IN THE HIGH
COURT OF SINDH, BENCH AT SUKKUR
Cr. Appeal S-22 of 2014
Dates of hearing: : 06.11.2018 & 29.11.2018
Date
of Judgment : 06.11.2018
Appellants Khshal Khan : through Mr. Yasir Arafat
and
Punhal Khan Mahar, Advocate.
Complainant
Nishad Ali : through Mr. Abdul Waheed
Bhanbhro,
Advocate.
State : through Syed Sardar Ali
Shah,
D.P.G.
---------------------------------------
Muhammad
Saleem Jessar, J.- Through this Criminal Appeal appellants have
challenged Judgment dated 20.03.2014 handed down by learned Additional Sessions
Judge, Gambat in Sessions Case No.308 of 2009 (Re-State Vs. Khushal
Khan and others), being outcome of Crime No.85/2009 registered at P.S. Gambat, whereby he convicted the appellants
for an offence punishable under
section 302(b) PPC and
sentenced them to suffer R.I. for 25 years and to pay fine of Rs.50,000/-
(Rupees Fifty Thousand only) each under section 544-A Cr. P.C. to the legal
heirs of deceased Abdul Hameed Mahesar and in case of non-payment of
compensation amount, to undergo S.I. for six months more. However, the accused /
appellants were extended benefit of Section 382-B Cr. P.C. By the same judgment accused Shahdad alias
Shahid, Ayaz Ali, Fida Hussain, and Agha
Mohammad were acquitted of the charges by giving them benefit of doubt.
Precisely, the facts of
the prosecution case are that complainant Nishad Ali lodged FIR alleging
therein that there exists dispute over matrimonial affairs between Khushal Khan
and uncle of complainant namely Abdul Hameed Mahesar. On 20.4.2009 the complainant and his uncle
Abdul Hameed were standing near their houses at their lands, when at 7.00 P.M. they
saw and identified accused namely, Khushal Khan, Shahid Ali, Punhal, Ayaz Ali
and five unidentified persons who will be identified if seen again all having this in their hands, came there and abused the
complainant. Meanwhile, accused Khushal Khan inflicted lathi blows to
complainant’s uncle Abdul Hameed on his head and other parts of his body, while
other accused caused lathi blows on his back and other parts of the body and then he fell down on the ground. On their
cries, P.Ws Bakhsh Ali and Faiz Mohamamd
came running whereupon the accused left
the scene of offence. Thereafter
complainant took the injured to Taluka Hospital Gambat
from where the injured was referred to Larkana Hospital but in the way there
occurred some defect in the vehicle and after its repair on 21.4.2009 at 3.00
a.m. uncle of the complainant namely Abdul Hameed succumbed to his
injuries. Thereafter, the complainant took the dead body to Taluka
Hospital Gambat for postmortem
examination and then appeared at the police
station where he lodged the F.I.R.
After usual
investigation challan was submitted against the accused. A formal charge was
framed against the accused to which they pleaded not guilty and claimed to be
tried.
In order to
prove charges against the accused, prosecution examined P.W. Dr. Nazir Ahmed at
Ex.9, P.W.2 Nishan Ali at Ex.13, P.W.3
ASI Imam Bux at Ex.15, P.W.4 Tapedar Ghulam Hussain at Ex.19, P.W.5 SIP
Kamaluddin at Ex.21, P.W. Complainant Nishad Ali at Ex.22, P.W. 7 Faiz Mohammad
at Ex.23, P.W.8 Mashir Haji Ali Madad at
Ex.27, P.W.9 SIO Abdul Sami at Ex.10. Thereafter, learned DDPP closed
prosecution side vide statement Ex.11.
Statement of accused was recorded vide in which they denied prosecution allegations and claimed to be innocent. However,
neither they examined themselves on oath, nor produced any witness in their defence.
After formulating the points for
determination, recording evidence of the prosecution witnesses and hearing
counsel for the parties, trial Court vide impugned judgment convicted and
sentenced the appellants as stated above. Against the said judgment, appellants
have preferred an instant appeal.
I have heard
learned counsel for the appellants, learned counsel for the complainant as well
as learned D.P.G. appearing for the State and perused the material available on
the record.
Learned counsel for the appellants submitted
that the accused / appellants have been falsely involved in the present case.
He further contended that the trial court has passed the impugned judgment in a
hasty and mechanical manner without appreciating the relevant law as well as
the submissions made on behalf of the accused. He further contended that there
are material contradictions in the evidence of prosecution witnesses. He
further contended that the F.I.R. was lodged after a delay of about 14 hours for
which no plausible explanation has been offered by the prosecution. He further
contended that there is contradiction between the ocular testimony and
the medical evidence, as although in the FIR it was alleged that in all five accused
persons inflicted lathi blows to the deceased but the medical evidence shows that only four injuries were sustained by
the deceased. He further contended that alleged bloodstained lathies were recovered from the appellants
after five days. He further contended that there is delay of about 15 days in
sending the bloodstained earth to the laboratory, whereas there is long delay
of about 27 days in sending the bloodstained crime weapons i.e. lathis to the
Chemical Examiner which were received in the office of Chemical Examiner after
about three and a half months of their recovery. He further contended that even the last worn
clothes of the deceased were, at all, not sent to the Chemical Examiner for
examination and matching with the blood found on the crime weapons as well as
the bloodstained earth. He further contended that the motive has also not been proved
by the prosecution. He further contended that it was asserted by the
complainant that while taking the injured to hospital, the vehicle went out of
order but in support of this assertion driver of the vehicle was not examined.
Accused Fida Hussain was involved by the complainant in his further statement
which is not admissible in law. He further contended that co-accused Sahdad
alias shahid, Ayaz Ali, Fida Hussain and
Agha Mohammad have been acquitted by the same judgment, while on the basis of the
same set of evidence present appellants have
been convicted which is contrary to ‘rule
of consistency’. He further contended that ASI Imam Bux did not produce the
roznamcha entry which is also fatal to the prosecution case. He prayed for allowing the instant appeal, setting
aside impugned judgment and for acquittal
of the appellants. In support of his contentions
he relied upon the case-law reported in 2017 P. Cr.L.J. 235, 2017 P. Cr.L.J.
280, 2017 YLR Note 96 and 2017 SCMR 1645.
Conversely,
learned counsel for the complainant supported the impugned judgment to the
extent of appellant Khushhal Khan. He further contended that minor
contradictions are ignorable and cannot be made basis
for acquittal of the accused. He further contended that medical evidence also
corroborated the ocular testimony. He further contended that alleged crime
weapons i.e. lathies were also recovered which
were found to be bloodstained. He prayed for dismissal of the appeal and maintaining the
conviction and sentence awarded to the appellants.
On the other
hand, learned A.P.G. while adopting the arguments advanced by learned counsel
for the complainant, contended that minor contradictions are ignorable in view of
dictum laid down by Honourable Supreme Court in the case reported in 2010 SCMR
166.
As regards the
plea raised on behalf of the appellants regarding the delay of about 14 hours in lodging F.I.R., it seems that alleged offence was committed on 20.04.2009 at 7.00 p.m.
whereas the F.I.R. was lodged on 21.04.2009 at 9.14 a.m. i.e. after about 14
hours. From the perusal of the contents of F.I.R. as well as the deposition of
the complainant, it seems that after the
alleged incident the deceased, who was still alive, was taken to police station
for getting a letter for medical
treatment. The police station, as per F.I.R., is situated at a distance of
12/13 K.Ms from the place of incident. Then the complainant party along with the injured proceeded towards Taluka
Hospital Gambat and during the treatment,
doctors referred the injured to Larkana for better treatment. Then they boarded
a private Wagon and took the injured to Larkana, however, the Wagon in the mid of the way went out of order and
thereafter they reached the hospital in Larkana at about 3.00 a.m. However,
before reaching the hospital the injured succumbed to his injuries. Thereafter
the dead body was again brought back to Taluka Hospital Gambat for postmortem examination.
Then the complainant went to police station for lodging F.I.R. in the
morning at 9.15 a.m. In my opinion, plausible explanation has been offered by
the prosecution for the aforesaid delay of 14 hours as from above it seems that
such time would have consumed between the occurrence of the alleged incident
and lodging of F.I.R.
However,
there seems to be a conflict between the
ocular testimony and the medical evidence. The Complainant in his evidence
deposed as under:
“We saw that
accused Khushal, Punhal Khan, Shahid Ali, Ayaz Ali all by caste Mahesar and five unknown persons came there. The
unknown persons will be identified if they are seen again. All the accused persons were having this
in their hands. All accused persons
came running there and abusing. Accused Khushal Khan gave lathi blows on the head
of my uncle Abdul Hameed, who raising cries fell down on earth. The rest of the accused persons also caused lathi injuries to Abdul
Hameed.”
From
above, it seems that in all nine persons have been alleged to have participated
in the commission of the alleged offence. Supposing each accused would have
caused only one injury to the deceased, even then there would have been at
least nine injuries whereas according to medical evidence there were only four
injuries on the dead body of the deceased. Besides, P.W. Faiz Mohammad, who is also
said to be an eye-witness of the incident, in his examination-in-chief deposed,
“The rest of accused persons caused lathi
blows on the back and other parts of
the body of Abdul Hameed.” Again the
medical evidence belies such statement of P.W. Faiz Mohammad as in the
postmortem report there is no injury on the back of the deceased.
Besides,
there are certain contradictions in the evidence of the prosecution witnesses
which create doubts in the prosecution case and go in favour of the accused/appellants. Complainant Nishad Ali in his
cross-examination stated, “I along with my father and 2/3 persons came at P.S. for
FIR whose names I do not remember”, whereas P.W. Faiz Mohammad in his
cross-examination stated, “At the time of
lodging of FIR I along with Bakhshal and
complainant along with many other
persons were available at P.S.”. Likewise, P.W. Faiz Mohammad in his
cross-examination stated, “On my cries
villagers Liaquat, Haneef, Iqbal and
other 50 persons came there”,
whereas there is no such mention in the deposition of the complainant. What the
complainant said in his cross-examination was, “It is correct to suggest that after the departure of accused I made hue and cry. It is correct to suggest that thereafter on
my cries PWs were attracted.”
Similarly, the complainant deposed in his examination-in-chief, “We raised cries which attracted Bukshali and Faiz Mohammad who came running
there whom seeing coming them, the
accused persons went away.” However, in his cross-examination,
he contradicted his own statement by admitting, “I remained silent on spot till standing of accused persons. It is
correct to suggest that after the departure of accused I made hue and cry. It
is correct to suggest that thereafter on my cries PWs were attracted.” From this statement even the witnessing of the
incident by P.W. Faiz Mohammad, as
claimed by him, becomes doubtful because the complainant admitted that after the departure
of accused he raised cries which attracted P.Ws Faiz Mohammad and Bakshali,
then as to how P.W. Faiz Mohammad claims that he had seen the accused persons
inflicting lathi blows to the deceased because, as per statement of the
complainant, P.W. Faiz Mohammad reached the spot after the departure of the accused from the place of
incident.
Besides,
P.W. Dr. Nazeer Ahmed admitted as under:
“I have mentioned the duration between
the death and post mortem and death and
injuries on the basis of information given to me by the attendance of the deceased…It is correct to suggest that I
have not mentioned in my post mortem
regarding the time when the rigor mortem changes developed. Marks of nigature on the neck
were not available.”
P.W. Inspector Abdul Sami, second I.O.
of the case, in his examination-in-chief deposed as under:
“..accused Khshal took out one lathi from the leaves. The lathi was stained
with blood….Accused Punhal took out lathi….The lathi took out by accused was
also stained with blood…”
In his cross-examination he admitted as under:
“It is a fact that both mashirs of recovery are same….It is a fact that
both ladies are available commonly in the
market. Place of recovery is adjacent to common
path.”
It seems that the alleged recovery of
crime weapon i.e. lathi was made on 19.05.2009 whereas the alleged incident took
place on 20.4.2009. It is very strange that despite lapse of about one month still the crime weapon was stained with
blood. It does not appeal to the mind of
prudent man that despite having such a long time
the accused did not wash up the said crime weapon and left the same duly
stained with blood, thus leaving a proof of the commission of the alleged offence by them.
P.W. ASI Imam Bux who recorded F.I.R.
admitted in his cross-examination, “Mashirs Ali Murad and Roshan were also
accompanied with injured and complainant on 20.04.2009. I do not remember if any body else or mashirs were accompanied on 21.04.2009 when complainant lodged
FIR.”
Neither the complainant nor another alleged
eye-witness P.W. Faiz Mohammad has said a single word that mashirs Ali Murad and Roshan also accompanied
them to police station along with injured
on the day of the incident. It is also note-worthy
that in all the mashirnams, the said two
persons namely Ali Murad and Roshan are the mashirs.
This also smacks some foul-play on the part of the prosecution.
P.W. SIP Kamaluddin, who is the first
I.O. of the case, admitted in his cross-examination as under:
“It is a fact that we maintained roznamcha for every moment and I have not
produced for receiving the FIR……It is a fact that at first I recorded the statement
of witnesses thereafter 162 Cr. P.C. of the complainant.
It is a fact that the name of accused
Fida Hussain is not given in the FIR.”
Needless to observe that the Superior
Courts have held time and again that non-production of roznamcha entries is also fatal to the prosecution case.
P.W. Haji Ali Murad, who acted as mashir, in his cross-examination made following
admissions:
“Pir Easa
stop is thickly populated area and many persons are standing at that time. Both
lathis are of common lathi. ….It is fact that place
of recovery of is a common path which is at
distance of 2 k.m. from village Daroon.
It is correct to suggest that traffic was going. Sobedar did not try to
associate to any other person …..It is fact that accused Khushal Khan lodged
FIR Noi.86 of 1998 in which I was accused.”
From
above admission it appears that violation of section 103 Cr. P.C. also took
place as the I.O. did not make efforts to associate private independent persons
of the locality as mashir of recovery of
alleged crime weapons despite availability of such independent persons and made
the aforesaid two persons namely Ali
Murad and Roshan as mashir who also acted
as mashris in all other mashirnamas.
It appears
that there is also delay of about 15 days in sending the bloodstained earth to
the Chemical Examiner as bloodstained earth was allegedly secured from the spot
on 21.4.2009 vide Ex.21-E; however, the same was sent to the chemical examiner
on 05.05.2009. Besides, there is also long
delay of about 27 days in sending the bloodstained crime weapons i.e. lathis to
the Chemcial Examiner which were received
in the office of Chemical Examiner after about three and a half months of their
recovery. In fact, the lathies allegedly
used in the commission of the offence are
alleged to have been recovered on 19.05.2009 on the pointation of the accused but the same were sent to the Chemical Examiner on 05.06.2009. Not only this,
but the said crime weapons were received in the Office of Chemical Examiner on 24.08.2009.
i.e. after about three and a half months from the date of their recovery. The prosecution has not given any plausible
explanation for such a delay. Such delay
is also fatal to the prosecution case. In
this connection, reference can be made to the case reported as
Samandar @ Qurban and others Vs. The State (2017 MLD 539 Karachi), while
dealing with the point of delay in sending the weapon to Ballistic Expert, this
Court held as under:
“Apart from
above sending of crime weapon to ballistic expert for forensic report with
delay of 20 days of their recovery also added further doubt into the
prosecution case, thus in view of above coupled with non-compliance of section
103, Cr. P.C., it can safely be presumed that alleged recovery of crime weapon
was not made from the possession of the appellants as alleged by the
prosecution.”
In the case reported as Yaqoob Shah
Vs. The State (1995 SCMR 1293) Honourable Supreme Court held that the report of the Fire-Arm Expert was of no
avail to the prosecution as the crime empties and the fire-arms allegedly
recovered from the accused were sent to Forensic Science Laboratory after
delay. Reference in this respect may also be made to the decision reported
as Ghulam Hussain and two others Vs.
State (1998 P.Cr.L.J.779). In the circumstances, report of the ballistic expert even might be in
positive, would lose its sanctity.
It
is also note-worthy that it has also come
in the evidence that last worn bloodstained clothes of the deceased were, at
all, not sent to the Chemical Examiner in order to confirm as to whether the
blood found on the said clothes was human blood and, if so, then whether the
same matches with the blood of deceased. Failure to undertake such exercise
also weakens the prosecution version. In this connection,
reference can be made to the case of Pervez Masih Vs. The State (2005 P. Cr.
L.J. 1232) a Full Bench of Honourable Federal Shariat Court held as under:
“However, we are afraid evidence of the recovery of crime
weapon by itself being evidence of purely corroboratory nature, in the absence
of any direct or substantive evidence alone, was not sufficient to bring home
charge against the appellant, particularly when neither Serologist’s report nor
Chemical Examiner’s reports
were produced or tendered in evidence so as to prove that the “Churri” was bloodstained and if
it was so, it had human blood and was of the same group as was of the
deceased.”
Learned
counsel for the appellant also laid stress on the fact that co-accused Sahdad
alias Shahid, Ayaz Ali, Fida Hussain, and
Agha Mohammad have been acquitted by the same judgment, whereas on the basis of
the same set of evidence present
appellants have been convicted which is contrary to ‘rule of consistency’. There is indeed weight in the contention of
the learned counsel.
Needless to
emphasize that ‘rule of consistency’ demands that if an accused has been acquitted from the charge by
disbelieving evidence of the certain
witness, other accused charged with similar allegations is also entitled to the
same concession/treatment and the
evidence of that particular witness cannot be made basis for convicting other
accused. In the instant case Complainant in his evidence deposed as under:
“We saw that
accused Khshal, Punhal Khan, Shahid Ali, Ayaz Ali all by caste Mahesar and five unknown persons came there. The
unknown persons will be identified if they are seen again. All the accused persons were having this
in their hands. All accused persons
came running there and abusing. Accused Khshal
Khan gave lathi blows on the head of my uncle Abdul Hameed, who raising cries
fell down on earth. The rest of the
accused persons also caused
lathi injuries to Abdul Hameed.”
Besides, P.W. Faiz Mohammad, who also
to be an eye-witness of the incident in his examination-in-chief deposed as
under:
“I was
standing and also deceased the fighting
took place where accused Khshal, Shahid, Punhal, Ayaz and fifth unknown
letter-on (sic) he is to be Fida Hussain came there. Accused Khshal Khan abusing Abdul Hameed gave him lathi
blow in his head who raising cry fell down on earth. I and Bukshali reached there. The rest of accused
persons caused lathi lblows on the
back and other parts of body of Abdul
Hameed. After our arrival, all accused persons ran away abusing to
Abdul Hameed.”
From above, it is clear that all the
accused persons including the acquitted have been alleged to have participated
in the commission of alleged offence, as such rule of consistency would be applicable in this case. However, as the involvement of accused
Fida Hussain in the case was on the basis of further/supplementary statement of
the complainant and his name did not find mention in the FIR, as such the same
was of no evidentiary value and his acquittal seems to be justified on this
ground. On the point of the rule of consistency, it would be
advantageous to refer to a judgment of Honourable Supreme Court passed in the case of Mohammad Asif Vs. The
State reported in 2017 SCMR 486 wherein it was held as under:
“It is a trite of law and justice
that once prosecution evidence is
disbelieved with respect to a co-accused then, they cannot be relied upon with
regard to the other co-accused unless they are corroborated by corroboratory
evidence coming from independent source and shall be unimpeachable in nature but that is not available in the
present case.”
In another case reported as Umar
Farooque v. State (2006 SCMR 1605) Honourable Supreme Court held as under:
“On exactly the same evidence and in
view of the joint charge, it is not comprehendible,
as to how, Talat Mehmood could be acquitted and on the same assertions of the
witnesses, Umer Farooque could be convicted.”
In the case of Mohammad Asif Vs. The State reported in 2017 SCMR 486 it
was held by Honourable Supreme Court that once
prosecution witnesses were disbelieved with respect to a co-accused then, they
could not be relied upon with regard to the other accused unless they were
corroborated by corroboratory evidence which came from an independent source
and was also unimpeachable in nature. In another case reported as Mohammad
Akram vs. The State (2012 SCMR 440) the Apex Court while holding that same set
of evidence which was disbelieved qua the involvement of co-accused could not
be relied upon to convict the accused on a capital charge, acquitted the accused.
It
is well settled principle of law that the
prosecution is bound under the law to prove its case against the accused beyond
any shadow of reasonable doubt. It has also been held by the Superior Courts
that conviction must be based and founded on unimpeachable evidence and
certainty of guilt, and any doubt arising in the prosecution case must be
resolved in favour of the accused. In the
instant case prosecution does not seem to have proved the allegations against
the accused/appellant by producing unimpeachable evidence, thus doubts have
been created in the prosecution version. In the case reported as Wazir Mohammad
Vs. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as
under:
“In the
criminal trial, whereas it is the duty of
the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he
has only to create doubt in the case of the prosecution.”
In another
case reported as Shamoon alias Shamma Vs. The State (1995 SCMR 1377) it was held
by Honourable Supreme Court as under:
“The
prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the
accused in his defenc. Failure of
prosecution to prove the case against the accused,
entitles the accused to an acquittal.”
In view of
aforesaid legal flaws and lacunas and contradictions between the medical
evidence and ocular testimony, so also in the depositions of prosecution
witnesses interse,
it can safely be held that prosecution has not succeeded in proving its case
against the accused / appellant beyond a shadow
of reasonable doubt. Needless
to emphasize the well-settled principle
of law that the accused is entitled to be extended benefit of the doubt as a matter of right and not as a grace
or concession. In the present case, there are various contradictions in the
evidence of the prosecution witnesses which create doubts in the prosecution
case. Even an accused cannot be deprived of the benefit
of doubt merely because there is only one circumstance which creates doubt in
the prosecution story. In the case reported as Tariq Pervaiz vs. The State 1995
SCMR 1345 th e Honourable Supreme Court held as under
:-
“The concept of benefit of doubt to an accused person is deep-rooted in
our country. For giving him benefit of
doubt, it is not necessary that there should be many circumstances creating
doubts. If there is a circumstance which creates reasonable doubt in a prudent
mind about the guilt of the accused, then the accused will be entitled to the
benefit not as a matter of grace and concession but as a matter of right.”
For the aforesaid reasons, by a
short order dated 29.11.2018 instant Criminal Appeal was allowed, consequently Judgment dated 20.03.2014 handed down
by learned Additional Sessions Judge, Gambat in Sessions Case No.308 of
2009 (Re-State Vs. Khushal Khan and others), being outcome of Crime No.85/2009
registered at P.S. Gambat under sections
302, 504, 147, 148 & 149 PPC, to the extent of present appellants namely,
Khushal Khan son of Fateh Mohammad Mahesar and Punhal Khan son of Haji Mahesar was
set aside and the appellants were acquitted of all the charges. Appellants were
ordered to be released forthwith if their custody was no more required in
connection with any other criminal custody case(s).
Above are
the reasons for the said short order.
JUDGE
Irfan/PA