1. ' MAQBOOL AHMED AWAN, J..-- The appeal is directed against the judgment passed by the learned IInd Additional Sessions Judge, Thatta, whereby the appellant was found guilty and was convicted under section 302, P.P.C. And sentenced to imprisonment for life as Tazir and also directed to pay Rs,100,000 as compensation to the legal heirs under section 544-A, Cr.P.C.
2. ' The brief facts of the case as disclosed in the F.I.R. Are that one Rasool Bux lodged the F.I.R. At Police Station Mirpur Bathoro being Crime No,32 of 1999 at about 12-20 pm., stating therein that he is mechanic by profession and on 10-9-1999 he had come to his brother Ghulam Qadir who disclosed to him that about 3 months ago Noor Ali and deceased Mahboob Ali were arrested by Bathoro Police in the case of car theft at the instance of Haji Khadim Khawaja in which Noor Ali was released on bail while Mahboob Ali is still in custody. He has come to know that Haji Khadim wants to get said Mehboob Ali killed. Said Ghulam Qadir also disclosed that he has gone to see Mahboob Ali in Jail who disclosed that he has been detained illegally and said Khawaja wants to get him killed through PC Sajid Ali Shah, the accused and tomorrow he may get bail but night is very heavy upon him. In morning the complainant came to know that said Mahboob Ali has been murdered.
3. ' The charge was framed, to which the accused pleaded not guilty and claimed to be tried.
4. ' The prosecution in support of their case examined the P.W.1 Dr. Ghulam Mustafa Soho, P.W.2 HC Abdul Wahid, P.W.3 Muhammad Ali, P.W.4 complainant Rasool Bux, P.W.5, P.C. Muhammad Juman, P.W.6 Tapedar Rasool Bux, P.W.7 S.I.P./S.H.O. Baharuddin Kerio.
5. ' The Public Prosecutor closed the prosecution side.
6. ' The accused under section 342, Ct.P:C. Was examined. To question No,5 "Have you to say anything else?" the accused replied that he is innocent. On 10-6-1999, his duty at Sub-Jail Mirpur Bathoro ended at 6-00 p.m. Thereafter he deposited the duty rifle at Malkhana of Sub-Jail and went to his house in village Ali Mir Shah, where he resides with his family including his wife, son, father and brother Akram Shah. His village is situated at the distance of 11 Kms. From Sub-Jail Mirpur Bathoro.
7. He came at Police Station Bathoro at 12-00 noon on 11-6-1999 when he came to know that detenu Mehboob Ali Luhar was killed. Thereafter S.H.O. Baharuddin Kerio arrested him and involved him in this false case as an escape-goat as complainant Rasool Bux Luhar had made allegation of murdering his nephew Mehboob Ali Luhar and some private persons and other police officials.
8. Complainant has lodged another F.I.R. For the same offence being Crime No,62 of 2000 Police Station Mirpur Bathoro, which was lodged under the order of Honourable High Court of Sindh, Karachi. The complainant has also lodged the Direct complaint for the same offence in the trial Court being Direct Complaint No,7 of 2000 and in the above mentioned F.I.R. And direct complaint, complainant has made accused S.H.O. Baharuddin Kerio and other officials and private persons for the same offence. He did not examine himself on oath in terms of section 340(2), Cr.P.C. And produced the Photostat copies of F.I.R. And direct complaint filed by the complainant Rasool Bux.
9. He also examined D.W. Akram Shah in his defence.
10. ' The learned counsel for appellant, contended that the impugned judgment passed by the learned trial Court, from very face of it appears to be illegal and contrary to the principles laid down by the apex Courts, while passing the judgment, the learned trial Court relied upon the evidence of police officials, who were instrumental to save the real accused and involved the applicant in the commission of offence; that learned trial Court has not taken judicial notice of non-examination of P. Ws. Nooral and Ghulam Qadir by the prosecution, whose evidence was very much material to substantiate the version of complainant; he relied upon the case of Akhtar Ali and others v. The State reported in 2008 SCM R 6, the case of Muhammad Khan and another v. The State reported in 1999 SCM R 1220, the case of Manzoor Hussain v. Nadeem Bila and 3 others reported in 2003 SCM R 459, the case of Iftikhar Hussain and others v. The State reported in 2004 SCM R 1185 and PLD 1994 SC 879.
11. ' Mr. Haji Abdul Majeed, the learned counsel for the State supported the judgment of trial Court and opposed appeal of appellant.
12. ' The prosecution in support of their case had examined eight witnesses to prove the charge against the appellant.
13. ' P.W. Dr. Ghulam Mustafa, Medical Officer, in his evidence he deposed that on 12-6-1999 he received the dead body of deceased Mehboob Ali son of Muhammad Usman Luhar for examination and postmortem. He deposed that the death of deceased was occurred due to cardio-pulmonary failure, resulting from profuse bleeding, due to injury No,1 caused by fire-arm like rifle. The injury is ante-mortem and sufficient to cause death of a healthy person in ordinary course of life. He in his evidence has admitted that he had conducted post-mortem on 11-6-1999 and prepared post-mortem report on 12-6-1999, the death of deceased is not disputed.
14. ' P.W.-Complainant Rasool Bux, in his evidence, has deposed that on 10-6-1999 his brother Ghulam Qadir disclosed him that Noor Ali and Mehboob Ali have been arrested by police in theft case of car of Haji Khadim Khuwaja. On the same date, he had gone to police lock-up to meet said Mehboob Ali. On the following date at morning he heard that said Sajid Ali, police constable, murdered his nephew Mehboob Ali in the lock-up and thereafter he lodged the F.I.R. Against accused Haji Khadim and P.C. Sajid Ali Shah. He admitted in his evidence that he had filed constitutional petition against S.H.O. Police Station Mirpur Bathoro and S.S.P., Thatta on 29-11-2000 and on 11-12-2000 his fresh F.I.R.
15. Was registered by Mirpur Bathoro police being Crime No,62 of 2000. He further admitted that in the said F.I.R. He had stated that accused Iqbal Khuwaja, Aijaz Khuwaja, Khadim Hussain Khuwaja, S.H.O.
16. Police Station Sujaw..: Juma Khan, S.H.O. Police Station Bathoro Baharuddin Kerio, A.S.P. Khadim Hussain Rind, P.C. Manzoor Chandio, P.C. Ghulam Samoo and P.C. Sajid Ali Shah killed the deceased.
17. He further admitted that the investigation team was constituted headed by S.P. Badin, D.S.P. And S.H.O. Pangiro District Badin. He admitted that he being not satisfied with the investigation, filed direct complaint. He admitted that descriptions of F.I.R. Crime No,32 of 1999 were different to F.I.R.
18. Dated 11-12-2000 Crime No,62 of 2000 and so also direct complainant. He further admitted that his statement was also different to that of F.I.R. Lodged by him. He admitted that on 10-6-1999 and 11- 6-1999 he was residing in District Badin.
19. ' P.W. Abdul Wahid, he in his evidence has deposed that on 10-6-1999 at about 2-15 a.m. He heard firing of rifle, woke-up and found present accused having rifle in his hand and one round was fired from 10 rounds of rifle. He also found Mehboob Ali Luhar dead in the lock-up. He deposed that they arrested the accused person along with rifle and produced the same to S.H.O. Police Station Mirpur Bathoro Baharuddin Kerio. In his evidence he admitted that his statement under section 161, Cr.P.C.
20. Was recorded on 13-6-1999. He admitted the above fact has not been stated by him in his 161, Cr.P.C. Statement. He further admitted to have not seen the accused while making fire. He admitted that production of rifle by accused to S.H.O. Has also not been stated by him in his 161, Cr.P.C.
21. Statement.
22. ' P.W. Muhammad Ali P.C, he in his evidence deposed that he heard the firing of rifle and he along with constable Ali Akbar found deceased lying dead inside the lock-up. He deposed that, in his presence the S.H.O. Secured Rs,80 from the pocket of deceased, one empty bullet, the blood- stained Chadar, towel and sealed the abofe' articles. He prepared such Mashirnama in his presence and in presente'of P.C. Ali Akbar. He deposed that the S.H.O. Has also prepared Danistanama on the person of deceased. He admitted that the clothes of deceased are not available in the Court, Rs,80 were also not available in the Courtalong with the case property produced by police, the bullet was also not available in the Court as property. He admitted to have stated in his statement before the S.H.O. Took the accused in his custody at lock-up and kept him at Police Station Mirpur Bathoro, but the same fact has not been mentioned in the Mashirnama of arrest of accused prepared by S.H.O. He admitted that the fact that he along with P.C. Ali Akbar proceeded towards Judicial lock-up on firing has not been mentioned in Mashirnama of place of incident nor it has been mentioned that firing was attracted by them from the side of Judicial lock- up. He admitted that he had not seen that accused committed the murder of Mehboob nor the co- Mashir Ali Akbar and S.H.O. Baharuddin Kerio had seen the incident. He admitted that it is not mentioned in the Mashimama that the rifle was produced by incharge lock-up Abdul Wahid.
23. ' P.W.-Muhammad Juman, he in his evidence has admitted to have not seen the murder of deceased by accused, he had not seen with his own eyes that who had fired upon the deceased.
24. He denied to have knowledge about the F.I.R. Lodged by the complainant on the directions of the High Court, in which he had implicated him and other police officers for the murder of deceased Mehboob Ali. He admitted that present accused P.C. Sajid. Ali Shah was not deputed on duty on police lock-up. He admitted that S.H.O. Was not in good terms with P.C. Sajid Ali Shah. He denied that the present case has been foisted by S.H.O. Baharuddin Kerio against accused in order to save himself from the clutches of law.
25. ' P.W. Rasool Bux, the Tapedar, he on the pointation of P.W. P.C. Muhammad Jaman prepared the sketch of Vardat. In his evidence he deposed that it is a fact that on the day of visiting the place of Vardat, neither the said lock-up was used for keeping the accused persons nor any accused was kept there and not any police guard was deputed there. It is fact that on western side of place of Vardat there is a Jungle at the distance of 300 feet. It is a fact that point No,"A" is a lock-up which is abandoned in condition and its walls are broken/ruined in position.
26. ' P.W. Baharuddin, the S.H.O., the Investigating Officer. He deposed that it is fact that complainant Rasool Bux has lodged the other F.I.R. Being Crime No,62 of 2000 under section 302, P.P.C. For the same incident, in which he has been cited accused, during investigation, said F.I.R. Was disposed of Under "B" Class. He clods not remember if said complainant Rasool Bux had filed the direct complaint of the same incident in the Court, in which he was made accused and the same was lying in Court. It is a fact that in F.I.R. No,62 .Of 2000 under section 102, P.P.C., the then S.P. Waliullah Dal, D.S.P. Khadim Hussain Rind of Sujawal were also co-accused of the incident. He does not remember if complainant Rasool Bux has alleged in the F.I.R. No,62 of 2000 that on his instigation at Police Station Bathoro, P.C. Manzoor Chandio and P.C. Ghulam Samo were beaten and tortured to Mehboob Luhar. It is fact that it was alleged in the said F.I.R. That police of Police Station Bathoro has falsely registered the F.I.R. No,32 of 1999 against the present accused P.C. Sajid Ali Shah by saving the actual accused persons of the commission of crime. It is fact that he had recorded the statement of P.Ws. P.C. Abdul Wahid and P.C. Muhammad Juman under section 161, Cr.P.C. On 13-6- 1999. It is fact that in Mashirnama of recovery it has not been written that LNK Abdul Wahid has stated that he has taken the rifle from the possession of accused P.C. Sajid Ali Shah. He denied the suggestion that whole investigation is false, he managed art manipulated on the basis of untrue F.I.R. And so also false F.I.R. In order to save themselves viz. Himself, the then S.P. Thatta Waliullah Dal and D.S.P.'Khadim Hussain Rind from the clutches of law by falsely implicating the accused as escape goat.
27. ' I have considered the submission made by the learned counsel for the parties and perused the record. It is an admitted fact that the complainant had not met with the deceased Mehboob Ali. But was informed the fact stated by him in the F.I.R. He also informed that Noor Ali with deceased was arrested by Bathoro Police. But both were material witnesses, have not been examined by the prosecution and withhold their evidence, even the record shows that the P.Ws. Had made improvements in their evidence and tried to implicate the present applicant. The P.Ws. Denied to implicate the appellant in order to save the real culprits. This fact was also denied by the P.W.
28. Baharuddin, who was named as accused by the complainant in earlier F.I.R., which was investigated by him and disposed of the same in "B" Class, statements of P.Ws. Involving the appellant in the case are obviously false and no reliance can be placed upon their evidence. From their evidence it appears that they made wilful and deliberate improvements in the evidence to save the real accused and implicate the innocent person. They are not trustworthy and their evidence is not inspiring confidence. They were examined with delay under section 161, Cr.P.C. By the Investigating Officer, and no such plausible explanation has been advanced by the Investigating Officer. This fact also shows that they are set up P.Ws. And therefore no reliance can be placed upon their evidence. In the similar circumstances, in the case of Akhtar Ali and others v.
29. The State (supra), it has been held:--- "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credebility becomes doubtfttl on the well known principle of Criminal Jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar.
30. 805."
31. From the record, it also appears that the learned trial Court while passing the judgment has not properly assessed, discussed and given the reasons in his judgment.. Therefore, in my humble view, the learned trial Court failed to apply his judicial mind that the prosecution has not been able to make out the case of conviction against the accused. In the similar circumstances, the Honourable Supreme Court in the case of Muhammad Khan and another v. The State, (supra) has held as under:- "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 cage 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 eyewitness account in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it."
32. For the foregoing reasons, the appeal of the appellant is L allowed, the conviction and sentence passed by the learned trial Court is set aside. The appellant shall be released forthwith, if not required in any other custody case.
33. ' The above are the reasons of my short order dated 9-6-2009.