated 23.1.2014 at Ex.7. On 7.11 2016, present accused Fareed Chandio appeared and submitted application along with bail order for joining his trial. An amended charge against him was framed at Ex.12 to which he denied and claimed for trial vide his plea recorded at Ex.12/A.

8. In order to establish its case prosecution examined PW-1 complainant Ghulam Rasool at Ex. 13 who produced copy of entry No.14 dated 9.1.2011, copy of FIR and statement dated 26.4.2011 at Ex. 13/A to Ex.13/C, respectively, PW-2 eye-witness/injured Shahan at Ex.14. PW-3 mashir Muhammad Yaseen at Ex.15, who produced memo of injuries, memo of dead body, inquest report, memo of visiting place of occurrence and memo of last worn clothes of deceased at Ex.15/A to Ex 15/E, respectively.

9. On 18.11.2017 R&Ps of the case was received by Court of 3rd Additional Sessions Judge, Dadu by way of transfer from Additional Sessions Judge-II, Dadu. Prosecution examined PW-4 Medical Officer Dr. Abdul Hakeem at Ex.16, who produced police letter for postmortem of deceased, postmortem report, police letter for treatment of injured, provisional and final MLCs of injured and X-ray films and other medical record of injured at Ex.16/A to Ex.16/F. respectively, PW-5 SIP Khalid Hussain at Ex.17, PW-6 I/O ASI Allahdad Qambrani at Ex.18 who produced Lash Chakas Form at Ex.18/A and PW-7 ASI Qamaruddin at Ex.19 who produced receipt dated 07.1.2011 at Ex.19/A, thenceforth learned DDPP filed statement at Ex.20 for giving up the evidence of PW-Tapedar Ahmed Bux Panhwer. Prosecution also examined PW-8 SIP Mazhar Ali Pitafi at Ex.21, who produced an application moved by complainant before D.P.O investigation Dadu and report of chemical examiner at Ex.21/A and Ex.21/B. respectively. Thereafter learned DDPP for State closed its side vide his statement at Ex.22. Mr. Hussain Bux Solangi filed Vakalatnama for present accused at Ex.23.

10. Statement of accused was recorded under section 342, Cr.P.C. (Ex.24) in which he denied the allegations of prosecution levelled against him and professed his innocence. When he was asked as to why the complainant and P.Ws have deposed against him he replied that they are interested and due to dispute over a plot with the relative of complainant he has been falsely implicated. When he was confronted with the case property he stated that he has no concern with the same. However, accused neither examined himself on oath nor opted to examine any witness in his defence.

11. On conclusion of trial and after hearing learned counsel for the parities, learned trial Court finding the appellant guilty convicted and sentenced the present appellant/accused Fareed through impugned judgment, giving rise to filing of instant appeal.

12. Learned counsel for the appellant has mainly contended that the impugned judgment passed by the learned trial Court is unwarranted under law and facts and liable to be set aside; the impugned judgment is result of misreading and non-reading of evidence brought on record; admittedly the FIR was lodged regarding unseen incident with inordinate delay of 2 days for which no plausible explanation has been furnished by the complainant; later on in their further statements complainant and injured P.W Shahan have implicated present appellant Fareed and co-accused Azam Chandio while making grave improvements and giving entirely changed ocular account to the one complainant had already given in his FIR; in the FIR complainant stated that on cries he rushed to the room and saw his son Shoeban Ali lying dead on cot having received firearm injuries and injured Shahan lying unconscious in injured condition having received firearm injuries while in his further statement complainant stated that he along with inmates of house and brothers Shahan and Ghulam Nabi woke up in the morning and saw accused Azam and Fareed having K.Ks barged into the house and committed firing in order to create harassment and then within their sight accused Azam entered into the room and killed his son Shoeban Ali by making straight fires from his K.K at him while appellant Fareed injured his brother Shahan by making straight fires of his K.K upon him; admittedly all the eye-witnesses of the occurrence are closely related interse hence their testimony can not be taken as gospel truth in absence of any corroboratory evidence; nothing has recovered from the possession of appellant/accused to connect him with the commission of offence; the prosecution witnesses have failed to prove their stand that they were extended threats of murder by the accused party if they would name them in FIR; that even after submission of challan injured P.W Shahan did not support the prosecution case and exonerated the accused Fareed from commission of crime by filing affidavit before trial Court while extending no objection to his bail plea, creating serious dent in the veracity of prosecution story as far as case against present appellant/ accused Fareed is concerned; it has also come on record that another son of complainant namely Qurban is absconding accused in a murder case thus the complainant party has already standing murderous enmity with other parties and in such eventuality, it can not be taken out of consideration that the complainant has tried to implicate the present appellant/accused falsely with grave improvements in the prosecution story on various counts; the motive assigned for causing murder has not stood proved as complainant failed to bring on record any evidence to substantiate his motive; Eye-witness Ghulam Nabi, the brother of complainant was given up by the prosecution and his non-examination also created doubt into the veracity of prosecution case as the adverse inference is drawn that if such witness was examined he would have not supported the prosecution case; there are multiple contradictions into the evidence of prosecution witnesses and entire prosecution case suffer from several infirmities and improvements making the prosecution case highly doubtful. On all these submissions learned counsel urged that the prosecution has failed to bring home the guilt of the accused/appellant hence the impugned judgment is not sustainable on facts and law and liable to set aside and appellant/accused is entitled to the acquittal on benefit of doubt. In support of his submissions, learned counsel for the appellant has placed reliance on following case laws: i. Khalid Javed v. The State (2003 SCMR 1419) ii. Muhammad Rafique and others v. The State and others (2010 SCMR 385). iii. Muhammad Shah v. The State (2010 SCMR 1009)

13. Learned counsel for the complainant duly assisted by learned D.P.G mainly contended that impugned judgment passed by the trial Court is based on proper appraisal of evidence brought on record; the eye-witnesses fully supported the version taken by the complainant in his further statement as well as evidence and besides, the ocular account is also corroborated by medical evidence, the prosecution evidence do not suffer from any material discrepancy, improbability or material contradiction thus the prosecution evidence adduced at the trial was sufficient to warrant conviction therefore, the impugned judgment requires no interference and the instant criminal appeal is liable to be dismissed.

14. I have heard learned counsel for the parties and perused the material brought on record.

15. From perusal of the material produced on record and the evidence of the prosecution witnesses recorded at the trial in the instant case, it has emerged that allegedly the incident took place on 07.01.2011 while the FIR was lodged on 09.1.2011 with delay of two days without offering any plausible explanation for such inordinate delay. As per contents of FIR, admittedly it is an unseen incident when on cries complainant party woke up and went to the room and saw deceased Shoeban Ali was lying dead on a cot having received firearm injuries while Shahan was seen lying injured in unconscious condition under shelter (manah) located in the Courtyard. Complainant did not see any accused inside house or even he went outside the door which opened but did not see any body outside. Thus as per FIR admittedly none from complainant party seen any accused while committing offence or even while running away.

16. In the supplementary statement Ex:13/C complainant has introduced altogether a different version while stating accused Azam had levelled false allegation of Karap against his son Shoeban Ali with his daughter Mst. Bilqees for which he took his children and ladies to accused party and clarified that his son is not their Karo and requested for faisla on which he kept him on hopes that on 06.1.2011 his brothers Shahan and Ghulam Nabi had come to his house and they also went to Azam Chandio with same request which was turned down and they returned back and stayed with him. He further gave specific improved details stating that on the following day i.e 07.1.2011 they woke up and saw that at 6.00 a.m. accused Azam and Fareed armed with K.Ks entered in the house, started firing to create harassment and accused Azam went inside room and killed Shoeban by making fires from his K.K while accused Fareed fired from his K.K at Shahan and injured him and then on their request accused went away while extending threats of murder of his family if he would disclose their names. Besides he also stated that then injured Shahan was taken by his brother Ghulam Nabi and police also reached at the spot and conducted formalities on corpse of his son Shoeban. He further stated in his statement that accused party had developed pressure upon them not to disclose their names and due to fear of their lives they shifted to Kotri and on return recorded this statement. Thus, it is clear that complainant has given two versions which are entire different to each other whereby the prosecution story suffer from glaring improvements and exaggerations. Perusal of record reflects that prosecution failed to bring on record any corroboratory evidence to substantiate the motive against the accused for commission of offence on account of false allegation of karap. Admittedly all the prosecution witnesses closely related interse out of whom P.W injured Shahan and PW Ghulam Nabi are brothers of complainant and PW/mashir Yaseen is son of complainant. Perusal of record reflects that star eye-witness Ghulam Nabi was given up and his non-examination has draivn adverse inference upon prosecution case that if he would have been examined he would not have supported the prosecution case. Besides, it has also come on record that injured PW Shahan filed affidavit during trial exonerating the present appellant from commission of offence and extended his no objection for grant of bail to accused/appellant Fareed whereby he has not supported the prosecution case and reduced the veracity of prosecution case to none. Besides all the above infirmities and improvements, the prosecution evidence also suffer from multiple material contradictions, as discussed hereunder, which makes the prosecution case highly doubtful.

17. As regards the contradictions in the prosecution evidence is concerned, I have scanned the evidence of prosecution witnesses and found that PW-1 complainant Ghulam Rasool stated in his examination in chief that on 06.1.2011 his brothers Shahan and Ghulam Nabi came to his house and after taking dinner they all went to asleep, while in his further statement he stated that on 05 1.2011 he along with his children and ladies had went to accused Azam and requested for faisla but he kept him on hopes and then on 06.1.2011 his brothers Shahan and Ghulam Nabi after coming to his house they both also went to accused Azam with same request but were refused and P.W Shahan also contradicted in his examination in chief to this effect while stating that on 06.1.2011 he along with his brother/complainant Ghulam Rasool, and children went to accused Azam and clarified that Shoeban is not guilty, who kept them on hopes and they returned back and after having dinner went to asleep. Thus PW Shahan denied the assertion that brother Ghulam Nabi was with him. PW-1 Ghulam Rasool stated in his deposition that at 6.00 accused Azam and Fareed armed with K.Ks entered in the house and fired straight at Shoeban which hit on his chest while accused Fareed fired at Shahan which hit him on right arm and left arm claw while he had stated in his further statement that on coming accused Azam and Fareed started firing in order to create harassment and then said that they will kill Shoeban as he is their karo and accused Azam went inside room and fired at Shoeban but did not disclose specific seat of injury on his chest and on the contrary PW Shahan disclosed in his deposition that accused Azam and Fareed on entering in the house enquired from them where is Shoeban as he is karo and they would kill him. He further stated that at that time Shoeban was sleeping in the room, accused Azam fired at Shoeban which hit him on chest and abdomen while complainant had not disclosed about any fire which hit on abdomen of Shoeban. PW Shahan further stated in his deposition that at that time he was sleeping in Courtyard when accused fired at him which hit on his right chin, right arm and left arm claw. PW Shahan though stated that he was admitted in a hospital at Hyderabad from where he was forcibly brought by accused Azam and Fareed on show of weapons and kept him at Dadu where he stayed a night and then he was produced in Court for filing affidavit in their favour on threats of murder but surprisingly subsequently neither his 164, Cr.P.C. statement was recorded nor he could produce any evidence of any complaint etc in this regard to substantiate his version. Looking to the above material contradictions between statements of PW Shahan and complainant, his version regarding filing of affidavit in favour of accused by force appears to one of series of improvements made by the prosecution witnesses making the credibility of prosecution witnesses highly doubtful. As regards the contradictions between the ocular and medical account, perusal of evidence of Dr. Abdul Hakeem who conducted postmortem reflect that deceased Shoeban received in all 4 firearm injuries of entry wounds on mid of chest, right side of chest, medial side of left arm and left side of abdomen, which is contradictory to the statement of PW/complainant who stated that deceased received firearm injury on chest only and also contradictory to the statement of PW Shahan who stated that deceased received two firearm injuries on chest and abdomen. Thus it appears that ocular account is belied by medical evidence creating serious dent into the veracity of prosecution case.

18. Perusal of record also reveals that the FIR was lodged on 09.1.2011 against unknown accused while the supplementary statement of complainant was recorded on 26.4.2011 introducing the names of appellant and co-accused Azam, thus there is delay of about more than 3 and half months. In this regard it is settled principle of law that such delay in recording supplementary statement of the informant giving different version after lodging the FIR would be an important factor which is likely to give rise to an inference that second version contained in the supplementary statement was introduced by the prosecution after deliberation and if it is so the same will adversely affect the prosecution case.

19. In the case of Khalid Javed and another v. The State (2003 SCMR 1419) the Hon'ble Supreme Court set aside the impugned judgments of learned two Courts below and acquitted the accused of the charge while holding as under: "First information report under section 154, Cr.P.C. is normally considered as a corner stone of the prosecution case unless it is shown that on account of some mala fides intention a wrong version of the complainant was recorded by the investigating agency with a view to allow the real culprits to go escort free and to involve innocent person in the commission of the offence or complainant in order to misguide the investigation lodged false report i.e. FIR, or supplementary statement with ulterior motive.

Delay in recording supplementary statement of the informant giving different version after lodging the FIR would be an important factor which is likely to give rise to an inference that second version contained in the supplementary statement was introduced by the prosecution after deliberation and if it is so the same will adversely affect the prosecution case.

Witness who had made glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the FIR if he was complainant or if he was a witness and his statement was recorded under section 161, Cr.P.C, such witness was to be considered to be wholly unreliable witness and it was not advisable to place explicit reliance upon his evidence."

20. In the case of Muhammad Rafique and others v. The State (2010 SCMR 385), Hon'ble Supreme Court of Pakistan set aside the conviction and sentence awarded to the accused and acquitted them of the charge while holding as under: "Complainant had improved his statement from the one made in the FIR by nominating more persons at the trial, though at the initial stage he was not able to recognize them being unknown to him.

Complainant had even belied his own statement recoded in his examination in chief and had suppressed the truth by telling lie having no sanctity of oath.

Improvement made by complainant had created serious doubt about his veracity and credibility.-- Complainant had made his supplementary statement after due consultation and deliberation to falsely involve the accused.

Other eye -witnesses had also improved their statements in Court on various eye -witnesses had also improved their statements in Court on various material points.

Prosecution had withheld the most important witness of conspiracy presumably with some sinister motive.

Improvement made by a witness on material aspects of the case is not worthy of reliance and evidence of such witness requires corroboration." 20(sic.) The Hon'ble Supreme Court, in the case of Tariq Pervez v. The State 1995 SCMR 1345, has as under: "For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."

21. In view of hereinabove facts and circumstances of the case, coupled with glaring improvements, inconsistencies, discrepancies and contradictions in the statements of prosecution witnesses on material aspects as well as following the dictum laid down by honourable Apex Court in the above case laws, I am of the considered view that the prosecution has miserably failed to establish case against the appellant beyond shadow of reasonable doubt, hence extending benefit of doubt to the appellant/accused, the instant criminal appeal was allowed, the impugned judgment dated 30.6.2018 was set-aside and the appellant was acquitted of the alleged charges vide my short order dated 21.11.2019 and these are the reasons for such short order. MH/F-13/Sindh Appeal allowed.