2019 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

Through captioned Criminal Appeal, appellant has impugned judgment dated 24.03.2014, passed by the learned II-Additional Sessions Judge, Shikarpur, in Sessions Case No.913/2009, Re: State v. Wagho alias Sodhal and others, emanated from Crime No.103/2009 of P.S. Rustam, offence under sections 302, 337-H(2), 148 and 149, P.P.C., whereby appellant has been convicted for offence under section 302(b), P.P.C. and sentenced to suffer imprisonment for life, and to pay fine/diyat amount of Rs.50,000/- to the legal heirs of deceased and in default in payment thereof to undergo S.I for six months more.

2. Succinctly, facts of prosecution case are that complainant Jeejal lodged the FIR, stating therein that there was quarrel between him and Saad Ali over matrimonial affairs, who were extending threats. On 28.10.2009, at night time, while complainant along with his nephew -Gulab, son Mashghol and Majan were present in the house, at about 09.00 p.m. they saw accused persons, Hazoor Bux, Wagho, Adan alias Shahgmaan, armed with Kalashnikovs, Badlo, armed with gun, all son of Saad Ali, accused Saad Ali, Paharuddin, Jam, both armed with Kalashnikovs, accused Hakim, Rehan, both armed with guns, entered in the house. Accused Saad Ali instigated all other accused persons saying that Gulab and others are enemies, therefore, they should capture and not to spare them. On such instigation, accused Hazoor Bux directly fired upon Gulab, which hit him on left side of his chest; accused Paharuddin fired upon Gulab, which hit him below the arm from left side; accused Jam fired upon complainant's nephew Gulab, which hit him on left side of his chest; accused Adan also fired upon Gulab, which hit him from left side of chest; accused Wagho fired from his Kalashnikov directly upon Gulab, which hit him on left side of chest, who fell down. Subsequently, all the accused persons made fires in air and fled away. Complainant then saw his nephew Gulab, who had died. Thereafter, the dead body of deceased Gulab was taken to Police Station Rustam, where complainant lodged FIR.

3. After usual investigation case was challaned and appellant/accused was sent up to stand trial. A formal charge was framed against the appellant/accused, to which he pleaded 'not guilty' and claimed to be tried. Thereafter, the prosecution, in order to prove its case against the appellant examined, P.W-1-Dr. Ghulam Asghar, who produced post mortem report. P.W-2 complainant Jeejal Teghani was examined, who produced FIR, receipt of dead body. PW-3, Majeed was examined. PW-4 Mashghool was examined. PW-5 PC Zulfiqar Ali. PW-6 SIP Ghulam Nabi Chang, who produced mashirnama of inspection of dead body, danishtnama, mashirnama of place of vardat; formal sketch of vardat, report of Chemical examiner. PW-7 Zain-uddin. PW-8 Tapedar Ghulam Rasool Ansari and then side of prosecution was closed.

4. Statement of accused/appellant under section 342, Cr.P.C. was recorded, wherein he denied all the allegations levelled against him and pleaded innocence. However, he neither examined himself on oath nor led any evidence in his defence.

5. Learned counsel for the appellant has argued that the impugned judgment is contrary to law, facts and equity, hence is not maintainable and is liable to be set aside; that the learned trial Court has not properly and carefully analysed and considered the entire material including prosecution evidence and has passed the erring judgment in hot and haste; that there are major and material contradictions in evidence of complainant and P.Ws, therefore prosecution has miserably, failed to prove its case against the accused beyond shadow of reasonable doubt; that all the P.Ws are interested and they have deposed falsely against accused and also prosecution has not examined and produced the legal heirs of deceased Gulab.

6. Learned A.P.G. for the State has vehemently opposed the acquittal of the accused on the ground that the offence committed by the appellant is against the society; that there are minor contradictions in the evidence of the P.Ws, which may be ignored while deciding the appeal.

7. I have heard the counsel for either parties and have perused the record carefully.

8. The question regarding the presence of appellant at the place of incident is referred to hereinbelow. The murder took place in a dark night and the prosecution witnesses have time and again stated that the appellant along with rest were identified by them on the light of electric bulb, however what bothers me in this regard is that the alleged bulb light was nowhere to be found on the place of incident or the site plan itself. Even otherwise, if such a light bulb, for the sake of argument, was present during a dark night, it would be extremely difficult to pinpoint any of the accused, let alone all of them, while one is being shouted at, harassed and threatened for life under such a situation. A light bulb, at the dead of night is never considered to be emitting enough light to identify multiple accused, much less the light bulb was absent in the site plan, nor was it seized by the police during investigation. When the Rajasthan High Court dealt with a similar situation (State v. Dhanna Ram D.B Cr. Appeal No. 417/1985), where the murder had been committed in the dark night and the only source of identification was alleged to have been a bulb, which was absent in the site plan nor was it recovered by the police, the High Court observed that: "The entire case of the prosecution is based on a 200 watt bulb light alleged to have been emitting sufficient light for identification of the Respondents at the dead of night when the occurrence took place between 2.00 a.m. and 2.30 a.m. There is however no positive evidence put forth by the prosecution with regard to the wattage of the bulb much less has the bulb been seized. If that were not enough, the site map Exhibit P/3 prepared by PW-8. Prabhu Singh, SHO on 17.07.1983 does not demonstrate the location of the house of Jeisaram or where the bulb is alleged to have been burning much less does it state the place where the bulb was fixed and emitting light which was travelling upto any specified distance to facilitate identification." Upon further observation, the Court held that:- "In absence of any evidence led by the prosecution with regard to the wattage of the bulb, the height at which it may have been fixed, the distance to which the light may have been emitted and which covered the place of occurrence, it becomes difficult to accept the prosecution theory of identification in the darkness of night by reason of the light emitting from the bulb. It is the specific case of the prosecution that identification was possible only due to the light of bulb and not by moon light or silhouette etc. For that reason, in the absence of any evidence with regard to the location, source and distance of the light travelled, we find no reason to interfere with the acquittal. The appeal is dismissed."

9. The circumstances of the case in hand are no different. Thus, I am also not satisfied, without any shadow of doubt, that the accused could have been identified in such light, as stated by the prosecution.

10. There is no cavil to the proposition that the eye-witnesses are always considered the backbone of every criminal case. As regards the eye-witness account is concerned, per the complainant's own deposition, there was enmity between the parties over matrimonial issues. Enmity is known to be a double-edged sword, cutting both ways. It is noted here that where enmity can serve as a motive to commit a crime, it can also be taken as the sole basis of false implication. For enmity to be accepted as a motive every minute detail regarding the motive is to be established; when did the enmity begin; what was the appellant's part. Along with such establishment, motive has to be backed up by solid evidence that can certify conviction because motive alone can never justify conviction. However, in case of false implication, no such formalities are to be completed. In the present case, while the appellant himself denied the enmity, it has been established by the prosecution itself, the complainant in general, who stated that there had been enmity lurking between the parties due to matrimonial issues. Such a circumstance cannot be turned a blind eye upon. The depositions of the eye-witnesses including complainant need strong corroboration and need to be backed up to be given full credibility due to the presence of enmity. So also, with the presence of enmity, the eye-witnesses were also close relatives of the complainant; therefore in the presence of both enmity and relation to complainant, they can safely be termed as interested witnesses. Although relation alone cannot justify the barring under the term interested witnesses, but when considered alongside enmity it is possible that the testifying against the appellant due to their relation with the complainant. The prosecution witnesses are interested and their statements being not worthy of reliance and confidence inspiring cannot be out-rightly accepted for maintaining conviction and sentence of the appellant, without any independent corroboration by some other evidence, which is lacking in the present case and the presence of independent corroboration increases in cases involving capital punishment as it is an established, undisputed principle of law that evidence of interested witness in a capital case cannot be made the basis of conviction unless such evidence is corroborated by unimpeachable and independent piece of evidence. In this respect, reliance is placed on the judgment of Hon'ble apex Court in case titled as Haji Rab Nawaz v. State (1998 SCMR 25). The observations made in the case law reported as (DB) 1986 PCr.LJ 703 (Noor Ahmad) also fortify my views in this respect as in the above mentioned case, the eye-witnesses were related to each other and deceased, the number of injuries found on deceased and number of accused named by P.Ws. did not match, and it was found that independent corroboration was necessary.

11. Adverting to the medical evidence produced by the prosecution, the same has confirmed the unnatural death of the deceased due to a total of seven firearm injuries to the chest. However, I would like to hold that medical evidence is merely a supportive/confirmatory piece of evidence because it presents the time of occurrence, nature of injuries, weapon used in the offence and the time between the death and post-mortem examination, but it does not pinpoint to the complainant. Allegedly, it is impossible for the medical officer, in the present situation, to point out that out of seven firearm injuries to the chest, which one was the last nail to the coffin; which bullet was the last straw to the hay bale; which bullet took the deceased's life away? The impossibility arises as all the bullets were of the same sort and it could not be distinguished as to which one left whose weapon. Moreover, when further light is shed on the depositions of the eye-witnesses and the FIR itself, it is clear that the witnesses and complainant were only able to assign roles to five of the accused and out of them one was the present appellant, who allegedly fired at the deceased. However, what's important to note here is that in total, seven entry wounds were found on the deceased and only five were pointed out by the prosecution and only four empties were recovered from the place of incident. Now, when a prudent mind examines the situation, the question raised would not be: where did the remaining three empties go? The question bothering a prudent mind would be with regard the roles assigned by the prosecution. Did the appellant really fire at the deceased in the first place or was he dragged in due to some ulterior motive? How many times did each and every accused person involved shoot? If everyone shot once, where did the remaining two entry wounds appear from? All in all, the questions noted above have been left unanswered by the prosecution witnesses. It is unclear, while considering the witness depositions, as of how many shots did each accused fire.

12. The golden principle of benefit of doubt is also attracted in the present case. Prosecution is duty bound to prove its case against the accused beyond reasonable shadow of doubt. In this regard, I am fortified by the judgment in the case titled as Muhammad Akram v. The State (2009 SCMR 230) wherein it has been held that: "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must occur in favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. Reliance can also be placed on case titled as Sher Umer Khan v. Khan Pur alias Khaney and 2 others reported in PLD 2015 Peshawar 143 wherein it held as under;- "It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the court to draw conclusion: whether the prosecution has succeeded in establishing accusation against the accused or otherwise: and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance can be placed on case titled, "Fariad Ali v. State" 2008 SCMR 1086."

13. After having analyzed the entire case and taking notice of the above contradictions and inconsistencies in the statements of complainant and eye-witnesses, I am of the considered view that prosecution failed to prove its case against the appellant beyond reasonable doubt, therefore, while extending the benefit of doubt I accept this appeal, set aside the conviction and sentence recorded against the appellant by the trial Court and acquit him of the charge. Let the appellant be released forthwith if not required to be detained in any other case. JK/W-1/Sindh Appeal allowe