' AFTAB AHMED GORAR, J.---This criminal appeal has been directed against the judgment dated 3- 9-2010 passed by learned 1st Additional Sessions Judge, Dadu in Sessions Case No. 440 of 2006 whereby the appellants were convicted and sentenced to imprisonment for life and to pay fine of Rs.50,000 each and in default of payment of fine to further undergo R.I for six months more. The benefit of section 382-B, Cr.P.C. Is extended to the appellants.
2. Brief facts of the case are that on 15-7-2006 complainant Nazeer Ali lodged F.I.R. At Police Station Thariri Mohabat alleging therein that on 14-7-2006, complainant Nazeer Ali his brother Wazeer cousins namely Ghulam Shabir and Hazaro and other family members were available in the house when at 9.45 p.m. There was a call on outer door on which Ghulam Shabir went outside and complainant. P.Ws. Wazeer and Hazaro followed him and saw in the light of electric bulb accused Gul Bahar alias Gulbo with gun who took Ghulam Shabir on the pretext that Ghulam Shabir has been called by Misri Qambrani standing in the land. The complainant and P.Ws. Also followed them and at about 10-30 p.m. They reached in the land of Ghulam Mujtaba Isran where they heard cries and fire shot. The complainant and P.Ws saw in the light of torch accused Misri. Gul Bahar with guns and two unknown persons armed with K.Ks. It is alleged that complainant party gave hakal on which accused Misri Qambrani and Gul Bahar alias Gulbo Babar in loudly voice stated that Ghulam Shabir had given their names in the case of quarrel of Bughia and today they have taken their revenge and escaped and thereafter complainant party saw Ghulam Shabir lying dead having received gun shot injuries.
3. After usual investigation, police could not arrest any of the accused and after completion of investigation submitted challan in the Court of law on 29-9-2006 under section 512, Cr.P.C. Showing all the accused as absconders and they joined the trial later on.
4. Appellants Gulbahar alias Gulbo alias Ali Gohar, Misri and co-accused Irshad and Talib were charge-sheeted and they pleaded not guilty and claimed trial.
5. Learned trial Court examined the P.Ws viz. Dr. Bashir Ahmed as P.W.1 at Exh.9, who conducted postmortem of deceased Ghulam Shabir and produced police letter at Exh.09/A and postmortem report of deceased at Exh.9-B. P.W.2 complainant Nazir Ali at Exh.10 he produced F.I.R. At Exh.10/A.
P.W.3 Wazir Ali at Exh.11, he is eye-witness. P.W.4 Ahmed Ali at Exh.12 he had seen the accused at place of wardat. P.W.5 Muhammad Ishaque at Exh.13 he is mashir and produced mashirnama of examination of dead body of deceased Ghulam Shabir at Exh.13-A, inquest report at Exh.13-B, mashirnama of place of wardat at Exh.13/C, mashirnama of recovery of clothes of deceased at Exh.13-D, P.W.6 A.S.-I. Mumtaz Ali at Exh.14, he is initial Investigating Officer. P.W.7 SIP Munwar Ali at Exh.15, he is Investigating Officer and produced report of Chemical Examiner at Exh.15/A. Thereafter learned DDPP for the State closed the prosecution side vide statement at Exh.16.
6. The statements of appellants Gul Bahar alias Gulbo, Misri and co-accused were recorded under section 342, Cr.P.C. At Exhs.17, 27 to 29 respectively. The appellants declined to examine themselves on Oath or to produce any witness in defence. Appellant Gul Bahar produced electoral roll of Muhammad, Khadim Hussain, Qutub Din and Ahmed Ali and their residence certificates at Exhs.18 to 25 respectively, election result of PS-39 Larkana-V at Exh.26. After conclusion of trial, the appellants were convicted as mentioned above under the impugned judgment while co-accused Irshad and Talib were acquitted.
7. I have heard the learned counsel for the appellants as well as State counsel and perused the record of this case very carefully. The complainant Muhammad Nazir (Nazir Ali) is present in Court in person who stated that he does not want to proceed with the case as the parties have patched up. The deceased was married as he was aged about 44/45 years and was having children but the learned counsel for the appellant submitted that though the parties have patched up but he would proceed with the appeal on merits.
8. Learned counsel for the appellants submitted that as per F.I.R. Appellants were identified on torch-light but P.Ws. Have failed to produce the same before the I.O. Of the case. He further submitted that as per F.I.R. There is specific allegation against any of accused and role of firing at deceased is also not attributed to any of the accused. He further argued that there is inordinate delay of more than 9 hours in lodging of F.I.R. For which no plausible or satisfactory explanation is given by the complainant. He further submitted that role has been ascribed by P.Ws to each of the accused in their examination-in-chief and according to them appellant Misri fired at deceased Ghulam Shabir which hit on his left part of armpit and fell down and then accused Gul Bahar caused firearm injury on his right thigh. The examination-in-chief of complainant shows that appellant Misri fired upon deceased Ghulam Shabir which hit on his left part of armpit and he fell down and according to postmortem report and Medical Officer, deceased Ghulam Shabir received wound of entry on right axillary region and exit from left shoulder. As per prosecution witnesses they saw and identified accused on electric bulb light and torch, but neither any electric bulb is seen or its availability is mentioned by the Investigating Officer nor said torch is produced before police or secured during course of investigation. He further argued that as per F.I.R as well as statements of both P.Ws namely Wazir Ali and Hazaro they identified two accused to be present appellants Gul Bahar and Misri while two were not known to them. He further argued that in order to strengthen prosecution case the complainant party prepared and introduced another set of witnesses namely Ahmed Ali and Khadim Hussain and their statements were recorded after two months of alleged incident and they were examined on 15-9-2006 while the incident took place on 14-7-2006. In their statements, they have disclosed the names of two unknown accused as Irshad and Talib but no explanation is given for such a long delay and no any incriminating article or crime weapon has been recovered from the present appellants to connect them with the commission of the alleged offence. He further argued that the alleged incident is un-witnessed one and nobody even complainant has seen the murder of deceased Ghulam Shabir by any of the accused persons. After recovery of dead body the complainant concocted the story and lodged false F.I.R implicating the innocent persons due to previous He further argued that two prosecution witnesses namely Hazaro and so-called .Witness Khadim Hussain were not examined by the prosecution during trial hence presumption under Article 129(g) of Qanun-e-Shahadat is fully attracted that if they were to put in witness box they would not have supported the prosecution case. That during trial of appellants, appellant Gul Bahar during recording his statement under section 342, Cr.P.C. Produced the documents showing the residence of so-called P.Ws. Khadim Hussain and Ahmed Ali and they were chance witnesses and reside very far off place from the place of incident. He further argued that the statements of prosecution witnesses are doubtful and benefit of doubt be given to the appellants. He has placed reliance on the case of Hadi Bux v. State PLD 1963 (W.P.) Karachi 805, Muhammad Ilyas v. State 1997 SCM R 25 and Attaullah v. State PLD 2006 Karachi 206 and prayed for acquittal of the appellants.
9. Learned State counsel opposed the acquittal of appellants and supported the impugned judgment passed by the learned trial Court.
10. I have given my due consideration to the arguments and gone through the evidence with the assistance of learned Advocate for the appellants. From the evidence I find that the case rests upon statements of so-called witnesses and improvements made by the prosecution witnesses in their evidence. As per F.I.R lodged by complainant Nazir Ali, cousin of deceased, states that at about 0945 p.m. Somebody called at door and in response Ghulam Shabir went out. Complainant and his brother Wazir also followed them. At about 10.30 p.m. Complainant party heard cry and gunfire. The complainant and P.Ws saw in the light of burning bulbs and identified appellants.
When they reached in the lands they heard the voice of the appellant Gul Bahar alias Gulbo who loudly said that due to previous dispute with Bughio Community Ghulam Shabir has given their names, now they have to take such revenge. Saying so they went away. They saw Ghulam Shabir was lying on the ground and had received firearm injuries on the left side of armpit and exit from let armpit and left arm through and through. But he did not see who had fired upon deceased Ghulam Shabir. As per F.I.R. No any overt act is against any of the appellants. At the time of trial complainant and P.W Wazir improved their evidence. They stated in their examination-in-chief that Appellant Misri and Gul Bahar alias Gulbo made fire from their guns upon deceased Ghulam Shabir and after two months of incident two witnesses namely Ahmed Ali and Khadim Hussain appeared before the I.O. And their 161, Cr.P.C. Statements were recorded by the I.O. In which they disclosed the names of two accused persons as Irshad and Talib. P.W. Ahmed Ali admitted in his cross- examination that both the P.Ws reside in village Taj Muhammad which is about 16/17 kilometers away from the place of incident. He also admitted that complainant is his caste fellow while deceased Ghulam Shabir was his brother-in-law. It is highly doubtful that how the persons who are residing 16/17 kilometers away from the place of incident were available there at the dark hours of night and his brother-in-law was murdered but he was mum for about two months and he did not disclose the facts to the complainant or Investigation Officer of the case. At the time of occurrence neither the so-called witnesses challenged the accused nor they tried to raise hakal etc. To rescue the deceased or informed the complainant about presence of appellant and causing injuries to deceased. In such circumstances presence of both the witnesses at the place of incident creates doubt in the prosecution case. During trial, P.W Hazaro was not examined by the prosecution. There are improvements made by the prosecution which also create doubt. In the case of Attaullah (supra ) it was held as under:-- "... This shows that the witness has improved his statement from the statement recorded in Court. It has been held in a case of Saeed Muhammad Shah v. State 1993 SCM R 550 that if improvements are made in the evidence by the witness then such improvements are unworthy of reliance and the evidence of witness requires corroboration:"
11. From the above position it is clear that the evidence of witness was recorded after a delay of five days without furnishing any explanation. The Hon'ble Supreme Court of Pakistan examined the question of delay in recording the 161, Cr.P.C. Statement of a witness in a case of Sahib Gul v. Ziarat Gul 1976 SCM R. 236 in which there was delay of four days in recording the statement by the police when the P.Ws were running shop near the place of incident and also going with the complainant to the Police Station, therefore, the evidence was not relied upon. In the case of Saeed Muhammad Shah v. State 1993 SCM R 550 the statement under section 161, Cr.P.C. Was recorded after delay without explanation. The said statement was ruled out of consideration. In the case of Muhammad Sadiq v. State PLD 1960 SC 223 there was delay of 24 hours. The witness was friend of the deceased but did not disclose to anyone for the said period that he saw the murder, therefore. Such evidence was not relied upon. In the present case there is no explanation for recording the statements of witnesses namely Ahmed Ali and Khadim Hussain after delay of two months. Therefore, the rule laid down by the Hon'ble Supreme Court of Pakistan is fully applicable in the circumstances of the present case.
12. That it is surprising to note that the P.W. Hazaro who was shown to be present at the place of occurrence has not been examined by the prosecution. He was shown to be natural and independent witness but the prosecution withheld his evidence by not producing him in Court for the reason best known to them as no reasons whatsoever has been assigned by the prosecution for not examining P.W Hazaro. It is well-settled principle of law that if a best piece of evidence is available with the party and the same is not produced in Court then it can be presumed that the party had some ulterior and sinister motive behind it, therefore', presumption under illustration (g) of Article 129 of Qanun-eShahadat, 1984 can fairly be drawn that the said evidence, if it has been produced, it would have been unfavourable to the said party.
13. For what been discussed above, for extending benefit of doubt it is not necessary that there should be many circumstances creating doubt and if there is single circumstance which creates 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 but as a matter of right. As discussed above, in the instant case there are sufficient circumstances which create doubt upon the prosecution case. The conviction cannot be recorded merely on probabilities and presumptions and prosecution has to prove its case beyond any shadow of doubt which the prosecution has miserably failed to prove in the instant case. In the case of Muhammad Illyas (Supra), the Hon'ble Supreme court of Pakistan held 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.
In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt."
14. The case law relied upon by the learned counsel for the appellants is very much applicable to the facts and circumstances. By my short order dated 20-6-2013 the appellants were acquitted and they were directed to be released forthwith if not required in any other case. These are the reasons for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.