IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

PRESENT.

Mr. Justice Amjad Ali Sahito,

Criminal Jail Appeal No.S-77 of 2017

Appellants : 1. Adam son of Allah Wassayo,

2. Abdul Sattar son of Allah Wassayo,

Through Mr. Shabbir Ali Bozdar, Advocate.

Complainant : Ali Hyder son of Haji Ranjhan, Pitafi

Through Mr. Anwar Ali Lohar, Advocate.

State: Through Mr. Aftab Ahmed Shar,

Addl.P.G

Date of hearing : 25-04-2022

Date of decision : 27-05-2022

J U D G M E N T

Amjad Ali Sahito, J.–By this judgment, I intend to dispose of the above criminal Jail Appeal filed by appellants/accused Adam and Abdul Sattar, arising out of Judgment dated 25.05.2017 passed by learned IIIrd Additional Sessions Judge, MirpurMathelo in Sessions case No. 277 of 2006, Crime No.14/2006 of Police Station Yaro Lund, registered for offences under sections 396, 397 PPC whereby both the accused were convicted for an offence under sections 396, 34 PPC and sentenced to suffer R.I for life and they were directed to pay compensation of Rs. 100,000/- (one lac) each to be paid to legal heirs of deceased, in case of default of payment of compensation they were directed to suffer S.I for six months. Appellant/accused Abdul Sattar was also convicted for an offence punishable under section 397 PPC and sentenced to suffer R.I for seven years.

2. Briefly, the facts for the disposal of this matter are complainant has lodged an FIR stating that he has an old murderous dispute with Khadim alias Abdul Qadir and others over the theft of buffaloes. It was further stated that on 19.05.2006 complainant along with his brother Abdul Hameed, relative Imtiaz, RiazAhmed, and Allah BuxPitafi was working in their lands. At about 5.00 pm, they saw the accused persons namely 1. Adam armed with Kalashnikov, 2. Abdul Aziz armed with Rifle, 3. Qadir alias Abdul Qadirwith lathi and two unidentified accused came from the western side on three motorcycles. Accused Adam Pitafi challenged the complainant that they have lodged a false FIR of theft, therefore, they will not spare the complainant, by saying so accused Adam Pitafi and Abdul Aziz made straight fire with intention of murder which hit the complainant’s brother Abdul Hameed on his head and one fire also hit complainant’s relativeRiaz Ahmed on his head, who raised cries and fell down.The complainant also fell down in defense. Accused Qadir alias Abdul Qadir 2. AbdulLatif 3. Abdul Sattar 4. Abdul Hameed and others tried to rob the motorcycle of the complainant parked at the land, complainant and his relative Riaz Ahmed and Allah Bux made resistance, on which accused Qadir alias Abdul Qadir, 2. Abdul Latif, 3. Abdul Sattar, 4. Abdul Hameed caused lathi blows to the complainant and P.Ws Riaz Ahmed and Allah Bux on their heads and other parts of the body. They took a motorcycle of the complainant and went away. Complainant and P.Ws raised cries, on the cries and firing, neighbours came running including complainant’s cousin Abdul Ghafoor who also saw and identified the accused, thereafter, complainant with the help of his cousin Abdul Ghafoor took injured Abdul Hameed, 2. Imtiaz 3.Riaz and 4. Allah Bux to Taluka Hospital MirpurMathelo and after leaving injured at Hospital, the complainant went to Police Station and lodged FIR. After lodgment of FIR, injured Abdul Hameed due to receiving serious injuries was referred to Rahimyar Khan Hospital, where he expired during treatment on 21.05.2006.

3. After usual investigation the report under section 173 Cr.P.C (Challan) was submitted against the accused and after completion of necessary formalities absconding accused were declared as proclaimed offenders.

4. The prosecution to substantiate its case, Trial Court examined P.W-1 Tapedar Muhammad Ramzan at Ex. 7, who produced police letter at Ex.7-A & sketch of wardat in triplicate at Ex.7-Bi to 7Biii. P.W-2 Medical officer Doctor Safdar HussainArain at Ex.8.who produced police letter, medical certificates Riaz Ahmed. Imtiaz, Allah Bux. Ali Haider, inquest report and post mortem report of deceased Abdul Hamid at Ex.8-A to 8-Grespectively. P.W-3 SIP Abdul Sattar at Ex.3 who produced FIR, memo of injuries at Ex.9-A &9-B. P.W-4 complainant Ali Haider at Ex. 10 who produced receipt of receiving dead-body at Ex. 10-A. P.W-5 witness Imtiaz Ahmed at Ex. 11. P.W-6 PC Sonaro Khan at Ex. 12, P.W-7 ASI Muhammad Punhal at Ex. 13. Prosecution also examined P.W Riaz Ahmed at Ex. 14. P.W-9 Allah Bux was examined at Ex. 16. P.W-10 investigation officer DSP Abdul Samad at Ex. 17 who produced criminal record of accused at Ex. 17/A. P.W-11 Abdul Ghafoor at Ex. 18. P.W-12 MashirAwais at Ex. 19 who produced memo of site inspection, inquest report, memo of inspection of dead-body and memo of blood stained clothes of deceased at ex. 19/A to 19/D. P.W-13 Inspector Abdul Wahab at Ex.20, who produced R.C, chemical analysis examiner report at Ex.20-A&20/B.  Thereafter learned ADPP closed the side of prosecution vide Exh.21.

5. The statements of accused Adam and Abdul Sattar were recorded under section 342 Cr.P.C. The accused during their examination denied the prosecution allegations. Both accused did not examine any defense evidence. However, statements of accused Adam and Abdul Sattar were recorded on oath under section 340(2) Cr.P.C at Exh.24 and 25 respectively.

6. The learned trial Court after hearing the learned counsel for the respective parties and appraisal of the evidence, convicted and sentenced appellants Adam and Abdul Sattar in a manner as stated above. The conviction and sentence, recorded by the learned trial Court, have been impugned by the appellants before this Court by way of filing the instant Criminal Jail Appeal.

7. Learned counsel for appellants/accused has inter alia contended that impugned judgment passed by the learned trial Court is against the law and facts and that the prosecution story is false and concocted; that appellants/accused are innocent and have been falsely implicated in the present case; that there is an unexplained delay of about 01 days in the lodgment of the alleged FIR, as the alleged incident took place on 19.05.2006 at 5.00 pm while FIR was lodged on 20.05.2006 at 1040 hours though the Police station is about 8/10 kilometresfrom the place of incident. He further contended that the complainant has involved 06 real brothers in the instant matter and it is out of imagination that six real brothers of the same family jointly can murder a person. He further contended that the complainant has not given the registration number of robbed motorcycle nor any document has been produced during the investigation as well as before the trial Court. Therefore, he prayed that this appeal may be allowed and the appellants/accused may be acquitted from the charge. Learned counsel for appellants/accused relied upon the cases of Muhammad Akram vs. The State (2009 SCMR 230), Rahat Ali vs. The State (2010 SCMR 584), MuhammadNaeemInayat vs. The State (2010 SCMR 1054), Muhammad Zaman vs. The State (2014 SCMR 749), SardarBibi and another vs. Munir Ahmed and others (2017 SCMR 344), Shahid alias Punjabi vs. The State (PLD 2017 Sindh 717), HC Muhammad Khan and 3 others vs. The State (PLD 2017 Sindh 723), Nooro alias Noor Muhammad Shar and another vs. The State (2018 P.Cr.L.J Note 52), Muhammad Mansha vs. The State (2018 SCMR 772)and MianSohail Ahmed and others vs. The State and others (2019 SCMR 956).

8. Conversely, Mr. Anwar Ali Lohar Advocate for the complainant and learned Additional Prosecutor General has supported the impugned judgment by arguing that the impugned judgment passed by the learned Presiding Officer of the trial Court is perfect in law, that all the prosecution witnesses have supported the prosecution case on the point that appellant Adam made a fire upon Abdul Hameed which hit to him on the head who later on died while appellant Abdul Sattar also caused injuries to injured PW Imtiaz, Allah Bux, Riaz Ahmed and Ali Hyder during the robbery of motorcycle, therefore, they prayed that appeal filed by the appellants/accused may be dismissed and the conviction awarded by the trial Court to the appellants may be maintained.

9. I have heard learned counsel for the parties and have gone through the material available on record.

10. Fromthe perusal of evidence it contemplates that the evidence of the PWs is contradicted on material particulars. The complainant Ali Haider has disclosed in the FIR that accused Adam Pitafi and Abdul Aziz intending to commit murder made straight fires upon them which hit to complainant’s brother Abdul Hameed on his head and his relative RiazHussain sustained firearm injury on his head and after receiving the injury fell down whereas PW 2 Dr. SafdarHussainhas deposed that on 20.05.2006 he was posted as Medical Officer at District Head Quarter Hospital MirpurMathelo. On the same day, he received a police letter bearing crime No. 14 of 2006 from Police Station Yaroo Lund for examination, treatment and certificates of five injured persons. He has examined the injured Riaz and as per evidence of the doctor, the injured has sustained a lacerated wound 4 cm x 1 cm muscle deep on the left parietofronto region of skull, conscious and well. The nature of the injury was declared as Shujjah-e-Khafifah and kind of weapon used hard and blunt substance and the probable duration of injury was less than 12 hours as such ocular evidence does not find support from medical evidence.It is to be noted that a man can tell lie but documents cannot tell lie.

11. Furthermore, the alleged incident has taken place on 19.05.2006 at about 5 PM, whereas PW-4 complainant Ali Haider in his examination in chief deposed that after the incident he brought the injured toMirpurMathelo Hospital in their Bus for treatment.On the next day viz. 20.05.2006 early in the morning he went to Police Station Yaro Lund for registration of FIR against accused persons at about 10.40 a.m but in the FIR he has disclosed that after the incident he brought all injured persons at the hospital and thereafter he appeared at Police Station and lodged FIR against nominated accused persons on account of theft of buffalo. It is strange to note here that PW-2 Dr. SafdarHussain deposed that all injured were brought at Police Station on 20.05.2006 and after receiving the letter he has started treatment. From the perusal of the letter, it reveals that crime No.14 of 2006 is appearing whereas on 19.05.2006 the FIR was not registered by the complainant but the crime number already mentioned in the letter.

12. The things are not ended here PW-3 SIP Abdul Sattar in his examination in chief deposed that on 20.05.2006 he was posted as ASI/Duty Officer at Police Station Yaro Lund, at about 10.40 am complainant Ali Haidercame at Police Station in injured condition and narrated the facts of cognizable offences. He lodged FIR as per his verbatim. The complainant informed him that he has brought all the injured to D.H.Q Hospital MirpurMathelo and he along with mashirs went to the hospital and noted the injuries of the injured persons. He has further added that he has issued a letter to Medical Officer bearing Crime No.14 of 2006 for examination, treatment and certificate to injured, same was produced at Exh.8-A whereas complainant Ali Haider has deposed that all injured were brought at the hospital on 19.05.2006 at night time. The complainant in his FIR disclosed that the accused persons also robbed buffalo and drove away the motorcycle bearing registration No.RNG-1634.

13. PW-8 Riaz Ahmed in his examination in chief has deposed that accused Abdul Aziz made a straight fire of rifle upon him which hit on his forehead intending to commit his murder. He raised cries and fell on the ground but as per his medical certificate, he was conscious and well. As per the medical certificate, the injuries sustained by the injured were caused by the hard and blunt substance. He further deposed that after the incident, the accused persons made their escape good along with their motorcycles towards the northern side. However, he has not disclosed that the accused persons were also taken away from their buffalo. The complainant brought the injured in the hospital for treatment in the bus which was parked near the place of the incident during night hours. The complainant in his evidence disclosed that he is the owner of the Bus. In the examination-in-chief, PW-8 Riaz Ahmed deposed that after first aid, the Medical Officer gave them directions to bring the police letter for further treatment and certificate. On the directions of the doctor complainant, Ali Haider went to Police Station Yaro Lund, received the letter of the police for treatment and certificate so also brought ASI Abdul Sattar along with two police constables in hospital MirpurMathelo where SIP prepared a memo of injuries and issued a letter for checkup, treatment and certificate to doctor.If the version of PW RiazHussain is admitted to be true and correct then how the evidence of PW-3 complainant Ali Haider can rely as PW-3 SIP Abdul Sattar has deposed that on 20.05.2006 at about 10.00 a.m he appeared at Police Station, lodged FIR, obtained the letter and thereafter further treatment of injured was started. The PW-2 Dr. SafdarHussain in cross-examination admitted that “I discharged all four injured after first aid on the same day. I referred injured Abdul Hameed after first aid at about 5.00 pm”.

14. ThePW-9 Allah Bakhsh has deposed that firing continued for about 15 minutes but the other accused persons have not received any fire shot in their presence. The accused persons took away their motorcycle but he has also not supported the version of the complainant that the accused persons also robbed buffalo of the complainant party. He has also added that all injured persons were brought tothe hospital for the treatment and due to serious injuries injured Abdul Hameed was referred to Rahimyar Khan hospital for further treatment. He was discharged on the very next day.The complainant brought police officials who noted the injuries and prepared such meoms in their presence. The complainant claimed that on 19.05.2006 at about 5 pm the incident has taken place, if I accept the version of the complainant that he brought all injured person on the same day for the treatment then how it is possible that on the very next day the doctor provided them treatment and the police officials has noted the injuries.

15. PW-11 Abdul Ghafoor has also not supported the version of the complainant and other witnesses as he has also deposed that all injured were brought in injured condition in the hospital after getting a letter by the complainant from police about checkup, treatment and certificate. The doctor provided first aid to all injured persons. In cross-examination, he has admitted that “It is correct to say that neither I saw accused caused firearm injuries to injured Abdul Hameed and Riaz and caused lathi blows to remaining injured. It is correct to say that in my statement recorded under section 161 Cr.P.C I have not mentioned about the Bus in which complainant and other persons brought all injured at hospital.” It is made clear here that the distance between the place of the incident and the Police Station was about 8/9 kilometers.

16. PW-2 Dr. SafdarHussain in his evidence has deposed that on 20.05.2006 he examined injured Abdul Hameed and referred him for further treatment to Rahimyar Khan hospital. In his cross-examination, he has admitted that he has discharged all the injured persons after first aid on the same day and he has referred the injured Abdul Hameed after first aid at about 5.00 pm to Rahimyar Khan. If it is correct then the complainant in his FIR disclosed that the incident has taken place on 19.05.2006 and on the very same night the injured was referred to Rahimyar Khan for treatment. The duration between injuries and death was about 12 to 15 hours but as per post mortem report the dead body was brought at 2.30 pm which means the duration between the injuries and death was more than 24 hours. The injured have disclosed that they remained admitted for two days whereas Medical Officer has admitted that after providing the treatment they discharged all four injured on the same day.In the instant case, FIR is delayed for about 24 hours, no explanation has been furnished by the complainant and the ocular evidence does not find support from the medical evidence. The doctor has disclosed that the injury sustained by injured Riaz Ahmed the weapon was used hard and blunt substance.

17.It is a typical culture of our society to throw the wide net to implicate as many family members as possible. In the instant case, the complainant has involved five brothers and has left no family member to pursue the case of the appellants. Reliance is placed on the case of Muhammad zaman v. The State (2014 SCMR 749).

18. The complainant and his eye-witnesses are brothers inter se and their village is at some distance people were present but not a single independent witness has been produced by the prosecution to receive independent and corroborative evidence in this case. Reliance is placed in the case of Mst. SHAZIA PARVEEN Vs. The STATE (2014 SCMR 1197).The Hon'ble Supreme Court of Pakistan had held that:

“4…… All the witnesses produced by the prosecution were closely related to the deceased and they were admittedly chance witnesses who had failed to bring anything on the record to establish the stated reasons for their availability near the deceased at the relevant time. Such related witnesses had failed to receive any independent corroboration in as much as there was no independent evidence produced….”

19. No question was put to the accused persons concerning the motive set up by the prosecution at the time of recording of their statements under section 342 Cr.P.C. Section 342 Cr. P.C mandates that all incriminating evidence is to be put to the accused in his statement under that section and the evidence which has not been confronted to the accused, the conviction cannot be based on such evidence and such evidence has to be rejected or accepted in toto. If any incriminating piece of evidence is not put to the accused in his statement u/s 342 Cr. P.C for his explanation, the same cannot be used against him for his conviction. It is settled law that if any incriminating piece of evidence was not put to the accused in his statement recorded u/s 342 Cr. P.C for his explanation then the same could not be used against him for his conviction. Reliance is the place in the case of Muhammad Shah v. The State (2010 SCMR 1009) and Muhammad Fayaz v.The State (2012 SCMR 522).

20. The upshot of the above discussion is that the prosecution has miserably failed to bring home the guilt of appellants/accused beyond reasonable doubt and it is a settled proposition of law that for giving benefit of doubt to an accused there doesn’t need to be many circumstances creating doubts. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is to be extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect, reliance is placed on the case of MUHAMMAD MANSHA v. THE STATE reported in 2018 SCMR 772, wherein the Hon;bleSupreme Court of Pakistan has held that :

“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to be benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “ it is better than once innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tarique Pervez v. The State (1995 SCMR 1345), GhulamQadir and 2 others v.The state (2008 SCMR 1221), Muhammad Akram v.The State (2009 SCMR 230) and Muhammad Zaman v.The State (2014 SCMR 749).

21. It is well-settled principles of criminal administration of justice that no conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of the prosecution story is adduced by the prosecution. I am of the view that in the present case, the prosecution story is engulfed under the thick clouds of doubt and the learned trial Court has not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding the appellants guilty of the offence. Resultantly, an instant jail appeal is allowed. The conviction and sentence awarded to the appellants Adam son of Allah Wassayo and Abdul Sattar son of Allah Wassayo are herebyset aside and they are acquitted of the charge by extending them the benefit of the doubt. The appellants are confined in jail. The office is directed to issue a release writ of the appellants through the concerned Jail Superintendent, who shall release them forthwith if they are not required in any other custody case.

JUDGE

Irfan/PA