IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Appeal No.S-52 of 2020

Appellants 1. Manzoor Ali son of Chanesar Lakhan

2. Saeed Ahmed son of Mithal Lakhan

through M/s Mahfooz Ahmed Awan

and Farhan Ali Shaikh, Advocates.

Complainant Asghar Ali son of Ghulam Nabi through

Mr. Israr Ahmed Shaikh, Associate of

Mr. Qurban Ali Malano, Advocate.

Respondent The State

through Mr.Zulfiqar Ali Jatoi, DPG.

Crl. Appeal No.S-53 of 2020

Appellant Manzoor Ali son of Chanesar Lakhan

through M/s Mahfooz Ahmed Awan

and Farhan Ali Shaikh, Advocates.

Respondent The State

through Mr.Zulfiqar Ali Jatoi, DPG.

Crl. Appeal No.S-54 of 2020

Appellant Saeed Ahmed son of Mithal Lakhan

through M/s Mahfooz Ahmed Awan

and Farhan Ali Shaikh, Advocates.

Respondent The State

through Mr.Zulfiqar Ali Jatoi, DPG.

Dates of hearing 19.09.2022

Date of Judgment 03.10.2022

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JUDGMENT

Shamsuddin Abbasi, J:- Through captioned appeals, Manzoor Ali son of Chanesar Lakhan and Saeed Ahmed son of Mithal Lakhan, appellants, have challenged the vires of the judgment dated 03.09.2020, penned down by the learned Additional Sessions Judge-III/Model Criminal Trial Courts-II (MCTC-II), Sukkur, (hereinafter referred to as the “trial Court”) through which they were convicted under Section 302(b)/149, PPC, and sentenced to life imprisonment for commission of murder of Abdul Ghafoor (deceased) and to pay a sum of Rs.300,000/- each to the heirs of deceased as compensation in terms of Section 544-A, Cr.P.C. and to suffer six months simple imprisonment more in case they fail to pay compensation. The appellants were also convicted under Section 337-H(ii), PPC, and sentenced to simple imprisonment for one month each. Both sentences were ordered to run concurrently. The appellants have also challenged their convictions and sentences of five years each with fine of Rs.50,000/- each and one month more simple imprisonment each in lieu of fine, awarded by the learned trial Court through two separate judgments of the same date (03.09.2020) for recovery of unlicensed arms in Crime No.22 of 2019 and Crime No.23 of 2019 registered at same P.S. Tamachani for offences punishable under Section 24 of Sindh Arms Act, 2013. The benefit in terms of Section 382-B, Cr.P.C. was, however, extended to the appellants in each judgment. The learned trial Court while convicting the appellants in murder case took note of the fact that since accused Asif son of Fareed Lakhan and Rajoo @ Riaz son of Sultan Lakhan were declared proclaimed offenders at trial, therefore, ordered to place their case on dormant file.

2. FIR in this case has been lodged on 31.03.2019 at 10:00 p.m. whereas the incident is shown to have taken place on the same day (31.03.2019) at 8:00 a.m. Complainant Asghar Ali son of Ghulam Nabi has stated that on the fateful day he alongwith his brother Abdul Ghafoor, Muhammad Shoaib son of Allah Warayo and Suhrab left for their land. It was about 8:00 am when reached at Wahandiri Tanwri Farm, near Village Bhai Khan Ghanghro, they saw Manzoor son of Chanesar, Asif son of Fareed, Rajoo @ Raj son of Sultan, Saeed son of Mithal, accompanied by two unknown persons, armed with Kalashnikovs. On seeing the complainant party, Manzoor instigated his companions to kill them whereupon Asif made straight fire targeting Abdul Ghafoor, who become injured and fell down on the ground. Meanwhile, Rajoo fired at Asghar Ali (complainant), but the bullet missed and he remained safe. Thereafter, all accused made their escape good by extending threats and making aerial firing. Abdul Ghafoor sustained a firearm injury at left side armpit crossed from right side and died at spot, his dead body was shifted to Government Hospital Bagerji, where his post-mortem was conducted and thereafter he was buried. The complainant then appeared at P.S. Tamachani, District Sukkur, and registered a case vide FIR No.19 of 2019 for offences punishable under Sections 302, 324, 337-H(ii), 504, 506/2, 114, 148 and 149, PPC, on behalf of the State.

3. Pursuant to the registration of FIR, the initial investigation was followed by ASI Mansoor Ali, who visited hospital, inspected the dead body and prepared inquest report and Danishnama. The investigation then transferred and entrusted to ASI Ghulam Shabbir. He seized the last wearing clothes of deceased and also inspected the place of incident on the pointation of Asghar Ali (complainant) and Suhrab and secured blood-stained earth. He also arrested accused Manzoor and Saeed and sent the clothes of deceased as well as blood-stained earth for chemical examination. Thereafter, the investigation was transferred and entrusted to Inspector Ali Bux Shar. He interrogated the appellants and got recovered unlicensed Kalashnikovs on their pointation, used by them in the commission of offence, loaded with magazines and live bullets and registered separate cases for recovery of unlicensed arms against Manzoor and Saeed Ahmed vide FIR No.22 of 2019 and 23 of 2019 under Section 24 of Sindh Arms Act, 2013 respectively and after that they were sent up to face the trial for commission of murder and recovery of unlicensed arms separately.

4. A charge in respect of offences punishable under Sections 302, 324, 337-H(ii), 504, 506/2, 114, 148 and 149, PPC was framed against appellants. They pleaded not guilty to the charged offence and claimed trial. The appellants were also charged for offence punishable under Section 24 of Sindh Arms Act, 2013 separately, to which they pleaded not guilty and claimed trial through their respective pleas.

5. At trial, the prosecution has examined as many as six witnesses namely, Asghar Ali (complainant) as witness No.1 Ex.9, Suhrab Ali as witness No.2 Ex.10, ASI Mansoor Ali as witness No.3 Ex.11, ASI Ghulam Shabbir as witness No.4 Ex.12, Inspector Ali Bux as witness No.5 Ex.13 and Dr. Mushtaque Ahmed as witness No.6 Ex.14. All of them were subjected to cross-examination by the defence. Thereafter, the prosecution closed its side vide statement Ex.16. In the cases of recovery of unlicensed arms, the prosecution has also examined Inspector Ali Bux as witness No.1 Ex.3, PC Noor Nabi as witness No.2 Ex.4 and ASI Ghulam Shabbir as witness No.3 Ex.5 against Manzoor and Inspector Ali Bux as witness No.1 Ex.3, ASI Ghulam Shabbir as witness No.2 Ex.4, PC Mukhtiar Ahmed as witness No.3 Ex.5 against Saeed Ahmed and closed its side of evidence.

6. The two appellants were examined under Section 342, Cr.P.C. They have denied the allegations imputed upon them by the prosecution, professed their innocence and stated their false implication in the cases of murder and recovery of unlicensed arms. Accused Manzoor has taken the plea that complainant has falsely implicated him owing to murderous enmity as deceased Abdul Ghafoor committed murder of his brother. He has produced four FIRs lodged against complainant party at Ex.17/A to Ex.17/D. Saeed Ahmed while recording his Section 342, Cr.P.C. has taken the plea that he has been falsely implicated by the complainant party, who also lodged FIRs against his father and brother. He has also produced four FIRs at Ex.18/A to Ex.18/D. Both appellants opted not to make a statement on Oath under Section 340(2), Cr.P.C. nor produce any witness in their defence.

7. The trial culminated in convictions and sentences of the appellants as stated in para-1 {supra}, hence necessitated the filing of three appeals, listed above, which are being disposed of together through this single judgment.

8. It is contended on behalf of the appellants that they are innocent and have been falsely roped in this case by the complainant after joining hands with the local police on account of previous enmity as otherwise they have nothing to do with the alleged offence and have been made victim of the circumstances. No independent witness has been produced by the prosecution in support of its case and the sole eye-witness, Suhrab Ali, is related, interested and inimical to the appellants as such no reliance can be given to his testimony. The ocular account has been furnished by interested and related witness who while appearing before the learned trial Court failed to prove his presence at the scene of offence at relevant time. The medical evidence is meager enough to explain the real cause of death. The mashirs of recovery are police officials and in absence of any independent corroboration, the same is unsafe to rely upon. The prosecution has failed to produce any independent witness to prove that the deceased was done to death by the appellants. The material available on record does not justify the convictions and sentences awarded to the appellants and the same are not sustainable in the eyes of the law. The statements of the prosecution witnesses are full of discrepancies and contradictions made therein are fatal to the case of the prosecution. The appellants neither apprehended at spot nor any incriminating evidence has been brought on record so as to establish their guilt. The FIR has been lodged after 14 hours with due deliberations and consultations and the motive as set-forth in the FIR has not been established through convincing evidence. The prosecution has failed to discharge its legal obligation of proving the guilt of the appellants as per settled law and the appellants were not liable to prove their innocence. The impugned judgments are bad in law and facts and based on assumptions and presumptions without giving valid and strong findings. The complainant and eye-witness being interested and inimical to the appellants have falsely deposed against the appellants. They were inconsistent with each other rather contradicted on crucial points benefit whereof must go to the appellants. The learned trial Court while passing the impugned judgments has deviated from the settled principle of law that a slightest doubt is sufficient to grant acquittal to an accused. The investigating officer has conducted dishonest investigation and involved the appellants in a case with which they have no nexus. The learned trial Court did not appreciate the evidence in line with the applicable law and surrounding circumstances and based its findings on misreading and non-reading of evidence and arrived at a wrong conclusion in convicting the appellants merely on assumptions and presumptions. The impugned judgments are devoid of reasoning without specifying the incriminating evidence against each appellant. The learned trial Court totally ignored the plea taken by the appellants in their defence. Per learned counsel, the appellants have not done any offence and in their Section 342, Cr.P.C. statements too they have denied the whole allegations leveled against them by the prosecution. The learned trial Court did not consider the pleas taken by the appellants in their Section 342, Cr.P.C. and recorded conviction ignoring the neutral appreciation of whole evidence. The material available on record does not justify the convictions and sentences awarded to the appellants and the same are not sustainable in the eyes of the law. The learned counsel while summing up his submissions has emphasized that the impugned judgments are the result of misreading and non-reading of evidence and without application of a judicial mind, hence the same are bad in law and facts and the convictions and sentences awarded to the appellants, based on such findings, are not sustainable in law and liable to be set-aside and the appellants deserve to be acquitted from the charges and prayed accordingly.

9. The learned counsel appearing on behalf of the complainant has adopted the same arguments as advanced by the learned DPG.

10. The learned DPG for the State while controverting the submissions of learned counsel for the appellants has submitted that the delay in lodgment of FIR has been well explained. The appellants are nominated in the FIR with specific role in the commission of offence. The witnesses while appearing before the learned trial Court remained consistent on each and every material point. They were subjected to lengthy cross-examination but nothing adverse to the prosecution story has been extracted which can provide any help to the appellants. Mere relationship with each other is not sufficient to discard the evidence of prosecution witnesses. The medical evidence in this case is in line with the ocular account which fully corroborates the story of the FIR. The role of the appellants is borne out from the medical evidence adduced by the prosecution. The recoveries including crime weapons have also been proved through reliable evidence adduced by the recovery witnesses. The appellants have brutally committed murder of deceased inflicting firearm injuries at the vital parts of the body, duly supported by the medical evidence, as such deserve no leniency. The prosecution in support of its case has produced oral as well as medical evidence coupled with circumstantial evidence, which was rightly relied upon by learned trial Court. The findings recorded by the learned trial Court in the impugned judgments are based on fair evaluation of evidence and documents brought on record, to which no exception could be taken. The plea taken by the defence that appellants had no nexus with the occurrence does not carry weight vis-à-vis providing help to the defence. The prosecution has successfully proved its case against the appellants beyond shadow of reasonable doubt, thus, the appeals filed by the appellant warrant dismissal and their convictions and sentences recorded by the learned trial Court are liable to be maintained.

11. Heard and record perused minutely.

12. The unnatural death of deceased Abdul Ghafoor is not disputed by the defence and the same has also been established through medical evidence adduced by PW.6 Dr. Mushtaque Ahmed, who conducted post-mortem of deceased and issued a report containing cause of death. This witness has deposed that on 31.03.2019 while he was posted as Senior Medical Officer at Government Hospital Bagerji and available at hospital a dead body of Abdul Ghafoor son of Ghulam Nabi was brought by PC Abdul Rasheed, accompanied by Muhammad Hayat and Asghar Ali. He started post-mortem at 9:30 am and completed it at 11:00 am and noted the injuries as follows:-

1. “A lacerated punctured type of wound on lateral side chest below axilla inverted margins measuring 2 cm x 2 cm. No blackening, burning or tattooing seen (wound of entry);

2. A lacerated punctured type of wound on lateral side of right chest just opposite of injury No.1 everted margins measuring 3 cm x 3.5 cm (exit wound);

3. A lacerated punctured type of wound on the medial side of right upper arm inverted margins 2 cm x 2 cm. No blackening, burning or tattooing seen only skin deep (entry wound); and

4. A lacerated punctured type of wound just close to injury No.3 averted margins measuring 2.5 cm x 2.5 cm only skin deep (exit wound).

According to him, the death occurred as a result of shock and hemorrhage due to damage of vital organs caused by firearm. The factum of injuries, thus, stand proved through strong and convincing evidence adduced by the Medical Officer. Here I am not in agreement with the submission of learned defence counsel that medical evidence is in conflict with the ocular accounts furnished by the prosecution, which disclosed a single shot whereas the medical evidence shows two different injuries, because the two injuries (entry wounds) could be the result of a single shot.

13. A bare perusal of the record reveals that specific role of causing firearm injury to deceased is attributed to co-accused Asif Ali and allegation of firing at complainant with intention to kill him is assigned to co-accused Rajoo @ Riaz, who have been shown absconders and declared proclaimed offenders at trial whereas the appellants have been charged for committing the offence of common object, instigation and aerial firing while being members of an unlawful assembly, equipped with deadly weapons viz Kalashnikovs. To bring home the charge of committing like offences, the prosecution has to establish by evidence whether direct or circumstantial that there was a plan or meeting of mind of all the accused persons to commit the offence. It is not necessary that act of all participants in an offence must be the same or identically similar; the act may be different in character, but must have been actuated by one and the same common object. It is to be gathered from the act or conduct of the accused or other relevant circumstances of the case. This criminal liability can arise only when such inference can be drawn with a certain degree of assurance. In the case in hand, Asghar Ali (complainant) and Suhrab Ali (eye-witness) have stated that while they were going to their land and when they reached near Wahandiri Tanwri Farm, near village Bhai Khan Ghanghro, the appellants alongwith their four companions suddenly emerged, armed with Kalashnikovs. Appellant Manzoor instigated other accused to hold and kill complainant party whereupon co-accused Asif made a straight fire with his Kalashnikov at Abdul Ghafoor (complainant’s brother), who sustained bullet injury and died at spot whereas co-accused Rajoo @ Riaz fired at complainant, but the bullet missed and he remained safe and thereafter all of them made their escape good by making aerial firing. Admittedly, the appellants have not been attributed any role of firing targeting any one amongst the complainant party or causing any injury to them except that they made aerial firing while leaving the scene of offence. Had they any intention, they would have fired from their weapons to kill the complainant party. In absence of any injury attributed to them, it is difficult to believe that they had a common object during entire episode. Since murderous enmity is existed between the parties and in absence of any overt act attributed to appellants in the commission of offence, therefore, proprietary of safe administration of justice demands to examine the evidence of prosecution witnesses with care and caution.

14. Deceased Abdul Ghafoor was done to death by the accused nominated in the FIR inflicting bullet injuries with Kalashnikovs. The ocular account has been furnished by PW.1 Asghar Ali (complainant) and PW.2 Suhrab Ali (eye-witness) alleged to be supported by medical evidence adduced by PW.6 Dr. Mushtaque Ahmed and circumstantial evidence adduced by police witnesses. Before analyzing their evidence, it would be appropriate to first go through the FIR because the entire prosecution machinery came into motion when complainant reported the matter to police regarding an incident wherein his brother Abdul Ghafoor was done to death by firing with Kalashnikov. The complainant has claimed that appellants alongwith their four companions, out of them two were unknown, committed murder of his brother Abdul Ghafoor in his presence and in the presence of two eye-witnesses Suhrab Ali and Muhammad Shoaib, who at the relevant point of time were available at the scene of offence and identified the accused persons, who came at the scene of offence with open faces and previously known to them. Admittedly, Muhammad Shoaib has not been examined by the prosecution without assigning any reason.

15. The incident alleged to have taken place on 31.03.2019 at 8:00 am whereas the FIR has been lodged on the same day at 10:00 pm i.e. after 14 hours of the occurrence. According to complainant deceased Abdul Ghafoor died at spot and immediately shifted to hospital through police. The police came at hospital and completed the legal proceedings and soon after post-mortem handed over the dead body to him for funeral and after he was buried, he reported the matter to police and lodged FIR. Surprising to note that PW.3 ASI Mansoor Ali on receiving call from complainant arrived at hospital on same day of occurrence at 8:40 am where complainant and eye-witnesses were also present, but neither any one from them voluntarily appeared to record a statement under Section 154, Cr.P.C. nor ASI Mansoor Ali asked anyone from them to record a statement and become a complainant. It is also note-worthy that PW.6 Dr. Mushtaque Ahmed started post-mortem of deceased at 9:30 am and completed at 11:00 am and the dead body of deceased was handed over to complainant at 11:45/12:00 pm. The question arises why the complainant kept mum and did not lodge FIR till 10:00 pm. No explanation has been furnished with regard to delay in lodgment of FIR, which give rise to a presumption that FIR has been lodged after due deliberations and consultations and this fact has also been admitted by the complainant in his cross-examination. The Hon’ble apex Court, in absence of any plausible explanation, has always considered the delay in lodgment of FIR to be fatal and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused. It is a well-settled principle of law that FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime, thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused. Reliance in this behalf may be made to the case of Zeeshan @ Shani v The State {2012 SCMR 428} wherein it has been held that delay of more than one hour in lodging of FIR give rise to an inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful.

16. Now coming to the testimony of prosecution witnesses, suffice to observe that they have contracted each other on crucial points. Asghar Ali (complainant) while appearing as PW.1 Ex.9 has deposed that they shifted the dead body of deceased through police, but did not utter a single word in his examination-in-chief with regard to conveying information to police on mobile phone. He, however, admitted this fact in his cross-examination and stated that while they were shifting the dead body of deceased to hospital he phoned the police. He further admitted that the fact of conveying information to police on phone has not been disclosed by him in his FIR. He also failed to disclose as to from which source he acquired phone number of P.S. and admitted in his cross-examination that he has not disclosed the phone number in his FIR. A specific question was put to him by the defence with regard to phone number but he failed to give any satisfactory reply and simply stated that he do not remember the phone number of P.S. The complainant has admitted in his cross-examination that dead body of deceased was handed over to him at 11:45/12:00 pm, but according to PW.6 Dr. Mushtaque Ahmed the post-mortem was completed at 11:00 am. No explanation has been furnished with regard to delay in handing over the dead body of deceased to complainant. The complainant in his FIR as well as in his examination-in-chief has disclosed role of firing at him only against accused Riaz, but at the same time implicated all accused persons, including two unidentified accused, in his cross-examination attributing role of firing at him against all accused persons by stating that after accused Riaz made fire shot at him and he remained safe then all accused made firing with intention to kill him. On the other hand, the eye-witness in his examination-in-chief has deposed that accused Asif made a single fire shot, which hit deceased Abdul Ghafoor resulting his death while accused Riaz made a single shot targeting Asghar Ali (complainant). He has not uttered a single word as to the firing upon complainant by other accused and admitted in his cross-examination that accused Manzoor, Asif, Saeed and two unidentified accused did not fire a single shot targeting the complainant. According to PW.2 Suhrab Ali the deceased sustained only fire shot injury and there was a mark of hole on his shirt through and through, which was handed over to ASI Ghulam Shabbir on the same day of incident and sealed in his presence. On the other hand, PW.4 ASI Ghulam Shabbir in his examination-in-chief has deposed that on 31.03.2019 complainant Ali Asghar alongwith Suhrab and Shoaib Ali appeared at P.S. and produced last wearing clothes of deceased, which were sealed by him. He, however, admitted in his cross-examination that there was no mark of hole on the clothes of deceased. These contradictions and improvements have not only demolished the case as set up in the FIR, but also shattered the entire fabric of the testimony of complainant and other witnesses as doubtful.

17. The prosecution has placed on record entry No.6 dated 01.04.2019, produced by PW.4 ASI Ghulam Shabbir, available at page 113 of the paper book. This entry relates to arrival of ASI Mansoor Ali from hospital after completing relevant proceedings under Section 174, Cr.P.C. It shows that while ASI Mansoor Ali was returning to P.S. from hospital two persons namely, Ghulam Hyder son of Bhai Khan Ghanghro and (word not in focus) son of Ghulam Hyder Ghanghro met him claiming themselves to have sustained injuries in the same incident and requested for police letter, they were referred to hospital for treatment vide letter No.188 dated 31.03.2019. This aspect of the matter has also been supported by PW.6 Dr. Mushtaque Ahmed. He admitted in his cross-examination that apart from deceased Abdul Ghafoor he also examined two injured persons, who sustained firearm injuries in the same crime, and also issued provisional and final M.L. Certificates and both Certificates are available with him. This aspect of the matter negates the prosecution story and give rise to an inference that occurrence did not take place in the manner projected by the prosecution.

18. The another intriguing aspect of the matter is that PW.4 ASI Ghulam Shabbir inspected the place of incident on 01.04.2019 and prepared memo of site inspection (Ex.10/C) in presence of mashirs Muhammad Shoaib and PW.2 Suhrab Ali. According to mashir Suhrab Ali, the inspecting officer secured blood-stained earth and 17 empty shells of KK during site inspection and sealed the same at spot in his presence, but the inspecting officer ASI Ghulam Shabbir while appearing as PW.4 Ex.12 did not utter a single word as to recovery of empty shells in his examination-in-chief and only deposed about recovery of blood-stained earth during site inspection and its sealing at spot. This witness also admitted in his cross-examination that no record has been produced with regard to sending the empty shells to the ballistic expert. According to him he went to the place of incident for site inspection under entry No.30 dated 01.04.2019 (Ex.12/A), which shows time as 7:20 am, but according to mashir the inspection of site was carried out at 9:00 am and the memo of site inspection (10/C) also shows the same time. According to inspecting officer and mashir they left P.S. for site inspection accompanied by Asghar Ali (complainant) and Muhammad Shoaib in a private car, but entry No.30 (Ex12/A) did not show the presence of mashirs Suhrab Ali and Muhammad Shoaib that they were accompanied with inspecting officer for site inspection. The entry only shows presence of complainant and police staff accompanied by the inspecting officer. The record is also suggestive of the fact that the incident has taken place in broad daylight at 8:00 am, but not a single witness has been associated or produced by the prosecution to provide an independent support to the evidence of complainant and sole eye-witness Suhrab Ali, who admittedly is closely related to complainant and deceased. All this shows that the case of the prosecution has been presented by related and interested witnesses who all remained unable to bring the guilt of the appellants home rather they miserably failed to justify the truthfulness of their depositions.

19. The meticulous examination of record gives a lead that the acclaimed presence of complainant and eye-witness Suhrab Ali is a sheer coincidence. It needs no elaboration that presence of complainant and eye-witness at the spot is not to be inferred rather is to be proved by prosecution beyond scintilla of doubt. I have also taken note of the fact that in an occurrence, wherein a person was done to death owning to previous enmity, the complainant and eye-witnesses remained unhurt. In absence of any confidence inspiring explanation regarding their presence at crime scene, the complainant and eye-witness are seems to be chance and interested witnesses and their testimony can safely be termed as suspect evidence. In arriving at such conclusion, I am enlightened from the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) wherein the Hon'ble Supreme Court while dealing with a case of chance witness observed as under:-

"A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."

20. A bare perusal of the record reveals that the deceased was accompanied by Asghar Ali (complainant) and two eye-witnesses namely, Muhammad Shoaib and Suhrab Ali when they were intercepted by six accused persons, armed with Kalashnikovs. The complainant and eye-witness in their respective cross-examination have admitted that they were at the mercy of accused party who could easily done them to death. The question arises why the complainant and two eye-witnesses were let-off unhurt by the accused party more particularly when none of them could escape alive and the accused party was well within knowledge that they would became witnesses against them in time to come. Such a behavior of accused party does not appeal to a prudent mind that when they could easily wipe out the entire evidence against them why they have not done so. Reliance may well be made to the case of Mst. Rukhsana Begum & others v Sajjad & others (2017 SCMR 596), wherein it has been held that:-

“Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provisions of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition”.

21. It is noteworthy that deceased was done to death due to previous enmity between the parties. It does not appeal to a prudent mind that when there was recorded enmity, why the accused let-off complainant and his two relatives when they could easily done them to death. It is important to note that there were six accused persons and complainant party was also consisting of four members and they had an opportunity to save the deceased from the accused persons. Worth to mention here that complainant is real brother of deceased and two eye-witnesses are his relatives and in their presence accused party killed deceased, but none from the complainant and eye-witnesses made any attempt to save the deceased. Even complainant being brother of deceased as well as eye-witnesses being close relatives neither made any attempt nor tried to save the deceased or to catch hold any of the accused particularly when they were also four and present at a distance of few paces from them. Such a conduct of complainant and eye-witnesses does not appeal to a prudent mind while in their presence the accused party committed murder of deceased and despite their presence none of them resisted or tried their level best to save the deceased from the accused party, but no such action/reaction has arisen from the circumstances of the case to believe their statements as such the conduct of complainant and eye-witness is itself creating doubt in the case of prosecution. It does not appeal to the logic that by killing a person in presence of his brother and two close relatives, they did not attempt to save the deceased from the accused. This fact, thus, caused a big dent to the prosecution case and also question marked the presence of complainant and eye witnesses at the scene of occurrence and involvement of the appellants on the basis of recorded enmity. Reliance may well be made to the case of Zafar v The State and others (2018 SCMR 326), wherein it has been held as under:-

“The conduct of the witnesses of ocular account also deserves some attention. According to complainant, he along with Umer Daraz and Riaz {given up PW} witnessed the whole occurrence when their father was being murdered. It is against the normal human conduct that the complainant, Umer Daraz and Riaz {PW since given up} did not make even an abortive attempt to catch hold of the appellant and his co-accused particularly when the complainant himself has stated in the FIR and before the learned trial Court that when they raised alarm, the accused fled away. Had they been present at the relevant time, they would not have waited for the murder of their deceased father and would have raised alarm the moment they saw the appellant and his co-accused standing near the cot of their father”.

Likewise, in the case of Sardar Ali v Hameedullah and others (2019 P.Cr.L.J. 186), wherein it has been held as under:-

“The conduct of the complainant is also worth of to be looked into as it is story of the prosecution that the deceased Ahmad Khan was done to death through fire shots by the accused, yet at the relevant time no signs of resistance have been shown by the complainant in order to at least save his father from the grasp of assailants, rather he became a mere spectator, so, such kind of attitude of the complainant being sole eyewitness and real son of the deceased is beyond understanding of natural human conduct”.

22. Adverting to the recovery of unlicensed Kalashnikovs on the pointation of appellants, suffice to observe that they have been shown arrested on 04.04.2019 and admittedly recoveries have been shown effected on their pointation on 10.04.2019 i.e. after six days of their arrest without furnishing any plausible explanation. Surprising to note that the appellants were already in custody of police and during interrogation they agreed to recover the weapons used by them in the commission of offence and voluntarily led the police party to the pointed places and produced the weapons on their pointation, despite no independent person was associated either from the P.S. or from the way leading to the place of pointation or even from the place of recovery. Thus, the contention of learned counsel for the appellants that the recoveries have not been proved through reliable evidence and the convictions and sentences awarded to the appellants relying on doubtful evidence is illegal, remains firmed. There should some plausible explanation on the part of the prosecution that actually attempts were made to associate an independent witness, when otherwise under the circumstances of the case the appellants have denied the recoveries in particular, hence association of an independent witness was necessary to attest the recovery proceedings more particularly when there had been sufficient opportunities to join an independent person to witness the recovery, but no attempt was made either to persuade any person from the locality or for that matter the public was asked to become a witness as such there is obvious violation of Section 103 Cr.P.C. The plea taken by the appellants that recovery of weapons is of no evidentiary value as the same was made in violation of requirements of Section 103, Cr.P.C. seems to be reasonable. The Hon’ble Supreme Court in the case of Tayyab Hussain Shah v The State (2000 SCMR 683) held as under:-

“The plea of the accused was that the gun had been planted on him and this fake recovery was proved by the police witnesses namely, the Investigating Officer alongwith the Foot Constable. The plea is that the said recovery is of no evidentiary value as the same was made in violation of requirements of section 103, Cr.P.C. In the case of State through Advocate General, Sindh v. Bashir and others (PLD 1997 SC 408) Ajmal Mian, J., as he then was, later Chief Justice of Pakistan, observed that requirements of section 103, 'Cr.P.C. namely that the two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown E by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. If, however, the statement of the police officer indicated that no effort was made by him to secure two Mashirs from public, the recoveries would be doubtful. In the instant case, from the statement of the Investigating Officer it is apparent that no efforts were made to join any member of the public to witness the said recovery. In F the overall circumstances of the case, we do not find it safe to rely on the said recovery. Once recovery of gun is considered doubtful the report of the fire-arm expert that the empty statedly recovered from the spot matched with the gun loses its significance”.

23. The prosecution has claimed that unlicensed weapons, used in the commission of offence, have been recovered on the pointation of appellants on 10.04.2019. It is also the case of the prosecution that 17 crime empty shells of Kalashnikov were secured during site inspection on 01.04.2019 and sent to the office of Forensic Division after five days of its recovery and that too without furnishing any plausible or justifiable reasoning or explanation. Even no report of Forensic Division either of the empty shells alleged secured from the place of occurrence or the weapons allegedly recovered on the pointation of appellants has been placed on record to ascertain as to whether the empties allegedly secured from the place of occurrence were fired from the weapons alleged to have been recovered on the pointation of appellants. The entire record is silent with regard to sending the case property to Forensic Division and its report. At this juncture, it would be appropriate to highlight the cross-examination of PW.4 ASI Ghulam Shabbir. This witness has admitted that he has not produced any record of sending empty shells to ballistic expert. He further admitted that crime weapons were in his custody at P.S. for five days. He also admitted that neither any record of Malkhana nor R.C. of sending the case property to laboratory and FSL has been placed on record with regard to safe custody of case property. In such background of the case, serious question arises with regard to safe and secure custody of the crime weapons and empty shells. In the circumstances, two interpretations are possible, one that the case property has not been tampered and the other that the same was not in safe hand and has been tampered. It is settled law that when two interpretations of evidence are possible, the one favouring the accused shall be taken into consideration. Thus, the convictions and sentences recorded by the learned trial Court in absence of FSL report are unjustified more particularly when the same has not been corroborated by any independent witness. Surprising to note that the present case has been investigated by three police officers including Inspector Ali Bux with whom the investigation remained only for 24 hours and during this period he not only interrogated the appellants but also recovered crime weapons on their pointation and after effecting recovery he again transferred the investigation to previous investigating officer ASI Ghulam Shabbir. Apart the prosecution has also failed to substantiate the point of safe custody of case property and its safe transit to the expert through cogent and reliable evidence and the alleged recovery of crime weapons, on the face of it, seems to be doubtful.

24. Insofar as the contention of learned DPG that recovery of crime weapons on the pointation of appellants and positive report of the office of Chemical Examiner fully established the involvement of the appellants in the commission of offence, suffice it to say that in view of what has been discussed above, the positive report issued by the office of Chemical Examiner has no value more particularly when appellants have not disputed the unnatural death of deceased. It is by now well-settled that the recovery of fire-arms and empties etc. are always considered to be corroborative piece of evidence and such kind of evidence by itself is not sufficient to bring home the charges against the accused especially when the other material put-forward by the prosecution in respect of guilt of the appellants has been disbelieved. Reference may well be made to the case of Imran Ashraf and 7 others v The State (2001 SCMR 424), wherein it has been held as under:-

"Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion."

25. The prosecution has also not exhibited the case property in evidence as ‘articles’. The learned trial Court while recording the statements of prosecution witnesses has neither specifically mentioned the each property nor given its particulars produced by the prosecution at trial. A careful examination of the prosecution witnesses shows that the witnesses have simply identified the case property as same and did not specifically describe the full particulars of the case property in their respective evidence. Even otherwise, the same has not been shown to the appellants at the time of recording their Section 342, Cr.P.C. statements. Even no question was put to the appellants with regard to recovery of crime weapons on their pointation. At this juncture, the learned DPG seeks remand of the case to the learned trial Court for recording appellants’ statements under Section 342, Cr.P.C. afresh. This submission, on the face of it, has no weight because it is by now a settled principle of Criminal Law that each and every material piece of evidence being relied upon by the prosecution against an accused must be put to him at the time of recording of his statement under Section 342, Cr.P.C. so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a trial. The case in hand is a murder case entailing a sentence of death and recovery of unlicensed arms. I have truly been shocked by the cursory and casual manner in which the learned trial Court had handled the matter of recording of the appellants’ statements under Section 342, Cr.P.C. which statements are completely shorn of the necessary details which were required to put to the appellants. It goes without saying that the omission on the part of the learned trial Court mentioned above was not merely an irregularity but had vitiated the appellants’ conviction more particularly when the other material put-forward by the prosecution in respect of guilt of the appellants has been disbelieved. Reliance may well be made to the case of Dr. Israr-ul-Haq v. Muhammad Fayyaz and another (2007 SCMR 1427), wherein the relevant citation (c) enunciates:-

"Direct evidence having failed, corroborative evidence was of no help. When ocular evidence is disbelieved in a criminal case then the recovery of an incriminating article in the nature of weapon of offence does not by itself prove the prosecution case.

26. In like cases, the evidence produced by the prosecution should be so strong or solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand and if the chain is not complete or any doubt which occurred in the prosecution's case that is sufficient to demolish the structure of evidence, the benefit thereof must go to the accused especially when the same has been built up on the basis of feeble or shaky evidence. The investigation carried out in this case is not found up to the mark because neither any report of Forensic Division has been placed on record nor any other material has been brought on record to substantiate that empty shells secured from the place of occurrence were fired from the weapons allegedly recovered on the pointation of the appellants. The initial investigation was carried out by ASI Mansoor Ali. He kept entry No.6 dated 01.04.2019 in the Roznamcha showing that besides deceased two other persons sustained firearm injuries in the same incident who were referred to hospital for treatment with police letter. This version of the prosecution has also been supported by PW.6 Dr. Mushtaque Ahmed, who admitted in his cross-examination that apart from deceased he also examined two injured in the same crime and issued M.L. Certificates. The two investigating officers namely, ASI Ghulam Shabbir and Inspector Ali Bux did not try to locate the said two injured nor cited them as witnesses and the entire evidence adduced by them is silent, which caused a big dent to the prosecution case.

27. No doubt the investigating officer is an important character and is under obligation to investigate the matter, honestly, fairly and justly, so as to bring on surface the truth. It is the bounden duty of the Investigation Officer not only to build-up the case with such evidence enabling the Court to record conviction by all means, but also to dig out the truth to light to reach at a just and fair decision. Meaning thereby that the purpose of investigation is to collect all relevant evidence pertaining to allegation of crime and to dig out the truth enabling and facilitating the Court to administer justice and to bring the real culprits to book, however, it appears that investigating officers have failed to discharge their duties in the manner as provided under the law.

28. Motive behind murder as disclosed in the FIR is enmity over land as well as previous criminal litigations against each other. The motive attributed is not only weak and feeble but also not satisfactorily established. Even otherwise the motive alone is not sufficient to lay foundation for conviction of an accused facing charges of capital punishment and other evidence more particularly when other piece of evidence adduced by the prosecution has already been disbelieved.

29. It is a well-settled principle of law that involvement of an accused in heinous nature of offence is not sufficient to convict him as the accused continues with presumption of innocence until found guilty at the end of the trial. All that may be necessary for the accused is to offer some explanation of the prosecution evidence against him and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. Here in this case, the prosecution has not been able to bring on record any convincing evidence. Rather, there are so many circumstances, discussed above creating serious doubts in the prosecution case, which cut the roots of the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".

30. The epitome of whole discussion gives rise to a situation that the appellants have been convicted without appreciating the evidence in its true perspective, rather the prosecution case is packed with various discrepancies and irregularities, which resulted into a benefit of doubt to be extended in favour of the appellants not as a matter of grace but as a matter of right. Accordingly, the convictions and sentences recorded by the learned trial Court through three judgments dated 03.09.2020 for commission of murder of deceased and recovery of unlicensed arms, are set-aside and the appellants are acquitted of the charges by extending them the benefit of doubt. They shall be released forthwith if not required to be detained in connection with any other case.

31. The Criminal Appeals No.52, 53 and 54 of 2020 are allowed in the foregoing terms.

JUDGE