2021 PLP 2 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Appeal appellant Ghulam alias Ghulam Hussain has assailed Judgment dated 15.3.2018, handed down by learned 2nd Additional Sessions Judge, Badin in Sessions Cases No. 10 of 2017 (re: State v. Abdul Aziz and another), being outcome of FIR No. 311/2016 registered at Police Station Badin under sections 302, 34 P.P.C. whereby he convicted appellant Ghulam Hussain and co-accused Abdul Aziz for offences punishable under aforesaid sections, and sentenced each of them to suffer life imprisonment and to pay fine of Rs.2,00,000/- (Rupees Two Lac only) each as compensation to be paid to legal heirs of deceased Rabdino as provided under section 544-A, Cr.P.C. and in case of non-payment of compensation amount, the accused were ordered to remain in jail till the realization of compensation amount. However, the accused were extended benefit of section 382-B, Cr.P.C.

2. Concisely, the facts of the prosecution case are that Complainant Muhammad Hashim Jat lodged FIR at PS Badin on 12-12-2016 at 2000 hours stating therein that his brother Rabdino Jat aged about 30/32 years used to ply Shehzore. On 11-12-2016 complainant, his brother Rabdino and cleaner of Shehzore namely, Haji son of Muhammad Jat took fair for Deeplo and from Deeplo they were returning back and when they reached at Luari Sharif, friend of his brother namely Abdul Aziz son of Natho Notiar met them. Abdul Aziz asked them to stay night with him and in the morning they may go, therefore, they all went to the village of Abdul Aziz. After taking dinner Rabdino, brother of complainant, slept on a cot while Complainant and cleaner slept inside the Shehzore. It was further alleged that at about 03.00 a.m., complainant woke up on some noise and saw that Abdul Aziz armed with hatchet and an unidentified person were standing at the cot of Rabdino. Abdul Aziz abused Rabdino and told him that he has put evil eyes in his house and that they will kill him. Rabdino told Abdul Aziz that he has some misunderstanding, in the meantime, Abdul Aziz caused sharp side hatchet blow to Rabdino with intention to kill him which hit at left side of his neck, thereafter, unidentified person caught hold of Rabdino and Abdul Aziz gave cuts with hatchet at the body of Rabdino. Due to fear, complainant party did not go near to them. Thereafter when accused persons went away towards their houses. complainant saw that Rabdino had expired. Complainant then informed to Bachoo son of Khamiso Jat on phone. He then went to PP Luari Sharif and informed the Police. Police accompanied him to place of incident, conducted necessary formalities and after the postmortem of deceased and funeral ceremony, complainant lodged the FIR.

3. After registration of FIR, police conducted investigation, arrested accused, made recoveries from them and on completion of investigation submitted challan against them in the Court.

4. A formal charge (Exh-02) was framed against the accused persons to which they pleaded not guilty and claimed to be tried vide their Pleas Exs. 3 and 4.

5. In order to prove its case, prose-cution examined PW-1, Dr. Muhammad Yousuf at Ex.5, who produced police letter, provisional postmortem examination report, Histopathological Report, Chemical Examiner's report, final postmortem report, receipt of dead body, receipt of clothes as Ex.5-A to 5-G. P.W.2, comp-lainant Muhammad Hashim, was examined at Ex.6, who produced FIR as Ex.6-A and receipt of dead body as Ex.6-B. P.W.3, Haji was examined at Ex.7, while PW-4, Tapedar Muhammad Qasim was examined at Ex. 8, who produced police letter as Ex. 8-A and sketch of vardat in quadruplicate as Exs. 8-B/1 to 8-B/4. PW-5 Saleh Muhammad was examined at Ex.9, who produced memos of dead body, place of incident, clothes of deceased, arrest of accused, recovery of hatchet from accused Abdul Aziz and memo of clothes of deceased as Exs. 9-A to 9-F respectively. P.W.6, Ghulam Shabir was examined at Ex.10, who produced departure entry No.11 dated 12-12-2016, Lash Chakas Form, Danistnama, police letter written to M.O., receipt of dead body, arrival entry No.7 dated 12.12.2016, departure entry No.2 dated 13.12.2016, departure entry No.2 dated 14-12-2016, arrival entry No.14 dated 14.12.2016, Interrogation Entry, departure entry and arrival entry in one leaf dated 15-12-2016, departure entries and arrival entries dated 19.12.2016 in one leaf, application moved to Civil Judge and J.M-I Badin for holding identification parade of accused Ghulam alias Ghulam Hussain and identification parade form as Exs.10-A to 10-K respectively. There-after, learned D.D.A. closed side of prosecution, vide his Statement Ex.11.

6. Statements of accused persons were recorded vide Exs.12 and 13. wherein they claimed to be innocent and stated that they have falsely been involved in the case. Accused Abdul Aziz stated that he was cleaner at deceased's vehicle and he had left deceased six months prior to this incident, therefore, complainant had given his name. Accused Ghulam alias Ghulam Hussain stated that P.W. Haji had disclosed his name due to enmity on matrimonial affairs with him. However, neither they examined themselves on oath, nor produced any witness in their defence.

7. After formulating points for determination, recording evidence of the prosecution witnesses and hearing learned advocates for both the accused, learned counsel for the complainant and learned D.D.A. appearing for the State, trial Court convicted and sentenced the accused, as stated above. Hence instant criminal appeal has been filed by present appellant.

8. I have heard learned counsel for the appellant and learned DPG appearing for the State and perused the material available on the record.

9. Learned counsel for appellant submitted that name of appellant does not transpire in FIR. He further submitted that he was arrested by the police on 14.12.2016; however was subjected to identification parade on 19.12.2016 after a delay of about five days from the date of his arrest; therefore, identification parade has lost its evidentiary value. He further submitted that Judicial Magistrate before whom the identification parade was held was not examined by the prosecution. Learned counsel further pointed out that though the appellant was not named in FIR, and complainant in his examination-in-chief (available as Ex.6 at page 39 of paper book) deposed to effect that accused Ghulam Hussain at the time of incident was not known to him; however in his cross-examination. available at page-41 of paper book, he admitted that accused Ghulam Hussain is known to him since long as he is also Van Driver. He further submitted that when brother of complainant was allegedly murdered and appellant was known to him, even then as to why he did not nominate the appellant in the FIR which shows that complainant has implicated him after due deliberation and consultation. He also criticized the FIR (available at Exh.06-A Page-42 of the paper book) submitting that the alleged incident had taken place on 12.12.2016 at 0300 hours: however, FIR was lodged on the same day but at 2000 hours, i.e. after a delay of about 17 hours, though distance between police station and place of incident was only 12/13 kilometers. According to learned counsel, after the arrest of accused by I.O. of the case, who is inimical towards the appellant, he was shown to complainant at PS and after about five days of his arrest he was produced before Magistrate, where complainant and PWs picked him up, thus identification parade has no evidentiary value. In support of his contention, he placed reliance upon an unreported order judgment of this Court dated 21.11.2019 passed in Criminal Jail Appeal No.S-140 of 2013. Learned counsel further submitted that this incident is un-witnessed one and even complainant was not present at the time of incident and the incident having taken place at the odd hours of night, false as well as mistaken implication of appellant cannot be ruled out. In support of his contentions, he referred to Ex.10/B and 10/C available at page-68 and 69 of paper book and drew attention of the Court towards Column-6 of the documents viz. Exh.10/B and 10/C. The perusal of Column-6 of Exh.10/B and 10/C shows that complainant had informed that his brother Rabdino Jat has been murdered by unknown persons with sharp cutting weapon for which they have doubt that one Abdul Aziz and others have committed such murder. Learned counsel further submitted that the complainant himself had given such information in early morning at 0630 a.m. yet FIR was lodged in the evening at about 08:00 p.m. in which the complainant did not name the appellant. He further argued that role attributed to the present appellant by PWs is that he allegedly caught hold of deceased, but they have not specified as to how the deceased was caught hold by the appellant; whether from his arms or he had grappled the deceased. He further submitted that all above discrepancies suggest that prosecution has failed to prove its case beyond shadow of reasonable doubt; hence he prayed that appellant may be acquitted of the charge by extending him benefit of doubt. Learned counsel also submitted that allegation of causing hatchet injury to deceased is assigned to co-accused/ convict Abdul Aziz, who has not filed any appeal against his conviction or sentence. In support of his contention, he has placed reliance upon the cases of Noor Muhammad v. The State and another (2010 SCMR 97); Sanaullah v. The State (2017 PCr.LJ 713) and Ghulam Qadir v. The State (2008 SCMR 1221).

10. Conversely, Mr. Shahid Ahmed Shaikh, D.P.G, appearing for the State, opposed the appeal. He submitted that sufficient evidence was adduced by the prosecution against appellant who was picked up by PWs in identification test. He; however, could not controvert the fact that Magistrate before whom identification parade was held has not been examined. Even learned DPG did not justify the delay in holding identification parade. However, he prayed for dismissal of the appeal and maintaining the impugned judgment.

11. Admittedly. name of present appellant does not transpire in the FIR It was alleged that on the night of incident viz. 12.12.2016 accused Abdul Aziz on the motive that deceased Rabdino had put evil eyes in his house, caused sharp side hatchet blow to deceased Rabdino which hit him on the left side of his neck, thereafter one unidentified person, who was accompanying accused Abdul Aziz caught hold of Rabdino and Abdul Aziz started cutting his neck with the sharp edge of hatchet. Thereafter, in the identification parade which was held on 19.12.2016. the complainant picked up appellant Ghulam Hussain to be the said unidentified person. Accused Abdul Aziz has not preferred any appeal against the impugned judgment. In this view of the matter, most important piece of evidence against the present appellant is the identification parade in which he was allegedly picked up by the complainant.

12. It is an admitted position that the accused/appellant was arrested on 14.12.2016 and he was put to identification parade on 19.12.2016. However, P.W. ASI Ghulam Shabbir, I.O. of the case, in his evidence deposed that on 13.12.2016 he recorded statements of P.Ws. He further deposed, "During statement of P. W. Haji disclosed that the unknown person was Ghulam alias Ghulam Hussain Jat." Besides, although complainant Muhammad Hashim in his examination-in-chief deposed. "At the time of commission of incident accused Ghulam Hussain was not known to me. On 19.12.2016 ITP of accused Ghulam Hussain was conducted before Civil Judge and J.M. Badin during which I identified him", however, in his cross-examination he admitted, "I know accused Ghulam Hussain since long and he is also van driver." P.W. Haji also admitted, "I know accused Ghulam Hussain since long." Now. if accused/appellant Ghulam Hussain, was already known to the complainant and P.W. Haji, then as to why the complainant did not nominate the appellant in the FIR and instead made allegations against accused Abdul Aziz and one unidentified person. It is also strange that in such an eventuality. i.e. when the complainant was already familiar with accused Ghulam Hussain, then what was the fun in holding identification parade? In my view, on this account only, entire proceedings of identification parade becomes redundant and loses its evidentiary value and legal sanctity and such piece of evidence cannot be used for the purpose of convicting the accused and even for corroborating the alleged ocular testimony. In this context, reference may be made to the case of The State v. Khan Muhammad alias Khanan and others reported in 2005 PCr.LJ 811, wherein a Division Bench of this Court held as under: "Apart from the above facts, complainant in his deposition categorically stated that respondent Zaheer Hussain was known to him as he was one of the witnesses of the murder case of Murtaza, brother of respondent Alam Sher, in which Hanif son of the deceased Muhammad Khan was nominated as an accused person. Thus, when the respondent Zaheer Hussain was already known to the witnesses then why he was not named in the FIR and why the identification of such accused was held? Thus, we agree with the learned Assistant Advocate-General that the identification test is highly doubtful."

13. Apart from above, there is also unexplained delay in the holding of identification parade. It is also an admitted position that although the accused/appellant was arrested on 14.12.2016, but he was put to identification parade on 19.12.2016 i.e. after about five days which also adversely affects such identification parade and is fatal to the prosecution case. In this connection, reference may be made to case reported as Saifullah v. State (2018 MLD 751 [Quetta]) wherein it was held that the delayed identification parade both with reference to the date of occurrence and the date when the accused was taken into custody is to be looked upon with maximum caution by the court. In the case of Muhammad Hanif alias Pocho v. State reported in 2014 PCr.LJ 928 [Karachi] this Court held that identification parade of accused held after a considerable delay of six days had lost its sanctity, when such delay was not explained. In another case reported as Syed Zaki Kazmi v. State (2018 PCr.LJ 976) this Court did not rely upon the identification of accused by the witness after a delay of 22 days of his arrest. Yet in another case reported as Zafeer Ahmed v. State (2017 PCr.LJ 662 [Gilgit-Baltistan Chief Court] it was held that long delay in conducting the identification test was fatal in the absence of plausible explanation and such delay might be a factor which had offered an opportunity to the prosecution witnesses to see the accused while in police custody and when produced in court for obtaining remand.

14. It is also significant to point out that the Judicial Magistrate, before whom the alleged identification parade was held, was not examined before the trial Court. In absence of evidence of concerned Magistrate, it cannot be ascertained as to whether the identification parade was held in accordance with the law and the instructions / guidelines provided by the Superior Courts from time to time in this respect or not? Therefore, again such identification parade loses its legal sanctity on this score also. In the case of Khan Muhammad alias Khanan (supra). while dealing with this point, it was held as under: "Furthermore, very important witness, viz. Magistrate has not been examined. He was the person who could have given the details of identification test and other relevant facts which are required to be performed by him. In the circumstances of the present case, non-examination of Magistrate has materially and adversely affected the identification test. As such, the identification parade in the circumstances of the present case has not been proved in accordance with law. It appears to be highly doubtful."

15. It is also noteworthy that against Column No. 6 of "Lash Chakas Form" Ex.10/B as well as Danistnama Ex.10/C available at pages 68 and 69 of paper book which is to the effect, "who and when informed about the death of deceased with date and time" it is mentioned that on 12.12.2016 at 0630 hours one Muhammad Hashim son of Khair Muhammad by caste Jat (complainant) informed that his brother Rabdino Jat has been murdered by unknown persons with sharp cutting weapon for which they have doubt that one Abdul Aziz (co-accused) and others have committed his murder. Here also name of present appellant has not been mentioned and even against co-accused Abdul Aziz, the complainant has not stated with certainty to be the culprit who had committed murder of the deceased by causing hatchet injuries. rather he has shown only 'suspicious' upon him to have committed such offence.

16. It is also noteworthy that in the FIR complainant stated that he and P.W. Haji witnessed the incident; however, due to fear they did not go near to the accused and after committing the offence the culprits went away towards their houses, whereas in his examination-in-chief complainant deposed, "We tried to rescue my brother but accused Abdul Aziz issued threats of dire consequences." In his cross-examination also he admitted, "We tried to intervene and rescue my brother but since the accused was having hatchet and pointed it out to us hence we failed."

17. There also seems to be delay in lodging of the FIR. According to complainant and P.W. Haji, the alleged incident took place on 12.12.2016 at 3.00 (midnight) whereas the FIR was registered on the same day but at 8.00 p.m. i.e. after 17 hours although the distance between the place of place of incident and the police station was only 12/13 Kilometers. It is also not the case of prosecution that Rabdino was only injured at the time of incident and that he was taken to hospital for treatment and thereafter he succumbed to his injuries. Rather, according to complainant. "Thereafter we went over the dead body and found that my brother was already dead." Likewise, P.W. Haji deposed. "Thereafter the accused went away towards their houses and we saw that deceased Rabdino had expired." Despite this, as to why the FIR was not registered immediately after the incident. This also creates doubts about the deliberation and consultation on the part of complainant party. In the case reported as Ayub Masih v. The State (PLD 2002 SC 1048) Honourable Supreme Court held as under:- "The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."

18. It is also worthwhile to point out at this stage that learned trial Judge has not taken pains to appreciate and discuss the evidence brought on the record in a proper way. From the perusal of the impugned judgment, it transpires that the judgment is consisting of nine pages and 17 paragraphs excluding concluding para, out of which till para 15 the facts of the case and evidence of prosecution witnesses, only to the extent of their examination-in-chief without cross-examination, have been narrated, while in para 16 it has been mentioned, "It appears that the P. Ws were subjected to lengthy cross-examination but their evidence could not be shattered during cross-examination." In this view of the matter, the impugned judgment, on the face of it, does not appear to be a 'Speaking Order'. Rather, there also appears to be a grave mistake having been committed by the trial Judge. Admittedly, in instant case initially the allegation of commission of murder was levelled against accused Abdul Aziz and one unidentified person and thereafter during identification parade present appellant Ghulam Hussain was involved in the case. However, except these two accused, no other person has ever been implicated in the commission of the alleged offence, either in the FIR or in the depositions of the prosecution witnesses. Despite that, very strangely, rather very shockingly, learned trial Judge, while delivering the impugned judgment, has framed following points for determination:

1. Whether on 22.9.2014 at 2100 hours near the house of Abdul Rahman, the accused Mubeen and accused Tarique on the instigation of accused Abdul Rehman fired upon deceased Uris with their respective repeaters and committed his murder?

2. What should the Judgment be?

19. Apparently, point No.1, as quoted above, relates to some other case but learned trial Judge has incorporated the same in the instant case. Such conduct on the part of a Judicial Officer cannot be termed as a minor mistake rather it seems to be a grave mistake on his part. However, although this being a very serious error, at the same time it seems to be a bona fide mistake having occurred on account of sheer negligence but not tainted with any malice, therefore, the concerned Judicial Officer may be issued strict warning to be very much careful in future.

20. It is also noteworthy that without properly discussing the evidence including cross-examination of the prosecution witnesses, learned trial Court in para 16-A of the impugned judgment has observed, "The accused have denied the allegations of prosecution in their 342, Cr.P.C. statements and claimed their innocent. However the accused have failed to establish on record that they were falsely implicated in the case .." In this context, suffice it to observe that it is the settled principle of law that before the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise. It has also time and again been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Muhammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under: "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

21. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case....... Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

22. Keeping in view aforesaid discrepancies, infirmities and lacunas in the prosecution case, as stated above, it can safely be held that prosecution has not succeeded in proving its case against the accused / appellant beyond shadow of reasonable doubt. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In the present case, there are various contradictions in the evidence of the prosecution witnesses which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

23. For the aforesaid reasons, instant appeal is hereby allowed. Consequently, the impugned Judgment dated 15.3.2018. handed down by learned 2nd Additional Sessions Judge, Badin in Sessions Cases No. 10 or 2017 (re: State v. Abdul Aziz and another) being outcome of FIR No. 311/2016 registered at Police Station Badin under sections 302, 34, P.P.C. is set aside to the extent of conviction and sentence of appellant Ghulam alias Ghulam Hussain only, whereas it remains to be maintained to the extent of co-accused / convict Abdul Aziz. Consequently, appellant Ghulam alias Ghulam Hussain is hereby acquitted of the charges. He shall be released forthwith, if his custody is no longer required by jail authorities in any other criminal custody case. JK/G-16/Sindh Appeal allowed.