' IMAM BUX BALOCH, J---By this common judgment we intend to dispose of Criminal Appeal No,D- 73 of 2005 and Criminal Acquittal. Appeal No,D-21 of 2005 as both arise out of one and same judgment.
2. The appellant has assailed judgment dated 29-7-2005 passed by learned 1st Additional Sessions Judge, Larkana whereby the appellant was convicted under section 302 (b), P.P.C. To suffer imprisonment for life with fine of Rs.50,000. In default of payment of fine he was directed to undergo SI for one year more. It was also directed by the learned trial Court that if the fine is recovered the same shall be paid to the legal heirs of deceased Mazhar Ali.
3. The prosecution case is that on 17-5-1999 at 1520 hours complainant Rajab Ali lodged F.I.R stating therein that one year back there was an exchange of harsh words between his brother Mazhar Ali and Ali Nawaz Sanghroo over rotation of water. This fact annoyed Ali Nawaz Sanghroo. Before the incident his brother Mazhar Ali started a juice shop at Tank Chowk. On the day of incident complainant alone with his relatives Hafiz Ali Hassan and Muhammad Sadiq came at Larkana in connection with some work. After finishing work they went to the shop of Mazhar Ali at Tank Chowk, Dari Mohalla, Larkana. The complainant along with witnesses were sitting at the shop when at about 2-00 p.m. They saw that Ali Nawaz Sanghroo, Muhammad Rauf alias Yousuf and Issa, all three armed with pistols and Qurban Ali was empty-handed. They came at the shop of Mazhar Ali.
Ali Nawaz Sanghroo challenged Mazhar Ali, brother of the complainant, that he exchanged harsh words with him over water rotation hence he will not be spared. Accused Qurban Ali instigated other accused to kill Mazhar Ali. On such instigation of Qurban Ali, accused Ali Nawaz Sanghroo fired from his pistol directly on Mazhar Ali which hit him and he fell down. The complainant along with the witnesses raised cries of murder, murder and on hearing fire shots people of the area came running and challenged the accused, then the accused fled away from the scene of wardat.
The complainant further stated that he took his injured brother for Chandka Medical College Hospital, Larkana where his brother Mazhar Ali succumbed to injuries on the way. Such F.I.R. Was lodged by the complainant at Police Station, Dari.
4. After usual investigation, challan was submitted against four accused and charge was framed.
During trial prosecution has examined Rajab Ali as P.W.7 at Exh.7, he has produced F.I.R. As Ex.7-A.
Hafiz Ali Hassan as P.W.2 at Exh.
8. Muhammad Sadiq as P.W.3 at Exh.9, Ghulam Ali as P.W.4 at Exh.10, he has produced mashirnama of place of wardat at Exh.10-A, mashirnama of dead body at Exh.10-B, inquest report as Exh.10-C.
Doctor Badaruddin as P.W.5 at Exh.12, he has produced postmortem report of deceased Mazhar Ali as Exh.12. Allah Bux as P.W.6 at Fxh.16, he has produced mashirnama of arrest and personal search of Ali Nawaz Sanghroo and Muhammad Essa as Exh.16-A. Tapedar Rustam All as P.W.7 at Exh.18; he has produced sketch at Exh.18-A. SIP Abdul Jabbar as P.W.8 at Exh.19, he has produced mashirnama of arrest and recovery of pistol from accused Ali Nawaz at Exh. 19-A. Ballistic Expert report at Exh.19- B, Chemical Examiner's Report at Exh. 19-C. Imtiaz Ali as P.W.9 at Exh.
21.
5. After completion of trial the statement of the accused were recorded under section 342, Cr.P.C.
After hearing the respective parties, impugned judgment was passed by the learned trial Court acquitting co-accused and convicted and sentenced appellant Ali Nawaz Sanghroo as stated above.
6. We have heard Mr. Asif Ali Abdul Razak Soomro, learned counsel for the appellant Ali Nawaz Sanghroo, Mr. Ali Nawaz Ghanghro, learned counsel for respondent/complainant Rajab Ali and Miss Ruhina Dhamrah for the State.
7. Mr. Asif Ali Abdul Razak Soomro, learned counsel for the appellant Ali Nawaz Sanghroo contended that there is enmity between the parties which is admitted by the complainant in the F.I.R. The witnesses are chance and partisan. He further argued that place of wardat is situated in thickly populated area in Dari Mohalla, Larkana but no independent witness had been examined during investigation. That there are shops, hotels and residential houses situated near place of wardat. He further argued that in the F.I.R. It is mentioned that the appellant fired from pistol but during investigation a country made pistol of .12 bore was recovered. He further argued that ocular evidence is consisting upon inimical, related and hostile witnesses and according to the prosecution they are chance and partisan witnesses. He further argued that the circumstantial evidence is unbelievable as the place of recovery of country made pistol was accessible to the public. He further argued that the country made pistol was sent for Ballistic Expert opinion on 24-8- 1999 whereas the recovery was effected according to prosecution evidence on 6-6-1999 with a delay of two months and no plausible explanation was offered by the prosecution. He further argued that the ocular evidence is in conflict with the medical evidence as much as the medical evidence shows that five pallets were recovered from the dead body of deceased Mazhar Ali. In those circumstances learned counsel argued that the prosecution has failed to establish its case beyond any shadow of doubt against the appellant and the defence has succeeded to create doubt in the prosecution case. Learned counsel for the appellant argued that the statements under section 161, Cr.P.C. Of the witnesses were recorded after delay of 12 days of the incident though according to prosecution they were present at the place of wardat so also at Hospital. Mr. Soomro has relied upon following case law:--
(1) Rahat Ali v. The State 2010 SCM R 584.
(2) Syed Muhammad Shah v. The State 1993 SCM R 550.
(3) Imran Ashraf and 7 others v. The State SCMR 424.
(4) Iftikhar Hussain v. The State 2004 SCM R 1185.
(5) Rashir Ahmed alias Mannu v. The State 1996 SCM R 308.
(6) Muhammad Khan and another v. State 1999 SCM R 1220.
8. On the other hand, Mr. Ali Nawaz Ghanghro, learned counsel for appellant/complainant at the very outset contended that he does not press Criminal Acquittal Appeal No, D-21 of 2005 and will argue the appeal against appellant Ali Nawaz Sanghroo. Accordingly Criminal Acquittal Appeal No,D-21 of 2005 is dismissed as not pressed.
9. Mr. Ali Nawaz Ghanghro, learned counsel for the complainant contended that the ocular evidence is in consistent with medical evidence and ocular evidence is trustworthy and inspires confidence. No material contradictions and discrepancies are available in the evidence of the witnesses. They are constant and unanimous on each and every aspect of the case. He further argued that the circumstantial evidence is available in shape of pistol at the pointation of appellant. In the last learned counsel argued that the prosecution has established guilt against appellant beyond any shadow of doubt and the learned trial Court rightly convicted and sentenced the appellant. In the circumstances he strongly supported the impugned judgment.
Miss Rubina Dhamrah learned State counsel supported the contentions of Mr. Ghanghro and adopted the same arguments.
10. We with the assistance of learned counsel for the respective parties have scanned the entire evidence. Complainant Rajab Ali stated that in his evidence on the day of incident he along with Haji Ali Hassan and Muhammad Sadiq were sitting at the shop of deceased Mazhar Ali at Tank Chowk when at about 2-00 p.m. All the accused came and accused Ali Nawaz Sanghroo was armed with pistol, Qurhan All was empty handed, Yousif and Ishaque armed with pistols suddenly emerged and accused Ali Nawaz Sanghroo challenged his brother Mazhar Ali as he has quarrelled with him on water rotation he will not be spared. On the instigation of accused Qurban Ali, accused All Nawaz Sanghroo fired from pistol at his brother Mazhar Ali who received injury and fell down on the ground. They raised cries of murder, murder, people of the area collected, accused seeing them ran away. In cross-examination he admitted that co-accused were let off by police during investigation. He also .Admitted that place of incident is situated in Avesi Mohalla. He further stated that he did not know the names of shop-keepers having thei- shops near the shop of deceased Mazhar Ali. He admitted that the shop-Keepers whose shops were situated near the place of incident were not cited as witnesses in the case. He admitted that the witness Hafiz Ali Hassan and Muhammad Sadiq are his caste fellows as well as his co-villagers. He further admitted that P.W.
Hafiz Ali Hassan is his maternal uncle and is a primary teacher. He also admitted that mashir Allah Bux is his maternal uncle whereas P.W. Muhammad Sadiq is Hari by profession. He also admitted that mashir Ghulam Ali has his own kiryana shop in his village. He admitted that he along with Hafiz Ali Hassan, Muhammad Sadiq, mashir Allah Bux and Ghulam Ali went together to Jelus Bazzar. He further admitted that he has not mentioned in the F.I.R. That accused party had encircled his deceased brother Mazhar Ali. He admitted that his brother Abdul Haque came after making consultation with him. They went to Police Station and lodged F.I.R. He also admitted that his brother Abdul Haque was serving as police constable at the time of incident and was posted at Market Police Station, Larkana. He admitted that Market Police Station and Dari Police Stations are situated in Larkana City.
11. P.W. Hafiz Ali Hassan stated that on the day of incident at 2-00 p.m. He was present along with complainant and P.W. Muhammad Sadiq at the juice shop of deceased Mazhar Ali at Tank Chowk Larkana. Ten minutes before the incident deceased Mazhar Ali told them that he is going to make water and after passing urine he was coming and was at a distance of ten feet away from them where all the accused namely Ali Nawaz Sanghroo armed with Pistol, Qurban Ali empty-handed, Muhammad Yousuf armed with Pistol and he did not know the 4th accused whereupon accused Ali Nawaz Sanghroo challenged Mazhar Ali by saying that he has exchanged harsh words on water rotation, he will not be spared and on the instigation of Qurban Ali accused Ali Nawaz Sanghroo fired upon deceased Mazhar Ali who fell down on the ground. On the cries of murder, murder, pe:ple of the area came, seeing the people of the area all the accused fled away from the place of incident. He further stated that they took injured in Rickshaw while on the way deceased succumbed to injuries. In the cross-examination he admitted that the deceased Mazhar Ali was his nephew and voluntarily says that he was also his cousin. He admitted that mashir Allah Bux is his brother and P.W. Muhammad Sadiq is his cousin. He admitted that witness Muhammad Sadiq is also brother-in-law of complainant (sister's husband). He admitted that his statement under section 161, Cr.P.C. Was recorded on 29-5-1999 after 12 days of the incident. He further stated that deceased was about 15/20 feet away from them and the accused were about 20/25 feet away from them. He admitted that the accused fired upon deceased from a distance of 20/25 feet. P.W Muhammad Sadiq narrated the same facts as stated by complainant Rajab Ali and P.W. Hafiz Ali Hassan. In cross-examination he admitted that all the witnesses and mashirs are residing in one village Gughar. He also admitted that they have no business in Larkana city. He admitted that he along with complainant and P.W. Hafiz Ali Hassan came by chance at the place of incident. He admitted that there was enmity between accused and complainant party over the water rotation.
He admitted that deceased and complainant are his relatives. He also admitted that he and complainant are brother-in-law to each other, also deceased Mazhar Ali. He admitted that on the day of incident they went to Shahi Bazar only and not to any other Bazar in the Larkana city. He admitted that he along with complainant Hafiz Ali Hassan had not gone to Jelus Bazar for purchasing articles. He also admitted that his statement under section 161, Cr.P.0 was recorded on 29-5-1999. He admitted that the complainant's brother Abdul Haque who is serving in police department was accompanied with the complainant at Police Station for lodgment of F.I.R. He admitted that complainant after consultation with his brother Abdul Haque, lodged the F.I.R. Mashir Ghulam Ali stated that he was made mashir of place of incident, inquest report and of dead body of deceased Mazhar Ali. He admitted that place of incident was situated at Tank Chowk in Larkana city. He admitted that at the place of incident hotels, shops and residential houses are situated.
12 P.W. Dr. Badaruddin conducted autopsy at the body of deceased Mazhar Ali and he found one lacerated punctured wound entry 3 cm x diameter charring positive on right side back of lower chest. He admitted in cross-examination that he has recovered five pellets from the dead body of deceased Mazhar Ali. He admitted that probable time between injury and death was instantaneous and between death and postmortem was about 0215 hours.
13. Mashir Allah Bux stated that accused Ali Nawaz Sanghroo and Essa were arrested in his presence on 28-5-1999 and their personal search was conducted but nothing was recovered from their personal search. He admitted that he and P.W. Hafiz Ali Hassan are real brothers. He denied that deceased Mazhar Ali was their nephew but stated that deceased was their was caste fellow.
He denied that Hafiz Ali Hassan is his brother. He admitted that his father's name is Khuda Bux so also father's name of Haji Ali Hassan is Khuda Bux. He admitted that he has a kiryana shop in his village Gughar. He admitted that his mother's name is Mst. Gujhar so also mother's name of Hafiz Ali Hassan is Mst. Gujhar. He admitted that he had signed one paper at Police Station which was written. He further admitted that he had signed one mashirnama that his own hand. He further admitted that at police station he had signed three mashirnamas. He further admitted that he had signed all the mashirnamas on one and same day.
14. Tapedar Rustam Ali was examined. He stated that place of incident is situated in thickly populated area surrounded by shops, houses and the complainant has not pointed out the sugar cane crushing machine for preparing juice, therefore, he has pointed out the same in sketch prepared by him.
15. SIP Abdul Jabhar stated that on 17-5-1999 he was posted as Additional SHO at Police Station, Dari. On that day, complainant Rajab Ali came and his report was incorporated in 154, Cr.P.C. Book.
He then went to place of incident and prepared mashirnama of injury and inquest report of dead body. He took blood-stained earth and one empty cartridge of .12 bore from the place of incident.
He further stated that on 18-5-1999 he arrested accused Ali Nawaz Sanghroo and Muhammad Issa and after interrogation accused Ali Nawaz volunteered to produce .12 bore country made pistol which was secured by him in presence of mashirs PC Imtiaz Ali and PC Ghulam Sarwar. He admitted that he released accused Qurhan Ali and Yousuf under section 497, Cr.P.C. After completing investigation, he handed over police papers to SHO. He also produced reports of Chemical and Ballistic Expert. In cross-examination he admitted that he has investigated entire case and submitted challan. He admitted that the mashirs are relatives of the complainant Rajab Ali. He also admitted that brother of complainant namely, Abdul Haque is serving in police department. He denied that in order to please his police personnel he has implicated the accused.
He further admitted that he sent the pistol and empty cartridge on 24-8-1999 for Expert Report. He has not explained the delay for sending the pistol and empty cartridge for Expert Report. PC Imtiaz Ali stated on 6-6-1999 he along with PC Ghulam Sarwar and A.S.-I. Abdul Jabbar Abro went along with accused and the accused took out a country made pistol which was concealed in slaughter house. He admitted that the place of recovery is between Filter Plant and Police Station, Dari.
Several shops and petrol pumps are situated and so many persons were found there but the A.S.-I.
Did not ask any private persons to act as mashir. He further stated that he did not know whether brother of deceased was employed in police department. He admitted that the place of recovery of pistol was not in exclusive possession of the accused and was accessible to everyone.
16. We have considered the submissions advanced at the bar. We found that the alleged place of incident is situated at Tank Chowk, Dari Mohalla, Larkana city. The shops and hotels and residential houses are situated but no independent witness was cited by the prosecution. The witnesses have admitted that they are chance and related witnesses. The enmity between the appellant and complainant party is admitted by complainant and witnesses. We have found material contradictions and discrepancies in the evidence of the witnesses. Complainant and P.Ws Hafiz Ali Hassan and Muhammad Sadiq admitted that they related to each other. P.W. Hafiz Ali Hassan admitted that P.W Allah Bux (mashir) is his brother whereas mashir Allah Bux denied but admitted that father and mother's names of P.W Ali Hassan are same. Complainant stated that the incident had taken place in the juice shop of deceased Mazhar All whereas P.W. Hafiz Ali Hassan stated that deceased went for making water and after passing urine he was coming and was at a distance of 10 feet from them when the accused committed murder of deceased Mazhar Ali and P.W.
Muhammad Sadiq stated that deceased was 20/25 feet away when the incident took place and the accused were also at a distance of about 20/25 feet from them but the postmortem report shows charring upon injury No,1 which creates doubt that the said injury has been caused within space of 4/5 feet. In these circumstances ocular evidence is belied by medical evidence. It is settled proposition of law that the evidence in an offence of capital punishment shall come from an unimpeachable source whereas in the instant case the same is lacking. In the case of Muhammad Khan (Supra) the honourable Supreme Court held as under:-- "15. It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective. It is unfortunate that neither the trial Court nor the High Court thoroughly studied the record so as to reach correct conclusion, rather they dealt with the matter in a very cursory manner which naturally resulted in miscarriage of justice. As noted above, the eye-witness account in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it. The alleged abscondance of the appellants has not been proved as according to P.W.9 who was entrusted with the execution of warrant of arrest; the warrant of arrest, issued against the appellants was not before him when he was examined in Court. Similarly, the Investigating Officer also stated, "It is correct that the warrant of arrest of Muhammad Khan and Safdar accused are not on the. File". In any case abscondance can never remedy the defects in the prosecution case as it is not necessarily indicative of guilt. More-over, abscondance is never sufficient by itself to prove the guilt. Therefore, we allow this appeal by giving benefit of doubt to the appellants and, accordingly, while setting aside the impugned judgments acquit the appellants."
' In the case of Bashir Ahmed alias Mannu (Supra) the honourable Supreme Court held as under:-- "The testimony of Shah Ramzan, Mst. Zainab Bibi and Ch. Abdul Majid P.Ws. Was not considered to be safe enough to register conviction against the acquitted accused almost under similar circumstances and as such, they could not be held to be trustworthy to convict the appellant solely on their evidence. Their credibility is not divisible. In other words, it could not be held to be good for the appellant to convict him and had qua his co-accused in the same breath. This principle of appreciation of evidence almost in identical state of affairs .Was upheld by this Court in Muhammad etc. v. The Crown (PLD 1954 FC 84), Muhammad Faiz v. The Queen (PLD 1959 PC 24), Ata Muhammad v. The State (1995 SCM R 599) and Naik Muhammad v. The State (Cr.A 273/93). It may also be seen that the medical evidence had wholly negated the ocular account on the face of it. The medical evidence demonstrated that the injuries which were found on the deceased could he caused by a heavy weapon like hatchet or Toka. The deceased was overpowered by Abdul Ghafoor while the appellant slaughtered him with his Chhuri. The cervical spine of the deceased was completely cut. The Expert evidence would thus suggest that the weapon used in the commission of crime might be hatchet or Toka and certainly not the Chhuri as stated by the eye- witnesses. This view would find support from the rule laid down in Muhammad lqbal v. Abid Hussain (1994 SCM R 1928) and Abdul Subhan v: Raheem Bakhsh and another (PLD 1994 SC 178). On the strength of medical evidence read with the testimony of eye-witness, it would not be difficult to come to the conclusion that the assailant/assailants was/were armed with a hatchet or Toka with which he/they committed the murder when none was present to see it during the dark night. The view which is favourable to the accused can thus certainly be formed by appreciating the prosecution evidence in its proper perspective. This view to give benefit of doubt to the appellant is, therefore, accepted in the safe administration of criminal justice."
' In the case of Rahat Ali (Supra) the honourable Supreme Court held as under:- "9. The story narrated by P.W.2 that after the abduction he went to sleep in the house also does not seem to be true because in such a situation he could not have gone to sleep when his parents were abducted. His natural and immediate conduct would have been to go to his uncle or to his mother who was first wife of deceased to inform her about the incident. Thus, there is inordinate delay of a silence of P.W.2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of witnesses as held in the cases of Muhammad Sadia v. State PLD 1960 SC 223, Sahib Gul v. Ziarat Gul 1976 SCM R 236 and Muhammad Iqbal v. State 1984 SCM R 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCM R 550. Therefore, the evidence of P.W.2 is coming within the scope of above rules laid down by this Court. Hence, his statement cannot be safely relied upon in the peculiar facts and circumstances of the present case."
17. After considering the law laid down by the superior Courts of this country it is clear that the prosecution is duty bound to prove its case beyond reasonable doubt and the defence is not liable to prove its innocence. We have also observed that the statements under section 161, Cr.P.0 of P. Ws Hafiz Ali Hassan and Muhammad Sadiq were recorded after a delay of 12 days and the prosecution has miserably failed to explain the delay for not recording the statements of witnesses within time.
We also observe that circumstantial evidence is not trustworthy. We also observe that the ocular evidence is pregnant with doubts and it is settled proposition of law that only one circumstance is creating doubt in a prudent mind then the benefit of doubt is to be given to the appellant not as a grace but as a right as held in the case of Tariq Pervez v. The State, 1995 SCM R 1345. We have carefully appraised evaluated the prosecution case with care and caution. There is inconsistency in between medical evidence and ocular evidence. The ocular evidence is related, hostile and inimical. In such a situation we are of the considered view that the prosecution has miserably failed to establish guilt against the appellant beyond any shadow of doubt, therefore, by giving benefit of doubt we allow this appeal, acquit the appellant from the charge. We direct that the appellant shall be released forthwith if not required in any other case.