IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Appeal No. S-101 of 2012
Appellant Jumo s/o Palio Brohi,
Through Mr. Athar Abbas Solangi, advocate
Complainant Allah Bux,
Through Mr. Asif Ali Abdul Razaq Soomro, Advocate
The State: Through Mr. Muhammad Noonari,
Deputy Prosecutor General.
Date of hearing: 26-02-2021.
Date of Decision: 15-03-2021.
J U D G M E N T
Zulfiqar Ali Sangi, J. Through instant criminal appeal, the appellant Jumo Brohi has assailed the Judgment dated 22.12.2012, passed by the learned II-Additional Sessions Judge, Larkana in Sessions Case No.08/2008, re: State V/S Ali Nawaz and others, being outcome of Crime No.31/2007 of P.S. Veehar, U/S 302,337-H(2), 148, 149 P.P.C, whereby the trial court has convicted the appellant U/S 302(b) P.P.C and sentenced him to suffer imprisonment for life as Ta'azir besides a fine of Rs.100,000/- was imposed upon the present accused as compensation U/S 544-A Cr.P.C, and was directed to be paid to the legal heirs of deceased Behram, with directions to recover the same as land revenue arrears and in default of payment of recovery, accused shall undergo imprisonment for 6 months more. However, the benefit of Section 382-B Cr.P.C was extended to the appellant.
2. Brief facts of the prosecution case as per F.I.R No. 31 of 2007 registered at P.S. Veehar for offence under sections 302, 337-H2, 148,149 PPC are as under:-
"Complaint is that I have own land, near village Yaro Lakhair, the production (paddy crop) was ripped and was kept in land, there is existing old dispute between us and Mohammad Nawaz Brohi party. Today in the morning time I and my nephews namely Behram s/o Amir Bux Brohi aged about 28/29 years, Abdul Malik s/o Manthar Ali Brohi and Mohammad Murad s/o Abdul Rehman Brohi went together to get production and were counting paddy bags there, at 8-30 a.m accused namely Mohammad Nawaz s/o Pir Bux armed with repeater, 2. Jan Mohammad s/o Pir Bux armed with gun, 3. Ramzan s/o Saleh armed with gun, 4. Jumo s/o Palio armed with gun, 5. Abdul @ Abdoo s/o Oadir Bux armed with Kalashnikov, 6. Ilahi Bux @ Kasool Bux s/o Shafi Mohammad armed with rifle, 7. Ali Nawaz s/o Pir Bux armed with rifle all by caste Brohi r/o own village near village Yaro Lakhair tauka Dokri came and gave hakals and said we are on enmity and today we will see you we made supplication and gave name of Holy Quran, but the accused Mohammad Nawaz, Jan Mohammad and Ramzan aimed their weapons and committed straight firing upon my nephew Behram who raised cry and fell down, then accused Jumo Brohi made fire from his gun on his back, we remained silent due to fear, thereafter all of accused while raising slogans by making aerial firing decamped away towards north, thereafter we saw my nephew Behram he had received shots of accused Mohammad Nawaz, Jan Mohammad and Ramzan on his chest and firearm hit of Accused Jumo Brohi was sustained on his near of shoulder, was bleeding and was dead thereafter I left above witnesses over dead body, now I am here and loading F.I.R that above accused namely Mohammad Nawaz, Ramzan, Jan Mohammad, Jumo with common object duly armed with weapons by making firing with their weapons directly at my nephew Behram Brohi have killed him and all accused persons in order to create harassment by making aerial firing. I am complainant may investigation be held".
3. After completing the investigation, investigation officer submitted the challan before the competent court of law. The case papers were supplied to accused Ali Nawaz, Jumo and Illahi Bux @ Rasool Bux and thereafter charge was framed against them, to which they pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, examined PW-1 LNC Wazir Ali at EX.17, he produced receipt of handing over dead body to Haji Illahi Bux at Ex.17/A. PW-2 SIP/SHO Gulsher Ahmed at Ex.18, he produced FIR at Ex.18/A. PW-3 complainant Allah Bux at Ex. 20, he produced his further statement at Ex.20/A. PW-4 Abdul Malik at Ex.21. PW-5 Tapedar Mohammad Bux at Ex.22, he produced sketch of vardat Ex.22/A. PW-6 Dr. Zulfiqar Ali at Ex.23, he produced postmortem report at Ex.23/A. PW-7 1.0/SIP Abdul Nabi at Ex.24, he produced Mashirnama of seeing dead body, Lash Chakas Form, Danistnama at Ex.24/A, 24/B and 24/C respectively, Mashirnama of place of vardat at Ex.24/D, Mashirnama of arrest of accused at Ex.24/E, attested PS copy of entry No.6 at Ex.24/F, chemical examiner’s report regarding blood sample and examination report of recovered crime weapon at Ex.24/G and 24/H PW-8 Abdul Razak at Ex.26. Thereafter learned ADPP closed the prosecution Side vide his statement at Ex.27.
5. Trial Court recorded statements of accused under section 342 Cr.P.C, wherein they denied the prosecution allegations, claimed their innocence and false implication due to enmity. Accused Jumo has produced copy of order in Crime No.34/2007, U/S 13(e) A.O at Ex29/A, whereby the proceedings of the case were stopped due to non-appearance of witnesses. The accused persons did not examine themselves on oath but they opted to lead defence witnesses.
6. After assessment of evidence, learned trial court has passed the above impugned judgment and awarded sentence to the present appellant/accused Jumo Brohi as mentioned above, being aggrieved and dissatisfied with the said judgment appellant/accused above named has preferred this criminal appeal. However, the trial court acquitted the accused Ali Nawaz, Illahi Bux alias Rasool Bux and Abdul alias Akbar Brohi, by extending them the benefit of the doubt. Being aggrieved by the said judgment, the complainant also filed criminal acquittal appeal bearing No. 02/2013 against the acquittal of above said accused/respondents. Vide order dated 05.03.2019, this court dismissed the said acquittal appeal on the ground that the complainant expired on 05.06.2012 and the said acquittal appeal was filed on 15.01.2013, i.e. seven months after the death of complainant.
7. Learned counsel for the appellant has contended that the appellant is innocent and has falsely been implicated in this case; that the prosecution witnesses examined in this case are related to the complainant, as such they are interested, hostile, partisan and inimical, hence their testimony is not reliable; that ocular version is belied by the medical and circumstantial evidence; that there is no any convincing evidence against accused; the prosecution has failed to establish its case against the appellant beyond a reasonable doubt; that the mashirnama of place of vardat does not support contention of complainant that at the time of incident complainant was doing Batai at the land; P.W Muhammad Murad, who is eyewitness of the case but he was given up by complainant and was examined as a defence witness, who had deposed that at the time of incident he was not present there; that the learned trial court has not appreciated the evidence brought on record and there are major contradictions in the case. He has prayed for acquittal of the appellant.
8. Learned Additional Prosecutor General has submitted that prosecution witnesses have fully supported the case; there is specific motive of murderous enmity and same is admitted by defence witnesses; that the ocular evidence as well as medical evidence supported the prosecution case; that the distance of accused at the time of incident from deceased is also proved in the evidence of Tapedar and Doctor; that it was day time incident; therefore, no question of mistaken identity can arise; that motive of offence is landed property which has been proved; that the crime weapon and empties have been recovered; ballistic report and chemical examiner's reports are positive; that mere relationship of witnesses is not sufficient to discard their evidence; that there are minor contradictions which have arisen due to lapse of considerable time, however on material points, evidence remained un-shaken; there is sufficient material available on record to connect the present accused with the commission of offence. He has prayed that the appeal of the appellant may be dismissed.
9. On the contrary, learned advocate for the complainant has adopted the same arguments as advanced by the learned Deputy Prosecutor General and further contended that the evidence in respect of number of injuries, manner of incident is corroborated; that D.W Muhammad Murad was won over, therefore, he was given up by complainant and his apprehension became true when Muhammad Murad was examined as defence witness; that after incident, Muhammad Murad had murdered the son of complainant, therefore, the evidence of Mohammad Murad against the complainant is natural, as he is culprit of complainant in the murder case of his son. In the end, he has prayed that the appeal of the appellant may be dismissed.
10. I have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.
11. On reassessment of the entire evidence produced by the prosecution it is established that the prosecution has not proved the case against the appellant beyond a reasonable doubt.
12. The incident took place on 30-11-2007 at 8-30 am and the FIR was registered on the same day at 1115 hours, the distance of police station from the place of vardat was about 10/11 kilometers, however, as per the evidence of doctor he received the dead body at 2.00 pm, started the post mortem at 2-30 am and finished it at 03-30 pm, investigation officer also deposed that he inspected the dead body at the hospital though as per complainant at the time of FIR the dead body was at the place of vardat, the delay FIR and reaching the dead body at the hospital and conducting the postmortem with delay creates very serious doubts in the prosecution case which also suggest that the FIR was not registered at the time which is shown in the FIR, and the incident also not took place as narrated in the FIR. Reliance is placed on the case Nazeer Ahmad V. Gehne Khan) and others (2011 SCMR 1473).
13. The complainant Allah Bux PW-3 and Abdul Malik PW-4, both being eye witnesses were examined and both deposed that on the day of incident they were doing batai at their lands where appellant along with other accused came being armed with gun. Accused Mohammad Nawaz raised hakal that they will murder them and then accused Jan Mohammad fired upon Behram at his chest, accused Mohammad Ramzan fired upon Behram which hit him at his chest and deceased Behram fell down thereafter accused (appellant) Jumo fired at the back of Behram. The third eye witness mentioned in the FIR was Mohammad Murad who was given up by the prosecution. However, the said witness Mohammad Murad was produced by the appellant as his defence witness who deposed in favour of the appellant and his evidence I discussed separately. As per the evidence of above eye witnesses the appellant fired upon the deceased at his back. When the evidence of these two eye witnesses confronted with medical evidence I found no any firearm injury at the back of the deceased.
14. Prosecution has examined Doctor Zulfiqar Ali as PW-6 who deposed that on 30-11-2007 he conducted the postmortem of deceased Behram and found 09 lacerated puncture wounds each measuring 01 cm in diameter on left side of chest. Out of 09 injuries, 05 injuries were on the lateral side of the chest, 03 at mid of chest and one at right side of chest. All the injuries had exit on right scapula. Doctor also recovered 12 pellets. During his cross-examination the doctor stated that deceased had suffered firearm wounds from the left side of his chest. They had exit wounds from the right scapula. He further stated in his cross-examination that all the injuries suffered by the deceased could either be inflicted in a standing position or in a sitting position. As per the evidence of doctor the injuries available at the right scapula are the exit wounds. Thus based on the evidence of doctor it is established that there was no any injury at the back side of the deceased for which the present appellant was implicated by the prosecution and was convicted by the trial court.
15. The evidence of the investigation officer Abdul Nabi PW-7 was also reassessed to clear about the injury alleged against the appellant Jumo, the Mashirnama of inspection of dead body produced by the investigation officer in his evidence at Ex. 24-A was scanned the same also does not speak about the injury at the back side of the deceased. As per the mashirnama deceased had received one injury below neck on chest, nine holes, bleed and one injury below right shoulder, nine holes, bleed, the same position was in the inquest report prepared and produced by the investigation officer in his evidence at Ex. 24-B. The said injuries are alleged against the co-accused Mohammad Nawaz, Jan Mohammad and Mohammad Ramzan who are not before this court. The evidence of the mashir Abdul Razzak PW-8 was also scanned in this respect but I could not find a single word in his deposition about the injury at the back side of the deceased Behram as alleged against the appellant by the complainant and other witness. As per above discussion it is established that the ocular evidence is not in line with the medical evidence and make the entire prosecution as doubt full. Reliance is place on the case of GHULAM HYDER through Superintendent, Central Prison Versus The State (2020 Y L R 2411).
16. The complainant deposed in his examination-in-chief that accused Jumo, Ali Nawaz, Abdul @ Abdoo, Rasool Bux, Mohammad Nawaz, Jan Mohammad and Ramzan came. Accused Abdul was armed Kalashnikov, who put that on his head and threatened him for murder. The complainant not stated the same in the FIR or in the further statement recorded latter on, the complainant made improvements in the case.
17. The alleged recovery of gun from the appellant was also not proved by the prosecution, prosecution not produced the witnesses of the recovery namely HC Nizamuddin and PC Wazir Ali Tunio during the trial, the appellant however produced the order dated: 19-12-2009 passed by the Civil Judge and Judicial Magistrate-II Larkana during his statement under section 342 Cr.P.C, wherein the appellant was released under section 249 Cr.P.C. Furthermore the said gun was also not produced before the trial court and was not shown to any prosecution witnesses. The gun was also not shown to the appellant at the time of recording his statement under section 342 Cr.P.C, hence the recovery of gun cannot be used against the appellant for his conviction. Reliance is placed on the case of Kashif Ali and another V. The State (2019 YLR 1573).
18. It is observed that the evidence in respect of the recovery of empty cartridges, bloodstained earth from the place of vardat, recovery of gun from the appellant and the FSL report so also chemical examiner's report were not put to the appellant while recording his statement under section 342 Cr.P.C. enabling him to explain the circumstances, and the same cannot be used against him as has been held by Honourable Supreme Court of Pakistan in the cases Imtiaz @ Taj v. The State (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148), Mst: Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) and Muhammad Shah v. The State (2010 SCMR 1009).
19. The empties recovered from the place of vardat on 30-11-2007, the appellant was arrested on 09-12-2007 and the recovery of gun was shown on15-12-2007, the FSL report available at page 147 of the paper book shows that the gun and the empties were received at laboratory on 29-10-2010 after about three years and the prosecution had not produced any evidence about its safe custody. In these circumstances, the report of FSL cannot be relied and is legally inconsequential. Reliance is paced on the case of Muhammad Ashraf alias Acchu V. The State (2019 SCMR 652).
20. Appellant examined D.W Mohammad Murad at Ex.32, who has deposed that at the time of incident, he was present at his village Radhan and available at his shop. Complainant Allah Bux is his uncle. Deceased Behram was his cousin. He came to know that murder of Behram had been committed. Accused namely Ali Nawaz, Jumo, Illahi Bux and Abdoo are known to him. They are his relatives. On the day of incident, he had not gone to the land for Batai and was present at his shop. Badaruddin, who was his uncle had informed him regarding incident. After the murder of deceased Behram, when he was sitting in a funeral ceremony, there complainant informed him that he has given his name in the F.I.R as eyewitness. On that he raised objection that why he has given his name as eyewitness of the incident, as he was not available there so also that he had nominated the accused, who are not involved in the incident. Appellant has also examined D.W Yar Muhammad Brohi at Ex.33, who has deposed that Complainant is known to him very well. Deceased Behram was also know to him. Present accused are also known to him. He was on visiting terms at the village of complainant and accused. At his village Behram Brohi, came to know regarding murder of deceased Behram. Thereafter he went to the village of deceased as he was on visiting terms with the Complainant party. When he visited the village of complainant, there he came to know that present accused had not committed the murder of deceased Behram and some other persons had committed the murder. Complainant due to land dispute has falsely implicated in this case. At funeral ceremony of deceased Behram, he came to know that present accused are not involved in murder of deceased Behram. At that time Mohammad Murad was also present in the funeral ceremony of deceased Behram. At funeral ceremony complainant had asked Mohammad Murad that he has been nominated as witness in this case and he has to give evidence, where Mohammad Murad told the complainant that why he had given his name as witness in this case, as he was not available at the time of incident.
21. Mohammad Murad was the prosecution witness and the complainant and other eye witness Abdul Malik deposed that Mohammad Murad was also with them at the time of incident, however, the said Mohammad Murad negated the same and was examined by the appellant as a defence witness, Mohammad Murad also stated that he was not present at the time incident at the place of incident so also stated that he is resident of village Radhan which is away from village Behram Brohi. In these circumstance the story narrated by the complainant deemed to be managed one.
22. It is also a well settled principal of law that the prosecution has to prove its case beyond a reasonable doubt and where even a single circumstance which creates reasonable doubt in the mind of a prudent man comes in the evidence of the prosecution the benefit must go to accused not as a matter of grace or concession but as a matter of right. In this regard reliance is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345).
23. Based on the above discussion and on reassessment of the evidence on record I am of the view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, I allow the instant appeal and set-aside the conviction and sentences handed down by the trial court vide judgment dated 22.12.2012 and acquit the appellant by extending him the benefit of the doubt, appellant Jumo S/o Palio Brohi shall be released forthwith unless wanted in any other custody case.
JUDGE