2018 PLP 26 (YLRN)

OMAR SIAL, J.

This appeal has been preferred by the appellant against judgment of the 1st Additional Sessions Judge, Khairpur in Sessions Case No.325 of 2012 dated 25.09.2014. In terms of the said judgment, the Appellant we convicted and sentenced to suffer R.I. for 10 years for offences under sections 396 and 34 P.P.C. and to pay compensation of Rs.50,000/- under section 544-A, Cr.P.C. to the legal heirs of the deceased (or suffer six months' SI more in default).

1. Brief facts of the prosecution case are that on 30.09.2011 at about 1510 hours one Nasrullah made a complaint to the police station that while his cousin Khair Muhammad Jatoi was grazing his buffaloes in a palm tree garden, 13 armed persons appeared at about 1400 hours and attempted to rob the buffaloes. Upon resistance from Khair Muhammad, three out of the thirteen person fired at Khair Muhammad and as a consequence Khair Muhammad expired. One of the thirteen accused persons was the Appellant.

2. The charge against the Appellant was framed on 8-2-2013, to which the Appellant pleaded not guilty and claimed trial.

3. In order to prove its case, the prosecution examined nine witnesses. PW.1, PC Aijaz Ahmed was the person who took the dead body of the deceased to the hospital. PW 2, SIO Habibullah Rajper was the investigating officer of the case. PW.3, Nasrullah was the complainant of the case. PW.4, Dr. Muhammad Hassan was the doctor who examined the dead body. PW.5, Ali Hur was the Tapedar who prepared the sketch of the place of incident. PW.6, Gul Muhammad was said to be the eye-witness of the occurrence. PW.7, Wahid Bux was said to be another eye-witness of the incident. PW 8, Arbelo Khan was the witness of the memo of site inspection. PW/9 was PC Khair Muhammad who is the witness to the memo of arrest and recovery of the appellant.

4. The statement of the Appellant under section 342, Cr.P.C. was recorded on 7-7-2014 in which he claimed his innocence and said that due to enmity with the complainant party the false case was registered against him.

5. On 25.09.2014 the impugned Judgment was passed.

6. I have heard the learned counsel for the Appellant as well as the learned APG. The complainant and his counsel remained absent despite several notices. For the sake of brevity the arguments of the counsel are not being reproduced herein. Suffice to say that the learned counsel for the Appellant has reiterated the grounds contained in his memo of appeal, whereas the learned APG has reiterated the prosecution case. My observations are as follows.

7. In the FIR the complainant categorically states that accused Qurban, Zafar and Sharif who had pistols were the only three out of all the thirteen accused who fired at the deceased and as a consequence three bullets hit the deceased. For a person who by his own account stayed on the scene for two minutes after the accused had left, he surprisingly gives a very accurate account of the identity and weapons carried by the accused as well as the location of the entry and exit wounds on the body of the deceased. The language used in the FIR to describe the injuries and that contained in the inquest report prepared later by the investigating officer is surprisingly also similar. Contrary to what was stated by the complainant, PW-6 Gul Mohammad also an eye-witness deposed that five persons, Qurban, Zafar, Sharif, Allah Bux, Pehlwan and Mola Baksh all fired directly upon the deceased. While the deposition of this witness is not in line with that of the complainant, it also appears to be a dishonest statement as Allah Bux and Pehlwan were both said to be carrying Kalashnikovs and neither was an injury on the deceased caused due to a Kalashnikov bullet nor was any empty of a Kalashnikov recovered from the site. PW-3 Wahid Bux also an eye-witness categorically deposed that the Appellant did not make any fire on the deceased. Admittedly, the Appellant is not charged with playing an overt role in shooting at the deceased.

8. PW-8 Arbelo Khan who is said to have arrived at the place of incident in the immediate aftermath deposed that when he got to the scene, he saw that there were no fire marks on either the shirt or the loin cloth of the deceased. He deposed that the complainant Nasrullah had removed the clothes of the deceased and that after the post mortem was over the clothes were handed over to the police at the house of the complainant however the memo of seizure of clothes was made at the police station. According to this witness the police came to the house of the complainant at 5:30 p.m to collect the clothes of the deceased. This seems odd as according to the post mortem report the doctor was conducting the post mortem on the body till 6:15 p.m.

7. PW-3 Nasrullah deposed that he saw the deceased dead. According to Nasrullah's version, It must have been between 2:00 p.m. and 2:05 p.m. that the deceased died, because Nasrullah by his own account had left the place of incident at 2:05 p.m. to go inform the police of the death. PW-4 Dr. Muhammad Hasan in the post-mortem report records that he was informed by the haris who accompanied the dead body to the hospital that the time of death was 1:45 p.m. PW-6 Gul Mohammad in his testimony deposed that the deceased remained alive for two to three hours after the incident.

8. The FIR records the time of the incident as 1400 hours on 30-9-2011. PW3 Nasrullah deposed that he left his house with food for the deceased at 1:45 p.m. and that the place of incident was one kilometer away. He then deposed that at about 2:00 p.m. the deceased and others had their lunch after which the accused appeared and the whole incident occurred. In his own words, the whole episode was over in 2/3 minutes and that he had left for the police station to report the matter at 2:05 p.m. PW-6 Gul Mohammad who claims to be an eye-witness is in alignment with the complainant as far as the time of the incident is concerned, however, he deposed that the whole incident took "30 or 10 or 15" minutes. Which ever estimate of this witness is taken as correct; it simply does not align with the complainant's version of timing of events. PW-7 Wahid Bux who is said to be another eye-witness deposed that the deceased along with others were eating at their lunch at 1:40 p.m., a time that is even before what the complainant stated was the departure time of his from his house.

9. PW-2 SIP Habibullah states that he left the police station at 3:15 p.m. and that he had come back at 3:45 p.m from the place of incident. Yet, the memo of site inspection that he produces in evidence records the time as 4:20 p.m. This witness did not produce either the departure or arrival entries from and to the police station in his evidence. PW-8 Arbelo Khan who was the witness to the memo of site inspection deposed in his testimony that he reached the place of incident at 4:20 p.m. and that the police arrived after his arrival to the site. PW-1 PC Aijaz Ahmed who claims to be the person who accompanied PW-2 Habibullah to the place of incident deposed that he had received the dead body at 3:10 p.m. and that he took the body to the RHC Garhi Mori where he handed over the dead body to the medical officer there. It is pertinent to also mention that the FIR in the case is said to be registered at 3:10 p.m. at which the complainant stated he was at the police station. It is pertinent to point out that the complainant also claimed to have taken the body to the hospital.

10. The blood on the earth collected as sample by the police was never matched with the blood of the deceased to prove that the blood was indeed that of the deceased. The said earth was produced in trial without the cigarette box in which the blood was said to have been sealed by the police.

11. No recovery of the weapon of the Appellant was ever obtained by the police. The three empties of the .30 bore pistol which the police officer claims was recovered from the place were not recovered by the police but were handed over to the police by the complainant according to the information of the PW-6. No forensics was conducted to even establish that the empties ostensibly recovered were those fired from a .30 bore pistol. The Appellant is said to be carrying a Kalashnikov and admittedly no empty of that weapon was recovered.

12. The memo of site inspection records that when the police reached the spot the body of the deceased was lying straight on the ground. PW-8 who is ostensibly a witness to the memo of site inspection deposed that the dead body was lying in a sitting position against a tree. He further deposed that there was no blood present on the tree and that only one fire shot had gone through the body while two others had not.

13. None of the buffaloes which the complainant says the accused came to rob were in fact robbed. All witnesses except PW-7 admit this. PW-7 is one witness who states that 15/20 buffaloes were robbed. It seems strange that he should say this because by his own account he became unconscious soon after the firing. The dishonesty of this witness is apparent from the fact that he goes on to narrate events even after him supposedly getting unconscious. While the complainant states that there were 10 buffaloes, other witnesses vary in the number even going up to 50/60 buffaloes. What is odd is that all witnesses admit that the accused had come on foot with the motive to rob the buffaloes but that they had come on foot and that there was no vehicle of any sort with them. Such a dacoity attempt in broad daylight with admittedly village dwellings close by does not appeal to a prudent mind.

14. PW-2 deposed that the dead body was taken to the hospital by a police constable PW-1 Aijaz in a private vehicle arranged by the complainant. The complainant more or less deposes the same fact but does not mention that a police constable accompanied them. PW-1 does not depose that the complainant went with him with the body. PW-6 in his testimony deposed that the deceased had not died initially but was taken on a motorcycle by the complainant to a link road and then in a white car to the hospital. He then deposed that the deceased was taken in an ambulance and a car. He also deposed that he subsequently learnt that the injured had passed away. PW-8 deposed that four police officials took away the body of the deceased and that there were about twenty motor cycles present.

15. Admittedly, the deceased was facing a trial for the murder of the son of the complainant's sister. PW-2 also admitted that the deceased had other cases registered against him at his police station but denied that the deceased was killed extra judicially. There is an admitted enmity between the parties and the present accused are thirteen members of the same family. False involvement of the Appellant in such a situation can not be ruled out.

16. No shot being fired by the Appellant; no property having been robbed; failure of the prosecution to establish even an attempt of dacoity; inability of the prosecution to even agree on the number of buffaloes on the spot; failure to prove the time of incident and material contradictions in timing of other events; no forensics conducted on the blood or the bullets; no recovery of any sort; a prosecution story that does not appeal to a prudent mind; dishonest witnesses; material contradictions between the witnesses on how long the incident lasted, whether the deceased had even died on the spot or not and how and when he was taken to the hospital; a history of enmity; an apparent attempt to cast the net wide and dishonest and incompetent investigation make the case of the prosecution highly doubtful.

17. The case is replete with contradictions between the prosecution witnesses but the observations above are enough for me to form a view that the prosecution was unable to prove their case against the Appellant beyond reasonable doubt.

18. The above are the reasons for my short order of 11-4-2017 in terms of which the appeal was allowed and the Appellant was acquitted of the charge. JK/P-2/Sindh Appeal allowed.