2019 PLP 108 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

By this judgment I propose to dispose of above said two Cr. Jail Appeals as both the appeals have been filed by the same appellant and the facts and law involved in both the appeals are almost same. In fact, Cr. Jail Appeal No.26 of 2017 relates to the main case under sections 302, 324, 337-H(2) and 148, P.P.C. whereas Cr. Jail Appeal No.27/2017 has arisen out of its offshoot case under Section 13 (d) Arms Ordinance. Through Cr. Jail Appeal No. 26 of 2017 appellant Mujahid Baqar has challenged Judgment dated 13.02.2017 passed by learned 3rd Additional Sessions Judge, Khairpur Mir's in Sessions Case No.683 of 2012 (Re: State v. Rahib Hussain and another) being outcome of Crime No.91/2009 registered at Police Station Pir Jo Goth under sections 302, 324, 337-H(2) and 148, P.P.C. whereby he convicted appellant Mujahid Baqar for the said offences and awarded him sentence of life imprisonment for committing murder of deceased Ghulam Mustafa, so also the sentence of R.I. for ten years for making attempt to cause murder of and causing injuries to PWs Imam Din and Waqar. The appellant/ convict was also directed to deposit cash of Rs.2,00,000/- (Rupees two lac only) as compensation to the legal heirs of deceased Ghulam Mustafa and Rs.1,00,000/- (Rupees One Lac only) each as compensation to injured PWs Imamuddin and Waqar and in case of default, the accused was ordered to suffer S.I. for one year more. However, the accused was extended benefit of Section 382-B, Cr.P.C. By the same judgment accused Rahib was acquitted by extending him benefit of doubt. Through Cr. Jail Appeal No. 27 of 2017 appellant has challenged Judgment dated 13.02.2017 passed by learned 3rd Additional Sessions Judge, Khairpur in Sessions Case No.593 of 2012 (Re: State v. Rahib Hussain and another) being outcome of Crime No. 69/ 2009 registered at P.S. Pir Jo Goth under Section 13(d) Arms Ordinance, whereby he convicted the appellant for the said offence and sentenced him to undergo R.I for five (5) years. However, the accused was extended benefit of Section 382-B Cr.P.C. Brief facts of the prosecution case are that complainant Sultan Ahmed Baqar lodged FIR No.91/2009 registered at Police Station Pir Jo Goth under Sections 302, 324-337-H(2) and 148, P.P.C. on 07.09.2009 alleging therein that on 05.09.2009 at 1345 hours, accused Rahib and Mujahid both by caste Baqar along with two unidentified accused duly armed with deadly pistols were standing in the street of village Mitho Dero near the house of complainant situated in Deh Mitho Dero Pir Jo Goth, Taluka Kingri. Accused Mujahid fired upon Ghulam Mustafa and Imamuddin. Accused Rahib instigated one unknown person not to spare Waqar on which the said unknown person also fired upon Waqar. The complainant raised cries whereupon Ameer Bux, Sajjan and others came running. All the accused persons ran away towards eastern side in the garden. The complainant took injured to Police Station Pir Jo Goth and after obtaining letter for medical treatment he took the injured to hospital. Both the injured namely Waqar and Imamuddin were referred to Khairpur Civil Hospital where they were provided medical treatment, whereas Ghulam Mustafa was referred to Karachi for further treatment. After getting Ghulam Mustafa admitted in the hospital at Karachi, the complainant returned and on 07.09.2009 he lodged the FIR. However, on 15.09.2009 the injured Ghulam Mustafa succumbed to his injuries and died at Karachi. After usual investigation, charge sheet was submitted before the Court of law showing the accused Rahib in custody, while accused Mujahid was shown as absconder. After completion of usual investigation, accused Mujahid was declared proclaimed offender. A formal charge against the accused Rahib was framed at Ex.05, to which he pleaded not guilty and claimed to be, tried his plea Ex.06. Subsequently, accused Mujahid was arrested and he joined the trial, therefore, amended charge was framed against both the accused namely, Rahib and Mujahid vide Ex. 07, to which they pleaded not guilty and claimed to be tried vide their pleas Ex. 08 and 09 respectively. In order to prove charge against the accused, prosecution examined PW-1 complainant Sultan Ahmed Baqar at Ex.10, who produced the FIR as Ex. 10/A, PW-2 injured Waqar was examined at Ex.11 PW-3 injured Imamuddin alias Miskeen was examined at Ex.12, whereas PW-4 SIP Abdul Karim Maitlo was examined at Ex.11 PW-5 Medical Officer Dr. Inayat Ali Memon was examined at Ex. 13, who produced police letter as Ex.13/A, photocopy of letter addressed to Civil Surgeon as Ex.13/B, medical certificate of injured Ghulam Mustafa as Ex.13/C and 13/D, death certificate of Ghulam Mustafa as Ex.13/E, two X-ray films as Exs. 13/F and G, radiological opinion as Ex. 13/H, referral letter as Ex.13/I, provisional medical certificate of injured Imam Din as Ex. 13/J, X-ray films as Exs. 13/K and 13/L, final opinion as Ex.13/M, provisional medical certificate of injured Waqar as Ex.13/N, X-ray film as Ex. 13/O, radiology report as Ex.13/P and final medical certificate as Ex. 13/Q. PW/06 HC Tanveer Hyder Narejo was examined at Ex.14, who produced mashirnama of arrest of accused Mujahid and recovery of TT pistol and live bullets as Ex. 14/A, FIR No. 69/2012 as Ex.14/B, while PW-06 PC Naib Ali was examined at Ex.15, who produced mashirnama of wardat as Ex. 15/A, PW-08 Muhammad Akram at Ex.16, who produced mashirnama of wardat at Ex. 16/A, mashirnama of inspection of injuries of injured Imam Din and injured Waqar as Ex. 16/B, mashirnama of arrest of accused Rahib as Ex.16/C. PW-09 Inspector Zulfiqar Ali Qureshi was examined at Ex. 17, who produced further statement of complainant as Ex.17/A and mashirnama of arrest of accused Rahib and recovery as Ex.17/B. PW/10 Tapedar Nisar Ahmed Memon was examined at Ex.18, who produced sketch of wardat as Ex. 18/A. thereafter, learned ADPP for the State closed prosecution side vide Ex.

19. Statement of accused under Section 342 Cr.P.C. was recorded at Ex.20, wherein accused denied the allegations levelled against them. Accused Mujahid Hussain produced photocopy of judgment dated 28-02-2009 passed by learned Civil Judge and Judicial Magistrate Pir Jo Goth in Criminal Case No. 168/2008 arising out of Crime No. 68/2008 of PS Pir Jo Goth wherein he was acquitted as Ex.20/A, photocopy of FIR No. 45/2014 lodged by injured Imamuddin at Ex. 20/B. However, neither he examined himself on oath, nor produced any witness in his defence. I have heard learned counsel for the appellant as well as learned A.P.G. appearing for the State and have gone through the material available on the record. Learned counsel for the appellant has contended that the appellant has been falsely involved in the present case. He further contended that learned trial Court has not taken into consideration properly the legal as well as factual aspects of the case and has passed the impugned judgment in a hasty and mechanical manner without appreciating the relevant law as well as the submissions made on behalf of the accused. According to him, there is contradiction in the ocular testimony and the medical evidence. According to him, Medico Legal Officer deposed that pellets were lying inside the body of injured as well as deceased, however in his cross-examination he admitted that the injuries allegedly sustained by the injured and the deceased were caused by gunshot. He further contended that although after the alleged incident the deceased was alive during the period from 05.09.2009 till 15.09.2009 but the I.O. did not record his statement or dying declaration. He further contended that neither the blood drops or bloodstained earth was secured from the spot and nor even the last worn clothes of the deceased were secured and produced before the trial Court. He further contended that the statements of prosecution witnesses including the injured were recorded by the police after a delay of about 14 days of the incident and after 12 days of registration of FIR. He further contended that the appellant was arrested after about three years of the alleged incident when a pistol was allegedly recovered from him, however the said pistol could not match with the bullet allegedly used in the commission of alleged offence. He further contended that the report of ballistic expert was not produced before the trial Court. According to learned counsel, all these factors create serious doubts in the prosecution case benefit whereof should have been extended to the accused as a matter of right but the trial Court failed to do so, as such the impugned judgment is liable to be set aside. He prayed for allowing instant appeals and acquittal of the appellant. In support of his contentions, he placed reliance on the cases reported in 2016 SCMR 1241, PLD 2007 Lahore 606, 2018 SCMR 506, 2019 SCMR 584, 2018 SCMR 313, 2010 PCr.LJ 1494, 2016 YLR 1042, 2018 SCMR 326, 2018 PCr.LJ 1443, PLD 1993 SC 895, 1996 SCMR 1887, 2001 PCr.LJ 524 and PLD 2002 SC

62. Conversely, learned APG appearing for the State opposed the instant appeals and supported impugned judgment on the ground that the prosecution witnesses have fully implicated the accused. He submitted that crime weapon has been recovered from the accused and he has also been convicted in the case under the Arms Ordinance. According to him, minor contradictions in the evidence are ignorable and on the basis/ of such contradictions accused cannot be acquitted, particularly in a case entailing capital punishment. He prayed for dismissal of the appeals and maintaining the impugned order. It seems that there are contradictions between the ocular testimony and the medical evidence. Dr. Inayat Ali, Medical Officer in his evidence deposed that pellets were lying inside the body of injured as well as deceased, however in his cross-examination he admitted that the injuries allegedly sustained by the injured and the deceased were caused by gunshot. Needless to emphasize that there is much difference between pellet and bullet. Though doctor was not competent to describe the category of weapon allegedly used in the commission of the offence, however, he has been dealing with various cases of such nature and having vast experience and being acquainted with the nature of his job, he is expected to be aware of the category of the crime weapon after going through the injuries sustained by the deceased and/or injured. It is also noteworthy that it is very strange that despite there, being murder of deceased Ghulam Mustafa and the injuries sustained by two injured witnesses, no blood drops or bloodstained was secured from the spot. Even no empty was secured from the place of incident, although it has come in evidence that the accused made firing upon the deceased as well as the two injured witnesses. This creates serious doubts in the prosecution version. In the case reported as Mohammad Usman v. State (2017 PCr.LJ 152) [Lahore], Honorable Lahore High Court held that recovery of weapon of offence was useless for the reasons that neither the crime empties had been recovered from the crime scene, nor the weapons had been sent to the Forensic Science Laboratory for obtaining expert opinion. In another case of Syed Manzar Abbas v. The State reported in 2002 PCr.LJ 1566 [Lahore], the accused was acquitted, inter alia, on the grounds that no bloodstained earth or crime empty was taken into possession by the police from the place of incident. Yet in another case reported as Muhammad Shahbaz v. State (2009 PCr.LJ 1428], the accused, inter alia, for the reasons that during investigation last-worn clothes of the deceased were not recovered by the police. It is also significant to point out here that no report of Ballistic Expert in respect of crime weapon allegedly recovered from the accused/appellant has been produced before the trial Court. In the absence of such report, there is no evidentiary value of such recovery. In the case of Abdul Wahid v. Umer reported in 2013 PCr.LJ 192 [Karachi] this Court held that weapon had not been sent to the Forensic Science Laboratory and ballistic report was not produced, therefore, the presumption was that such report was never obtained and that despite recovery of weapon, bullet and empties, the most crucial evidence, i.e. report of ballistic expert had not been obtained, benefit of which had to go to the accused. It is also of worth-importance that admittedly, the statements of prosecution witnesses including injured witnesses were recorded by the police on 19.09.2009 i.e. after a delay of about 14 days from the date of alleged incident and after 12 days from the date of registration of FIR. This is also fatal to the prosecution case. In a recent decision given in the case of Faisal Ahmed v. State reported in 2018 YLR 1269 [Lahore], it was held by Honourable Lahore High Court that Investigation Officer got recorded statements of prosecution witnesses under section 161, Cr.P.C. after seven days of occurrence, such silence of the said witnesses had cast serious doubt about the involvement of the accused. It was further held that delayed statements of prosecution witnesses under Section 161 Cr.P.C. had little value. Yet in another case reported as Saeed Akhtar v. State (2018 PCr.LJ 155) [Peshawar], it was held that statements of the two eye-witnesses under section 164, Cr.P.C. were recorded with considerable delay of 5 days, without any explanation for such delay which has made the version of prosecution tentatively doubtful. It seems that the crime weapon allegedly used in the commission of the alleged offence was recovered from the accused Mujahid Hussain on 09.06.2012 and a case under Section 13(d) Arms Ordinance was registered against him. In the connected appeal being Cr. Jail Appeal No. 27/2017 the report of ballistic has been produced. From the perusal of the said report it reveals that the said crime weapon was received in the office of Ballistic Expert on 25.06.2012 i.e. after a delay of about 16 days from the date of its recovery. Such delay in sending the alleged crime weapon to the ballistic expert for examination and report is also injurious to the prosecution case. In the case reported as Samandar alias Qurban and others v. The State reported in 2017 MLD 539 Karachi, while dealing with the point of delay in sending the weapon to Ballistic Expert, this Court held as under: "Apart from above sending of crime weapon to ballistic expert for forensic report with delay of 20 days of their recovery also added further doubt into the prosecution case, thus in view of above coupled with non-compliance of section 103, Cr.P.C., it can safely be presumed that alleged recovery of crime weapon was not made from the possession of the appellants as alleged by the prosecution." In the case reported as Yaqoob Shah v. The State (1995 SCMR 1293) Honourable Supreme Court held that the report of the Fire Arm Expert was of no avail to the prosecution as the crime empties and the fire-arms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay. Reference in this respect may also be made to the decision reported as Ghulam Hussain and 2 others v. State (1998 PCr.LJ 779). Yet there is another worth-importance point, P.W. Inspector Zulfiqar Ali, I.O. of the case, in his cross-examination at pages 169 and 171 of the Paper Book admitted as under: "I have not produced any entry of receiving the investigation of instant case .. It is fact that I have not produced such entry of my departure from PS for visiting the place of wardat ....... I had not kept arrival entry at police station as investigation was separated from operation.......... It is fact that I have not produced any entry of departure or arrival for visiting the place of incident and arrest of accused." It is now well-settled that non-production of roznamcha entries creates doubts in the statement of the police officers regarding their departure from and arrival at the police station for the purpose of making arrest of accused and/or affecting recovery etc. In the case of Mour v. The State reported in 2016 PCr.LJ 1706 this Court, while dealing with the point of non-production of roznamcha entry, held as under: "Another point is that the complainant party left police station vide roznamcha entry No.42 but as per prosecution evidence said entry has not been produced at the time of recording of their evidence. Non-production of this vital document in evidence has also created serious doubt regarding departure of police from police station. Similar observations were made also in the cases reported in 2017 PCr.LJ 992 Peshawar and 2010 PCr.LJ 542 Quetta. It is also a well-settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. It has also been held by 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 Mohammad 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." 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." In view of aforesaid contradictions in the ocular testimony and medical evidence, as well as other discrepancies, legal flaws and lacunas in the prosecution case, it can safely be held that prosecution has not succeeded in proving its case against the accused/ appellants beyond shadow of reasonable doubt as such the impugned judgment is liable to be set aside. 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 circumstances which create 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. " So far as Cr. Jail Appeal No.S-27 of 2017 is concerned, it relates to the case under the Arms Ordinance, 1965 which is offshoot of the main case and since in view of above discussion I have come to the conclusion that the prosecution has not succeeded in proving the main case against the accused / appellants beyond shadow of reasonable doubt and the impugned judgment is liable to be set aside, therefore this being the offshoot of the main case, the judgment passed by the trial Court in the said case is also liable to be set aside. Needless to emphasize the well settled principle of law that if an accused has been acquitted in the main case then he is also entitled to be acquitted in the case which is offshoot of the main case. In the case reported as Yasir Chaudhry v. The State reported in 2012 MLD 1315 it was held by Honourable Lahore High Court as under: "In the case reported as Manjhi v. The State (PLD 1996 Karachi 345) it has been held that when the accused has been acquitted in the main case, he would become entitled to acquittal in a case which is offshoot of the said case. Same is the position here, as the present lis is an offshoot of the main murder case. So, respectfully following the dictum laid down in the judgment supra, this petition is allowed and the application of the petitioner under section 249-A Cr.P.C. is accepted and the petitioner is acquitted from the charge in case FIR No.17 of 2003 dated 12.1.2003 registered under section 7 of the Surrender of Illicit Arms Act No.XXI of 1991 with Police Station Civil Lines, Bahawalpur." Keeping in view above legal position, it can safely be held that when the accused / appellant has been acquitted in the main case, this case under the Arms Ordinance being the offshoot of the main case, the appellant/accused deserves to be acquitted in this case also. For the aforesaid reasons, by two separate short orders both dated 06.12.2018, instant appeals were allowed. Consequently two impugned judgments dated 13.02.2017 passed by learned Additional Sessions Judge Gambat in Sessions Case No.683/2009 (Re: State v. Rahib Hussain and another) being outcome of crime No.69/2012 of Police Station Pir Jo Goth under Sections 302, 324, 337-H-2 and 148, P.P.C. and in sessions Case No. 593/2012 )Re: State v. Mujahid Hussain Bappar), being outcome of Crime No. 69/2012 of Police Station Pir Jo Goth under Sections 13(d) Arms Ordinance, 1965 were set aside. Resultantly, appellant Mujahid Hussain Bappar in both the appeals was acquitted of all the charges. Appellant was in custody, therefore, he was ordered to be released forthwith in both the cases, if his custody was no more required in any other criminal case/crime. SA/M-176/Sindh ` Appeals allowed.