2001 SCMR 25 (PLP)

RANA BHAGWAN DAS, J.

This appeal with the leave of the Court arises out of the judgment, dated 4-8-1996 by a learned Judge in Chambers of the Sindh High Court dismissing appellants' plea against their conviction and sentence for the commission of murder of deceased Muneer Ahmed.

2. At the trial, apart from appellants Allah Wadhayo and Badruddin, co-accused Shamsuddin, Qamaruddin and Makhno were also arrayed as accused but the last-mentioned three co-accused were acquitted whereas the appellants were convicted. Appellant Badruddin was sentenced to life imprisonment whereas appellant Allah Wadhayo was sentenced to suffer rigorous imprisonment for 14 years. Both the appellants were also directed to pay fine of Rs.25,000 each or in default to suffer R.I. for 2 years. It was further ordered that in the event of recovery of fine, a sum of Rs.15,000 each shall be paid as compensation in terms of section 544-A, Cr.P.C. to the legal heirs of the deceased.

3. Episode leading to the culpable homicide of the deceased took place on 30-7-1990 at 1-45 a.m. in the garden of date-trees of complainant Muhammad Gajan near his house in Taluka Panoakil when the appellants alongwith their companions duly armed with deadly weapons caused death of the deceased at the instigation of appellant Allah Wadhayo. Act of firing from gun is attributed to appellant Badruddin who at the relevant time was employed as Police Constable in Sindh Reserve Police at Karachi. Rest of the assailants stated to be armed with Lathis but no active part has been attributed to them except Lalkara ascribed to co-appellant Allah Wadhayo.

4. Motive behind the occurrence is stated to be dispute over matrimonial affairs.

5. Occurrence was promptly reported at Police Station Panoakil at 2-30 a.m. the same night which was recorded by A.S.I.P. Gul Muhammad Memon who inspected the place of occurrence, prepared inquest report, despatched the dead body for post-mortem examination and on 3-8-1990 arrested the acquitted accused as well as appellant Allah Wadhayo. He recovered four Lathis from their possession. Further, investigation was conducted by Nazir Hussain, Inspector C.I.A., Sukkur who verified the investigation and prepared sketch map of place of occurrence. On 15-8-1990 he deputed S.I.P. Liaqat Ali to proceed to Karachi for further investigation Appellant Badruddin appeared before this officer at Sukkur on 20-8-1990 On the basis of the evidence collected by S.P Liaquat Ali and witnesses examined by this witness, he recommended case of appellant Badruddin under section 497, Cr.P.C. but it appears that pursuant to the legal opinion the case was sent up for adjudication by a Court of law.

6. At the trial prosecution examined as many as 11 witnesses. Essentially, defence of both the appellants was false implication due to enmity over matrimonial affairs. Badruddin added that C.I.A. Inspector Sukkur had recorded statements in his defence on the plea of alibi raised by him. He produced documents Exhs.34/A to 34/N including statements of five witnesses examined under section 161, Cr.P.C.

7. Trial ended in conviction. Criminal appeal failed, hence this appeal with the leave of the Court granted to consider whether the evidence on record was sufficient for conviction of 'the appellants when their co-accused were acquitted on the basis of same evidence.

8. Learned counsel appearing for the appellants vehemently assailed the conviction of the appellants and criticized the judgment of the learned High Court on the ground that the plea of alibi though raised at the earliest possible stage and substantiated by entries in daily diary maintained by Sindh Reserve Police Wing-I, Karachi and Enquiry Report by Deputy Superintendent of Police, Headquarters S.R.P., Korangi, addressed to Superintendent .of Police, S.R.P., Karachi, concluding that appellant Badruddin was present on duty on 29-7-1990 and 30-7-1990 and more particularly at the time of occurrence, were wrongly excluded from consideration by the High Court on hypertechnical grounds.

9. In the impugned judgment learned High Court relied upon the ocular evidence of complainant Gajan, P.Ws. Wadhal and Faiz Muhammad and corroborative evidence of P.Ws. Manzoor Ahmed and Ghulam Hyder (although Ghulam Hyder witness had been given up by the prosecution) coupled with the medical evidence and discarded the plea of alibi raised by appellant Badruddin for the reason that he had failed to examine the authors of the documents produced by him. alongwith his statement under section 342, Cr.P.C. Another ground which found favour with the High Court for rejecting defence plea was non-examination of the appellants themselves on oath as required by section 340(2), Cr.P.C. in disproof of the charge against them and presence of any witness in defence. High Court observed that though Badruddin had raised point of alibi showing his presence at Karachi but he failed to examine any police official from the Sindh Reserve Police, Karachi. A reference was made to the cases reported as Aminullah versus State (PLD 1976 SC 629) and Khushi Muhammad v. State (1983 SCMR 697).

10. Learned counsel for the appellants seriously assailed the evidence of eye-witnesses on the ground that the incident took place at odd hours of dark night without substantial proof of electric light being available. No doubt the witnesses claimed that there was an electric bulb available near the place of incident they were constrained to concede that such connection for irrigating lands through tubewell procured by illegal means as electric line happened to pass nearby. There appears to be a glaring and material contradiction in the evidence as the ocular witness Faiz Muhammad P.W.4 persistently claimed in his statement that the assailants, including the appellants, were at a distance of 10/ 15 paces from deceased Muneer Ahmed when appellant Badruddin fired at him which proved fatal. On the other hand Dr. Abdur Rashid who conducted autopsy on the dead body had noticed blackening and charring into chest cavity deep on the right side of chest along nine lacerated punctured wounds each 1-1/2 c.m. diameter with margins occhymosed. In the face of medico-legal opinion evidence of witnesses is hardly capable of reconciliation and casts serious doubts as to the truth of the version of the eye-witnesses who had implicated as many as five persons in the occurrence of whom three were acquitted by the trial Court for want of any evidence against them. Learned counsel for the respondent attempted to argue that in the event of any discrepancy ocular version ought to be preferred but we cannot lose sight of the fact that the prosecution did not approach the Court with clean hands as the complainant as well as the witnesses. mustered the courage of implicating as many as five persons for a single casualty. This aspect of the case strongly militates against the bona fides of the prosecution version. It is ironical to notice that with the deterioration of values and standards in society, there has been a growing tendency to rope as many members of the family of an accused as possible. This practice often leads to the acquittal of the real culprit as well in view of exaggeration and concoction of the prosecution case, which must be deprecated.

11. Be that as it may, we do not feel persuaded to agree with the conclusion drawn by the learned High Court that since the appellants failed to examine themselves on oath in disproof of the charge and appellant Badruddin did not summon any witness from Sindh Reserve Police, Karachi, his plea relating to alibi was not established in order to dispel the impact of ocular evidence. There may be no cavil with the conclusion that statements of witnesses recorded under section 161, Cr.P.C. by Nazir Hussain Abbasi, Inspector C.I.A. in support of the plea of alibi may not be relevant and admissible for inferring innocence of this appellant, fact of the matter remains that appellant Badruddin had throughout raised this plea during the cross-examination of almost all the prosecution witnesses. Furthermore, entries reflecting his presence on duty on 29-7-1990 and 30-7-1990 in the Daily Station Register at Karachi evidently 325 miles away from place of occurrence coupled with Enquiry Report dated 18-8-1990 by D.S.P., Headquarters; S.R.P. addressed to Superintendent of Police, S.R.P., Karachi, certifying that appellant Badruddin was on duty at Karachi were not controverted by prosecution at the trial. We are least impressed with the submission that the appellant should have summoned original Daily Station Register and other relevant record from the quarters concerned in proof of his plea of alibi. Suffice it to say in the absence of any challenge to the intrinsic value of the defence plea by the prosecution which was in a relatively better position to verify the factual position, no fault can be found with such entries and the report of a responsible police officer. Quite cleverly investigating Officer Gul Muhammad Memon who had phoned S.R.P., Karachi on 30-7-1990 to find out the presence of appellant Badruddin on duty, avoided to speak the truth by saying that he did not remember it.

12. It is admitted that plea of alibi was taken at the earliest possible opportunity before the Investigating Officer but the police either did not choose to verify the same or after verification did not disclose the same. In any case, this circumstance casts serious doubt on the prosecution case.

13. The principle that the legal burden of proof always rests on the prosecution is the most fundamental principle of our criminal jurisprudence. It is much older than the Evidence Act because it was principle of the common law administered by the superior Courts of the sub-continent. Indeed there can be no cavil with the proposition of law that the onus of proof always remains on the prosecution. Accordingly, -if an accused raises a defence falling within the exceptions, he is only required to show that there is a reasonable possibility of his case falling within the exception clause and the standard of proof of a plea bringing the case of an accused within the exception clause need not be similar to the degree of proof as expected of the prosecution. Strictly speaking, an accused who is always considered as a blue eyed child of law may not be required to establish his case beyond reasonable doubt in every case. In the case in hand we are inclined to the view that in the light of consistent and straightforward position taken by appellant Badruddin from the stage of investigation the burden of proof required of him stood discharged and it shifted to the prosecution who was unable to contradict the same. Heavy reliance was placed on the case reported as Aminullah v. State (PLD 1976 .SC 629) but as affirmed from time to time verdict given in a criminal case generally must be confined to the facts of the reported case and cannot be universally applied to all cases. Reference may, however, be made to cases reported as Safdar Ali v. Crown (PLD 1953 FC 93) and Abdul Majid v. State (1983 SCMR 310).

14. In view of the opinion formed by us it is difficult to subscribe to the view taken by the learned High Court. We are, therefore, of the considered view that the impugned judgment and conviction cannot be sustained in law. Since the possibility of false involvement of Badruddtn appellant cannot be ruled out m the circumstances, we extend the benefits of doubt to him. Case of appellant Allah Wadhayo appellant stands on a better footing as a mere Lalkara is attributed to him. Indeed, trial Court and the High,Court could have treated his case at par with the case of Shamsuddin, Qamruddin and Makhno who were acquitted for the reason that they had not played any active role in the commission of the crime.

15. Resultantly this appeal is allowed and the impugned judgment of the learned High Court is set aside. Both the appellants stand acquitted of the charge. Q.M.H':/M.A.K./A-63/S Appeal allowed.