2009 PLP 2127 (YLR)

AKHTAR ZAMAN MALGHANI, J.

In the instant appeal appellant has assailed judgment dated 8-10-2008 rendered by Sessions Judge, Usta Muhammad whereby; he was found guilty under section 302 (b) P.P.C. and sentenced to death. Learned Sessions Judge has also forwarded murder reference for confirmation of death sentence.

2. Briefly stated, facts of the case. are that on 4-11-2006 a case under sections 324/34, P.P.C. was registered in police station, Usta Muhammad vide F.I.R. No. 195 of 2004 on the report of deceased Ali Gul wherein it was alleged that on the said date at about 6-30 p.m. he was present along with his brothers Mehrab and Shaban in the godown of Saith Lachman Das where he was employed, when Sabir Palal (absconding accused) armed with TT pistol came there along with his brothers Qurban and Mumtaz who fired 3-4 shots upon him due to which he fell down after sustaining injuries. Motive behind the occurrence was stated to be matrimonial dispute as his sister who was married with Sabir Palal left his house and was residing with him (deceased). After registration of case investigation was carried out by P.W.7 Sher Nawaz Sub-Inspector who prepared site-plan Exh. P/7-A, secured bloodstained earth and four empties of TT pistol from the place of occurrence. He also took into possession bloodstained shirt of deceased and on receiving information about death of Ali Gul who succumbed to his injuries on 7-11-2004 in Civil Hospital, Larkana altered the offence from section 324, P.P.C. to section 302 P.P.C. He could not lay hand upon the other nominated accused persons, as such; he submitted challan showing them absconders.

3. On commencement of trial charge was read over to appellant, to which he pleaded not guilty. Whereafter; prosecution in order to substantiate the accusation produced following witnesses:-- P.W.1 Shaban deposed that his deceased brother was employed in the shop of Saith Lachman Das and on the day of incident they were talking with each other when their brother-in-law Sabir Palal came there along with his brothers Mumtaz and Qurban who all made firing upon his brother who fell down after sustaining injuries. They took him to hospital and thereafter for further treatment to Larkana where he succumbed to his injuries. He further deposed that his brother was attacked upon, because their sister had left the house of Sabir Palal on account of matrimonial dispute and was residing with them. In cross-examination he stated that Sabir Palal came on a bicycle whereas his two other brothers were on foot who made firing from a distance of 15-20 feet. P.W.2 Arbela is witness to inspection report and place of occurrence Exh. P/2 A as well as to seizure of bloodstained cotton through which blood was secured from the place of occurrence and four empties of TT pistol taken into possession through seizure memo Exh.P/2-C. P.W.3 Mehrab Khan deposed that on the day of incident he and Shaban went to see their brother deceased Ali Gul where they were talking with each other when their brother-in-law Sabir Palal came along with his brothers Mumtaz and Qurban and made firing upon Ali Gul due to which he sustained injuries. He also deposed about motive which according to him was matrimonial dispute of their sister with her husband Sabir. In cross-examination he admitted that their brother Ali Gul had murdered their mother, voluntarily stated that compromise was effected in the said murder case. P.W.4 Arbela police constable No.63 is witness to the seizure of bloodstained shirt of deceased which was taken into possession through seizure memo. Exh.P/4-A. P.W.5 Dr. Muhammad Anwar conducted postmortem over the dead body of deceased Ali Gul and found following injuries:-- (1) Fire-arm wound of entrance about 1/4 x 1/4 dia with no blackening on back at right Renal Area. (2) Fire-arm wound of Exit of No.1 about 1 /2 "x 1 /2 dia on front of abdomen at right side on liver area. (3) Fire-arm wound of entrance about 1/4 x 1/4 at back on left Renal Area, no blackening. (4) Fire-arm wound of Exit No. 3 about 1/2: x 1 /2 dia at front on spleenic area. (5) About 1/4" x 1/4" wound of entry on medial side of left thigh with no exit and no fracture bone. ABDOMEN

1. Walls damaged.

2. Peritoneum damaged.

3. Small and large intestines damaged.

4. Liver damaged.

5. Spleen damaged.

6. Both kidneys damaged. OPINION. From external as well as internal examination of the dead body, I am of the opinion that the death was caused by shock and damage to vital organs, like both kidneys, liver and spleen. All injuries were ante-mortem in nature and homicidal in character. Probable time between injury and death:-- 2 days. Probable time between death and Post-mortem: - 8-10 Hours. P.W.6 Muhammad Ashraf S.-I. deposed that on 4-11-2004 he received information about occurrence whereupon; he went to civil hospital, Usta Muhammad and found Ali Gul present there in injured condition whose statement was recorded by him in presence of Medical Officer on the basis whereof F.I.R. EX.P/6-B was registered and investigation was entrusted to Sher Nawaz S.-I. P.W. 7 Sher Nawaz is first investigation officer. P.W.8 Muhammad Ramzan A.S-I. deposed that he arrested appellant and after usual investigation submitted papers to Manzoor Ahmed S.-I./S.H.O. for sub-mission of challan against him.

4. At the end of prosecution evidence appellant was examined under section 342, Cr.P.C. wherein he denied all the allegations. He also got recorded his statement on oath and produced one witness D.W. 1 Muhammad Umar in his defence.

5. On conclusion of trial, learned Sessions Judge found appellant guilty under section 302 (b), P.P.C. and sentenced him to death. He also forwarded murder reference for confirmation of death sentence.

6. We have heard learned counsel for appellant as well as learned State counsel. Learned counsel for appellant vehemently contended that the statements of so-called eye-witnesses who had implicated appellant by attributing firing, were contradictory to the dying declaration made by deceased Ali Gul in presence of doctor to police, as such; could not be relied upon. He further contended that according to dying declaration appellant was empty handed and in no way he added or facilitated his brother Sabir Palal in committing murder of deceased, as such; his conviction under section 302 (b) P.P.C. was bad in law. He further argued that in light of the general tendency prevailing in society for falsely involving close relatives of real culprit the Courts have always extended benefit of doubt to the accused whose presence was shown by witnesses empty handed at the time of occurrence without attributing any overt act to them for participation in the crime. In support of his arguments learned counsel referred to the judgments reported in PLD 2005 Quetta 157, PLD 2007 Quetta 50, 2006 SCMR 1251, 1993 PCr.LJ 2264 and 2006 SCMR

841. On the other hand, learned State counsel supported the judgment and vehemently contended that presence of appellant along with absconding accused Sabir was proved attracting provisions of section 34 P.P.C, as such; he was rightly found guilty by the learned trial Court.

7. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment. According to prosecution case on the day of incident appellant along with his brothers Qurban and Sabir made firing upon deceased on account of matrimonial dispute due to which deceased Ali Gul sustained injuries who later on succumbed to his injuries. So far unnatural death of deceased Ali Gul is concerned, same has not been disputed by the defence, which even otherwise has been proved by the statement of P.W.5 Dr. Muhammad Anwar, according to whom death of deceased was caused by shock and damage of vital organs like both kidneys, liver and spleen, however; question arises whether appellant was one of the culprits who committed murder of deceased? In Order to substantiate such accusation prosecution relies upon the statements of P.W.1 Shaban and P.W.3 Mehrab, both brothers of deceased as well as dying declaration of deceased Exh.P/6-A. It may be noted that after receiving information about incident P.W.6 Muhammad Ashraf went to civil hospital where deceased Ali Gul was taken for treatment and recorded his statement in presence of doctor Muhammad Anwar who also attested said statement. In the said statement deceased stated that on the day of occurrence Sabir Palal armed with TT Pistol came at the godown along with his brothers Qurban and Mumtaz and Sabir Palal fired at him with TT Pistol due to which he sustained injuries. It is worth to note that in his dying declaration deceased had not attributed any overt act to appellant nor he was shown to be armed with any weapon but P.W.1 Shaban, and P.W.3 Mehrab in their Court depositions stated that all the three brothers made firing upon deceased, which statements being contradictory to dying declaration of deceased could not be believed without independent corroboration which is lacking in the instant case. Whereas; deceased had shown presence empty handed without attributing any overt act to appellant. In view of unfortunate aspect of our society and general tendency of public to rope into innocent close relatives along with real culprit benefit of doubt has always been extended to the accused persons whose presence has been shown at the place of occurrence empty handed along with main culprit without attributing any overt act to them. In this regard, we are fortified by the judgment reported in 1978 SCMR 49, wherein; it was observed as under:-- "In our view the learned counsel has misconceived the correct application of section 34, P.P.C. The mere presence of a person on the spot does not necessarily attract section 34, P.P.C. This section is not to be applied lightly, particularly in acquittal cases. Vicarious liability cannot be visited unless there is some strong circumstance to show common intention. In view of the foregoing discussion, we think Bashir respondent has been rightly given the benefit of doubt." Likewise; in the judgment reported in 1969 SCMR 454, it was held as under:-- "The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P.W.3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to anybody." In the instant case undisputedly relations between the parties were strained on account of matrimonial dispute between absconding accused Sabir Palal and his wife who is sister of deceased and eye-witnesses, therefore; possibility could not be ruled out that Sabir Palal had committed murder of deceased Ali Gul alone but deceased as well as eye-witnesses implicated appellant in the commission of offence being brother of Sabir Palal. Both pieces of evidence relied by prosecution to sustain conviction of appellant i.e. dying declaration and statements of eye-witnesses, being contradictory to each other, none of either could be relied upon to maintain conviction of appellant. In view of what has been discussed above, in our considered view, prosecution has failed to prove charge against appellant beyond shadow of doubt, as such; we are inclined to set aside the judgment dated 8-10-2008 passed by Sessions Judge, Usta Muhammad and acquit appellant of the charge. He be set at liberty forthwith, if not required in any other case. Murder reference is answered in negative accordingly. H.B.T./28/Q Appeal allowed.