IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.S-83 of 2016
Cr. Jail Appeal No.S-79 of 2016
Appellant : Rustam Ali Shar, through Mr. Ghulam Akbar
Soomro Advocte.
Respondent : The State, through Mr. Ali Anwar Kandhro,
Additional Prosecutor General.
Date of hearing : 29-09-2022.
Date of Judgment : 29-09-2022.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Rustam Ali son of Dhani Bakhsh, by caste Shar, was tried by learned IV-Additional Sessions Judge, Shikarpur, for offence under Section 302, PPC and for offence under Section 23(1)(a), Sindh Arms Act, 2013. On the conclusion of the trial, vide separate judgments dated 18.08.2016 appellant Rustam Ali was convicted u/s 302(b), PPC and sentenced to the imprisonment for life as Tazir and to pay the compensation of Rs.100,000/- to be paid to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C., in case of default in payment of compensation he was ordered to undergo S.I. for 06 months more. In the connected/offshoot case, appellant was convicted for offence u/s 23(1)(a), Sindh Arms Act, 2013 and sentenced to suffer 10 years R.I and to pay fine of Rs.5000/-, in case of default in payment of fine, he was ordered to undergo S.I. for 02 months more. Appellant was extended benefit of Section 382-B, Cr.P.C. Appellant filed separate jail appeals. As the offence under Section 23(1)(a), Sindh Arms Act, 2013 is offshoot of the main case under Section 302, PPC and require same appreciation of evidence, I propose to decide both appeals by this single judgment.
2. Brief facts leading to the filing of the appeal No.S-83/2016 for offence u/s 302, PPC are that on 27.05.2014 ASI Abdullah along with subordinate staff left Police Station Khanpur in the Government vehicle vide Roznamcha entry No.2, at 0710 hours for patrolling duty. It is alleged that during patrolling ASI received a spy information that appellant Rustam Ali son of Dhani Bux, by caste Shar was prepared to commit murder of his wife Mst. Nazan, on the pretext of Kari at his house. After receipt of such information, police party proceeded to the pointed place and reached there at 0815 hours. Police party saw appellant armed with gun and in presence of the police party he opened two fires upon his wife Mst. Nazan, which hit her and she fell down. ASI caught hold the accused in presence of his subordinate staff and recovered the gun from his possession. Wife of the appellant succumbed to the injuries at spot. ASI prepared mashirnama of arrest and recovery in presence of mashirs PCs Mohammad Nawaz and Abdul Jabbar and conducted personal search of the accused and recovered 03 live cartridges and enquired from the accused about the license of his gun, to which he replied in negative. ASI collected one empty from the place of wardhat. Mashirnamas of arrest, recovery and place of wardhat were prepared. Thereafter, accused and the property were brought at police station. Dead body of deceased Mst. Nazan was sent to the hospital for conducting postmortem and report. ASI lodged FIR against the appellant on behalf of the State u/s 302, PPC and separate FIR u/s 23(1)(a), Sindh Arms Act, 2013 was also registered against the appellant. Thereafter, investigation was handed over to SIP Barkat Ali, who completed further investigation and on the conclusion of usual investigation submitted separate challans against the accused for offence u/s 302, PPC and for offence u/s 23(1)(a), Sindh Arms Act, 2013.
3. Trial Court conducted separate trials in the case for offence u/s 302, PPC and offence u/s 23(1)(a), Sindh Arms Act, 2013. Prosecution examined ASI Abdullah and PWs PCs Abdul Jabbar and Mohammad Nawaz, Dr. Jamila Siddiqui, Tapedar Afghan Ahmed and IO/SIP Barkat Ali. Thereafter, prosecution side was closed. Trial Court recorded statement of accused u/s 342, Cr.P.C., in which appellant claimed false implication in this case and denied the prosecution allegations and raised plea that deceased Mst. Nazan was his wife and she had been killed by some unknown person and police has lodged false case against him. Appellant examined defence witness Ali Hassan; however, he did not examine himself on oath u/s 340(2), Cr.P.C. In a case u/s 23(1)(a) of Sindh Arms Act appellant raised plea that crime weapon has been foisted upon him by police. On the conclusion of the trial, learned trial Court after hearing the learned Counsel for the parties and assessment of evidence, vide judgment dated 18.08.2016 convicted the appellant u/s 302(b), PPC and sentenced him to the life imprisonment, as stated above. In the connected/offshoot case, on the conclusion of the trial, appellant was also convicted for offence u/s 23(1)(a), Sindh Arms Act, 2013 and sentenced to 10 years R.I. Appellant filed aforesaid jail appeals against his conviction and sentences recorded by trial Court.
4. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgments passed by the trial Court. Therefore, same need not be reproduced here so as to avoid duplication and unnecessary repetition.
5. I have heard learned advocate for the appellant, learned Addl. P.G. for the State, re-examined and re-assessed the prosecution evidence.
6. Unnatural death of deceased Mst. Nazan as a result of firearm injuries on her person is conclusively established by the evidence of Dr. Jamila Siddiqui and not seriously controverted by the advocate for the appellant. Point for determination in this appeal is whether appellant was rightly found guilty for committing murder of deceased Mst. Nazan?
7. From the perusal of evidence it appears that it was a case of spy information and incident occurred in day time. ASI Abdullah had failed to associate with him the independent persons of the locality. Moreover, it has come on record that some ladies were present at the time of incident, but those were not examined by the prosecution at trial. Presumption would be drawn, if those persons would have been examined, they might have not supported the case of prosecution. It is also unbelievable that appellant was waiting for the police to kill the wife. Prosecution story, on close scrutiny, appears to be unnatural. I have also noticed that as per prosecution case police party had left police station vide Roznamcha entry No.2 at 0710 hours, but there is overwriting in the entry number. Prosecution failed to furnish any explanation. ASI Abdullah, who was head of the police party, has deposed that appellant was previously known to him, but he has been contradicted by PC Mohammad Nawaz, who stated that ASI had enquired name from the appellant after the incident.
8. As regards to the contention of the Addl. P.G. for the State that appellant had committed murder of his wife in front of his house; thus, some part of the onus had shifted to the appellant to explain the circumstances in which the deceased had died an unnatural death in front of the house of appellant on the fateful day, which part of the onus has not been discharged by the appellant. In the case of Asad Khan v. The State (PLD 2017 SC 681) the principle has been enunciated that the shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. Reliance is placed on the case of Wajahat v. Gul Daras & others (2019 SCMR 1451). Relevant portion is reproduced as under:-
“Appellant’s belated plea of the suicide even if rejected outrightly by itself would not absolve the prosecution to drive home the charge, on its own strength and same goes for appellant’s absconsion; people avoid to face process of law or their adversaries for a variety of reasons, not necessarily inclusive of their guilt; Appellant’s reticence to satisfactorily explain as to what befell upon his better half under the same roof, though somewhat intriguing, however, cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences; his failure would not give rise to an adverse presumption within the contemplation of Article 121 of the Qanun-e-Shahadat Order, 1984 and thus it would be grievously unsafe to maintain the conviction, without potential risk of error as well as diametrical departure from adversarial nature of criminal trial.”
9. From the re-appraisal of the evidence, I have come to the conclusion that trial Court failed to appreciate the evidence according to sound judicial principles, for the reasons that prosecution case was based upon the testimony of police officials alone. It is necessary for this Court to find out if there was any possibility of securing independent person(s) at that time. It was a case of spy information, ASI had prior information, inspite of that he failed to associate private persons to witness the incident. Some ladies were present, but they were not examined by prosecution at trial. No doubt, evidence of the police officials cannot be discarded simply because they belong to the police force, but where the fate of an accused hinges upon the testimony of the police officials alone, particularly in the case of capital punishment, it is necessary to find out if there was any possibility of securing independent persons at that time. In the present case, the fate of the appellant/accused hinged upon the testimony of above-named police officials alone. Judicial approach has to be cautious in dealing with such evidence.
10. As regards to the recovery of the gun from the possession of the appellant is concerned, the record reflects that the appellant soon after the incident was arrested by ASI Abdullah and mashirs and gun was recovered from his possession. One empty cartridge was collected from the place of wardhat and 03 live cartridges were also recovered from the possession of the appellant, but case property was dispatched to the Ballistic Expert on 03.6.2014. Blood-stained earth was sent to the Chemical Examiner on 02.6.2014. From the re-examination of entire prosecution evidence, it is clear that ASI Abdullah and mashirs no-where have deposed that after recovery of the crime weapons the same were deposited with the Incharge of the Malkhana. Entry of the Malkhana has not been produced. Incharge of the Malkhana has also not been examined. Case property was taken to the Ballistic Expert and to the Chemical Examiner. The police officials, who had taken the same to the Expert, have also not been examined. Therefore, it is clear that safe custody and safe transmission of the weapons were not established by prosecution at trial. It is settled principle of law that when prosecution fails to produce the evidence before the trial Court regarding safe custody and safe transmission of the weapons, then the same cannot be used against the accused for conviction. Reliance is placed upon the case reported as Kamal Din v. The State (2018 SCMR 577). Relevant portion is reproduced hereunder:-
“Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission.”
11. What appears to have happened is that upon a consideration of certain features of the case the learned Additional Sessions Judge was morally convinced of the guilt of the appellant and this moral conviction wrapped his judicial vision to such an extent that he failed to view the evidence in its true perspective. For the purpose of conviction and sentence in a case of capital punishment the evidence must come through unimpeachable source and trial Court has to see intrinsic value of such evidence with strong corroboration, which is lacking in the present case.
12. It is settled law that for giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt in the prosecution case. If there is single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled for benefit of such doubt, not as a matter of grace and concession, but as a matter of right. In this regard, reliance is placed on the case reported as Muhammad Mansha v. The State (2018 SCMR 772), wherein the Honourable Apex Court has held as under:-
“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 circumstance which creates a reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the 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 that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir & 02 Others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).
13. After re-appraisal of evidence, I have come to the conclusion that trial Court failed to appreciate the evidence on sound judicial principles. At the conclusion of the arguments, by short order dated 29.9.2022 for the reasons to be recorded later, appeals were allowed and appellant was directed to be released forthwith unless required to be detained in any other case. These are the reasons for allowing the appeals and directing the acquittal of appellant.
JUDGE
Qazi Tahir PA/*