1. ' SADIQ HUSSAIN BHATTI; J. The appellants Syed Raheem Shah and Syed Noor Muhammad Shah both sons of Akbar Shah have been convicted under section 302(b)/34, P.P.C. And sentenced to Rigorous Imprisonment of life and they are also required to pay compensation of Rs,2,00,000 each and in default whereof they shall further suffer S.I. For six months more vide judgment dated 7-2- 2012 passed by the learned IInd Additional District and Sessions Judge, Malir.
2. ' Out of the above two accused persons, the appellant Syed Raheem Shah son of Akbar Shah has challenged his conviction and sentence through this Cr. Appeal. The F.I.R. Of this case was lodged on a blank paper on 24-5-2008 at 11-15 p.m., at JPMC, Karachi at the behest of .The complainant Gulsher nephew of the deceased Muhib Ali son of Ali Muhammad,' which was subsequently , incorporated in the 154 Cr.P.C. Book kept at Police Station Sadhal, Karachi on '24-5-2008 at 11-55 p.m., as F.I.R. No,288 of 2008.
3. ' The facts of the case as enunciated in the F.I.R. Are that on 24-5-2008 at 2355 hours the complainant Gulsher son of Ilyas Khoso lodged F.I.R. At Police Station Sachal, Karachi stating therein that his uncle Muhib Ali son of Ali Muhammad was Chowkidar at the plot of Ramzan. Oadh. On the day of incident i.e, 25-4-2008 at about 1930 hours they were present at the plot, all of sudden vehicles came there and firing was started. They also made firing in their defence. He saw two vehicles of white colour with official numbers in which one person, who disclosed his name as Inspector Shahab Shah and the other one as. Raheem Shah Pathan, were sitting. They along with their 20/25 companions started firing upon them, as a result whereof his uncle Muhib Khan sustained bullet injury and died instantly. Thereafter Inspector Shahbuddin and Syed Raheem Shah along with 20/25 persons escaped away in the said white colour cars.
4. ' Investigation of this case was entrusted to S.I.P. Khan Muhammad Zardari, who after completing investigation, submitted charge sheet against the abovenamed two accused persons whereby showing the accused persons namely Syed Sakhawat son of Syed Raheem Shah, Inspector Shahab Noor son of Noor Muhammad and Mateen son of Abdul Jaleel as absconders. On 25-5-2008 at about 4-00 a.m., appellant Syed Raheem Shah and his brother Syed Noor Muhammad Shah were arrested by S.I.P Rehmatullah Khan Marwat from Liaquat National Hospital, Karachi on the tip of P.Ws. Mst. Hajra Bibi wife of Noor Muhammad and Muhammad Ibrahim son of Suleman. Co- accused Syed Noor Muhammad Shah was injured and under treatment at Male Ward, Bed No,28 whereas the appellant Syed Raheem Shah was also present attending his injured brother. On their personal search nothing incriminating was recovered from their possession except Rs,300 cash.
5. Such memo of arrest Exh.8/A was prepared at the Hospital in presence of above named two mashirs, who affixed their signatures 'on memo of arrest on the same day. Inspector Khan Muhammad Zardari produced co-accused Syed Noor Muhammad Shah before MLO, JPMC, Karachi who discharged the patient and opined that, "no need to admit inward, need only dental opinion". After returning to Police Station, Investigating Officer informed the High Authorities accordingly. Vide SDE. No,39, as Exh.8/B. The trial Court issued process against the absconders Inspector Shahab Shah, Noor and Mateen but all in vain.. Hence, they were declared absconders and their case was kept on dormant file and perpetual warrants for their arrest were issued.
6. ' After providing relevant documents to both the accused persons as required under section 265-C, Cr.P.C. Formal charge was framed against the accused persons, to which they pleaded not guilty and claimed to be tried vide their pleas as Exhs. 5-(a) and 5-(b).
7. ' During the trial proceedings, prosecution had examined six P.Ws. To prove its case, ,out of whom two eyewitnesses namely P.W.2 Mst. Hajra Bibi as Exh.7 and P.W.5 complainant Gulsher as Exh.10.
8. P.W.1, S.-I. Jehangir Bhutto Exh.6, who incorporated the statement as Exh.6/A of the complainant Gulsher 154 Cr.P.C. At Police Station and P.W.3 S.I.P. Rehmatullah Khan Marwat Exh.8, who produced memo of arrest of both the accused persons as Exh. 8-a SDE as Exh.8-b. P.W.4 Dr. Muhammad Saleem, who performed postmortem examination of the deceased and produced the same as Exh.
9. 9-a. P.W.6 S.I.P. Rehmatullah Khan Marwat Exh.12 on the point of signatures and handwriting of deceased S.I.P./I.O. Khan Muhammad Zardari and S.I.P. Ali Gohar Shah, who produced injured accused Syed Noor Muhammad Shah alongwith letter to the Duty Officer/Doctor, Patel Hospital, Karachi for examination/issuance of certificate. At the 'end, learned DPP submitted an application under Article 46 of the Qanun-e-Shahadat Order, 1984 along with the statements of P.Ws. Namely Muhammad Ismail. Abdullah, Aslam, Muhammad Bilal, Muhammad Ibrahim, Mst. Zainab Bibi and Mst. Sharifan Bibi examined during investigation, who are not traceable and an application of the complainant party addressed to the S.H.O. For registration of the case vide his application as Exh.13.
10. ' Both the accused persons denied prosecution allegations and further submitted that there was dispute between the parties over a plot and many F.I.Rs, were lodged. 'In fact Ramzan had killed his own servant in order to take revenge.
11. ' It is contended by the learned counsel for the 'appellant Syed Raheem Shah that as per F.I R.
12. Lodged by the complainant Gulsher wherein he has alleged that his Uncle Muhib. Ali was the Chowkidar at the Plot of Ramzan and on the day of incident two White Colour Vehicles with Official Number Plates arrived at along with 20/25 companions wherein one person disclosed his name as Inspector Shahab Shah and the other one as Raheem Shah Pathan and they were accompanied by 20/25 accomplices. They started firing' as a result whereof uncle of the complainant received a bullet injury and died at the spot and thereafter the accused persons escaped away in the cars. He has also pointed out that though in the F.I.R. 20/25 persons have been shotvn to be accomplices of the accused persons but the charge has been framed under section 302, P.P.C. Only. It is further contended by the learned counsel for the appellant that the Medical Record shows that deceased Muhib Ali died on receiving single bullet injury. He has further coniended that the statement of the complainant was recorded, which was subsequently incorporated under section 154, Cr.P.C. Book but the statement of the complainant was not produced before the Court. On this point, he has relied upon the case-law reported in 1997 ,SCMR 438. He has pointed out that there are only two eye-witnesses namely Mst. Hajra Bibi and the complainant Gulsher, if the evidence is read in juxtaposition with the Memo of Inspection of place of occurrence, which is quite contradictory and the incident had not taken place in a manner as claimed by the prosecution. On this point, he has relied upon the case law reported in 2010 YLR 3127, 2010 YLR 2919 and 2010 YLR 1054. According to the learned counsel for the appellant, the complainant Gulsher and Mst. Hajra Bibi have improved.
13. Their statements from earlier statements/F.I.R. And the statements under section 161, Cr.P.C. And the evidence of such witnesses are not worth reliance on this point. He has also relied upon the case- law reported in 2010 SCM R 385, 2010 SCM R 1054, 1993 SCM R 550 and 2003 SCM R 1419. He has further pointed out that in the deposition of P.W. Rehmatullah Khan Marwat, he has stated that the appellant and the co-accused were arrested Liaquat National Hospital, Karachi around. 4-00 p.m in presence of Mst. Hajra Bibi and Muhammad Ibrahim and thereafter they were taken to 'JPMC, Karachi, but it is pointed 'out that arrival time of co-accused Syed Noor Muhammad Shah has been mentioned at 1-00 a.m., which shows that their arrest at Liaquat National Hospital, Karachi is highly doubtful. He has also took me to the evidence of Dr. Muhammad Saleem, who conducted the postmortem wherein it was shown that the deceased Muhib Ali died due to single firearm injury, which belies version of the eyewitnesses that there was no blackening and charring on the person of the deceased Muhib Ali. He has also pointed out that important witnesses of the case namely injured Ramzan, Muhammad Ibrahim, Muhammad Ismail, Abdullah, Aslam, Muhammad Bilal, Mst. '
14. Zainab Bibi and Mst. Sharifan Bibi were not examined by the prosecution, which fact giving rise to the speculation that the above named witnesses were not favourable to the prosecution and the trial Court has wrongly believed the statements, which were brought on record by the prosecution under Article 46 of the Qanun-e-Shahadat Order, 1984. He has lastly contended that the prosecution has miserably failed to prove its case beyond the reasonable shadow of doubt, therefore, this Cr. Appeal .May be accepted on this point. He has also placed reliance upon the case law reported in 2011 SCM R 323, 2009 Cr.L.J 26(sic) and 1980 Cr.LJ 264 (sic).
15. ' On the other hand, learned Ms. Rahat Ehsan, A.P.-G. Has strongly opposed the above submission and submitted that the witnesses have fully supported the prosecution case. She further submitted that Important witnesses are not traceable. Hence, their statements be read as. Evidence under Article 46 of the Qanun-e-Shahadat Order, 1984.
16. ' I have minutely considered the above submissions of learned counsel for the parties and examined the record available before me with their able assistance. In my opinion, whole prosecution case hinges on the testimony of two P.Ws. Namely Mst. Hajra Bibi (Exh.7) mother of Rarnzan (since Deceased) and P.W. Gulsher (Exh.10), the complainant. According to the Prosecution, these are only two eye-witnesses of the incident. According to the testimony of P.W.
17. Mst. Hajra Bibi, on 25-4-2008 at about 7-30 p.m., five vehicles raided their house, Police was also with them so also accused persons Syed Raheem Shah and his brother Syed Noor Muhammad Shah alongwith other persons. They all broke the door and entered into, their house; they started firing upon them resultantly five persons namely Muhammad Ismail, Abdullah, Aslam, Mst. Zainab Bibi and Mst. Sharifan Bibi received bullet injuries whereas their Guard Muhib Ali, after receiving injury, expired at the spot, as a result of firearm injury: He was removed to the Hospital by them where he was pronounced as dead. She has further testified that the accused persons Syed.
18. Raheem Shah and Syed Noor Muhammad Shah caused churri injuries. They were admitted in Liaquat National Hospital, Karachi from where they were arrested in her presence. Such memo of arrest was prepared by police and her RTI was obtained on the same memo. She identified the accused persons in the Court. In her cross-examination, she admitted that P.W. Muhammad Ibrahim is the father-in-law and Mst. Sharifa Bibi is the mother-in-law of her son Muhammad Ramzan (since Deceased). P.W. Mst. Zainab Bibi is her daughter-in-law whereas injured P.W.
19. Muhammad Bilal and Abdullah are her neighbours. She also admitted that P.Ws. Muhammad Ismail and Aslam are friends of her son. She also admitted that P.Ws. Muhammad Ismail, Abdullah and Aslam are' residents of Village Haji Buksh Ali whereas this incident took place in her house at Sikandar Goth. She also admitted that she did not disclose the names of injured to police. She also admitted that she did not specifically mention to police the names of accused persons, who fired at them. She also admitted that it was not her knowledge if there was any dispute between the accused persons and her son Muhammad Ramzan over a plot. It was also not in her knowledge that if the co-accused Shaukat Shah, appellant Syed Raheem Shah and accused Syed Noor Muhammad Shah had lodged F.I.R. Against her son. At the end, she denied innocence of the accused persons and further denied the suggestion that in fact the deceased Muhib Ali was killed by her son Muhammad Ramzan and falsely involved the present accused due to enmity.
20. ' Conversely, the complainant Gulsher described the incident in his statement (Exh.10), which was subsequently incorporated in section 154, Cr.P.C. Book kept at Police Station Sachal, Karachi. The complainant Gulsher stated before the Court that on the day of incident i.e, 25-4-2008 at about 7- 30 p.m., some vehicle caine near them, one was with GOvernrnent Number Plate. The inmates of the car introduced themselves as Inspector Shoaib. And Raheem Shah and told us to vacate the plot. The complainant Gulsher testifies further that accused Syed Raheem Shah took out his pistol fired upon his uncle, who was Chowkidar there since last two years. His -uncle on receiving fire shot fell down. He also disclosed that the co-accused also fired upon them as a result whereof some ladies received firearm injuries, who were residing near the place of incident. The complainant further stated that Ile .With the help of Ramzan owner of the plot shifted his uncle to Abbasi Shaheed Hospital, Karachi. In the cross-examination, this witness further disclosed that he can identify the accused persons by their names. Further that the accused persons were not known to him prior to this incident. The Complainant further stated that Police Officers committed incident of firing. Inspector Shoaib and Raheem Shah along with their 20/25 companions fled away in their white colour car. He was unable to say that in one car more than 5 persons can be boarded. The complainant also brought on Court record through testimony that during the time of incident, he used to reside in Flat No,405, Mosmiat, Karachi and was doing job of labour. He denied the suggestion that he has deposed falsely at the instance of Muhammad Ramzan. He also denied that he committed murder of Muhammad Ramzan in revenge.
21. If the above testimonies are minutely examined, there are material contradictions in their statements. The complainant Gulsher further stated that during the course of firing; some ladies, who were residing near place of incident received firearm injuries. PW Mst. Hajra Bibi stated that she had shifted injured/ deceased to Abbasi Shaheed Hospital, A Karachi whereas the complainant stated that he along with Ramzan shifted the injured to the hospital. S.I.P. Khan Muhammad Zardari, who was Investigating Officer of the case, had died in a road accident in Jamshoro and secondary evidence was led through S.I.P. Rehmatullah Khan Marwat. The Court had issued summonses to other witnesses, but the same were not served, hence, their evidence could not be recorded. The injured witnesses were not referred to the Hospital for medical examination and certificate. According to the prosecution case, more than 20/25 persons came at the .Scene of offence and fired at the complainant party. The deceased Muhib Ali received only single firearm shot at the left side of mid of abdomen, this injury was not specifically attributed to any accused as per F.I.R. Subsequently, P.Ws. By improving their testimonies to have attributed to the accused Syed Raheem Shah. Since no crime weapon was recovered from the possession of the accused persons, hence, empties produced by P.W. Mst. Hajra Bifii before police during the inspection of place of wardat has no legal value According to the contents of F.I.R., the complainant stated that all accused persons came and fired at the complainant party and in retaliation, the complainant party also returned the fire in self-defence but P.Ws. Have not supported this plea. The testimony of the injured P.Ws. Could not be recorded though they were summoned and Process Server stated that the whereabouts of the P.Ws. Are not known.
22. ' On the point that certain P.Ws. Were not examined by the trial Court, I am of the view that analogy of fear and threats to the P.Ws. To suppress their testimonies, if this allowed then how system will survive. If this practice has to continue then it is very easy for the Prosecution to quick disposal of the case by suppressing evidence of P.Ws. That they are under fear and threats from the opponents, hence by invoking the Provisions of Article 46 of the Qanun-eShahadat Order, 1984. The Court is left with to act on 161, Cr.P.C. Statements recorded during the investigation as already mentioned. I am dissatisfied with the order of the service upon those witnesses who according to the Prosecution are not served as their whereabouts are not known, but the law demands that unavailability of witnesses to be strictly proved. PW Mst. Hajra Bibi is related to those witnesses, but no efforts were made to have her assistance in this regard to find any clue and such statement should have been recorded. The trial Court should have record the statements of those persons whose statements and CNICs were produced during the service of summonses upon them. The Court must satisfy itself that the provisions of law have been strictly complied with. Simple statement of the Prosecutor that the witnesses are not traceable is not enough and such statement under the circumstances is excluded from service.
23. ' In my opinion, the Court has taken this matter very lightly. The Court should have issued repeatedly coercive process and in case of failure, proclaimed notices under sections 87 and 88 should have been issued. Charge framed by the Court is also defective. Trial Court, according to me, had not applied its mind properly.
24. ' From bare reading of the facts, following charges are to be framed against the accused persons under sections 302, 324, 147, 148 and 149, P.P.C. And not only 302, P.P.C. The evidence of the remaining P.Ws. Is not so material, which can be used against the accused persons as lacking corroborative material. While examination of the accused persons under section 342, Cr.P.C, injuries received by the co-accused Syed Noor Muhammad have not been put to him.
25. ' The evidence of remaining P.Ws., who are mostly police officials is not material and is of formal nature except MLO Dr. Muhammad Saleem of Abbasi Shaheed Hospital, Karachi. He has deposed that on 24-5-2008, he was posted as MLO, Abbasi Shaheed Hospital, Karachi. On that date at about 11-00 p.m., at Dead Body of one person, who was later on identified to be Muhib Ali was brought by S.-I. Ali Gohar of Police Station Sachal, Karachi for postmortem examination and certificate. On his examination, he found surface injuries i.e, "Lacerated firearm wound of entries 0.5 cm x 0.5 cm rounded shape with inverted margins at left A side mid abdomen. No wound of exist seen. The injuries were ante mortem in nature. The bullet/projectile was recovered from the right side of abdomen. The death was instantaneous caused by firearm injury. He produced Postmortem Examination Report as Exh.9-a and Certificate as Exh.9-b. In his cross-examination, he deposed that the blackening was not present. Blackening only appears when shots are fired from very close range. He could not say about the bore of projectile recovered from the body of the deceased.
26. The upshot of the above discussion is that it was vehemently argued that since the Parties are on inimical terms to each other, hence, the evidence of eye-witnesses brought on record is not such qualitative in nature. Hence, by giving him the benefit of doubt, I set aside the order of the trial Court and acquit the appellant Syed Raheem Shah from the charges and set him at liberty forthwith if not required in any other case, while dealing with the case of abovenamed appellant I cannot overlook the case of Syed Noor Muhammad Shah, who is facing same trial, but did not file appeal to challenge his sentence. Since same set of P.Ws. Are examined with same evidence and his name does not appear in the F.I.R. He was arrested from the Hospital where he was hospitalized having fire-arm injury on his person no record regarding his injury was produced by Liaquat National Hospital, Karachi, but strangely certificate was issued from JPMC, Karachi. The allegations against the co-accused Syed Noor Muhammad Shah are general in nature and no specific part is assigned. Hence, I also acquit Syed Noor Muhammad Shah from the above charges. He should also be released forthwith if not required in any other case.
27. ' In view of the above, this Cr. Appeal stands disposed of.