2020 PLP 1071 (YLR)

FAHIM AHMED SIDDIQUI, J.

Since impugned judgment in the instant Criminal Appeal and Revision is one and the same; therefore, we intend to dispose of both by this single judgment.

2. Appellants have been convicted and sentenced by the trial Court for life sentence as Ta'zir under section 302(b), P.P.C. read with/section 34, P.P.C. and to pay an amount of Rs. 200,000/- each as compensation under section 544-A, Cr.P.C., as the trial Court found them guilty of murder of deceased Rehan Sagheer [brother of complainant]. As per prosecution case, complainant Suleman Sagheer reported that his deceased brother owned a Medical store and on the fateful night on 09.03.2013, he did not return till late. The complainant and his other brothers proceeded towards the shop of deceased and when they reached nearby at about 12:30 a.m., they saw the appellants quarrelling with the deceased. On seeing the complainant party, one of them namely Mustafa Machhi fired upon the deceased and thereafter, he after thrown his pistol and decamped from the scene of offence along with the remaining appellants. As per complainant, they shifted the deceased in injured condition to the hospital, where he succumbed to his injuries and after his burial, the complainant approached the police on 14.03.2013 for lodging FIR.

3. After usual investigation, the police has submitted Final Report before the concerned Court of Judicial Magistrate and subsequently it was sent up to the trial Court. After completing all the requisite formalities, the trial commenced and subsequent to recording the prosecution evidence and statements of accused [appellants] under section 342, Cr.P.C, the trial Court passed the impugned judgment. Nevertheless, the appellants have denied the prosecution assertion in their statements but neither they recorded their statements on oath nor they preferred to examine any defence witnesses.

4. We have heard the arguments from either side and perused the material available on record.

5. The learned counsel for the appellants describes certain contradictions between different prosecution witnesses. He specifically argues that the prosecution could not explain the reason of delay in lodging of FIR. According to him, there is a delay of about one week in lodgment of FIR, which requires plausible explanation but the same is missing. He emphatically submits that the complainant Suleman Sagheer and his brother Nauman Sagheer have been shown as eye-witness but they both are chance witnesses, as such, there evidence is not trust worthy. He further elaborates that the contradictions between the complainant and eye-witnesses as well as medico legal officer are sufficient to say that the prosecution could not establish their case, According to him, the incident was actually not seen by the complainant and his witness and they falsely implicated the appellants.

6. On the other hand, the learned counsel for the complainant submits that the reason for delay is comprehensible, as after the incident the complainant party was busy in funeral related ceremonies. He submits that the contradictions are there but the same are natural and will not cause harm to the prosecution case.

7. The learned prosecutor frankly admits that there are some glaring contradictions in the prosecution case. In response to a query, she admits that the pistol and one empty were recovered but no FSL report is available with the prosecution, as such, the same could not be produced.

8. From what has been heard and noticed from the perusal of record, the following facts emerged.

9. The contention of the complainant and eye-witness is that they have seen the accused persons at the scene of offence and they also saw appellant Mustafa Machhi causing firearm injury to the deceased. The complainant in FIR and in his deposition has stated that the deceased was shifted to hospital in injured condition by them but during cross-examination the MLO, Dr. Beldev says that the injured was brought by one ASI Tufail in injured condition but he was not in a condition to give expression of any kind before him. It is worth noting that the name of said ASI Tufail appears in the calendar of witnesses but he was not examined. We are of the view that ASI Tufail is an important prosecution witness as he brought the deceased to the hospital, as such, his deposition is necessary for the proper adjudication of the case. We are of the view that the evidence of ASI Tufail was purposely withheld by the prosecution and being the best evidence, it's withholding without any explanation goes against the prosecution.

10. It has also come on the record through MLO Dr. Beldev that the deceased was first attended by CMO but the said CMO was not examined before the trial Court. It is our candid view that the CMO was also an essential prosecution witness and his non-examining is sufficient to cause a fatal dent in the prosecution case. Although, it has come on the record through Dr. Beldev that the deceased was not in a condition to speak or express something but CMO, being the first person who has attended the deceased in injured condition, is an important prosecution witness, and his non-examination without any reason creates a serious doubt regarding the prosecution case.

11. As per the complainant, he and his brother went out from their house at about 12:30 AM in search of their deceased brother, and nearby the medical store of his brother, they saw the accused persons quarrelling with their deceased brother. According to complainant, the appellant Mustafa Machhi was armed with a pistol and just after looking at them, he fired upon the deceased and after throwing the pistol he along with co-accused decamped from the scene of offence. It astonishes that inspite of armed with pistol, the accused persons instead of causing any harm to the complainant party, ran away from the scene of incident after leaving/throwing pistol. It is noteworthy that the pistol and empty recovered from the scene .of offence but the entire prosecution case is silent about sending the same for FSL and even the same was not produced and marked as article during trial and even not placed before the complainant and eye-witness for identifying the said article that it was the same pistol used during commission of offence.

12. It is also notable that the motive for the offence is not described within the body of FIR and complainant in FIR has stated that when they were taking their injured brother [deceased Rehan Sagheer] to hospital, the deceased brother has described them that all the four accused used to come at the store and on some altercation appellant Mustafa Machhi fired upon him. It is also mentioned in the FIR by the complainant that the deceased brother has informed him that the accused persons have not snatched any money or his mobile phone. On the contrary, during examination-in-chief, PW Noman Sagheer stated that his deceased brother had informed him that the accused persons had tried to commit dacoity from him and on his resistance accused Mustafa Machhi made straight fire upon him. It is also worth mentioning that the incident was taken place on 09.03.2013 at 1230 hours while FIR was lodged on 14.03.2013 at 1500 hours and this period is sufficient to attract the possibility of consultation and deliberation.

13. As far as further contradictions are concerned, it is noteworthy that complainant has stated that the Car was driven by Murtaza Dogar [owner of Car] while he as sitting on the back seat with his injured brother while his brother and eye-witness Noman Sagheer was sitting in the front seat. On the other hand, Noman Sagheer stated that he was sitting on the back seat with his deceased brother while complainant was sitting on the front seat. PW Asif Ali Lodhi in examination-in-chief has stated that the police has visited the scene of offence and collected a .30 bore pistol and one empty from the scene of offence while the same witness during cross-examination says that the pistol was handed over to the police by complainant in open condition i.e. without any wrapping. It is worth noting that the injured was taken to hospital in the Car of Rehan Dogar but neither the said Rehan Dogar was examined nor the Car was produced during trial. It is also pertinent to mention here that PW Noman Sagheer during cross-examination stated that-no post mortem of his deceased brother was conducted at hospital and dead body of deceased was handed over to them at about 01.45 a.m. and they took the same at home while PW Dr. Beldev in his deposition deposed that on 09.03.2013 at about 02.40. a.m. he received the dead body of deceased Rehan Sagheer for post mortem and he conducted the post mortem of deceased. It is also important to note that neither the recovered pistol nor empty was shown and confronted as a piece of evidence during recording of statement of the appellants under section 342, Cr.P.C. The appellants during their 342, Cr.P.C. statements have taken stance that the P.Ws have deposed against them due to political rivalry as they belong to M.Q.M. If prosecution evidence is placed in juxtaposition with the statements of appellants recorded. under section 342, Cr.P.C. non-availability of the appellants at the scene of offence and their false involvement on the ground of rivalry cannot be ruled out.

14. As a result of what has been discussed above, we are of the view that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt; therefore, we accept the Criminal Appeal No.D-38/2018 and set aside the convictions and sentences awarded to appellants namely Muhammad Naveed alias Bagri, Asghar Ali alias Kaloo, Shoaib alias Sheeba and Ghulam Mustafa by the trial Court and acquit them of the charge by extending the benefit of doubt. The appellants are in custody; it is directed that they should be released forthwith if they are not required in any other custody case.

15. As regards Criminal Revision Application No.D-33 of 2017 for enhancement of sentence awarded to convicts/respondents, we would like to say that consequence of acquittal of the appellants recorded by us in Criminal Appeal No.D-38 of 2018, no question of enhancement of the sentence arises, as such, the Criminal Revision Application filed by the complainant stands dismissed.

16. These are the reasons for our short order passed on 27.03.2019. JK/M-114/Sindh Appeal allowed.