IN THE HIGH COURT OF SINDH,BENCH AT SUKKUR

Criminal Jail Appeal No. S-33 of 2020

Appellant: Sajjan Chachar, through

Mr. Muhammad Ali Dayo, Advocate and Mr. Iftikhar Ahmed Advocate.

Complainant: Dur Muhammad, through

Mr. Ubedullah Ghoto, Advocate

The State: Through Mr. Khalil Ahmed Maitlo,

Deputy Prosecutor General

Date of hearing: 19.11.2021 & 22.11.2021

Date of decision: 04.02.2022.

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Through this appeal, appellants Sajjan son of Rustam and Hafiz Muhammad Ahmed son of Meenhon both by caste Chachar, have challenged the Judgment dated 11.03.2020, passed by learned I-Additional Sessions Judge(MCTC), Ghotki, in Sessions Case No.529/2012 Re-“The State v. Nawaz Chachar and others”, arising out of Crime No.13/2012, registered at police station Kacho Bindi-I, under Sections 148, 302, r/w section 149 PPC, whereby both the appellants were convicted and sentenced for the offence u/s 148 r/w section 149 PPC to undergo R.I for two years and to pay fine of Rs.10,000/- each and in default thereof they shall suffer SI for one month more, they were also convicted and sentenced for offence u/s 302(b) r/w section 149 PPC to suffer R.I for life as Tazir and to pay Rs.200,000/- each to be paid to the legal heirs of the deceased as compensation as provided u/s 544-A Cr.P.C and in default thereof they shall suffer S.I for six months more. Both the sentences were ordered to be run concurrently and benefit of section 382-B Cr.P.C was also extended to them.

2. It is pertinent to mention here that during pendency of this appeal, matter patched up between appellant Hafiz Muhammad Ahmed and legal heirs of deceased Meer, resultantly appellant Hafiz Muhammad Ahmed was acquitted by way of compromise and appeal against him was disposed of vide order dated 24.04.2020, therefore only appeal in respect of appellant Sajjan is to be decided.

3. Succinctly the facts of the prosecution case are that on 02.06.2012 at 1600 hours, complainant Dur Muhammad lodged FIR stating therein that on 01.06.2012, he along with his brother Meer, PWs Irshad and Khair Muhammad after irrigating their lands were returning to their homes, his brother Meer was ahead to them, when at about 11.00 p.m, they reached at OGDC Band, they saw on the torch light accused persons namely Hafiz Ahmed Muhammad, Nawaz, Qurban, Sajjan, Yaseen, Raheem, Barkat Ali and Abdul Majeed, all armed with KKs. Accused Hafiz Ahmed Muhammad shouted that they would kill them and saying so he made straight fire with Kalashnikov upon his brother Meer, accused Nawaz also made straight fire upon his brother and then other accused also fired upon his brother Meer which hit him and he fell down on the ground and then accused persons went away. Complainant party noticed that deceased Meer had sustained fire arm injuries on his left side of chest, left shoulder, nose, eye brows, left forehead and left side of mouth. Complainant with the help of PWs brought the dead body of his brother Meer to Taluka Hospital Ghotki, got conducted postmortem and after getting free from funeral went to Police Station and lodged FIR.

4. After registration of FIR, police conducted investigation, and on completion of investigation submitted challan against the appellant before the court having jurisdiction.

5. After completing all the legal formalities, the trial court framed charge against both the appellants/accused to which they pleaded not guilty and claimed their trial.

6. The prosecution in order to prove its case examined P.W-1 Dr. Arbab Ali at Ex.16, who produced inquest report and postmortem report of deceased at Ex.16-A and 16-B, PW-2 complainant Dur Muhammad at Ex.17, who produced receipt and FIR at Exh.17-A and 17-B, PW-3 Khair Muhammad at Exh.18, PW-4 Mashir Noor Muhammad at Exh.19, who produced the mashirnama of inspection of dead body at Ex.19-A, Danishtnama at Exh.19-B and mashirnama of place of wardat at Ec.19-C, PW-5 IO ASI Habibullah Channo at Ex.20, who verified mashirnama of inspection of dead body, mashirnama of place of wardat and FIR, which were already produced, PW-6 corpse bearer PC Ali Ahmed Chachar at Ex.21, who verified receipt already produced at Exh.17-A, PW-7 Tapedar Atta Hussain Shah at Ex.22, who produced the sketch of wardat at Exh.22-A, learned state counsel on the basis of application of complainant given up PW Irshad Ahmed and second mashir Adam at Ex.23, PW-8 second IO Inspector Muhammad Urs at Exh.24, who produced carbon copy of letter addressed to Mukhtiarkar for sketch of wardat, carbon copy of letter through which he had dispatched the blood stained earth to Chemical Laboratory and positive Chemical Examiner’s report at Exh.24-A to 24-C. Then learned State counsel has given up defence witnesses under his statement at Exh.25 and closed the side vide his statement at Exh.26.

7.     Statements of accused were recorded under section 342 Cr.P.C at Exh.27 and 28, in which they have denied the allegations of the prosecution and claimed their innocence. They did not examine themselves on oath u/s 340(2) Cr.P.C, however accused Hafiz Muhammad Ahmed examined DW/ MO Dr. Abdul Aziz in his defence. After recording evidence and hearing the parties, learned trial court convicted the accused as stated above, hence the instant appeal.

8. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt. He next contended that there is delay of 17 hours in registration of FIR and recording of statements of the witnesses u/s 161 Cr.P.C which has not been explained properly, therefore consultation and deliberation cannot be ruled out. He also contended that the conduct of the witnesses of ocular account was against normal human conduct because complainant who is real brother of the deceased and PWs who are nephews of the deceased, allegedly witnessed the murder of their real brother and uncle but did not make even an abortive attempt to rescue the deceased or to catch hold of the accused, which creates doubt in the prosecution case. He also contended that all the PWs are relatives of the complainant and are interested inter se and though the place of incident was a busy place i.e OGDC Band but no independent person from there has been taken as witness or mashir, as such no independent, strong and corroboratory evidence of unimpeachable nature is available. He also contended that the Investigating Officer did not take into possession the torch which was the source of identification and no reason has been shown for such omission. He further contended that there are major contradictions and improvements and no incriminating article has been recovered from the possession of the appellants. He further contended that eye witness Irshad and mashir Adam were not examined by the prosecution, presumption would be that had they been examined, they would not have supported the prosecution case. In these circumstances, the case of prosecution appears to be highly doubtful and benefit of doubt always goes in favour of the accused. He further contended that the impugned Judgment is against the law, facts, principles of natural justice and equity and the learned trial court has erred in convicting the appellant by not taking into consideration the entire material and thus the impugned Judgment is liable to be set-aside. He prayed that by extending benefit of doubt, the appellant may be acquitted. Learned counsel for the appellant in support of his contentions placed his reliance on the cases of Sardar Ali and another v. State and another [PLJ 2014 Cr.C. (Lahore) 147 (DB)], Muhammad Taqqi Abbas v. State [PLJ 2014 Cr.C. (Lahore) 889 (DB)], Tariq Pervez v. The State (1995 SCMR 1345), Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502), Irshad Ahmed v. The State (2011 SCMR 1190), Muhammad Rafique v. The State (2014 SCMR 1698), Muhammad Asif v. The State (2017 SCMR 486), Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1155), Ulfat Hussain v. The State (2018 SCMR 313), Zafar v. The State and others (2018 SCMR 326), Muhammad Ashraf Javeed and another v. Muhammad Umar and others (2017 SCMR 1999) and Muhammad Imran v. The State (2020 SCMR 857).

9. On the other hand, learned counsel for the complainant has contended that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt by producing oral as well as medical evidence. He next contended that no major contradictions are pointed out by the defence counsel and the delay in lodging of FIR and recording 161 Cr.P.C statements has been explained, as well as active role has been assigned to the appellant as such false implication of appellant cannot be claimed. He also contended that so far the non-association of witnesses from the locality is concerned, it has been observed by the Apex courts in number of cases that it is matter of common knowledge that the people from the locality generally hesitate to come forward as witness in such cases for fear of reappraisal from the accused party. He further contended that the offence in which the appellant is involved is heinous one and learned trial court has rightly convicted the appellant and appellant do not deserve any leniency. Lastly he prayed that the appeal of the appellant may be dismissed.

10. Learned D.P.G appearing for the state has supported the arguments advanced by learned counsel for the complainant as well as supported the impugned judgment and further contended that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court. He placed reliance on case law reported as Muhammad Akram alias Akrai v. The State (2019 SCMR 610).

11. I have heard learned counsel for the appellant and learned Additional Prosecutor General including counsel for the complainant and have gone through the material available on the record with their able assistance.

12. On reassessment of the entire evidence produced by the prosecution it is established that the prosecution had not proved the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

13. The complainant in the FIR has stated that after the fire of accused Muhammad Ahmed hit to deceased Meer he fallen down and thereafter accused Nawaz had fired upon the deceased. However, for rest of the accused person he only stated that they fired upon them but not stated that any fire of other accused persons was hit to them or hit to the deceased. The complainant in this respect had deposed in his examination-in-chief that all accused raised “Hakal” to his brother Meer and initially Hafiz Muhammad Ahmed, Nawaz and then all the accused had directly fired upon his brother Meer from their KKs. The PW-3 Khair Muhammad also deposed in his examination-in-chief that accused Hafiz Muhammad Ahmed had directly fired upon his uncle Meer, who after receiving firearm injuries fell down on the ground and then accused Nawaz had directly fired upon his uncle Meer, who was already on the ground and then all the accused had also directly fired not only upon his uncle Meer, but they had also fired upon them. This story as narrated by theses witnesses too is unbelievable as the incident took place in the dark night and only source of identification with the complainant party was torch light and the torch was with one person only, in the stated situation it is not possible for every person to see and note each and every movement of accused at the time when they were also facing the firing made from the accused persons upon them and they were hiding themselves to save their life.

14. The Complainant during his examination-in-chief deposed that at about 2300 hours, when they were returning to their houses and reached at OGDC Band, again he says, in between their field and OGDC accused Barkat had contacted through mobile phone with his brother Meer and enquired from him about their whereabouts. The complainant not stated all these facts in the FIR that accused Barkat had contacted with his brother Meer and enquired about their whereabouts. He however in cross-examination stated that he does not remember as to when accused Barkat had enquired about their location from Meer. From perusal of entire evidence it is also established that at the time of incident the parties were on inimical terms and some cases of murders and for other offences were pending in between them and as per prosecution case accused Barkat was issuing threats to the complainant party for murder of said deceased Meer then before the incident as narrated by the complainant in his examination-in-chief that accused Barkat contacted with deceased Meer and inquired about their whereabouts creates serious doubt in the prosecution story.

15. The Complainant during his examination-in-chief deposed that at OGDC Band, his brother Meer was ahead of him and one Bango was coming behind them on Motorcycle and at that time, all accused had concealed themselves near the OGDC Band, when they reached there, all accused, came out from Band. During cross-examination complainant admitted by stating that in FIR, it is not mentioned that Bango Chachar was coming on his Motorcycle behind them. Even such fact has not been disclosed by any of the prosecution witness before the investigation officer and the trial court nor was the said Bango Chachar examined by the investigation officer. The prosecution also failed to produce said witness before the trial court.

16. The Complaint in his cross-examination stated that about 2 or 3 times, accused Barkat had issued threats to the deceased on telephone for dire consequences. The complainant in his examination-in-chief stated that at about 2300 hours, when they were returning to their houses and reached at OGDC Band, again says, in between their field and OGDC accused Barkat had contacted through mobile phone with his brother Meer and enquired from him about their whereabouts, the same story is unbelievable and the complainant to strengthen the case had made these improvements. The complainant admitted during cross-examination that prior to this incident an FIR No. 8 of 2012 was registered against them in which complainant, his father, brother Meer (deceased) and others were nominated and the appellant Sajjan was the witness against them in the said FIR.

17. The complainant during his cross-examination stated that there was only one torch, but he does not remember, who was having the same at the time of incident which clearly reflects that at the time of incident the torch was not with the complainant, however the PW-3 Khair Muhammad during his cross-examination stated that only Dur Muhammad (Complainant) had the torch. Even from this aspect of the case it can easily be firmed that at the time of incident the torch was not with the complainant party and that one of them or both the witnesses were not available at the time of incident and one of them or both are telling lie.

18. The incident took place in the dark night in the fields and only source of the identification was torch light, though in the above para it is found that having torch with the complainant party was not proved however, looking to the facts and circumstances of the case it is necessary to discuss the value of such identification relied upon by the prosecution. Learned DPG for the state had relied upon the case of Muhammad Akram alias Akrai v. The State (2019 SCMR 610), wherein Honourable Supreme Court held that “It has been observed by us that in the site plan which was prepared on the instructions and pointation of the witnesses, the availability of 1000 watt rod and 200 watt bulb at points E and F respectively has been shown to be lit. Even otherwise, the parties are closely related to each other and identification of a close relative even in low light is not a big deal.” In the cited case the incident was took place at the place where 1000 watt rod and 200 watt bulb was installed and the same were mentioned in the site plan prepared by the investigation officer, whereas, in the present case, incident took place in the fields where there was no any light nor even light was available near about the place of incident and it was dark night and only source of identification shown by the prosecution is torch which even was not produced before the investigation officer nor before the trial court. Honourable Supreme Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and other (2017 SCMR 344) has held as under:-

“From the above discussion, it is quite clear that in this case FIR was chalked out after consultation and deliberation. The delay in the FIR and postmortem examination further confirms that FIR and documents i.e. inquest report etc. were prepared much after the given time. The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case.

Honourable Supreme Court of Pakistan in another case of Khalil v. The State (2017 SCMR 960) has held as under:-

19. No recovery of crime weapon was affected from the appellant, which connect him with the commission of offence. Even in the given circumstance if there may be a recovery of crime weapon which too is subject to prove through strong, trustworthy and confidence inspiring evidence which is lacking in the present case as discussed above. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case. Honourable Supreme Court of Pakistan in case of Saifullah V. The State (1985 SCMR 410) has held as under:-

“Considering all the facts on the record we are of the view that it was an unwitnessed occurrence... We have therefore no option but to exclude the testimony of the aforementioned two witnesses from consideration with the result that no evidence is left on the record to connect the accused with the crime in question, as the recovery of the blood-stained knife, even if believed, could only be used as evidence corroborating the testimony of the eye-witnesses, if any. But since evidence of the eye-witnesses in this case has been excluded this recovery is hardly of any use.”

20. It is a well-established principle of administration of justice in criminal cases that finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or nonexistence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to a naught as has been held by the Honourable Supreme Court of Pakistan in case of Muhammad Luqman v. The State (PLD 1970 SC 10).

21. It is well-settled principle of law that the prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession as has been held by Honourable Supreme Court of Pakistan in case of Tariq Pervez v. State (1995 SCMR 1345). The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): “Avert punishments [hudood] when there are doubts” (Reference from Musnad Abi Huthayfa, Hadith No.4. Kitab ul Hadood, p. 32., relied upon by the Federal Shariat Court in Kazim Hussain v. State, 2008 PCrLJ 971). and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment. (Reference from Mishkatul Masabili (English Translation by Fazlul Karim) Vol. II, p. 544, relied upon by the Federal Shariat Court in State v. Tariq Mahmood, 1987 PCrLJ 2173; Sunnan Tarimzi, Hadith No. 1344, Kitab ul Hadood). The Honourable Supreme Court has quoted probably latter part of the last mentioned saying of the Holy Prophet (peace be upon him) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." Reliance also is place on the case of Naveed Asghar and 2 others V. The State (PLD 2021 SC 600).

22. Keeping in view the said golden rule of giving benefit of doubt to an accused person for safe administration of criminal justice, I am firmly of the opinion that all the evidence discussed above is completely unreliable and utterly deficient to prove the charge against the appellant beyond reasonable doubt. Resultantly, the Jail Appeal No. S-33 of 2020 is allowed and the Judgment dated: 11.03.2020 passed by the Court of I-Additional Session Judge (MCTC), Ghotki, in Session case No. 529 of 2012, FIR crime No. 13 of 2012, P.S Kacho Bindi, under sections 148, 302 R/W Sec: 149 PPC is set aside and the appellant Sajjan S/O Rustam by caste Chachar is acquitted of the charges. He shall be released forthwith, if he is not required to be detained in some other case.

23. The appeal is disposed of in the above terms.

J U D G E