IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-15 of 2019
Appellants: 1). Ali Jan s/o Jalal,
2). Luqman s/o Allah Dino,
3). Ahmado @ Ahmed Nawaz s/o Din Muhammad
Through Mr.Asif Ali Abdul Razzak Soomro, Advocate
Complainant: Muhib s/o Azizullah by caste Bangulani, Through Mr. Ahmed Bux Abro, Advocate.
The State: Through Mr.Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 30-01-2023
Date of decision: 20-02-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The instant criminal appeal is directed against the judgment dated 01.03.2019, passed by learned 1st Additional Sessions Judge, Shikarpur, in Sessions Case No.390/2006 (Re. St. Vs. Jaam and others), outcome of FIR bearing Crime No.06/2006, for offence punishable U/S.302, 148 & 149 PPC registered with Police Station, Mian-Jo-Goth, District Shikarpur, whereby the appellants were convicted for an offence punishable U/S.302 (b) r/w Section 149 PPC and sentenced to suffer rigorous imprisonment for life as Tazir with fine of Rs.200,000/- each to be paid to the legal heirs of deceased and in default whereof to suffer simple imprisonment for one year each, with benefit of Section 382-B Cr.PC.
2. Concise facts of prosecution case as depicted in the FIR lodged by complainant Muhib Bangulani on 04.05.2006, at about 1300 hours, are to the effect that he is farmer of Dadan Bangulani and owns goats while his house is straw-made facing towards south with its entrance having a surrounding hedge. Last night, while tethering his goats and having dinner, they were sleeping on separate cots, at about 03.00 A.M, they woke up on barking of dogs and saw on torch lights accused every one namely Ahmado @ Din Muhammad, 2). Shahoo s/o Mithal, 3). Ali Jan s/o Jalal, 4).Luqman son of Dinal, all by caste Hakra, r/o village Din Muhammad Hakro, duly armed with pistols and three unknown culprits, having lathies and hatchets who after committing theft of their red color goat were going, whereupon the complainant party raised cries of thief thief but they taking advantage of darkness, fled away towards southern side. They after tracking foot prints arrived adjacent to the house of accused Ahmado Hakro and arrived in otaq, at about 08.30 A.M, where found accused namely Ahmado, Shahoo, Ali Jan, Luqman, duly armed with T.T pistols and unknown culprits with hatchets and lathies, they sat in otaq and asked them to return their stolen goat whereupon they exchanged harsh words with each other and in the meantime accused tried to flee away towards northern side land but the complainant and his brother Gullab followed them and his brother Gullab came near to the accused and grappled them, whereupon accuse Ahmado, Shahoo, Ali Jan and Luqman fired pistol shots at his brother Gullab who fell down raising cry. Thereafter, all the accused made their escape good towards western side. Owing to fear, they did not go behind them and then found Gullab having fire arms injuries on different parts of his body which were bleeding. Leaving the witnesses over his dead body, the complainant came at police station and reported the incident with police.
3. The investigation officer on completion of usual investigation submitted final report under section 173 Cr.PC against the accused before the Court of concerned Judicial Magistrate. Subsequently, the case against accused Jam, Ali Jan and Luqman was kept in abeyance for want of appearance of witnesses vide order dated 09.02.2010. Later-on, one of absconding accused namely Ahmado was arrested and the amended charge was framed against all four accused to which they pleaded not guilty and claimed trial.
4. In order to establish accusation against the accused, the prosecution examined in all six witnesses i.e PW-01 Complainant Muhib Ali, PW-02 Eye witness Jumo, PW-03 Mashir Ghulam Nabi, PW-04 Medical Officer Dr. Abdul Rasheed, PW-05 Investigation officer SIP Imam Bux and PW-06 Tapedar Ghulam Rasool, who produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed its side.
5. The accused in their statements recorded in terms of Section 342 Cr.PC, denied the allegations leveled against them by pleading their innocence. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court on evaluation of the material and hearing counsel for the parties acquitted co-accused Jaam while convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.
7. Per learned defence counsel, there is inconsistency in between the evidence of prosecution witnesses which has shattered the veracity of their evidence; that the complainant and PWs are related inter-se and their evidence cannot be relied upon without independent corroboratory piece of evidence; that there is no recovery of any incriminating article from the possession of present appellants to show their involvement in the present case. Summing up his contentions, the learned defence counsel submitted that accused have falsely been arraigned in this case by the complainant with malice. He lastly concluded that the case of prosecution is doubtful and the appellants are entitled to their acquittal in the circumstances of the case. In support of his contentions, he produced copies of certain documents in support of plea of appellants/accused.
8. Conversely, learned counsel for the complainant and learned Addl.P.G for the State submit that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence; that an innocent person has been done to death at the hands of appellants/accused on claim of return of his theft goat; that the ocular evidence is consistent with medical as well circumstantial account; that recovery of empties from the place of occurrence and blood stained on chemical analysis has substantiated involvement of present appellants/accused in commission of the incident; in that situation, the learned trial Court finding the appellants/accused guilty of the offence has rightly convicted and sentenced them by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by them being meritless is liable to its dismissal. In support of contentions, learned counsel for the complainant relied upon cases of Mehboob Ali v. The State (2000 SCMR-152), Abdul Ghafoor v. The State (2000 SCMR-919) Muhammad Ehsan v. The State (2006 SCMR-1857), Abdul Rauf v. The State (2007 SCMR-91), Sh. Muhammad Abid v. The State (2011 SCMR-1148) and Khalid Rasheed v. The State (2012 MLD-1274).
9. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on the record with their able assistance.
10. The case of the prosecution is based on two episodes. In the first, the incident took place at night time inside the house of complainant wherefrom accused persons committed theft of goat and in the other at morning when after taking footprints of the accused they reached at the otaq of accused persons where they (accused) committed murder of deceased Gullab. For both the episodes, the prosecution examined only two eye-witnesses PW-01 Muhib Ali (complainant) and the other PW-02 Jumo, who together with deceased Gullab are brothers inter-se.
11.
On re-assessment of their evidence recorded before learned trial Court it
surfaced that they claimed to be present at night of the incident viz.
04-05-2006 in their house along with other inmates and were sleeping on separate
cots. At about 02-00 A.M (night time), they woke-up on barking of dogs. They
claimed to have identified the accused persons on the light of torch to be Ahmedo,
Luqman, Shahoo and Ali Jan who were armed with pistols and three were
unidentified, having lathies and hatchets. They saw that the accused persons
un-tied a goat and took with them and went away, they due to fear remained in their
house and at morning they tracked footprints of accused persons which lead them
to the otaq of accused Ahmedo. Admittedly, this episode happened in the night
and none of the witnesses deposed even a single word about having any other source
of light except the torch light on which they saw seven accused persons and
identified four of them with their weapons though rest of three were not
nominated but they were seen with their weapons on such torch light. The
identification of four accused persons amongst seven with specific weapons
during odd hours of the night on torch light from the distance stated above by
the witnesses and the fact that the said torch was not taken as case property
during course of investigation and its non-production before the Court at trial,
creates very serious doubt in the prosecution case. The Honourable
Supreme Court of Pakistan in case of
Sardar
Bibi and others v. Munir Ahmed and other (2017 SCMR 344)
has held that “The source of light i.e. bulbs etc. was not taken into
possession during investigation to establish that the witnesses who were
allegedly at the distance of more than 100 feet could identify the assailants.
So the identification of the assailants was also doubtful in such circumstances
of the case. In case of Abdul Rahim v. Ali Bux and 4 others, (2017
PCrl.L.J-228), Division Bench of this Court has held in paragraph 11 as
“Record further reveals that the incident is alleged to have taken place in
dark hours of the night and Complainant and PWs/eye-witnesses seen and
identified the culprits/Respondents on 7 torch lights, but the said Torches
were not produced in evidence, since the source of identification of the
culprits is shown as torchlight, which as per verdicts of Superior Courts is
weak type of source and unsafe to be relied upon. In this regard, reference is
made to case of Hakim Ali, reported in 1996 PCr.LJ 231 (DB-Kar), and case of
Aurangzeb, reported in 2008 PSC (Cr.). The Honourable Supreme Court of
Pakistan in another case of Khalil v. The State
(2017 SCMR-960) has held as under:-
12. It is observed that the normal practice and conduct of culprits that when they pick night time for commission of such crime, their first anxiety is to conceal their identity so that they may go scot-free unidentified and during such course they also try their level best to conceal or destroy each and every piece of incriminating evidence, if used against them in the future thus, human faculty of prudence would not accept the present story that accused persons leave their footprints from the place of occurrence upto their houses enabling the complainant party to arrive easily at them which is evident from the depositions of both the eye-witnesses that at morning they took footprints which lead them at the otaq of accused persons. This aspect of the case that at morning the complainant party tracked footprints of the accused persons also suggests that they had not identified the accused persons at the night of incident and had managed false and dishonest story to show identification of the accused persons. Even otherwise, their appear contradictions in the evidence of prosecution witnesses, in that the complainant in his examination-in-chief deposed that three unidentified accused persons armed with hatchet and lathies who within their sight untied a goat and took the same with them and he in his cross-examination stated that accused Ahmedo untied the rope of robbed goat but his such version is belied by his own FIR wherein he disclosed that the unidentified accused persons were taking away his red color goat. PW/Eye-witness Jumo in his examination-in-chief deposed that the culprits on the force of their weapons while un-tethering the rope took away one she goat. Further, it has come on record that for the first episode, the complainant party also registered an FIR bearing Crime No.10/2006 at Police Station, Under Section 457 and 380 PPC, in which the complainant party had not appeared, consequently, learned trial Court stopped the proceedings. It reflects from the facts of said FIR that the complainant had registered two separate FIRs of the same facts at two different Police Stations by concealing the real fact of each FIR.
13. As to the second episode, both the prosecution witnesses gave contradictory evidence and they in their evidence deposed that at morning they took footprints of the accused persons which lead them at the otaq of accused Ahmedo. The complainant in his evidence deposed that deceased Gullab tried to capture accused Ahmedo on which he took out pistol and fired shot upon deceased Gullab which hit him on his left side over chest, accused Luqman fired shot hitting deceased on his left thigh, accused Ali Jan fired pistol shot hitting deceased on his right foot lower side while fire made by accused Shahoo upon deceased which went missed but the narration made by him in his FIR is totally silent about specific fires made by each accused at the deceased, whereas his version is further belied by his eye-witness who deposed that seven accused persons tried to slip away from the otaq of accused Ahmedo and they tried to chase and caught hold them, upon this, accused Ahmedo, Luqman and Ali Jan fired pistol shot upon deceased Gullab which hit him on different parts of his body. Complainant further deposed that the accused persons ran away from the place of incident towards southern side but his FIR is in conflict with his own version wherein he mentioned that the accused after the incident fled away towards western side but eye-witness of the incident has not uttered even a single word about escape of accused from the venue of occurrence. PW-Eye witness Jumo gave wavering statement about number of goats wherein he in his examination-in-chief deposed that they had 10 goats and in his cross-examination he added that he had seven goats while the evidence of complainant is totally silent about specific number of goats. Complainant in his cross-examination deposed that besides him, deceased Gullab, Jumo, Shah Nawaz, Nawaz tracked the foot prints of the accused at the relevant time but his version is in conflict with his eye-witness Jumo who deposed that the foot tracker party was comprising of him, his brother Gullab, Muhib, Ghulam Nabi, Shah Nawaz and three persons were of the village, if this version is belied to be true then why not the statements of these three persons of village who were together with the complainant being tracking party were recorded during course of investigation by the investigation officer to substantiate the version of the complainant. Further, accused Ali Jan and Luqman were found innocent during course of investigation and their names were placed in Column No.2 of the challan sheet but they were joined subsequently on an application moved by the complainant. All these contradictions and the improvements made the entire case as doubtful.
14. The rule of benefit of the doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and 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 be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because 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"
15. Through the above discussion, I have arrived at the conclusion that the prosecution has failed to prove guilt against the present appellants beyond any shadow of reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there does not need to be many circumstances. 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 Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme 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 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 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)”.
16. In this case, the learned trial Court has not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding the appellants as guilty of the offence. Resultantly, the instant criminal appeal is allowed. The conviction and sentences, awarded to the appellants by learned trial Court vide impugned judgment, are set aside and they are acquitted of the charge by extending them benefit of the doubt. Appellants are in jail and they shall be released forthwith if their custody is not required in any other custody case.
JUDGE
.