1. ' MAQBOOL AHMED AWAN, J.--Appellant impugned the judgment dated 9-6-2006, whereby the learned IIIrd Additional Sessions Judge, Dadu convicted and sentenced him under section 302(b),.
2. P.P.C. To death as Tazir and under section 544, Cr.P.C. To pay Rs,1,00,000, if the amount is deposited by the appellant, same be paid to the heirs of the deceased Ashraf as compensation. In default, the appellant shall undergo additional S.I. For three months. The appellant was also convicted and sentenced under section 324, P.P.C. To suffer RI. For 7 years and fine of Rs,10,000 and in case of default of fine, the appellant shall undergo additional S.I. For one month. The learned trial Court also made reference to this Court under section 374, Cr.P.C.
3. ' Precisely the case of prosecution is that on 21-9-2003 at 3-30 p.m., the complainant Muhammad Hussain reported the matter at PP Haro Khan and such entry was kept in Roznamcha and subsequently, it was incorporated into the F.I.R. At Police Station Pat Gul Muhammad on 21-9-2003 at 5-30 p.m. Stating therein that he is labourer by profession. He and his youngest brother Ashraf reside in village Phullo Qambrani along with other house inmates. On 19-9-2003, the confliction between his brother's wife and the wife of Azizullah took place at well. Hence on 21-9-2003, the decision (Faisla) was fixed before Rais Budho Khan Mostoi and the complainant's brother Ashraf, his cousins Ghulam Hyder, Aijaz alias Deputy and son Iqbal were coming to participate in the said "Faisla". His brother Ashraf and Iqbal were at some distance. It was about 3-00 p.m. When they reached on the northern side of the common street, in the lands of Muhammad Khan Jamali, they heard "Hakals" from the back and found the appellant armed with gun, Amir, Passand and Yar Muhammad having hatchets in their hands, who challenged them and the appellant asked them not to come near, as they will commit murder of Ashraf. Saying so,' the appellant fired at Ashraf with intention to commit his murder, who on receiving the fire-arm injuries fell down and Iqbal grappled Azizullah, however, the other accused separated them. Thereafter the appellant Azizullah also fired at Iqbal with intention to commit his murder, which missed. The appellant again fired at Ashraf who succumbed to his injuries. Thereafter, the accused fled away by raising slogans and disclosing that they have committed the murder of Ashraf, as his wife insulted the wife of Azizullah.
4. The complainant left the above P. Ws over the dead body and came at police station and lodged an F.I.R.
5. During investigation, the co-accused Passand and Yar Muhammad were let off by the police.
6. Formal charge against co accused Amir was framed to which he pleaded not guilty and claimed for trial. The present appellant who was shown as absconder, appeared on 12-2-2005 before the learned trial Court with copy of protective by the High Court of Sindh Circuit Court, Larkana and subsequently his bail was declined by the trial Court for non-prosecution on 3-3-2005. However, on 4-3-2005 the appellant voluntarily surrendered before the learned trial Court and was remanded to judicial custody.
7. ' Thereafter, amended charge was framed against the appellant and co-accused Amir to which they pleaded not guilty and claimed to be tried.
8. ' The prosecution in order to substantiate the charge against the accused, examined Dr. Sikandar Ali Khoso who produced Post-mortem Report of deceased Ashraf, complainant Muhammad Hussain who produced carbon copy of DD entry No,5 and F.I.R., P.W. Ghulam Hyder, P.W. Iqbal, P.W.
9. HC Mehrab Ali who produced receipt of handing over the corpse to the LRs of the deceased, A.S.-I.
10. Ghulam Qadir the Investigating Officer who produced memo. Of venue of incident, inquest report and memo. Of lost wearing clothes of the deceased, P.W. Manthar, the Mashir who produced memo. Of arrest of accused Amir, P.W. Mevo Khan the Tapedar who produced two copies of sketches of place of incident, I.O. SIP Muhammad Yaqoob who produced memo. Of arrest of accused Yar Muhammad. Thereafter, learned DDA submitted the chemical report of examiner and closed the prosecution side.
11. ' The statements of accused were recorded under section 342, Cr.P.C. To which they denied the prosecution allegations and said that all the P.Ws are related inter se and inimical. The appellant submitted photostat copy of F.I.R. No,14 of 1992 registered at Police Station Pat Gul Muhammad lodged by the appellant Azizullah against the complainant. They claimed to be innocent and prayed for justice. However, neither they examined themselves on Oath in terms of section 340(2), Cr.P.C. Nor they led any evidence in their defence.
12. ' After hearing the learned counsel for parties, the learned trial Court acquitted co-accused Amir and convicted and sentenced the appellant as mentioned above.
13. 'Mr. Madad Ali Shah, the learned counsel for the appellant has contended as under:--
(i) The appellant is innocent and has been falsely implicated by the complainant part on account of admitted enmity.
(ii) The P.Ws are interested, related inter se and are inimical towards the appellant and their evidence has wrongly been relied upon by the learned trial Court without getting independent corroboration.
(iii) The medical evidence, belied the entire story of the prosecution.
(iv) The learned trial Court erred while not acquitting the appellant as on the basis of same evidence, the co-accused have been acquitted.
(v) The learned trial Court has committed serious illegality while not considering the delay in recording the 161, Cr.P.C. Statements of P. Ws without any justification and plausible explanation.
(vi) The learned trial Court erred while not taking into consideration the improvements, exaggerations and contradictions made by the witnesses in their evidence. He, therefore, prays for acquittal of the appellant.
(vii) The learned counsel, relied upon the cases reported as (1) 2008 SCM R 95, (2) 2009 SCM R 237,
(3) PLD 2008 SC 349, (4) 2002 PCr.LJ 690, (5) 1999 YLR 496, (6) 2001 YLR 1673, (7) 2007 YLR 22, (8)
14. 1993 SCM R 550, (9) 2006 SCM R 1217, (10)2009 SCM R 84, (11) 1989 SCM R 428, (12) 1999 SCM R 40 and
(13) 2008 SCM R 6.
15. ' Conversely, Mr. Mumtaz Alam Leghari, learned Assistant A.-G. Has supported the judgment of the learned trial Court and argued that the prosecution has fully established the case against the appellant. He therefore, prays for dismissal' of the appeal. In support of his contentions he has placed reliance upon the cases reported as 2004 SCM R 220 and 2003 M LD 1583 respectively.
16. ' We have heard the learned counsel for the appellant, learned Assistant A.-G. And perused the entire evidence available on record with their kind assistance.
17. ' The P.W. Dr. Sikandar Ali in his evidence has deposed that on 21-9-2003 he was posted as Medical Officer at Taluka Hospital Johi. On the very date at about 7-05 p.m. Incharge Investigation Team of Police Post Gul Muhammad referred the dead body of the deceased Ashraf son of Wali Muhammad Qambrani resident of village Phuloo Qambrani Taluka Johi through HC B.C. No,87, Mehrab of P.P. Hero Khan Police Station Pat Gul Muhammad for post-mortem examination. The dead body was identified by Ghulam Hyder son of Gaji Dito and Manthar son of Manghan cousin and maternal cousin, respectively. He started post-mortem at about 7-15 p.m. And completed at 9-00 p.m..On the same date. On external as well as internal examination he found the following injuries on the person of dead body of deceased:-- ' External examination.
(1) Wound of entrance.---A fire-arm wound on left side of middle of neck measuring 2 1/4 c.m. In circumference. Margins are inverted and black. Blackening was present upto the 4 c.m. Around the margins of wound.
(2) Wound of exit.---A wound of exit on the right side of neck measuring 6 c.m. x 4 c.m. With everted and rough margins.
(3) Wound of entrance.---A fire-arm wound, oval in shape measuring 4 x 5 c.m. At mid axillary line on left side of chest with inverted margins. There was no blackening around wound margins. A plastic wad was found at the wound margins.
(4) Wound of exit.---Three in number.
(5) Measures 3/4 c.m. x 1. c.m. With everted margins, situated at the lower left anterior chest at 4th inter costal space.
(ii) Measures 1 1/2 c.m. Roughly oval in shape with everted and round margins, situated 1 c.m. Above the first one.
(iii) Measures 2.5 x 2 c.m. With everted margins just medial to the first one.
(6) A lacerated wound measuring 2 c.m. x 3/4 c.m caused by the pallet after coming out of exit would situated on right lower chest 6 c.m. Below the right nipple.
(7) A lacerated wound on mid lower sternum measuring 2 c.m. x internal post-mortem examination of the deceased, M.O. Opined that the death has been caused by the fire-arm wound which has damaged the heart, lungs and neck vessels and due to excessive bleeding.
18. ' Probable duration between injury and death: Instant.
19. ' Probable duration between death and post-mortem: Within 10 hours. The pellet recovered from the dead body of deceased along with clothes were handed over to the HC Mehrab after sealing the same. He issued such post-mortem report.
20. ' The PW/Complainant, Muhammad Hussain in his evidence deposed that incident took place on 21-9-2003. On 19-9-2003, the wife of his brother Ashraf arid accused Azizullah quarrelled with each other at well situated in the southern side of their village Due to such quarrel "faisla", between his brother Ashraf and accused Azizullah^ was fixed before Nekmard Rais Budho Khan at village Haro Khan. On the eventful day i.e, 21-9-2003 he along with his brother Ashraf, Haji Ghulam Hyder, Aijaz and Iqbal were going to village Haro Khan for "faisla", and when at about 3-00 p.m., they reached in lands of Muhammad Khan Jamali. He, Haji Ghulam Hyder and Aijaz were going ahead and his brother Ashraf and Iqbal were coming behind them and were at some distance. In the meantime they heard "Hakal", from their back side and they saw back and found that accused Azizullah armed with SBBL gun, Amir, Yar Muhammad and Pasand were armed with hatchets. Within their sight, accused Azizullah fired at his brother which hit him at chest. In the meantime' Iqbal grappled with accused Azizullah. Accused Azizullah got free himself from the grapple and fired with his gun at P.W. Iqbal, but the fire missed and Iqbal hidden himself in "Juwar" crop. Accused Amir asked Azizullah that Ashraf is still alive and within their sight accused Azizullah again fired at his brother Ashraf which hit at his side of neck.
21. ' The P.W-Ghulam Hyder has deposed that on 21-9-2003 he along with Muhammad Hussain, Aijaz, Ashraf and Iqbal were going to the village Haro Khan for "Faisla", when they reached in the lands of Muhammad Khan Jamali. He, Hussain and Aijaz were ahead while deceased Ashraf and Iqbal were behind them. They heard "Hakal" from their back side, it was' about 3-00 p.m. On "Hakal" . They turned back and found that appellant Azizullah was armed with SBBL gun, co-accused Yar Muhammad, Ameer and Pasand were armed with hatchets. By raising hakal appellant disclosed that he will commit the murder of Ashraf and saying so he fired at Ashraf which hit him on his chest. They raised cries and the appellant further threatens that who will come near will be murdered. They remained silent and in the meantime appellant again fired at Ashraf which hit him on the side of his neck. Iqbal grappled with appellant. Accused Yar Muhammad, Pasand and Ameer got released the appellant from the grapple of Iqbal and in the meantime the appellant also fired at Iqbal which missed.
22. ' The P.W.3 Iqbal in his evidence has deposed that it was 3-00 p.m. When they reached near the village Haro Khan, they saw accused Azizullah, his son Ameer, Yar Muhammad and Pasand appeared from western side. Out of them Azizullah was armed with gun while others were armed with hatchets. On their arrival near them accused Azizullah fired from his gun at Ashraf who on receiving fire shot injury fell down on the ground. In the meantime he grappled with the accused Azizullah but the remaining accused got free and he started running and accused Azizullah fired at him which missed. Accused Ameer instigated his father Azizullah that Ashraf is still alive and not to spare him, hence accused Azizullah fired at his side of neck. Thereafter, all the accused by raising slogans went away.
23. ' In the above evidence, it has come on record that on 21-9-2003 at 3-00 p.m., the complainant found Ashraf died due to fire-arm injuries, the M.O. Who conducted the post-mortem on the person of deceased Ashraf has deposed that he received the dead body of deceased at 7-05 p.m.
24. According to M.O. The probable duration of death and post-mortem was within 10 hours. If the period of 10 hours is excluding then incident would have been taken place at 9-00 a.m. This belied the entire story set out by the prosecution witnesses that incident had taken, place on 21-9-2003 at 3-00 p.m. And if the period shown by Medical Officer as 7-05 p.m. Is excluded from the time of incident shown by the complainant, then the incident would have been taken place on 21-9-2003 at 5-00 a.m. In the morning.
25. ' It is the case of prosecution that the place of incident was shown to Investigating Officer by the complainant on 21-9-2003. From the said place of incident only one empty of .12 bore of green colour was said to have been recovered by police and the same was sealed at spot. The number of injuries shown by Medical Officer in his post-mortem report belied the entire story of the prosecution because the multiple injuries which damaged the external parts of the body of the deceased cannot be caused with one fire i.e, cartridge.
26. ' The statements under section 161, Cr.P.C. Of the witnesses were recorded with sufficient delay and that has not been properly explained by the prosecution A which too shows that the witnesses had not seen the incident and the story has been concocted in order to implicate the appellant. The witnesses were not in unanimous about the distance, they were away or near to the deceased. The witnesses were also not unanimous on the point of fire made by accused Azizullah, P.W. Iqbal so also the deceased. This is not the case of prosecution that appellant Azizullah fired thrice on the person of Ashraf. No where in the statement, Iqbal has deposed that Ameer instigated accused Azizullah to commit the murder of Ashraf.
27. ' The P.W. Ghulam Hyder in his evidence has deposed that they had taken the dead body of deceased at 3-45 p.m. To police post Haro Khan, whereas the Medical Officer belied the evidence of this witness who has given the time of arrival of deceased at 7-05 p.m. On 21-9-2003. This witness has further made false statement while deposing in his evidence that they reached at hospital at about 8-00 p.m. P.W. Iqbal in his evidence has deposed that Ashraf was fired from the distance of 30 feet. He deposed that he had informed the police that accused Ameer instigated accused Azizullah to make second fire upon Ashraf as Ashraf was still alive. He has admitted to have stated in his statement under section 161, Cr.P.C. That he had hidden himself in "Juwar" crop however the same was not transpired in his statement under section 161, Cr.P.C.
28. ' The incident is stated to have taken place on 21-9-2003 at 3-00 p.m. And the matter was reported to police on the same day at 3-30 p.m. At police post Haro Khan whereas the F.I.R. Was incorporated at 5-30 p.m. It has come in the evidence of P.W. Ghulam Hyder that police had reached at the place of incident at about 3-30 p.m. After about half an hour of the incident and he was examined by police of police post Haro Khan after about 15 days of the incident. It has further come in evidence of said witness that they had taken the dead body of the deceased at 3-45 p.m.
29. To the police post Haro Khan. This witness has deposed that he was examined on the very same day, contradicting the earlier version that he was examined after 15 days of the incident. P.W. Iqbal has deposed that police reached at the spot at 3-30 p.m. Police remained at the place of incident for about 15 minutes. This shows that entire investigation was completed before the registration of F.I.R. And this practice has B been deprecated and not relied upon by the honourable apex Court in number of judgments.
30. ' So far the motive of the incident is concerned, it has come in evidence that father of P.W. Iqbal was involved in murder case of two brothers, mother and aunt of appellant Azizullah so also causing serious injuries to his sister and such F.I.R. Was lodged against the father of Iqbal.
31. ' It has also come in evidence that Iqbal was annoyed with the deceased Ashraf because Ashraf had refused to give the hand of his daughter to Iqbal and it has also come in evidence that Iqbal has committed the murder of Ashraf because of the above annoyance and subsequently in collusion with the complainant and witnesses who are related inter se implicated the accused party in the case in hand.
32. ' It is the case of prosecution that co-accused Ameer, Pasand and Yar Muhammad were present at the time of incident and have actually participated in the commission of offence and not only this but they also instigated the appellant Azizullah who has committed the murder of deceased Ashraf. The learned trial Court had, therefore, committed serious illegality while not extending the same treatment to the present appellant on the basis of same evidence brought on record. The appellant in his statement under section 342, Cr.P.C. Denied the prosecution allegations and has deposed that:-- "I am innocent. Prior to the instant case, complainant party had' committed murder of my two brothers, mother and aunt and also caused serious injuries to my sister and such case was registered by my father bearing Cr.No,14 of 1992 of P.S. Pat Gul Muhammad. I produce P.S. Copy of F.I.R. As Exh.24-A. When the incident took place I was residing at Balochistan. As soon as I came to know that complainant party has implicated me in this case, I voluntarily surrendered myself before this Court. Sir, I pray for justice."
33. ' It is well settled law that the case of prosecution is to be considered along with the statement of accused under section 342, Cr.P.C. And if any slightest D doubt creates in the case of prosecution, then the statement of accused under section 342, Cr.P.C. Is to be believed and the accused may be acquitted. In this case, there appears improvements, delay in recording of 161, Cr.P.C. Statements, contradictions, defective investigation, enmity, the injuries not tally with the fires made by the appellant Azizullah and benefit on the basis of same evidence given to co-accused. All this suggests that the prosecution has miserably failed to establish the charge against the appellant.
34. The judgments relied upon by the learned counsel for the appellant are very much applicable in the case in hand. It is also well settled law that the evidence of interested, related inter se witnesses must be corroborated by the independent quarters. It has come in evidence that number of houses surrounded where the incident said to have had taken place but no single independent witness has been examined. The conduct of witnesses shows that they are not trustworthy and their evidence was not credible to be relied upon for passing the conviction against the appellant.
35. ' In view of the above discussion, we are of the opinion that the prosecution has not been able to prove the case against the appellant as there were contradictions in the depositions of the complainant as well P.Ws and time of occurrence, which are material and it would render the evidence unworthy or incredence.
36. ' Above are the reasons of our short order dated 28-4-2009 thereby we had allowed the appeal, set aside the conviction and sentence awarded to the appellant and acquitted him from the case so also answered the reference for confirmation in negative.