2022 P Cr (PLP)

ZULFIQAR ALI SANGI, J.

Through instant criminal appeal, the appellants Aslam Solangi, Zamir Solangi, Meer Gul Solangi and Mushtaq alias Musag Solangi have assailed the Judgment dated 18.04.2016, passed by the learned VI-Additional Sessions Judge, Larkana in Sessions Case No.259/2011, re: State v. Aslam Solangi and others, being outcome of Crime No.09/2011 of Police Station Waris Dino Machi, offence under sections 302, 148, 149 and 506, P.P.C, whereby the trial court has convicted the appellants/accused under section 302(b), P.P.C. and sentenced them to suffer imprisonment for life and fine of Rs.200,000/- each and if the fine is recovered, same would be given to legal heirs of deceased and in case of failure to deposit the fine amount, the accused shall suffer two years' more S.I. The above named appellants were further convicted for offence punishable under sections 148, 149, P.P.C and sentenced to undergo for two years and pay fine of Rs.5000/- each and in case of default they shall suffer S.I for one month more. The benefit of section 382-B, Cr.P.C was extended to the appellants for the period which they remained in jail. All the sentences were ordered to run concurrently. The trial court acquitted the co-accused Nooro Solangi and Nasrullah by extending them the benefit of the doubt.

2. Brief facts of the prosecution case are that the complainant Fazal Qadir lodged the FIR at P.S. Waris Dino Machi on 12.02.2011 stating therein that about three years back there had become dispute with Lakhmir Solangi and others over matter of children, for which the complainant party had already lodged another FIR against them with P.S, Waris Dino Machhi, on which Lakhmir and others were annoyed, they were issuing threats to the father of the complainant namely Hazoor Bux for withdrawal of the said case, else he will face the loss. On the day of incident, the complainant, his father Hazoor Bux son of Ali Mohammad by caste Solangi aged about 70/71 years were sleeping on cots at their "Ata Chaki", electric bulbs were glowing. At about 04-00 a.m., 06 persons entered into their "Ata Chaki", out of them four persons were identified each Mir Gul son of Qaim armed with Kalashnikov,

2. Mushtaq alias Musag son of Arz Mohammad armed with Kalashnikov,

3. Aslam son of Lakhmir armed with gun,

4. Zamir son of Jaam with repeater all by caste Solangi resident of village Dilawar Machhi, taluka Ratodero and two unidentified persons armed with lathies with open faces would be identified if seen again. Out of them, accused Mir Gul gave hakal to father of the complainant, told that he was saying him to withdraw the case, but he did not do so, hence he will not be spread today, saying so he pulled him, then the complainant and his father Hazoor Bux raised cries, on their cries his cousin Meenhal son of Hidayatullah Solangi and Marot (cousin) Ghulam Mohammad son of Lutuf Ali Solangi came running. The accused had aimed weapons at them and were saying to keep silent, thereafter they dragged out father of the complainant from mill and taken away. The complainant party chased them, the accused went across the Janat Shakh, they were standing at northern bank and the complainant party was standing at southern bank. The accused restrained the complainant party from going across the Shakh, else will be murdered, they did not go forward due to fear. On their sight accused Mir Gul tied with cloth over nose and mouth of his father with intention to stop breathing and remaining accused persons caused a butt blows to his father, accused Aslam and Zamir caused fist blows to father of the complainant on his eyes and unidentified accused caused lathies blows to father of the complainant on his legs, right shoulder and other parts of body, due to receiving hits, his father became unconscious and expired within their sight, thereafter all accused along with respective weapons by threatening them went away towards east, thereafter the complainant party went and saw his father, he had sustained injuries on both eyes, lips, right shoulder, left knee, left side buttock and was dead. Thereafter the complainant left the above witnesses over dead body, lodged the FIR against above named accused persons.

3. After completing the investigation and other formalities, the investigating officer, submitted the charge sheet before the court having jurisdiction. The case papers were supplied to the appellants and formal charge was framed against them, to which they pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove its case, examined P.W-1 H.C Bagan Ali Joyo (corpse bearer) at Ex.14, he produced receipt under which he handed over dead body to the complainant at Ex.14-A, P.W-2 Muktiar Ali Zangejo (Tapedar) was examined at Ex.17, he has produced sketch at Ex.17/A, P.W-3 Complainant Fazul Qadir Solangi was examined at Ex. 18, he produced copy of FlR at Ex. 18/A, photograph of his father in injured condition at Ex. 18/B, Copy of his further statement to police at Ex. 18/C, PW-4 Meenhal Solangi was examined at Ex. 19, he also produced his further statement at Ex. 19-A; PW-5 ASI Munwar Ali Jokhio (author of FIR) examined at Ex.20; PW-6 PC Zulfiqar Ali Ghanghro, mashir of arrest, examined at Ex.23, he produced mashirnama of arrest of accused Nooro alias Noor and Nasrullah, at Ex.23/A; PW-7 PC Qaimuddin, second mashir of arrest, examined at Ex.24; PW-8 S.I.P Sanaullah Jalbani was examined at Ex.25; P.W-9 Ghulam Mohammad Solangi examined at Ex.26; PW-10 Mohammad Yousuf Solangi was examined at Ex.27, he produced mashirnama of place of Vardat at Ex.27/A, 'danistnama' al Ex.27/B, mashirnama of arrest of accused Aslam at Ex.27/C, mashirnama of arrest of accused Meer Gul at Ex.27/D, mashirnama of arrest of accused Zamir at Ex.27/E; P.W-11 MLO Dr. Tufail Ahmed Seelro was examined at Ex.28, he produced post-mortem report at Ex.28/A. PW-12 I.O/S.I.P Farman Ali Bhutto was examined at Ex.29. Thereafter learned ADPP closed the prosecution.

5. Trial Court recorded statements of accused under section 342, Cr.P.C., wherein they denied the prosecution allegations, claimed their innocence and false implication due to enmity. Accused Aslam produced copy of newspaper cutting publishing news of deceased being killed due to honour by unknown persons. The accused persons did not examine themselves on oath under section 340(2), Cr.P.C, but they all consistently prayed to examine some persons, namely, Abdul Raheem, Bhooral, Mashooq Ali, and Majeed as their defence witnesses.

6. After assessment of evidence, and hearing the counsel for the parties, learned trial court has passed the above impugned judgment and awarded sentence to the present appellants/accused as mentioned above, being aggrieved by and dissatisfied with the said judgment appellants/ accused above named have preferred this criminal appeal.

7. Learned counsel for the appellants has contended that the appellants are innocent and have falsely been implicated in this case; that the impugned judgment is contrary to law, facts and equity; that learned trial court has given undue weight to the prosecution witnesses; that there are material contradictions in the depositions of prosecution witnesses but the same have not been considered by the trial court; that the trial court has not considered the facts that the dead body was found in naked condition, however, such fact has not been disclosed in the FIR; that no any piece of cloth was recovered from place of vardat or from the place wherefrom deceased was dragged; that there were no marks of dragging of deceased from flour mill to Jannat Shakh in the mashirnama or the I.O had deposed so; that on the evidence of same set of witnesses, co-accused Nooro and Nasrullah have been acquitted by the learned trial court; that there are many illegalities and irregularities in the impugned judgment and the same is not sustainable under the law and the same is liable to be set-aside; that the prosecution has failed to establish its case against appellants beyond a reasonable doubt. He has relied upon the cases of Azhar Mehmood v. The State (2017 SCMR 135), Haq Nawaz v. The State (1975 PCr.LJ 209), Muhammad Khan v. The State (1999 SCMR 1220) and Muhammad Irshad and another v. The State (1999 SCMR 1030). He has prayed for acquittal of the appellants.

8. Learned Deputy Prosecutor General has submitted that prosecution witnesses have fully supported the case; that on material contradictions are pointed out by the defence counsel in their evidence; that the evidence of the witnesses remained un-shaken; that ocular evidence was supported by the medical evidence; that there is sufficient material available on record to connect the present appellants/accused with the commission of offence. He has prayed that the appeal filed by the appellants may be dismissed.

9. On the contrary, learned advocate for the complainant has adopted the same arguments as advanced by the learned Deputy Prosecutor General and further contended that the complainant and his witnesses have fully supported the version of each other; that the appellants were rightly convicted by the trial court; that there are no major contradictions in the evidence of prosecution witnesses; that they have no reason to falsely implicate the appellants; they have no reason to substitute the actual culprits with the present appellants/accused; that the enmity cuts both ways which can be a motive for commission of murder likewise a reason of false implication; In the end, he has prayed that appeal of the appellants may be dismissed.

10. I have heard learned counsel for the parties and have gone through the material available on the record so also the relevant law including that cited at the bar with their able assistance.

11. On reassessment of the entire evidence produced by the prosecution it is established that the prosecution has not proved the case against the appellants beyond a reasonable doubt.

12. The complainant Fazal Qadir is the son of deceased Hazoor Bux and was examined as PW-3, he deposed that on the day of incident he along with his father was sleeping at the flour machine where at about 4.00 a.m. accused Meer Gul armed with KK, Mushtaque armed with KK, Aslam armed with gun and Zamir armed with repeater and two accused were unidentified armed with lathies came there and they identified on the light of bulb. He deposed that accused Meer Gul asked his father that he had not withdrawn from the case, therefore, he will not be spared and then accused dragged his father on such he and his father raised crises which attracted his cousins Meenhal and Ghullam Mohammad. He deposed that accused person pointed their weapons on them to which they were remained silent and they dragged his father towards Jannat Shakh. Accused crossed the Jannat Shakh and complainant party remain on other side of the Shakh wherefrom they saw that accused closed nose and mouth of deceased with cloth and the accused who were armed weapons caused butt blows to him. Accused Aslam and Zamir caused fist blows on the eyes and unidentified accused caused lathi blows to deceased, deceased became unconscious and died at the spot. After the accused left, complainant party went there and saw that the deceased was in injured condition and was died. As per complainant he left the witnesses at the dead body went to police station where his FIR was registered. The prosecution also examined eye-witnesses Meenhal and Ghulam Mohammad and both have deposed at most same as deposed by the complainant. However, all these eye-witnesses in their cross-examination gave contradictory evidence. Therefore their evidence on its reassessment I found the same as not reliable, not trustworthy and confidence inspiring.

13. As per the prosecution case the incident was of dark night and the source of identification of the appellants was bulb light which is a weak type of identification. The bulb at the place of incident is not mentioned in the mashirnama of the inspection of the place of vardat nor the same was taken into possession by the investigation officer.

14. All the eye-witnesses including the complainant had not deposed a single word in their evidence that accused put off the clothes of the deceased nor the evidence has come on record that the clothes of the deceased were torn during dragging by the accused persons. However, the investigation officer deposed before the trial court that when he inspected the dead body of the deceased at the place of vardat it was in naked condition. The complainant during his cross-examination stated that at the time of dragging to his father from flour machine he was wearing clothes. The PW Meenhal during his cross-examination negated the suggestion made on behalf of accused by stating that "It is incorrect to suggest that some cattle grazers had informed us in the morning that naked dead body of my uncle was lying at bank of Jannat Shakh". The PW Ghulam Muhammad also negated the same suggestion and stated that "It is incorrect to suggest that the persons who apprehended deceased made him naked and committed his murder". However, the investigation officer deposed before the trial court that he examined dead body of Hazoor Bux at Jannat Shakh which was naked and shown to him by the complainant at 9:40 a.m. in presence of mashirs Muhammad Yousif and Gaji Khan and he further stated during cross-examination that no clothes of the deceased were lying near his body. The clothes of the deceased which he wear were also not recovered nor were produced before the trial court. This fact alone is sufficient to hold that the offence as alleged by the prosecution was not committed in the manners as narrated by the complainant and the eye-witnesses which cut the roots of the prosecution case and make it doubtful.

15. Another important aspect of the case is that all the three eye-witnesses admitted in their evidence that there is distance of 2 and half KM in between floor machine wherefrom the deceased was dragged by the accused persons and the Jannat Shakh where deceased was murdered and the complainant and eye-witnesses chased the accused persons for the same distance but they did not take any efforts to save the deceased or they sent back one of them to their village for informing co-villagers about the incident that may save the deceased as the distance which as per prosecution case was so long and accused persons also travelled by foot. The conduct of prosecution witnesses to remain silent till 2 and 1/2 kilometers is also doubtful, the investigation officer during the cross-examination also admitted that there are two villages in the way from the flour machine to Jannat Shakh but unfortunately the complainant party not called a single person from both the villages to save the life of the deceased or to inform any of the villager about the incident. This fact also divert the mind that the incident as narrated by the complainant party was not happened but the story was managed and none of them saw the incident.

16. It was also case of prosecution that accused put piece of cloth on the mouth of the deceased and the complainant stated that the cloth was of white colour but the same was not recovered from the place of incident nor the same was produced before the trial court by the prosecution. No mark of dragging seen by the investigation officer from the flour machine to Jannat Shakh which distance was about 2 or 2-1/2 kilometers.

17. The complainant during cross-examination stated that he took away dead body of his father to hospital with one police constable on Vegan. However the PC Bagan deposed that he received the dead body for postmortem and he brought the dead body at hospital on Datsun. The eye-witness Meenhal stated in his cross-examination that the depth of Jannat Shakh was about 101 feet however the complainant during his cross-examination stated that there was distance of 101 feet from the place where accused were standing and the place we were standing. The complainant stated during cross-examination that the accused reached from floor machine to Jannat Shakh within 1 and 1/2 or 2 hours and in between intervening period no villager gathered on our cries except both PWs. They all have gave their contradictory evidence before the trial court. I have noted major contradictions in the evidence of the eye-witnesses as stated in the above paras which cut the roots of the prosecution case and make it doubtful. On the basis of material contradiction this court has allowed the appeals and set-aside the convictions handed down by the trial courts in cases of Taj Mohammad and 2 others v. The State (2020 PCr.LJ 1693) and Ghulam Hyder through Superintendent, Central Prison v. The State (2020 YLR 2411).

18. The statements under section 342, Cr.P.C of the appellants recorded by the trial court were scanned, the evidence of doctor including the postmortem and the evidence of the investigation officer was not put to the appellants in their statements under section 342, Cr.P.C to enable them to explain and the same was used by the trial court for awarding them the conviction. The Honourable Supreme Court in the cases of Imtiaz alias Taj v. The State (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148) and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) has held that a piece of evidence or a circumstance not put to an accused person at the time of recording his statement under section 342, Cr.P.C. could not be considered against him.

19. The motive setup by the prosecution that there was an enmity in between the accused and the complainant party for which some case was pending and on refusal to withdraw from the case this incident took place, but the prosecution failed to bring on record any FIR or any proof in respect of the case pending before the court nor the investigation officer collected the same during the investigation. Complainant deposed in his examination-in-chief that the said dispute was taken place three years prior to the present incident, however, during the cross-examination complainant admitted that the appellants are residing in the same village and no any quarrel had taken place between them and the accused in between lodging of first FIR and this incident, when this was the position then after the three years of the said quarrel and in the manners in which dead body was recovered involvement of the present appellants is doubtful.

20. Thus based on the particular facts and the circumstances of the present case as has been discussed above, it is established that there are serious doubts in the case of prosecution. It is a well settled principle of law that the prosecution has to prove its case beyond a reasonable doubt and where even a single circumstance which creates reasonable doubt in the mind of a prudent man comes in the evidence of the prosecution the benefit must go to accused not as a matter of grace or concession but as a matter of right. In this respect Honourable Supreme Court in case of Tariq Pervez v. The State (1995 SCMR 1345) has 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 single 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".

21. Based on the above discussion and on reassessment of the entire evidence I am of the view that the prosecution has failed to prove its case against the appellants Aslam son of Lakhmir Solangi, Zamir son of Muhammad Jaam Solangi, Meer Gul son of Qasim Solangi and Mushtaq alias Musag son of Arz Muhammad Solangi beyond any reasonable doubt, therefore, I allow the instant appeal and set-aside the convictions and sentences handed down by the trial court vide judgment dated 18.04.2016 and acquit the appellants by extending them the benefit of the doubt, appellants shall be released forthwith unless wanted in any other custody case. JK/A-49/Sindh Appeal allowed.