' IMAM BUX BALOCH, J.---This appeal is directed against the judgment, dated 23-10-2009, passed by the learned Additional Sessions Judge, Kashmore in Sessions Case No,191 of 2001, arising out of Crime No, 136 of 2000 of Police Station Kashmore, falling under sections 302, 324, 114, 148, 149, P.P.C.
The appellants have been convicted by the learned trial Court to suffer R.I. For life under section 302(b), P.P.C. And to pay fine of Rs,50,000 each to the legal heirs of deceased Mehtab Hussain, in case of default in payment of fine the appellants shall suffer further S.I. For 6 months more.
2. Precisely, the facts of the prosecution case are that complainant Dur Muhammad Malik lodged his F.I.R. At Police Station Kashmore on 27-7-2000, at 1230 hours, that he School Teacher in primary section of WAPDA Public School, Guddu. Safdar Hussain and others are his caste fellows. Mehtab Hussain, aged about 19/20 years, is his son. It is further case of the prosecution that one person belonging to Safdar Hussain Malik was murdered and his son Mehtab Hussain was nominated as accused and the case was pending in the Court of Sessions, Kandhkot. A private faisla was also held by the complainant party with Safdar Hussain, but inspite of that Safdar Hussain and others used to say that they will take revenge of murder from them. On the day of incident i.e,, 27-7-2000, complainant along with his son Mehtab and his in-laws Abdul Rahman and Anwar Ali, both sons of Imam Bux Malik, had gone to Sessions Court. Kandhkot in connection with hearing of the case and after attending the Court while they were returning back to Kashmore, at about 12-00 noon they reached at Bus Stand Kashmore and were waiting for conveyance, in the meanwhile one Safdar Hussain son of Khabar, Khadim Hussain and Khalid Hussain, both sons of Safdar Hussain, r/o WAPDA Colony Guddu and Miro Khan alias Miran Bux son of Qabool Malik, resident of near Punhoon Khan Mazari, Taluka Kashmore and one unidentified culprit came there. It is further stated that Miro Khan alias Miran Bux and Khadim Hussain had country made pistol and unidentified accused had T.T. Pistol. Accused Safdar Hussain instigated co-accused to kill the complainant party and on the instigation of Safdar Hussain, unidentified accused fired from his T.T. Pistol at complainant party, which missed. Accused Miro Khan fired from his pistol directly upon Mehtab Hussain, which hit him and accused Khadim Hussain also fired from his pistol directly at Mehtab Hussain, which also hit him and he fell down raising cries. Complainant party challenged the accused, whereupon accused aimed their weapons upon them and asked them not to come near, else they would be murdered. The complainant party being empty handed did not go near accused due to fear.
Accused ran away from place of vardat. Complainant then went to Police Station Kashmore and lodged his F.I.R. As stated above.
3. During the course of investigation, five accused, namely, Safdar Hussain, Khadim Hussain, Khalid Hussain, Miran Bux and Abdul Ghaffar son of Qabool were arrested and judicial confession of accused Abdul Ghaffar was recorded by learned Magistrate, who admitted the commission of the crime. After completing the investigation challan was submitted and the case was entrusted to the Court of learned Additional Sessions Judge, Kashmore, who after holding trial announced the impugned judgment.
4. Learned counsel for the appellants mainly contended that accused Abdul Ghaffar has admitted commission of offence in his judicial confession. No motive is assigned to the appellants for commission of the offence. Learned counsel further contended that the medical evidence in conflict with the ocular evidence. Only one empty cartridge was recovered from the place of wardat. Investigation Officer S.I.P. Juma Khan was not examined and ocular evidence is related, interested, hostile and chance. An exculpatory judicial confession having no evidentiary value. He has relied upon the following case law in support of his contentions:--
(1) Ghulam Mustafa v. The State 2009 SCM R 916,
(2) Abdid Azziz Memon and another v. The State 2009 SCM R 925,
(3) Atta Muhammad v. The State 1995 SCM R 955,
(4) State v. Muhammad Sharif 1995 SCM R 635,
(5) Abdul Hussain v. The State 2003 PCr.LJ 1847,
(6) Sahibdino and another v. The State 2000 PCr.LJ 191,
(7) State v. Bashir and others PLD 1997 SC 408,
(8) Ashiq Hussain v. The State 1993 SCM R 417,
(9) Abdul Ghani and 3 others v. The State 1976 PCr.LJ 1462,
(10) Muhammad Sharif and another v. The State 1997 SCM R 866,
(11) Muhammad Irshad and another v. The State 1999 SCM R 1030,
(12) Muhammad Aslam v. Deputy Commissioner, 2003 SD 512,
(13) Asghar v. The State 1999 PCr.LJ 20,
(14) Akram Khan and another v. The Crown, 1969 SCM R 625,
(15) Khan Zaman v. Kachkol and another 1972 SCM R 574,
5. Mr. Awan Rahmatullah Nadeem, learned counsel for the complainant, mainly contended that the medical evidence is in consistence with ocular evidence. The injuries on the person of deceased Mehtab Hussain have been caused by two pallet shots. He further contended that now-a-days independent witnesses are reluctant to come forward for giving evidence in the matters of others in order to avoid murderous enmity. He further contended that there are no material discrepancies or contradictions in the ocular evidence. Mere relationship of witnesses with the deceased is no ground to discard their evidence, which is otherwise trustworthy and confidence inspiring. He relied upon the following case law in support of his arguments:--
(1) Abdul Ghafoor v. The State 2000 SCM R 919.
(2) Muhammad Nawaz and 3 others v. The State 2002 SCM R 334
(3) Sheraz Tufail v. The State 2007 SCM R 518,
(4) Ashfaq Ahmed v. The State 2007 SCM R 641,
(5) Muhammad Akhtar v. The State 2007 SCM R 876,
(6) Muhammad Ahmad and another v. The State and others 1997 SCM R 89,
(7) Haroon Rasheed v. The State and another, 2005 SCM R 1568,
(8) Mr. Dur Nazz and another v. Yousuf and another 2005 SCM R 1906,
(9) Noor Muhammad v. The State and another 2005 SCM R 1958,
(10) Qasim Ali Shah v. The State 2007 SCM R 1285,
(11) Zahoor Ahmed v. The State 2007 SCM R 1519,
(12) Barkat Ali v. Muhammad Asif and others 2007 SCM R 1812,
6. Mr. Awan sum up his arguments that prosecution has succeeded to establish the guilt of appellants beyond any shadow of reasonable doubt and he further argued that the learned trial Court has rightly convicted the appellants, though the punishment provided for offence falling under section 302, PPC is death or life imprisonment, but the learned trial Court by taking lenient view has convicted and sentenced the appellants to R.I. For life.
7. Mr. Altaf Hussain Surahio, learned State counsel conceded the contentions of learned Counsel for the appellants and did not support the impugned judgment, on the grounds that medical evidence is in conflict with the ocular evidence. Ocular evidence is interested, related and hostile.
Circumstantial evidence is missing and main witness i.e, Investigating Officer SIP Juma Khan was not examined by the prosecution, who, during investigation came to the conclusion that the appellants were innocent and kept their names in Column No,2 of the challan-sheet.
8. With the assistance of learned counsel for the parties, I have scanned the entire evidence.
9. Prosecution in order to establish the guilt of the appellants has produced following evidence in the trial Court. P. W.1 complainant Dur Muhammad at Exh.9, he produced F.I.R. At Exh.9/A, Abdul Rahman as P.W.2. At Exh.10, Anwar Ali as P.W.3 at Exh.11, Mushtaq Ahmed as P.W.4 at Exh.12, he produced mashirnama of inspection of dead body of deceased Mehtab Hussain at Exh.12/ A, inquest report of deceased at Exh. 12/B, mashirnama of place of incident at Exh.12/C, mashirnama of arrest and personal search of accused Khalid Hussain at Exh.12/D, Muhammad Panah as P.W.5 at. Exh.14, he is tapedar and he produced sketch at Exh.14/A, SIP Ghulam Hyder as P.W.7 at Exh.16, he produced mashirnama of arrest and personal search of accused/appellant Khadim Hussain. Malik at Exh.16/A; Mir Ghulam Hussain, Civil Judge and FCM as P.W.8 at Exh.18, he produced judicial confession of co-accused Abdul Ghaffar at Exh.18/ A; medical evidence through Dr. Pir Bux as P.W.4 Exh.13, he produced postmortem report of deceased Mehtab Hussain at Exh.13/A; corpse bear PC Altaf Hussain as P.W.6 at Exh.15.
10. P.W Dur Muhammad, who is complainant, has stated in evidence that on 27-7-2000 he along with his son deceased Mehtab Hussain, P.W Abdul Rahman and P.W Anwar Ali, who are his brother- in-laws, after attending the Court of Additional Sessions Judge, Kandhkot had returned and were waiting for a vehicle at Bus/Wagon Stand, Kashmore, where at about 12-00 noon accused Safdar Hussain, Khadim Hussain, Khalid Hussain and one unidentified person, who is now known as accused Abdul Ghaffar, who was armed with T.T. Pistol at the time of incident, whereas accused Khadim Hussain, Mir Khan alias Miran Bux having country-made pistols, accused Khalid was also armed with pistol. Seeing them, accused Safdar Hussain instigated others to kill them, thereupon accused Abdul Ghaffar fired from his pistol upon them, but they saved themselves, whereas accused Miran Bux fired at Mehtab, which hit him, accused Khadim Hussain also fired at deceased Mehtab Hussain, which also hit him, who fell down while raising cries. He further stated that they also raised cries and asked accused that as to why they are killing them, whereupon the accused persons have aimed their pistols towards them and directed them to keep silent. As they were empty-handed, therefore, due to fear remained silent. He further stated that deceased Mahtab received fire shot injuries at his right side of neck, thereafter accused ran away. He made P.Ws Anwar Ali and Abdul Rahman to sit upon the dead body of his deceased son Mehtab Hussain and he went to Police Station Kashmore for lodgment of his report. He further stated that he has shown the place of wardat to police in presence of mashirs Mushtaq Ahmed and Gul Hassan.
11. In cross-examination he stated that he is serving in Education Department since last about 30 years. P.Ws Anwar and Abdul Rahman are cultivating lands at village Saindino Malik, which is situated at a distance of about 30 miles from Kashmore. He further stated that his son Mehtab used to reside with P.Ws Anwar and Abdul Rahman as they were his maternal uncle. He further stated that on the day of incident he along with deceased Mehtab, P.Ws Anwar and Abdul Rahman went for attending the Court of Additional Sessions Judge, Kandhkot, as his son Mehtab was accused in the murder case of brother of accused Abdul Ghaffar. He admitted that he and P.Ws.
Have not been nominated in that case. He further stated that he did not remember as to when the brother of accused Abdul Ghaffar was murdered, for which he is son. Mehtab Hussain was challaned in the Court. He further stated that except accused Miran Bux other three accused were residing in TPS Guddu Colony. He further stated that he did not know about the residence of accused Abdul Ghaffar and Miran Bux. He further stated that the accused have fired from the distance of about three paces at deceased Mehtab. He admitted that the persons were present there, but hearing fire shots they ran away. He admitted that place of wardat is situated at common road, where incident has taken place. He admitted that police after usual investigation let-of accused. He further admitted that at the time of incident accused Safdar was in service of WAPDA Department and serving at TPS Guddu. He also admitted that accused Khadim and Khalid are residing with their father at Guddu. He further stated that once a time accused Safdar came to his school and issued threats and he made such report to Chief Engineer, WAPDA. He admitted that police only submitted challan against accused Abdul Ghaffar.
12. P.W. Abdul Rahman stated the same facts, as stated by complainant. In cross-examination, this witness stated that he and P. W Anwar are cultivating their own lands, as they are zamindars. Their houses are situated at a distance of about 30 miles away from Kashmore town and complainant Dur Muhammad is residing at TPS Colony Guddu. He stated that deceased Mehtab Hussain used to reside with them. He admitted that on each and every date of hearing they accompanied with deceased Mehtab including the complainant. He admitted that place of wardat is situated in the heart of Kashmore town at Bus Stand. He admitted that shops and hotels are situated at the place of wardat where Busses, Wagons and Tongas were also available. He further stated that accused Miran Bux and Khadim fired from no distance and put the weapon at the neck of deceased Mehtab. No persons were gathered at the place of wardat. He admitted that about 2/3 years prior to the incident, brother of accused Abdul Ghaffar was murdered, in which deceased Mehtab was accused and was attending hearings of the case. He admitted that police after investigation has let-of accused/appellants. He further stated that firstly Miran Bux fired at deceased, which hit him, and second fire made by accused Khadim Hussain, which also hit to deceased and he fallen on the ground by raising cries.
13. Witness Anwar Ali stated the same facts, as stated by witnesses Dur Muhammad and Abdul Rahman. In cross-examination, this witness admitted that he along with Abdul Rahman is residing 30/40 miles away from Kashmore town. He admitted that at the place of wardat shops, hotels, Busses, Wagons, Tongas and Rickshaws were available at the time of incident. About 100 persons were also standing at the bus stand including drivers, cleaners at the place of wardat. He further stated that accused Miran Bux first fired at deceased, which hit him and he fell down and second fire was made by accused Khadim Hussain. Both the accused fired from a distance of about 2/3 paces. He admitted that the accused have not fired by putting the weapon at the neck of deceased Mehtab Hussain. He admitted that 2/3 years prior to this incident all accused were known to him. He also admitted that police during investigation has let-of the appellants/accused and only submitted challan against accused Abdul Ghaffar.
14. Dr. Pir Bux found the following injuries on the person deceased on its external examination:--
(1) a lacerated punctured wound 3 cm x 2-1/4 cm x neck deep over the lower part of right side of neck, margins inverted, wound of entrance.
(2) a lacerated punctured wound, 1-1/2 cm x 1-1/2 cm x neck deep over the right side of neck. In the side of Injury No,1 to the middle of neck, margins inverted, wound of entrance.
(3) a lacerated wound 1-1/2 cm x 1-1/2 cm x neck deep over the right side of neck at the superior portion of neck to the Injury No, 1, margins inverted, wound of entrance.
' Dr. Pir Bux has opined that death of deceased occurred due to shock and haemorrhage which caused by discharge from firearm. The Injury Nos. 1, 2 and 3 individually and collectively were sufficient to causes death in ordinary course of nature. All the injuries were ante-mortem and were caused by firearm and the probable time between injuries and death was instantaneous, while between death and postmortem was about two hours.
15. In cross-examination, Dr. Pir Bux admitted that the injuries have been caused at the distance of few yards. He did not give the description of weapon used in the commission of offence, but stated that he has found pallets from the dead body.
16. P.W. SIP Ghulam Hyder, who recorded the F.I.R. Of complainant Dur Muhammad and inspected the place of wardat and also inspected the dead body of deceased Mehtab Hussain. This witness admitted that the place of wardat was shown to him by P.W. Abdul Rahman. He also admitted that place of wardat was about 1500 feet away from Police Station Kashmore.
17. Mir Ghulam Hussain, Civil Judge and FCM, who recorded confessional statement of accused, stated that one SIP of CIA Kashmore produced accused Abdul Ghaffar before him for recording his confessional statement and after completing the formalities he has recorded the confessional statement of accused Abdul Ghaffar and he produced attested photocopy of confessional statement of accused Abdul Ghaffar. Photocopy of the said confessional statement shows that accused Abdul Ghaffar had admitted before the learned Magistrate that he has taken revenge of murder of his brother Muhammad Hayat, as Mehtab was one of the accused of murder of his brother and he has further stated that he has fired with the country-made pistol upon deceased Mehtab.
18. After recording statement of accused recorded under section 342, Cr.P.C., accused Safdar Hussain, Khalid Hussain, Miran Bux examined themselves on oath under section 340(2), Cr.P.C. In their defence. Muhammad Sulleman and Ghulam Fareed were also examined by the accused in their defence as D.W-1 and D.W-2, at Exhs.27 and 28 respectively. Accused/appellants in their statements recorded under sections 342, Cr.P.C. And 340(2), Cr.P.C. Have denied the allegations of the prosecution and accused Safdar Hussain in his statement stated that on 26-7-2000 he was admitted in R.H.C. Ahmedpur, and his son Khalid Hussain was with him. On the next day i.e, 27-7- 2000 his son Khadim Hussain also came there and he remained in the said hospital till the evening of 28-7-2000. He further stated that D. Ws Sulleman Khan and Nazeer Ahmed were also with him, who had come to him on 27-7-2000. Accused Khalid Hussain also stated the same facts. Accused Miran Bux stated that he along with Ghulam Fareed Mazari proceeded for Chowk Zahir Peer for selling the vegetables and they remained there upto 30-7-2000 and he denied the prosecution allegations and further stated that he was implicated falsely. Appellant Khadim Hussain also stated the same facts as stated by his father Safdar Hussain and brother Khalid Hussain. D.W Muhammad Sulleman stated that accused Safdar Hussain is known to him. On 27-7-2000 he had gone to Ahmedpur Lama to see accused Safdar Hussain as he was admitted there. The sons of accused Safdar Hussain, namely Khadim Hussain and Khalid Hussain were also there. He further stated that he remained there up to 5-00 p.m. He further stated that he had given such affidavit before CIA Police during investigation. He further stated that he had also produced such certificate issued by the Medical Officer, Ahmedpur Lama during investigation. D.W.2 Ghulam Fareed stated that accused Miran Bux is known to him. On 25-7-2000 he along with Miran Bux proceeded for Rahimyar Khan, from where they took vegetables and sold out the same at Zahir Pir Chowk, at various villages and then they along with accused Miran Bux returned back to village Khan Mazari on 30-7-2000 and thereafter accused Miran Bux informed him that a false case has been registered against him. He further stated that he has given such statement before CIA Police as well as Investigating Officer, Kashmore during investigation.
19. I have minutely examined the evidence produced by the prosecution during trial and also carefully examined the defence evidence, which was produced during trial and I have put prosecution and defence evidence in juxtaposition.
20. Complainant Dur Muhammad and P. W Anwar have stated that accused fired at the deceased from a distance of 2/3 paces one by one, whereas P.W. Abdul Rahman clearly stated that the accused put their weapons at the neck of deceased and then fired, while Dr. Pir Bux stated that deceased Mehtab Hussain received injuries at a distance of some yards. Perusal of postmortem report, which is available at Exh.12/A, is silent about any blackening and charring, which clearly shows that the deceased has received the injuries with the margin of more than 4/5 feet according to the medical jurisprudence. All the three injuries are opined to be wounds of entrance. Dr. Pir Bux has admitted that he has found pallets in the dead body of deceased Mehtab Hussain, but postmortem report is silent about the recovery of pallets from the dead body of deceased. In the above circumstances, it is clear that the medical evidence is in conflict with the ocular evidence.
Motive has not been assigned in the F.I.R. Against the appellants, which has come in evidence that deceased Mehtab Hussain was involved in the murder case of brother of absconding accused Abdul Ghaffar and not against the appellants. This important aspect of the case has been lost sight of by the learned trial Court while delivering the impugned judgment. Prosecution has failed to produce any evidence in support of motive of appellants against deceased Mehtab Hussain during trial. It can be only accused B Abdul Ghaffar, who had a motive to take revenge of his brother from deceased Mehtab Hussain as deceased Mehtab Hussain was facing trial in the murder case of brother of accused Abdul Ghaffar. Learned trial Court has also not discussed and appreciated this material point. Circumstantial evidence is also missing in this case, as no weapon was recovered from the possession of appellants during investigation to connect them with the commission of offence. Only one empty cartridge was recovered from the place of wardat during investigation and that was C not sent to Ballistics Expert for matching, as no weapon was recovered from the appellants/accused during investigation and this "aspect of the case has also not been considered by the learned trial Court while delivering the impugned judgment. During trial, Investigating Officer SIP Juma Khan was not examined by the prosecution. Has SIP Juma Khan been examined during trial, he must not have supported the prosecution case. Learned trial Court has admitted in its judgment that no crime weapon was recovered from the possession of appellants/ accused and reasoning assigned by the learned trial Court is that police deliberately spoiled the case of prosecution by not recovering the crime weapons from the appellants/accused. This aspect of the case is to be considered when medical evidence is in consistence with the ocular evidence. Here also learned trial Court has lost its sight by not considering the aspect of the case that medical evidence is in conflict with the ocular evidence. I have gone through the citations relied upon by the learned Counsel for the appellants. Admittedly, ocular evidence is in consisted upon three witnesses i.e,, complainant and P.Ws Anwar and Abdul Rahman, who are brother-in-laws of the complainant and maternal uncles of deceased Mehtab Hussain. It is also an admitted fact that both P.Ws Abdul Rahman and Anwar are residents of village Saindino Malik, Taluka Dahrki, which is far away from the place of wardat. It has come in evidence that on each and every date of hearing complainant, his brother-in-laws used to accompany with deceased Mehtab in connection with hearing of his case. It is further admitted by all the three witnesses that they were not accused in that case. It is further admitted by all the three witnesses that they were not accused in that case. It is not appealable to a prudent mind that persons who are not accused in a murder case would attend the Court with deceased Mehtab on each and every date. That is why that they have given different evidence during trial regarding distance from which the deceased was fired, which fact alone creates doubt about their presence at the place of wardat at the time of commission of the crime. Had they been available at the place of incident at the relevant time, they must have given consistent evidence, which is lacking in their evidence. Except the interested and related evidence, there is no other incriminating piece of evidence available against the appellants to connect them with the commission of the offence.
Apart from above evidence, there is exculpatory judicial confession of co-accused Abdul Ghaffar, who in his confessional statement stated that he had taken revenge of murder of his brother from deceased Mehtab Hussain, as deceased Mehtab along with other co-accused had murdered his brother in TPS Colony Guddu. This aspect of the case also supported the defence version/appellants version that they have been implicated falsely by the complainant and his witnesses, who are closely related to each other and the deceased. In a case involving capital punishment, ocular evidence must come from unimpeachable source and independent corroboration is necessary, though the incident had taken place in the heart of Kashmore town in a thickly populated area, where Hotels, Shops, Busses, Tongas and Wagons were available, which is admitted by all the witnesses in their evidence. The contention of learned counsel for the complainant was the defence plea taken by the appellants does not prove them innocent. It is well settled law that the prosecution has to prove its own case and it cannot take benefit of weakness of defence. In the case of Ashiq Hussain (supra) relied upon by the learned Counsel for the appellants, the Hon'ble Supreme Court was pleased to observe as under:- "24. It is needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken. Burden of prosecution to prove its case. Beyond doubt remains the same. Of course, defence plea is to be considered in juxtaposition with prosecution case and in the final analysis if defence plea is proved or accepted then prosecution case would stand shattered and discredited.
It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false."
21. The law relied upon by the learned counsel for the appellants is mostly applicable in the case in hand. Learned state counsel rightly conceded the arguments of the learned Counsel for the appellants as he was unable to controvert the submissions advanced by the learned counsel for the appellants.
22. The citations relied upon by the learned counsel for the complainant, in circumstances of the instant case, are not applicable, specially when medical evidence is conflicting with the ocular evidence.
23. After evaluating and appreciating the evidence available on record, I am of the considered opinion that the prosecution has miserably failed to establish the guilt against the appellants.
Consequently, the appeal of the appellants was allowed and the appellants were acquitted from the charge by my short order dated 11-10-2010 and these are the reasons for the same.