1. JUDGMENT IMAM BUX BALOCH, J.---Through the instant appeal, appellants Toot and Moharram alias Kello have assailed judgment dated 21-5-2010 passed by learned 2nd Additional Sessions Judge, Larkana in Sessions Case No.130 of 1994, whereby learned trial Court convicted and sentenced the appellants under section 302(b) r/w section 34, P.P.C. To suffer R.I for life and also Rs.50,000 was awarded as compensation to each appellant under section 544-A, Cr.P.C, on two counts, for the murder of deceased Imam Ali and deceased Mst. Izzat Khatoon and in default of payment of compensation, it was directed by the learned trial Court the appellants shall suffer 6 months more R.I. It was further ordered by the learned trial court that all the sentences shall run concurrently. The benefit of section 382(b) was also extended in their favour.
2. Case of the prosecution is that complainant and appellant Toot are real cousins. There was a dispute between appellant Toot and complainant on the matter of way of their village and there was a fight between complainant and appellant Toot on 8-12-1993. Such F.I.R. Was lodged by appellant Toot against complainant and his sons namely Imam Ali, Kaheri and Erri as well as his relatives Waryam and Dabu. It is further case of the prosecution that on the fateful night, a call was given at the outer door of complainant's house but complainant, having enmity and being odd hours, did not go out. All of sudden, he heard firearm reports and he was informe'd that they are police officials and complainant should come out of his house but complainant refused. In the meanwhile, Imam Ali, son of complainant, fired from his gun in his defence and it is alleged that complainant, on the light of bulbs, noticed that Toot son of Mengal Fakir was standing in front of his house and so also Muharam alias Kello son of Akil who was firing from his rifle. In the meanwhile, complainant heard cries of his son Imam Ali and his were Mst.Izzat Khatoon and complainant noticed that Imam Ali had received firearm injuries and so also his were Mst.Izzat Khatoon but his son Imam Ali succumbed to injuries at the spot and his were Mst.Izzat Khatoon was in injured condition and subsequently she succumbed to injuries. Then the complainant went to Police Station and lodged F.I.R. On 9-12-1993 at 0400 hours.
3. During investigation, further statement of complainant was recorded on 30-1-1994 wherein he made exaggerations. After usual investigation, case was challaned and subsequently the same was entrusted to the Court of learned 2nd Additional Sessions Judge for trial. Charge was framed on 7-3-1995 to which both the appellants denied the allegations.
4. During trial, prosecution examined complainant Akil as P.W.1., he produced F.I.R. At Exh.7 and his further statement at Exh.8, Erri as P.W-2 at Exh:9, he produced his 164, Cr.P.C. Statement at Exh:10, Waryam as P.W.3 at Exh.11, he produced his 164 Cr.P.C. Statement at Exh:12, Kaheri as P.W.4 at Exh.13, he produced his 164 Cr.P.C. Statement at Exh.15. Dilshad as P.W.5 at Exh.17, he produced mashirnama of arrest and personal search of appellant Muharam alias Kello at Exh.18, Noor Muhammad as P.W.6 at Exh. 19, he is Tapedar and he produced Sketch Plan at Exh.20, Dr. Holaram as P.W.7 at Exh.21, he produced postmortem reports of deceased Imam Ali and Mst. Izzat Khatoon at Exhs.22 and 23 respectively, SIP Niaz Ali as P.W.8 at Exh.24, Inspector Gul Hassan as P.W.9 at Exh.25, he produced Chemical Report at Exh.25-A, mashir nama of place of incident at Exh.26 and Inquest Reports of deceased Mst. Izzat and Imam Ali at Exhs.29 and 30, Inspector Ali Hassan as P.W.10 at Exh.32, he produced mashirnama of arrest and personal search of accused Toot at Exh.32-A.
5. After completing the prosecution evidence, learned D.D.A. Closed prosecution side for the purpose of evidence. The statements of both the appellants under section 342; Cr.P.C. Were recorded at Exhs.39 and 40. After hearing the parties, the impugned judgment was passed by the trial Court.
6. I have heard Mr. Faiz Muhammad Larik, learned counsel for the appellant, Mr. Sarfraz Khan Jatoi, learned counsel for the complainant and Mr.Musab Baleegh Dhamrah, learned counsel for the State.
7. Mr. Faiz Muhammad Larik, learned counsel for the appellants argued that the prosecution case is doubtful and the incident had taken place during odd hours of night and there was enmity between the appellants and complainant. He further argued that the police had committed the murders during night time when police went to arrest the complainant and his sons and there was an encounter between complainant party and the police and such news was published in the newspaper daily Kawish dated 11-12-1993 and there was a private faisla held between the police and complainant party before Dr. Sikander Ali Jatoi. Apart from that learned counsel argued that the prosecution evidence is interested, hostile and inimical and not come from unimpeachable source as the witnesses are related intere se and no independent evidence was produced by the prosecution at the trial to corroborate the interested, hostile and inimical evidence. Learned counsel further argued that there are major discrepancies in the evidence of complainant, his sons Erri, Kaheri and his relative Waryam and the defence has succeeded to create doubts in the prosecution case. He further urged that it is by now settled proposition of law that the benefit of a slightest doubt is to be extended in favour of the appellants. He has relied upon the following case law:-- Tariq Pervaiz v. The State (1995 SCM R 1345).
8. Murad Shah and others v. The State 1991 M LD 887 Muhammad Ilyas v. The State (1997 SCM R 25).
(4) Wazir Muhammad v. The State (1992 SCM R 1134)
9. And to sum up his arguments that the appellants have been succeeded to create so many doubts in the prosecution case and benefit of such doubts always is to be extended in favour of the appellants.
10. At the last learned counsel for the appellants argued that the appellants may be acquitted from the charge.
11. Mr. Sarfraz Khan Jatoi, learned counsel for the complainant Akil argued that complainant and appellants are real cousins and there is no mis-identification. He further argued that the witnesses are natural being inmates of the house hence there is no need to produce any independent evidence as ocular evidence is consistent with the medical evidence. Learned counsel for the complainant further argued that the evidence of complainant, his sons Erri and Kaheri and relative Waryam are consistent with each other and there are , no major contradictions and discrepancies available in their evidence. At the last learned counsel for the complainant argued that the prosecution has succeeded to prove guilt against the appellants and further argued that the learned trial Court has rightly convicted and sentenced the appellants. Learned counsel strongly supported the impugned judgment passed by the learned trial Court.
12. Mr. Hafiz Musab Baleegh Dhamrah, learned State Counsel, adopted the arguments of Mr.Jatoi and strongly supported the impugned judgment by arguing that the learned trial Court has rightly convicted and sentenced the appellants.
13. I have considered the submissions advanced at the bar and perused the evidence available on the record.
14. Complainant in his evidence stated that deceased Imam Ali was his son and deceased Mst. Lzzak Khatoon was his were. P. Ws Erri and Kaheri are his sons whereas P.Ws Waryam and Dabu are his cousins. He further stated that on the fateful night at 1-00 a.m he along with his sons deceased Imam Ali, Erri, Kaheri and his were deceased Mst. Izzak Khatoon were sleeping in the courtyard of their house when there was a call at the door of his house. He were up and went outside the house and found appellants/accused Kello and Toot standing outside the house, Kello was armed with rifle and Toot with gun. He further stated that both appellants asked complainant to send his son Imam Ali at the outer door on which he along with his son went and Mst. Izzat Khatoon followed them when they reached outside the house accused Kello fired at his son Imam Ali whereas accused Toot fired at his were. He further stated that P.Ws Waryam, Dabu and Erri came after incident and on electric bulbs he and his witnesses identified accused. He further stated that above incident had taken place on the affair of children and there was a fight between appellants and his sons one day prior to the incident. In cross-examination he stated that at the call first his son Imam Ali went at the door of their house and he followed his son. He further stated that he were up on fire shots reports. He saw appellants Toot and Kello standing near door of his house. He further stated that P.Ws Dabu, Waryam, Kaheri and Erri came at the door of his house when incident took place after his arrival. He further stated that P.Ws Dabu, Waryam and Kaheri chased the appellants/accused upto some distance but appellants/accused made their escape good. He did not chase the accused/appellants. He further stated that so many people of nearby villages came at the scene of offence. He further stated that blood stained earths were removed by the police from the scene of offence. Police took blood stained earths at the police station, police remained at the scene of offence for 4/5 Minutes. He further stated that police came at the wardat on the second day of incident and visited the same. On the second day of incident police had obtained his L.T.I. On some written papers but the contents of the said written papers were not read over to him by the police. He denied the suggestion that a news was published in newspaper about this incident, he also denied the suggestion that a faisla was made by Dr. Sikander Khan Jatoi about the incident.
15. P.W.2 Erri, who is son of the complainant, stated in his evidence that deceased Imam Ali was his brother and deceased Mst.Izzat Khatoon was his mother, P.W. Kaheri is his brother and P.Ws.
16. Waryam and Dabu are sons of his maternal uncle and P.W. Muhammad Ayoob is his uncle. On 9- 12-1993 his brother Imam Ali and his mother Mst. Izzat were murdered at about 1-00 a.m. He further stated that one day prior to the incident at about evening time a fight took place on the matter of children in between him and appellant Toot and other children. Accused Toot issued threats to him at about 1-00 a.m, Toot came on the entrance of the door and called his brother Imam Ali whereas accused Kello was armed with rifle and Toot was having gun in his hands. He further stated that he has identified them on electric bulb. He also stated that accused Kello fired from his rifle at his brother Imam Ali and Toot fired from his gun at his mother Mst.Izzat Khatoon. He further stated that P.Ws Dabu and Waryam along with P.W. Ayoob came there on their cries and firearm reports. He further stated that P.Ws. Dabu and Waryam came at the scene of the offence after the accused went away. In cross-examination, he stated that deceased Imam Ali were up on the call made by the appellants/accused and they were up on the call, they found that accused were standing at the distance of 20 paces away from their house. He was sitting at the cot when his deceased brother Imam Ali went outside the house at the call of the appellants. Kello fired from his rifle at Imam Ali who died at the spot when his mother Mst.Izzat Khatoon proceeded towards Imam Ali, she had received firearm injuries at the hands of appellant Toot. He further stated that her mother hardly covered 2/3 paces when she had received injuries. He further stated that after committing murders appellants ran away towards western side and they did not chase them as they were empty handed. He further stated "Police took away 'blood stained earth after wrapping in the cloth."
17. Blood stained earth was not seen by the police at the scene of offence. He admitted that a news about this incident was also published in the newspaper. He denied the suggestion that Dr. Sikander Ali Jatoi had decided the matter of the incident. He also stated that his statement was recorded by the police when police visited the scene of offence.
18. P.W. Waryam stated in his evidence that he used to reside in village Razi Jaghirani and he new deceased Mst.Izzat Khatoon who was sister of his father and deceased Imam Ali who was son of Mst.Izzat Khatoon, P.W. Dabu is his real brother and P.Ws Erri and Kaheri are sons of his maternal uncle. He further stated that complainant had informed him about the incident and he has not seen the appellants committing the murder. In his cross-examination, he admitted that the dead body of Mst. Izzat Khatoon was lying at the distance of 7 paces away from dead body of deceased Imam Ali. At about 9-00 a.m. Police visited the scene of offence.
19. P.W. Kaheri, who is son of the complainant, stated in his evidence that on 9-12-1993 he along with his father and brother and mother Mst. Izzat Khatoon were sleeping, on a call which was made outside their house his deceased brother Imam Ali went outside the house. Appellant/accused Kello armed with rifle fired at deceased Imam Ali and on fire shots reports his mother Mst, Izzat Khatoon were up and ran towards her son Imam Ali and appellant/accused Toot, who was armed with gun, fired at his mother Mst.Izzat Khatoon. He further stated that he identified the appellants/accused on electric bulb light. He further stated that his brother Imam Ali succumbed to the injuries at the spot and his mother succumbed to the injuries after two hours of the incident.
20. In cross-examination he stated that at the time of incident all the inmates of house were sleeping in the shade of their house on cots adjacent to each other. The shade where they were sleeping was at the distance of 2/3 paces from the entrance of their house. He further stated that he identified two accused/appellants at the time of call from his cot as he stood on the cot to see the accused. He further stated that his brother Erri also witnessed the incident from his cot. His father complainant Akil witnessed the incident when he was still in the house. He further stated that they had not chased the accused as they were armed with firearms. He further stated that accused were standing at the distance of 2/3 paces from their entrance. He further stated that P. Ws Waryam and Dabu saw the accused when they were running away. He further stated that his statement and statements of other witnesses were recorded by the police at the place of occurrence. He further stated that one empty shell of rifle was also recovered from the place of occurrence when police visited the place of occurrence. He further stated that blood stained earths were recovered and secured in two tinsdabies separately at the place of wardat. He denied the suggestion that the faisla was taken place in presence of Dr. Sikander Ali Jatoi whereas the police personnel were penalized for the murder of the deceased persons. He denied the suggestion that such news was published in the newspapers. Dr.Holaram was examined and he has produced the postmortem reports of both the deceased. He has stated in cross-examination that both the deceased had received injuries at the distance of more than 5 feet.
21. The SIP Niaz Ali stated that on 9-12-1993 he was posted as S.H.O. Police Station Dhamrah where at 4-00 a.m complainant Akil came and he lodged F.I.R. He further stated that he has not visited the place of occurrence of the incident and by orders of the S.S.P Larkana he handed over the case papers to CIA Police Larkana. In cross-examination, he stated that he has received wireless message from S.S.P Larkana for handing over the case papers to CIA Police Larkana. He admitted that he had handover the case papers to CIA Police only on wireless message and such wireless message has not been incorporated in daily diary. He further admitted that Crime No.83 of 1993 under section 324, P.P.C. And 13 D.A.O. Was registered against complainant Akil and his son Kaheri and others. Appellant Toot was complainant in that case and he himself had investigated the case.
22. He denied the suggestion that HC Sarfraz Ali, PC Abdul Jabbar and PC Ghulam Nabi Morio and PC Sadaruddin were arrested by the CIA police in the present case.
23. Inspector Gul Hassan stated that on 9-12-1993 he was posted as Incharge C.I.A. Larkana, he received verbal directions from SP Investigation Larkana regarding investigation of Crime No.83 of 1993 of Police Station Dhamrah under sections 302, 324, P.P.C. After receipt of F.I.R. He started investigation, he inspected the place of occurrence which was situated in village Razi Khan Jaghirani in the house of Mst. Izzat Khatoon and her son deceased Imam Ali. He had completed formalities, prepared inquest reports, mashirnama of place of wardhat and had taken blood stained earth where dead bodies of both the deceased were lying. He further stated that he dispatched the dead bodies of the deceased for postmortem through PC Muhammad Akram and PC Muhammad Akram had produced the blood stained clothes of both the deceased before him.
24. He further stated that he has not recorded the statements of P.Ws. Under section 161 Cr.P.C, as witnesses had stated before him that after funeral ceremony of the deceased, they will be able to get recorded their 161 Cr.P.C. Statements. In cross-examination, he stated that he had received verbal directions from SSP Larkana for investigation of the case. He admitted that he had not issued any notice ' to the witnesses for recording their 161, Cr.P.C. Statements but verbal directions were issued by him but the witnesses did not appear before him during his posting. He has produced chemical examiner's report of blood stained earth taken by him from place of wardat.
25. I have minutely gone through the evidence adduced by the prosecution.
26. In the evidence of complainant and his sons Erri and Kaheri and relatives Waryam, I find so many discrepancies. According to complainant they had not chased the appellants as they were empty handed whereas in his evidence the complainant stated that P.Ws. Dabu, Erri and Waryam chased the accused at some distance but the accused made their escape good, whereas P.W. Erri, who is son of the complainant stated that we did not chase them as we were empty handed. Whereas P.W. Waryam stated that "we had not chased the accused", while P.W. Kaheri son of the complainant had stated that "we had not chased the accused as they were armed with firearms."
27. Complainant in his evidence stated that they were sleeping near the door of their house and his son Imam Ali went at the door of his house on the first call and he followed his son Imam Ali. He further stated that he were up on the firearm shots reports whereas P.W. Erri, who is son of the complainant, has not stated about following of deceased Imam Ali by his father, the complainant Akil. P.W. Kaheri, who is son of complainant stated that they were sleeping under shade of their house and the entrance of their house was at the distance of 2/3 paces away from the shade of their house and entrance was open and there was no door. Whereas complainant stated that the entrance was having a door.
28. Complainant in his F.I.R. Stated that there was a call outside of his house and the persons standing outside, stated that they are police personnel and they should come out from house and there was firing outside his house and in retaliation his son Imam Ali also fired in defence upon them. The prosecution story as set up by the complainant in the F.I.R. And during adducing evidence the complainant totally taken different stand and after appreciating the ocular evidence in a careful manner, I am of the considered view that the incident as stated by the complainant had not taken place but occurred in a different manner. When the prosecution story is full of contradictions and exaggerations, the same require independent corroboration, which is lacking in the instant case.
29. For giving benefit of doubt, the defence is not bound to create so many doubts but if only one circumstance creating doubt in a prudent mind, the benefit of such doubt is to be extended in favour of appellants/accused not as a matter of grace but as a matter of right. One can refer to the case of Tariq Pervaiz (Supra) in which honourable Supreme Court held as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
30. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
31. In the case of Murad Shah etc. (supra), learned Single Bench of Lahore High Court observed as under:-- "In order to give an accused benefit of doubt, it is not necessary that there should be more than one infirmity. If there is one infirmity which creates reasonable doubt in a prudent mind about the credibility of the eye-witnesses that may be sufficient for disbelieving them/ him."
32. In the case of Muhammad Ilyas (supra), Full Bench of honourable Supreme Court, observed as under:-- "It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be ' given to the accused without any reservation.
33. In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt."
34. In the case of Wazir Muhammad (supra), Full Bench of honourable Supreme Court, observed as under:-- "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
35. After evaluating and appreciating the evidence and considering law laid down by the honourable Supreme Court, I am of the humble view that the prosecution has produced interested, related and hostile witnesses and their evidence suffers to exaggerations, discrepancies and contradictions and independent evidence had not been produced by the prosecution during trial. In a case where capital punishment is to be awarded, evidence should come from an unimpeachable source which is lacking in the case in hand. The enmity in the instant case is admitted fact and it is also admitted fact that police personnel went to arrest the complainant party in odd hours of the night and according to the F.I.R. There was exchange of firing between the complainant party and police personnel which fact during trial is denied by the complainant and their witnesses. All these circumstances, create doubt in the prosecution case, which, benefit is to be extended in favour of the appellants. The prosecution has failed to establish the guilt of appellants beyond any shadow of reasonable doubt, hence the appellants are entitled to the benefit of doubt which is extended in their favour.
36. Upshot of the above discussion is that the appeal of the appellants is allowed, their conviction and sentences awarded by the trial Court are set aside.
37. These are reasons of my short order passed on 9-8-2010; whereby the present appeal of the appellants was allowed.