' SHAHNAWAZ TARIQ, J.---By this common judgment, we intend to decide and dispose of Criminal Appeal No. 107 of 2013 and Criminal Revision Application No. 142/2013, as both are filed against the same judgment.
2. Through instant Criminal Appeal the appellant namely Ghulam Mustafa son of Ghulam Rasool Halepoto has sought his acquittal against the conviction awarded to him and remittance of compensation amount, while by Criminal Revision the complainant has prayed for enhancement of quantum of sentence of R.I.14 years already awarded to the appellant, and also to set aside acquittal of co-accused namely Muhammad Rafique and Punhoo vide same judgment under section 265-H(i), Cr.P.C.
3. Both parties have assailed the impugned judgment dated 27-8-2013 passed by the learned Sessions Judge, Tando Allahyar in Sessions Case No. 5/2012 (Old No. 119/2005), F.I.R. No. 31/2005, Police Station Tando Allahyar under sections 302, 324, 337-F(vi), and 34 P.P.C., whereby the appellant was convicted to suffer R.I. For 14 years and also to pay compensation of Rs.10,00,000 to the legal heirs of deceased under section 544-A, Cr.P.C. In case of failure in payment of compensation, the appellant shall further undergo S.I. For 6 months. However, he was extended the benefit of section 382-B, Cr.P.C.
4. Relevant facts leading to the prosecution case are that complainant Muhammad Hafeez lodged F.I.R. At Police Station Tando Allahyar stating therein that he owned 5-00 acres agricultural land at Hyderabad Mirpurkhas Road, which he has been cultivating since 1979. One Ghulam Rasool and his sons Ghulam Mustafa and Muhammad Rafique used to pressurize him to sell his land which is adjacent to their lands. Complainant was using 10 feet path of irrigation for visiting his land and accused persons had never objected since last 24/25 years. On 11-2-2005, he came at his land and found path was dismantled and ploughed, he inquired from accused persons that why had they dismantled his way upon which they replied that they would not allow him to use the path.
Complainant then narrated such facts to Engineer Irrigation Naseer Division, who after inquiry issued certificate that said path was irrigation boundary. Complainant handed over said certificate to SDO Tando Allahyar and S.H.O. Tando Allahyar. After 4/5 days, SDO Tando Allahyar brought A.S.-I.
At place of incident and after demarcation, allowed the complainant to use the path. Complainant used to visit his lands daily and two days prior to the incident, he appointed Syed Hussain Shah as Chowkidar of the path so that accused should not dismantle it. After 3/4 days, when he visited his land, accused issued threats not to use the path otherwise he would be killed, so complainant moved such application to police station. On the day of incident, Syed Hussain Shah Chowkidar informed him in the morning that above named accused had again dismantled the path and had issued threats of murder hence complainant moved another application to police. Complainant along with his sons, SIP Anti-Corruption Ghulam Muhammad and Bilal Hafeez came at the place of incident. At the petrol pump one Muhammad Maaz Bari came for purchasing petrol. In the meanwhile two vehicles came and above named persons came out from vehicles adjacent to the land of complainant. Accused Ghulam Mustafa was having a .12 bore shotgun, accused Muhammad Rafique was having a repeater and accused Punhoo Lashari was having a .7 MM Riffle and started firing upon the complainant party. Accused Ghulam Mustafa made straight fires upon Ghulam. Muhammad while others made fires upon complainant and others. Complainant took the shelter to save himself. It was 12.30 p.m. In the meanwhile one Suzuki loaded with sugarcane came and they also saw the incident of firing by the accused party. Accused persons fled away by car While accused Ghulam Mustafa was apprehended with his gun and vehicle. Suzuki driver disclosed his name as Abdul Rajput who was transporting sugarcane from the land of Haji Lakhadino to Hyderabad. Complainant alleged that on instigation of Ghulam Rasool, accused made fires and committed murder of his son Ghulam Muhammad.
5. After registration of F.I.R., police reached at the place of incident and arrested accused Ghulam Mustafa from the room of the office of Mujahid Petrol Pump and prepared memo of place of incident. Police arrested accused Punhoo Lashari from the gate of Taluka Hospital, Tando Allahyar in injured condition. After completing investigation, charge sheet was submitted in. Concerned Court against accused persons to face their trial.
6. Requisite documents were supplied to accused vide Exh.l. Charge was framed by the trial Court as Exh.2, but accused pleaded not guilty and claimed to be tried vide their pleas Exhs.3 to 5 respectively.
7. To establish its case, prosecution has examined P.W.1 complainant Mohammad Hafeez as Exh.6, who produced photo copy of his application moved to S.H.O. Police Station Tando Allahyar at Exh.
6/A, F.I.R. At Exh.6/B, receipt of receiving of dead body at Exh. 6/C. SIP Ghulam Hussain was called as court witness for his evidence in respect of application of complainant moved to S.H.O. Police Station Tando Allahyar, photocopy of which was produced by him at Exh.6/A. He was examined as CW-1 at Exh.7. P.W.2 Bilal Hafeez one of the eye witness of the incident as Exh.8, P.W.3 Moaz Bari who was present at the place of incident and witnessed the same, was examined at P.W.3 as Exh.9, P.W.4 Mujahid Hussain, the owner of Mujahid Petrol Pump where accused Ghulam Mustafa was made to sit and incident had also taken place near to said Petrol Pump, was .Examined as Exh.10, P.
Ws. Abdul Rafique Mubarak Ali were died as such they were not examined vide statement as Exh.11 and learned DPP also given up both witnesses vide his statement at Exh.12, P.W. Inspector Pathan Khan Kaka was also not examined being not material witness, who was given up vide statement at Exh.
13. P.W. A.S.-I. Ghulam Qadir Shoro was also not considered to be a material witness, hence he was given up vide statement at Exh.14., Prosecution also did not examine Syed Hussain Shah, he was given up vide statement at Exh.15. Dr. Abdul Latif, who had conducted postmortem of the deceased was examined as P.W.5 at Exh.16 who produced postmortem report of the deceased at Exh.17, letter of police for conducting postmortem at Exh.18, his letter to S.H.O. Tando Allahyar for collecting pallets recovered from the body of deceased at Exh.19, his letter addressed to S.H.O. Police Station Tando Allahyar in respect of final medical certificate at Exh.20. SIP Gul Sher, who had conducted investigation of above crime was examined as P.W.6 at Exh.21, he produced dead body examination from at Exh.22, inquest report at Exh.23, memo of dead body at Exh.24, memo of securing clothes of deceased at Exh. 25, memo of place of incident and recovery at Exh.26, memo of arrest of accused Ghulam Mustafa and recovery of gun as Exh. 27, memo of arrest of accused Punhoo as Exh.28, memo of arrest of accused Ghulam Rasool Halepoto (who was subsequently let off by the police and whose name was placed in column No.2) as Exh.29. Letter to Mukhtiarkar for deputing Tepedar for preparation of sketch of place of incident as Exh.30. Another memo of arrest of accused Ghulam Mustafa and recovery of gun as Exh.31, letter of S.H.O. Police Station Tando Allahyar addressed to S.H.O. Police Station Nasarpur at Exh.32, roznamcha entry dated 20-5-2005 at Exh.33, special report at Exh.34, Chemical Examiner report at Exh.34/A, FSL report at Exh. 34/B, CTC of crime No. 35/2005 under section 13-D Arms Ord. At Exh. 34/C, CTC of deposition of SIP Gul Sher before Judcial Magistrate in respect of 13-D case at Exh.34/D, map of the place of incident prepared by I.O. At Exh.34/E. On application under section 540, Cr.P.C. Moved by learned counsel for accused, DSP Jameel Ahmed Siyal was examined as CW-1 as Exh.35, who produced reinvestigation report at Exh.36, letter of AIGP Crime addressed to AIGP Investigation at Exh.37. Photographs of place of incident as Exh.38/A to Exh.38/D. Letter to Executive Engineer Irrigation at Exh.39, rough sketch of place of incident at Exh.40, statement of complainant Muhammad Hafeez at Exh.41, investigation report at Exh.42. Tapedar Ali Muhammad being well-conversant with the signature and handwriting of late Tapedar Abdul Aziz, who had visited the place of incident and prepared sketch of the place of incident, was examined as P.W.7 at Exh.43. He produced sketch of the place of incident at Exh.44. Learned DPP vide his statement as Exh.45, closed the side of the prosecution.
8. Statement of appellant Ghulam Mustafa under section 342, Cr.P.C. Was recorded as Exh.46, whereby, he denied the allegations levelled by the prosecution and claimed to be innocent. He further stated that P. Ws. Have deposed against him due to enmity. He did not examine himself on oath, however, he examined Aftab Ahmed Soomro, (Rtd. Deputy Commissioner and A.S,-I. Ghulam Qadir as defence witnesses, and also filed his written statement under section 265-F(5), Cr.P.C. And produced certified photo copies of plaint of suit No.3/2005, Ghulam Mustafa and others v.
Muhammad Hafeez, plaint of Suit No.33/2005, Ghulam Mustafa and others v. Government of Sindh and others, Interim order on application under Order XXXIX Rules 1 and 2 C.P.C., photo copy: of F.I.R.
Drafted in hand writing of Aftab Soomro, Deputy Commissioner, copy of application under section 22-A, Cr.P.C. Filed on 7-4-2005 before the court of learned Sessions Judge, Hyderabad, copy of order passed on said application, copy of acquittal Judgment in case of 13-D of Arms Ordinance, copies of Judgment and Decree passed in Suit No.33/2005 for cancellation of letter of sanction issued by Irrigation Engineer as Irrigation Boundary as annexures A to J respectively.
9. Statement of accused Punhoo under section 342, Cr.P.C. Was recorded as Exh.46, whereby he denied the alleged offence and claimed to be innocent and stated that P.Ws. Have deposed against them due to enmity, and he produced his statement under section 265-F(5), Cr.P.C. As annexure B, however, neither he examined himself on oath nor led defence.
10. Statement of accused Rafique under section 342 Cr.P.C. Was recorded as Exh.47, whereby he denied the alleged offence and claimed to be innocent and stated that P. Ws. Have deposed against him due to enmity. He produced his statement under section 265-F(5), Cr.P.C, two certificates issued by Rashid Memorial Welfare Organization certifying that, he was on duty on 3-4- 2005 as Canteen Supervisor from 9-00 a.m. To 3-00 p.m. As annexure A to C respectively. He did not examine himself on oath, but he examined Muhammad Sadiq, Chief Security officer and Nadeem Akhtar, Admn. Officer of Rashid Memorial Welfare Organization of. Tando Allahyar.
Muhammad Sadiq, Chief Security Officer of Rashid Memorial Welfare. Organization of Tando Allahyar, as D.W-1 as Exh.50, Nadeem Akhtar, Admn Officer of Rashid Memorial Welfare Organization of Tando Allahyar as DW-2 as Exh.51, Aftab Ahmed Soomro as DW-3 as Exh.52 and A.S.-I. Ghulam Qadir as DW-4 as Exh.53. Defence closed its side for evidence as Exh.54.
11. On the basis of prosecution evidence, learned trial Court formulated the following points for determination:-
(1) Whether on 3-4-2005 at 1230 hours at the land of complainant Muhammad Hafeez situated near Mujahid Petrol Pump, Tando Allahyar, deceased Ghulam Muhammad had received firearm injury and met with his unnatural death?
(2) Whether on the above said date time and place, accused Ghulam Mustafa alias Raja, Punhoo.
Lashari and Muhammad Rafique with their common intention had issued fires upon deceased, Ghrdam Muhammad and committed his murder?
(3) What offence, if any, has been committed by the accused?
(4) What should the decision be?
12. Learned trial Court after considering the evidence adduced by the prosecution and defence, convicted accused Ghulam Mustafa alias Raja and acquitted accused Muhammad Rafique and Punhoo Lashari.
13. We have heard Mr. Hidayatullah Abbasi, learned counsel for the appellant, Mr. Shahid Ahmed Shaikh, learned A.P.-G. For the State and Mr. Muhammad Aslam Bhatti, learned counsel for the complainant at the length and have scrutinized the record with their assistance.
14. Mr. Hidayatullah Abbasi, learned counsel for the appellant has contended that appellant is innocent and was falsely implicated by the complainant by concealing material facts in F.I.R. As such his entire evidence has lost its evidentiary value. He further contended that as the deceased was SIP in Anti-Corruption police as such Chacha Murtaza (Rtd) DIG Police, Aftab Ahmed Soomro DC and Mulazim Hussain DSP Anti-Corruption remained present at P.S and they have malafidely lodged the F.I.R. With due deliberation after 4.30 p.m. While in F.I.R. Its time was falsely mentioned at 1.00 p.m. P.Ws. Have admitted that at the time of lodging of F.I.R. Those Senior Police Officers were present at police station.
15. He further urged that complainant has not mentioned in F.I.R. For causing maltreatment to the appellant by him and also detaining him in a room of Petrol pump. P.Ws. Being relatives and close friends of complainant, are interested as such they deposed falsely against the accused.
Complainant himself got reinvestigation of the case through Crime Branch Police, where he in his statement had stated that he had implicated accused Ghulam Rasool and Rafiq in hot haste, as such this admission is sufficient to falsify the entire prosecution story. Due to influence of senior officers, police had not investigated the case properly and honestly and even police had refused to lodge counter F.I.R. Of the appellant for causing injuries by the complainant party, therefore, such F.I.R. Was lodged by accused under the order of Justice of Peace. The appellant has already been acquitted under section 13-D Arms Ord.
16. He further contended that under the dictation of Senior Police Officers F.I.R. Was lodged at Police Station Tando Allahyar, while the incident had occurred in Deh Qubi which falls within the jurisdiction of Police Station Nasarpur as SHO Police Station Tando Allahyar, SIP Gul Sher was in league with retired DIG and DC, however F.I.R. No. 6/2005 which was lodged by the accused under the order passed by Sessions Judge/Justice of Peace, Hyderabad at Police Station Nasarpur. He further contended that admittedly, Survey No. 127 owned by the appellant falls within Deh Amri and P.W-7 Qazi Ali Muhammad, Supervising Tapedar has admitted in his evidence that the place of incident has been shown in Survey No. 127 of Deh Amri. Point A has been shown as place where the dead body of deceased was lying and at point B petrol pump has been shown. The distance between point A and B are shown as 20 Ft. Point D is the office of the petrol pump which is at the distance of 263 ft from the point A, therefore, claim of P.W.4 Mujahid Hussain that he is witness the incident could not be believed as admittedly at the time of alleged incident he was sitting inside his house. The disputed path is situated on the land of appellant in Survey No.127 which falls in Deh Armi. The complainant malafidely has not mentioned in F.I.R. Regarding the injuries caused to the appellant and co-accused Punboo as such his statement cannot be believed.
17. He further contended that the appellant filed suit against complainant on 2nd April 2005 while incident took place on very next day i.e. 3-4-2005. P.W.5 I.O. SIP Gul Sher has made two statements regarding the recovery of gun from the appellant as at first hand he deposed that he recovered shotgun from the accused, while in cross he admitted that gun was handed over to him by the complainant and accused was in semi unconscious condition. I.O. Further admitted that place of incident was Deh Qubi as he came to know through Tapedar. He further contended that allegedly incident occurred at 12.30 p.m. And then dead body was shifted to Civil Hospital Tando Allahyar where postmortem was conducted by Doctor and completed the same at 4.30 P.M, while the complainant has admitted in his evidence that from place of incident he went to Civil Hospital and after postmortem he lodged F.I.R. At Police Station Tando Allahyar at 1.00 p.m. Which is not the case of lodging of F.I.R. With delay, but is a case of committing fraud while lodging the F.I.R.
18. He vehemently contended that allegedly complainant caught hold of the appellant and snatched the shotgun from him and same was sent to Ballistic Expert, and as per report, said shotgun was not used during the incident. He further contended that complainant stated that fire was made from the distance of 25 ft as such it was not possible for the complainant to catch hold of the appellant and snatched shotgun from him and even as per postmortem report bleeding of wounds and all injuries were caused on the chest which is not possible if the fire was made from shotgun from a distance of 25 ft. He further contended that Ballistic Report and postmortem report are conflicting as the number of the cartridges and size of pellets are different. As per Mushirnama empties were recovered near the dead body, but it was not possible because allegedly fire was made from a distance of 25 ft. He further contended that the learned trial Court has not considered the cross-examination conducted by the defence counsel and has only relied upon the examination-in-chief of the complainant and other P.Ws. Appellant had produced 22 documents along with his statement, but same were not discussed at all in the impugned judgment and even case law cited by the defense counsel were not considered by the learned trial Court. He further contended that motive was with the appellant and not with the complainant as it was case of the complainant that path from the appellant land was acquired by irrigation department for common use, but appellant had filed suit against such permission of irrigation department and against the complainant and his suit was decreed declaring that there was no path from appellants land and the documents of the irrigation department which were relied upon by the complainant was declared as bogus, therefore, learned trial Court has wrongly held in impugned judgment that motive was on the side of the appellant and not the complainant. The improvements made by P.Ws. And concealment of major facts by them had made the case of prosecution highly doubtful. He lastly urged that co-accused were acquitted on same set of evidence, therefore, appellant may also be acquitted on the well settled principle of consistency.
He has relied upon PLD 1953 Federal Court 93, 2011 PCr.LJ 1801, 1992 PCr.LJ 2092, 1993 SCMR 550, 2007 SCMR 605, 2011 SCMR 629, 1995 SCMR 1345, 2008 SCMR 1572, PLD 1986 Pesh. 188, 2007 SCMR 1825, 1990 SCMR 158, 1998 PCr.LJ 779 Karachi, 2011 SCMR 513, 2010 SCMR 97, 2003 SCMR 1374, 1970 PCr.LJ 652, 1991 PCr.LJ 2253 Karachi, 1987 PCr.LJ 1502 Karachi, 1994 SCMR 1928, 2004 PCr.LJ 942 Karachi and 1998 PCr.LJ 1876 Karachi.
19. Mr. Muhammad Aslam Bhatti, learned counsel for the complainant has contended that complainant is owner of 4-30 acres of land in Survey No.125 which is situated at the verge of Survey No.127 and accused were compelling the complainant to sell his land. The motive of the offence is very much available in F.I.R. And all P.Ws. Have stated that appellant had caused fire arm injury to the deceased which hit him on the left side of his chest. Ocular evidence is also corroborated by the medical evidence, and minor contradictions will not negate the entire evidence of the prosecution witnesses.
20. He further contended that appellant had created false drama by filing counter F.I.R. No.6 of 2005 against the complainant party only to save them from the consequences of heinous crime of murder committed by them. He lastly contended that criminal appeal is liable to be dismissed and criminal revision may be allowed and accused persons may be awarded death sentence, as they had committed murder of the deceased. He has relied upon 2010 SCMR 1719, 2009 SCMR 99, 2011 SCMR 1148, 2000 YLR 65, 2010 SCMR 166, 1973 SCMR 219 and 1988 SCMR 370.
21. Mr. Shahid Ahmed Shaikh, learned APG has adopted arguments advanced by the learned counsel for complainant. He has contended that prosecution has proved its case against accused by examining material witnesses, therefore, criminal appeal is liable to be dismissed.
22. To unfold the truth of the controversy, we would like to scrutinize the evidence of complainant and other main P.Ws..
23. Relevant portions of evidence of P.W.1 complainan't Muhammad Hafeez (Exh.6) are repraduced as under:-- "This incident had taken place on 3-4-2005. At that time I along with my sons deceased Ghulam Muhammad and Bilal Hafeez went to our land situated in Deh Amri, Tando Allahyar. When we reached, we noticed Rafique and Ghulam Mustafa were available there.
' Accused Ghulam Mustafa threatened us that in case we would go to our land, we would be murdered. After receiving such threats I went to Police Station Tando Allahyar along with my son Ghulam Muhammad and submitted a written application and obtained receipt of the same.
I produce photo copy of my application at Exh.6/ A. After filing application at Police Station, I came back on my land and noticed that accused were not available there. We waited for police but The police did not cOme. At about 1130 hours 4twa vehicles came, in one Ghulam Mustafa,4his brother Baga alias Rafique, hari of Ghulam Mustafa namely Punhoon and in other car father of accused Ghulam Mustafa namely Ghulam Rasool and two unknown persons came.
Accused Punhoon, Rafique and Ghulam Mustafa alighted from the vehicle. Accused Ghulam Mustafa was holding. DBBL Gun, Punhoon had rifle .7 MM and Rafique had repeater. Accused Ghulam Mustafa issued straight fire upon me as I was standing at the corner of my land but suddenly my son came and pushed me aside and fire hit him on his chest. My son fell down on the ground and died at the spot. I caught hold accused Ghulam Mustafa, snatched gun from him and beaten him. Several other persons gathered at the spot who also beaten the accused.
We brought accused Ghulam Mustafa at petrol pump in the meantime police reached at the spot. Rafique and father of accused Ghulam Mustafa namely Ghulam Rasool left the place in white car whereas we handed over accused Ghulam Mustafa to police and his companion Punhoon and his brother Baga had fled away. Police collected empty cartridges and empty bullets of .7 MM rifle 3 and 4 in number. I then went to Police Station Tando Allahyar again says first of all we went to hospital where the dead body had already been dispatched. Doctor conducted post mortem of deceased and I then came to Police Station Tando Allahyar and lodged F.I.R. It is a fact that I have not mentioned in F.I.R. That in other car, father of accused namely Ghulam Rasool and two unknown persons came and remained sitting in it. It is a fact that I moved an application for reinvestigation of crime and my statement was recorded by Crime Branch Police. I see my statement recorded by Crime Branch and say that it bears-my signature. Accused Ghulam Mustafa issued fire from the distance of about 25 feet. Other accused Rafique alias Baga was also at the same distance and issuing fire in the air. I reached at the hospital at 4.00 or 4.30 PM. I know DSP Moulazim Hussain of . Anti-Corruption. I also know
(Rtd) DIG Chacha Murtaza. I also know Aftab Soomro (Rtd.) DC. They all had come at P.S before lodging of F.I.R. It is incorrect to suggest that due to our firing my son received firearm injuries and died at the spot. It is a fact that in F.LR. It is not mentioned that after apprehending accused Ghulam Mustafa, I beaten him so also other persons. It is a fact that it is also not mentioned in F.I.R. That 1 locked the accused in the room of petrol pump." (Emphasis added)
24. Relevant portions of evidence of P.W.2 Bilal Hafeez (Exh.8) are reproduced as under:-- "On the day of incident I along with my father and deceased brother had gone to our land situated in Deh Abri, Tando Allahyar. We noticed that Ghulam Mustafa and Rafique were available there who threatened us not to go on our land otherwise would be killed. 1 remained there whereas my father and deceased brother went to Police Station Tando Allahyar. After about half an hour, they both came from Police Station, as we were available" on our land, two vehicles came. Accused Ghulam Mustafa, his brother Rafique, accused Punhoon- who was not unknown to me earlier but known now, father of accused Ghulam Mustafa namely Ghulam Rasool and two other unknown persons alighted from car. Accused Ghulam Mustafa was armed with gun, Rafique with repeater and Punhoon with rifle. Ghulam Rasool instigated other accused to beat us. Accused Ghulam Mustafa issued straight fires upon my brother Ghulam Muhammad as he paced forward, when father fell down on the ground and died on the spot. All accused went away from the place but we apprehended accused Ghulam Mustafa. Police did not record my statement nor enquired anything from me. Accused Punhoon is identified in Court when I came in Court. Accused Ghulam Mustafa was not confined anywhere but we kept him nor we maltreated him. Other persons maltreated accused Ghulam Mustafa." (Emphasis added)
25. Relevant portions of the evidence of P.W.3 Maaz Bari (Exh.9) are reproduced as under:-- "The incident taken place on 3-4-2005 at 12.30 p.m. On that day I went to Mujahid Petrol Pump, Tando Allahyar for taking petrol on motorcycle. After taking petrol, I noticed that two vehicles came there, in white car Ghulam Rasool along with Rafique whereas in other car Ghulam Mustafa, Punhoon Lashari and others were sitting. They all were armed with deadly weapons, they all alighted from vehicles. Accused Ghulam Mustafa . Was armed with DBBL whereas Mitho armed with rifle and accused Rafique had repeater. They issued fires in air so also upon complainant party, in result Ghulam Muhammad received firearm injury at the hands of Ghulam Mustafa, who fell down on the ground and complainant caught hold accused Ghulam Mustafa. So many people gathered at the spot due to incident, maltreated Ghulam Mustafa. Accused Ghulam Mustafa and Mitho present in court are same. Accused Mitho was not known to me prior to incident. During investigation of above case and after lodging of F.I.R., I came to know about the name of accused Mitho. It is incorrect to suggest that the name of accused is not Mitho. I remained at the place of incident for about half an hour. I went to my shop from the place of incident. I came to know on same day about registration of F.I.R. As I was present at Police Station when F.I.R. Was lodged.
Again says I went to police station from the place of incident where complainant lodged F.I.R. It is a fact that at the time of lodging F.I.R., Chacha Murtaza, Aftab Soomro and Moulazim Hussain were present in the room along with complainant. It is fact that complainant is my caste fellow and belongs to same brothery. It is a fact that I am accused in counter case along with complainant Hafeez and P. W. Bilal. Mitho was not present at that time when accused Ghulam Mustafa was being maltreated."
26. Relevant portions of the evidence of P.W.4 Mujahid Hussain (Exh,10) is reproduced as under:-- 'Incident had taken place on 3-4-2005 at about 1230 hours. I was available in my office situated in Mujahid Petrol Pump. I heard firearm reports and came out from my office and rushed towards the place from where firing was made. I noticed that accused Ghulam Mustafa armed with DBBL Gun, issued straight fire upon deceased Ghulam Muhammad, which hit him on his left side of chest, who expired at the spot. Accused Ghulam Mustafa was apprehended by Abdul Hafeez and other people, whereas accused Punhoon and Rafique had already escaped away. It is a fact that I am an accused in the counter case along with Bilal, Abdul Hafeez and Maaz Bari. Accused Rafique and Punhoon had not escaped away till my reaching at the place of incident. I cannot give numbers of people, who maltreated accused Ghulam Mustafa. Some of them had come on their motorcycles, truck or bus. It is a fact that there was a dispute between me and Khalid Dino, the uncle of accused Ghulam Mustafa over wall of petrol pump. It is a fact that Haji Khalid Dino is witness in the counter case against me." (Emphasis added)
27. P.W.5 Dr. Abdul Latif (Exh.16) conducted post mortem of deceased Ghulam Muhammad, and medically examined injured accused Rafique and accused Pu-nhoo on same day. Relevant portions of, his evidence are reproduced as under:-- On 3-4-2005, I was senior MLO, Taluka Hospital, Tando Allahyar. On that day, at about 2.00 p.m.
Dead body of Ghulam Muhammad was brought in hospital who was identified by his father Muhammad Hafeez. Accordingly, 1 started post mortem at 2:30 PM on the same day and during external examination, 1 find the following Injuries:-- ' 1.A lacerated wound of entry, cavity, deep on right anterior chest wall 2.5 cm x 2.5 cm at the medical end of right clavicle with blackening at the edges.
2. A lacerated wound of entry, cavity deep on right anterior chest wall just blow the injury No.1 3/4 cm x 3/4 cm in size.
3. A lacerated cavity deep wound of entry 3/4 cm x 3/4 cm on right anterior chest wall, 2 cm medial to the injury No.2.
4. A lacerated cavity deep wound of entry 3/4 cm x 3/4 cm on right anterior chest wall below injury No.2 & 3.
5. A lacerated cavity deep wound of entry 3/4 cm x 3/4 cm on right anterior chest wall medial to injury No.4.
6. A lacerated cavity deep wound of entry 3/4 cm x 3/4 cm at the right anterior chest wall at right mid clavicle line.
7. A lacerated cavity deep wound of entry 3/4 cm x 3/4 cm at right anterior chest wall medial to injury No.6.
8. A lacerated cavity wound of entry 3/4 cm x 3/4 cm at anterior chest wall between injury No.7 & 9.
9.A lacerated cavity deep wound of entry 3/4 cm x 3/4 cm at the middle of sternum.
10. A lacerated cavity wound of entry 3/4 cm x 3/4 cm at the anterior chest wall superiorly closed to the sternum.
11. A lacerated wound of exit 1cm x 1 cm at the posterior part of left chest wall. Lungs: they are perforated at several places. B. Heart: left atrium is torn C. Sternum:- A fracture is seen near middle of sternum. D. Ribs: Fracture of 2nd and 3rd ribs are seen at right chest.
' Time elapsed between injury and death:- Instantenous. Time elapsed between death and postmortem:- one to two hours. From the circums of injuries, I can say that the fire was made from one narrow distance of about one to two feet. Injury No.1 had blackening around it whereas other injuries had no blackening. I took out five pallets whereas there was possibility of other pallets in the body.
(Emphasis added)
' Opinion:- From the external and internal examination of the body of deceased. I am of the opinion that death has resulted from cardiopulmonary arrest due to excessive bleeding and injuries to the vital organs from gunshot wounds. Five pellets recovered from the body of deceased have been handed over in a sealed bottle to the Police.
27(i). On the same day, I had also examined two injured accused Ghulam Mustafa and Punhoo.
' Accused Ghulam Mustafa:- Injured accused Ghulam Mustafa was brought by police on 3-4-2005 at 5.30 pm, who have received following injuries:--
(1) A soiling 2 cm x 1 cm at the middle part of nose.
(2) A bruise 2 cm x 2 cm at lower lip.
(3) A bruise 1 cm x 1 cm at upper lip.
(4) An abrasion 2 x 3 cm with difuse soiling 3 x 3 cm at the posterior aspect of left elbow joint.
(5) An inside wound 1 cm x 1/4 cm skin deep at the palmer side of left index finger.
' A lacerated wound 2 cm x 1/4 cm mussel deep at the palmer side of left thumb. The kind of weapons was hard, bullent blunt and sharp cutting injuries. I declared the injuries falling 2, 3 as simple injuries and injury No.5 Ghair Jafia Damiyah and injury No.6 Jurah Ghair Jaifah Mutalahimah. The injured was also referred to LMCH, Hyderabad, where he was provided treatment and after I received the record, I declared reserved injuries Nos. I and 4 as Sujah-e- Hashima and Jurah Ghair Jaifah Munaqqilah respectively. I also produced attested photo copy of final medical certificate of injured accused Ghulam Mustafa as. Exh.
20. 27(ii). Accused Punhoo:- Injured accused Punhoo was also brought, who was also examined by me and who had received following injuries:--
(I) A lacerated wound 6 inches x 3 inches bonds deep and posterior side of left forearm. It was the firearm injury. He was also referred to LMCH, Hyderabad for further treatment. After receiving the record from LMCH, Hyderabad I issued final medical certificate and declared the injury Jurah Ghair Jaifah Munaqqilah. It is fact that it was not totally final certificate. Injured accused Ghulam Mustafa remained admitted in the hospital from 3-4-2005 to 13-4-2005 during which he was also operated whereas injured accused Punhoo remained admitted in the hospital from 4-4-2005 to 19-5-2005.
28. Relevant portions of evidence of P.W.6, SIP Gul Sher (Exh:21) are reproduced as under:- "On 3-4-2005, I was posted as SHO at Police Station Tando Allahyar. On that day 1 was handed over copy of F. I . R. Bearing No.321/2005, under section 302 P.P.C.. I went to Civil Hospital Tando Allahyar where prepared dead body examination form of deceased Ghulam Muhammad. I visited place of incident duly shown by complainant. It was situated besides Mujahid Petrol Pump. I collected blood-stained earth, 4 empty cartridges of .12 bore, two live bullets and one empty bullet of .7 MM. I arrested accused Ghulam Mustafa, who was available in the office of Mujahid Petrol Pump. I also secured one DBBL gun and Mehran Car from accused Ghulam Mustafa. At the time of arrest, accused Ghulam Mustafa was in semi unconscious condition. I produce memo of arrest and recovery at Exh.27, which is same correct and bears my signature. In present case accused Ghulam Mustafa and Punhoo were injured for whom I issued letter for treatment. Injured accused were referred for 'better treatment to LMCH, Jamshoro. On 14-4-2005,1 filed an application before concerned Magistrate for recording statement of P. W. Syed Hussain Shah under section 164 Cr.P.C., however, he did not appear before the Magistrate, therefore, his statement could not be recorded. I see Chemical Examiner report and say it is mentioned in it that the case property was received in his office on 23-4-2005 with the letter of the same date. I see Exh. 34/B and say that it is in negative in respect of cartridge issued from gun bearing No.B-1581. Accused Ghulam Mustafa was available in the office of Mujahid Petrol Pump. It is correct to suggest that the gun in question was handed over to me by complainant. It was not secured directly from the possession of accused. P.W. Maaz Bari did not say in his statement that accused Ghulam 1?Asool and Rafique alighted from one car whereas accused,. Ghulam Mustafa and Mitho alighted from another car. It. , is a fact that P. W. Maaz Bari had not even taken the name of accused Ghulam Rasool in his statement under section 151, Cr.P.C. Nor he stated that accused were also issuing fires in the air nor he stated that complainant caught hold accused Ghulam Mustafa.
(Emphasis added)
29. Relevant portions of evidence of CW-1, SIP Jamil Ahmed (Exh.35) are reproduced as under:-- "On 22-11-2005, I was posted as Inspector in Crime Branch, Hyderabad. On that day I was directed by AIG, Hyderabad to conduct investigation of Cr. No. 31/ 2005, under section 302 of Police Station Tando Allahyar. I produce letter of AIG, Hyderabad as Exh. 36, it is same and correct. On 7-1-2006, I recorded statement of complainant Hafiz in the presence of AIG Crime Branch, who attested such statement. I produce statement of complainant at Exh. 41, it is same, correct and bears signature of complainant and attestation of AIG Crime Branch. Complainant in his statement had stated that he wrongly nominated accused Rafique and Ghulam Rasool, who were innocent. I submitted my investigation report in court as the case has already been challaned. I produce my investigation report at Exh.42, which is same, correct and bears my signature. It is a fact that photocopy of CNIC of the complainant is attached with his statement." (Emphasis added)
30. At this juncture, we would like to refer relevant case-law as follows:--
(i) In case of Akhter v. The State 2008 SCMR 6, honourable Supreme Court has held that improvements made by witness in his statement subsequently to strengthen prosecution case, could not be relied upon. 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 credibility becomes on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness.
(ii) In case of Khalid Javaid v. The State, 2003 SCMR 1419, honourable Supreme Court has held that first information report under section 154, Cr.P.C. Is normally considered as a corner stone of the prosecution case unless it is shown that on account of some mala fide intention a wrong version of complainant was recorded by the investigation agency with a view to allow the real culprits to go scot free and to involve innocent person in the commission of the offence or complainant in order to misguide the investigation lodged false report or supplementary statement with ulterior motive.
It has further held that witness who had made glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of F.I.R. If he was a witness and his statement was recorded under S.161 Cr.P.C, such witness was to be considered to be wholly unreliable witness and it was not advisable to place explicit reliance upon his evidence.
(iii) In case of Gul Bahar v. Ghulam Ali, 2002 SCMR 224, it has held that ocular evidence was in glaring conflict with the contents of the F.I.R. And the improvement and the exaggeration made at the trial had made the entire prosecution case doubtful. Confessional statement and the recoveries had also been disbelieved by the Trial Court to complainant in circumstances.
(iv) In case of Hadi Bux v. The State, PLD 1963 Karachi 805, it has held that relations of prosecution witness and accused strained, evidence of such witness not safe to rely upon unless corroborated by reliable evidence. Witness improving his version to strengthen prosecution case, statement subsequently made cannot be relied upon.
(v) In case of Dr. Khalid Moin and others v. The State, 2006 PCr.LJ 639 it has held that in first information in cognizable cases, all the details of the incident although are not required to be given in F.I.R. But at least major and important points are required to be mentioned therein.
(vi) In case of Mian Dad Leghari v. The State, 2009 PCr.LJ 1226, it has held that in such a case of clear contradiction between F.I.R., 161 Cr.P.C. Statement and the evidence led in court, the credibility of eyewitnesses is exposed to doubt and the same may lead to suggest that they made the major improvement in their statement before the Court, with certain interest and motivation. The ambiguity, which is inherent, in the deposition of the complainant and other eyewitnesses had undermine the evidentiary value of evidence.
31. Perusal of evidence and other relevant record meticulously reflects the following material contradictions and glaring improvements which have created serious doubts about the production story:-
(a) Complainant in F.I.R. Has stated that accused Ghulam Mustafa made straight fire upon his deceased son, while in his evidence, he has stated that accused Ghulam Mustafa issued straight fire upon him as he was standing at the corner of his land but suddenly his son rushed towards him and pushed him aside and fire hit him on his chest. P.W.2 Bilal has stated that accused Ghulam Mustafa issued straight fires upon his brother Ghulam Muhammad as he paced forward, when father fell down on the ground and died on the spot.
(b) Complainant in F.I.R. Has stated that he caught hold accused Ghulam Mustafa and snatched his gun, while in his statement he has stated that he apprehended accused Ghulam Mustafa and beaten him and he was made to sit in a room of petrol pump till arrival of the police. In his evidence he admitted that he had not mentioned in F.I.R. That he had locked appellant in the room of the petrol pump.
(c) Complainant in F.I.R. Has not stated about beating by him to accused Ghulam Mustafa and injuries caused to accused Punhoo. Accused Ghulam Mustafa and Rafique sustained serious injuries and remained admitted in hospital. P.W.7 Dr. Abdul Lateef had examined both injured accused on the same date and after providing medical treatment referred them to Hyderabad for proper treatment.
(d) Complainant and P.W.3 Maaz Bari have mentioned the time of incident as 12:30 p.m. While the complainant in cross, has stated that after incident he went to Police Station Tanilo Allahyar, then again said first of all, they went to hospital where the dead body had already dispatched and doctors conducted post mortem of the deceased, then he came at Police Station Tando Allahyar and lodged the F.I.R. While as per medical evidence, post mortem was started on same day at 2:30 p.m. And completed at 4:30 p.m. Amazingly the complainant has mentioned the time of incident in F.I,R. As 12:30 p.m. And F.I.R. Was lodged at 1300 hours. Complainant admitted in his cross that he reached at hospital at 4 or 4.30 p.m. In this context the claim of the defence counsel that the complainant has mentioned wrong time of F.I.R. Only to cover its delay seems to be correct.
(e) P.Ws. Have admitted that at the time of lodging of F.I.R. Chacha Murtaza (Rtd.) DIG, Aftab Ahmed Soomro DC and Mulazim Hussain DSP Anti-Corruption Police were present at police station. This admission also supports the contention of defence counsel that F.I.R. Was lodged by the complainant with deliberation of the high officers by manipulating true facts.
' P.W.6 1.0 SIP Gulsher in his evidence, has admitted that Chemical Examiner Report Exh.34/B is in negative in respect of cartridges fired from the shotgun bearing No.1581, allegedly recovered from the appellant. This admission alone is sufficient to demolish the entire structure of prosecution story. The opinion of expert in Exh. 34/B is reproduced as under:-- OPINION:
1. Three .12 bore crime empties marked as 01, 02 and 03 were. Not FIRED from the .12 bore (DBBL) shotgun No. B1581/27 in question in view of the following major points i-e:- stricker pin marks, brech face marks etc are dissimilar.
(2) No definite opinion could be expressed regarding one .12 bore crime emp marked as 03 due to lack of sufficient identifiable data.
(3) Five pallets marks as P1 to PS are the contents of shotgun cartridge.
' Note:- Two .12 bore test empties are being sent in the sealed parcel of the above mentioned fire arm. (Emphasis added)
(g) Complainant in F.I.R. Has alleged that accused were pressurizing him to sell his land to the accused, but no evidence in support of said allegations was produced before the court nor any such complaint was ever made by the complainant to the area police or any other authority.
(h) Complainant has stated that he was using 10 feet path of irrigation for visiting his land since 24/25 years without any objection, but he has failed to produce any corroborative evidence to establish his claim, while accused had filed Suit No.3/2005, against complainant on 9-2-2005 before Court of Civil Judge, Tando Allahyar, and then Suit No.33/2005 on 2-4-2005 before Court of Sr. Civil Judge, Tando Allahyar; both suits were filed before the incident, however, the permission obtained from Irrigation Engineer by the complainant was declared illegal vide Judgment and decree passed in Suit No. 33/2005, which was never challenged.
(i) Complainant has alleged that said path was dismantled by accused on 11-2-2005, but neither matter was reported to police nor any suit was filed by the complainant before any Court.
(j) Complainant has stated that accused had issued threats so he had moved such application to police, but no copy of first application was produced by him before the Court.
(k) Complainant has stated that accused Ghulam Mustafa was apprehended by him and he snatched shotgun from him, while father and brother of the accused fled away from the spot in their other car; this plea could not be believed as when accused persons were armed with shot gun, repeater and rifle, and allegedly the deceased was already murdered and complainant party claimed to be unarmed then it was not difficult for the accused party to get released accused Ghulam Mustafa from the custody of the complainant.
(1) I.O. DSP Jamil Ahmed (CW-1) has stated in his evidence that case was re-investigated by Crime Branch Police and he had recorded statement of complainant under section 161, Cr.P.C. In presence of AIG Crime Branch, wherein complainant admitted that he had wrongly implicated accused Rafiq and Ghulam Rasool who were innocent and he nominated them due to misunderstanding and in hot has manner. I.O. Has produced statement of the complainant along with copy of his MC.
Complainant in cross, has admitted that on his application case was re-investigated and his statement was again recorded by Crime Branch Police. This fact is sufficient to believe that complainant has lodged false F.I.R. Against appellant.
(m) P.W. Mujahid admitted that he has a dispute with the uncle of the appellant over wall of his petrol pump. He further stated that when he reached at the spot accused Punhoo and Rafique had already escaped away, but in his cross, he retracted from earlier statement and stated that accused Rafiq and Punhoo had not escaped away till his reaching at place of incident.
(n) P.W. Maaz Bari was a chance witness. He has admitted that he is caste fellow of the complainant and belongs to same brothery, and co-accused in counter case lodged by the accused. He stated that he remained at the place of incident for about half hour and then went to his shop from the place of incident, but in cross, he has stated that he from the place of incident went to police station where complainant lodged F.I.R., while complainant has stated that he went to civil hospital from place of incident and after post mortem, the he went to Police Station to lodge report.
(o) P.W. Maaz Bari could not identify accused Punhoo claiming him to be Mitho. He stated that he was not aware of the name of accused Mitho but during investigation came to know his name.
(P) Complainant has stated that he caught hold appellant, snatched shotgun from him and beaten him and other people also beaten him, while he has not stated said fact in F.I.R. P.W.
Mujahid has stated that other people beaten appellant and, some of them had come by their motorcycles, truck or bus, while this specific fact has not been deposed by any other witness in Court nor was mentioned in F.I.R.
(q) Complainant has stated in F.I.R. That during the firing one Suzuki loaded with sugarcane reached there and its driver Abdul Rajput had also seen the incident but he was not examined before the trial court.
(r) Complainant has stated that fire was made from the distance of 25 feet upon the deceased, while as per MLO fire was made from the distance of only one to two feet.
(s) Complainant has stated in F.I.R. That two days prior to the incident he had appointed Syed Hussain Shah as Chowkidar of disputed path who in the morning of the day of the incident, informed him that accused has dismantled said path, but complainant has not deposed this fact in his statement recorded by the trial Court. Although Syed Hussain Shah being the chowkidar of the place of incident, he would have been a material and important witness, but he was not examined before the trial Court and he had also not appeared before the concerned Magistrate for recording of his statement under section 164, Cr.P.C. Though I.O. Had obtained such date from the Court.
(t) Complainant in F.I.R. Has stated that Syed Hussain Shah Chowkidar had informed him in the morning of the day of incident that accused had dismantled said path and issued threats, whereupon complainant went to Police Station and moved second application against accused, while in evidence, he deposed in contradictory manner that he and his sons Ghulam Muhammad and Bilal went at the land, where accused Rafique and Ghulam Mustafa were present, and accused Ghulam Mustafa issued threats of murder, therefore, he along with his deceased son went to police station and moved second application, but original application was not produced by the prosecution before the Court.
(u) Complainant in his statement has stated after moving application to Police, they came back at their land and waited for police but police did not come and accused were also not available there, while in F.I.R. He has not stated fact of waiting for police etc.
(v) Complainant has deposed that in other car, father of accused namely Ghulam Rasool and two unknown persons came and remained sitting in it, while in cross he admitted that he had not stated said fact in F . I .R .
(w) Complainant has stated in F.I.R. That when they were present at land two vehicles came there and accused Ghulam Mustafa, Rafiq, Punhoon and Ghulam Rasool got down and started straight firing upon the complainant party at the instigation of accused Ghulam Rasool, while in his evidence, he has stated that two vehicles reached there and in one car accused Ghulam Mustafa, Rafiq and Punhoon and in other accused Ghulam Rasool and two unknown persons were boarded.
P.W.2 Bilal Hafeez has stated in his evidence that when they were available on land, two vehicles came there. Accused Ghulam Mustafa, Rafiq and accused Punhoo who was not known to him earlier, while father of the accused Ghulam Rasool and two other unknown persons alighted from car. In cross-examination he stated that he never stated before the police that accused Ghulam Rasool was there. He never went to police to disclose about the incident.
32. We have meticulously examined the ocular account, circumstantial evidence and medical evidence by placing all the factors in juxtaposition, and have concluded that P.Ws. Have made deliberate improvements, glaring contradictions and a series of repudiations on their part which have created serious doubt regarding the occurrence of incident as alleged by the prosecution.
Consequently, we are of the considered view that prosecution has failed to bring home guilt of accused by adducing trustworthy evidence. Resultantly, criminal appeal filed by the appellant Ghulam Mustafa is allowed as prayed on the principle of consistency, he is acquitted of charge.
Accordingly, the impugned judgment dated 28-7-2013 is set aside, and simultaneously, criminal revision application filed by the complainant stands dismissed being devoid of any merit. The Superintendent concerned prison is directed to release the appellant Ghulam Mustafa son of Ghulam Rasool forthwith if he is not required in any other case.