' SADIQ HUSSAIN BHATTI, J.---This appeal is directed against the judgment dated 6-11-2010 passed by IIIrd Additional Sessions Judge, Shaheed Benazirabad in Sessions Case No.244 of 1999, whereby the appellant Hussain Bux son of Manger Rind was convicted and sentenced to suffer life imprisonment and to pay an amount of Rs. 100,000 (One lac) as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. And in default whereof to suffer S.I. For two years more, with benefit of section 382-B Cr.P.C, for committing offence under section 302(b), P. P. C .
2. The relevant facts, arising out of the instant appeal, are that on 24-10-1998 at 3-15 p.m., a case vide F.I.R. No.76 of 1998 under sections 302, 148, 149, P.P.C. Was registered at Police Station Taluka Nawabshah at the behest of complainant Muhammad Anwar Otho, wherein he alleged as hereinbelow:-- "Complaint is that I used to reside with my uncle namely Ghulam Dastagir alias Abdul Razak in Kazi Ahmed Town. My uncle was zamindar. It is alleged that about 4/5 months ago there arose a dispute between Muhammad Ibrahim Otho and Abdul Rahim Rind both residents of Sehwa due to matrimonial affairs, which arose to the level of tribes/ communities. There were talks/ discussions between Otha and Rind communities for peaceful decisions in such meetings on behalf of Otho community Ghulam Dastagir alias Abdul Razzak used to participate. On which my uncle regularly received threats through telephone that he should not help the Otho community of Sehwan. Later on calling person disclosed his name as Muhammad Ayoub Rind, my uncle told that he met with Muhammad Ayoub several times and the voice on telephone was identified to be of Ayoub Rind.
Three/four days prior to the incident, a meeting of Rind community held in which Muhammad Ayoub Rind disclosed that Ghulam Dastagir alias Razzak is helping and leading the Otha community, so he should be murdered. Today, I and my relatives Muhammad Siddique son of Mohabat Otho, Ali Muhammad son of Sher Muhammad Otho went together in a car towards Nawabshah for some personal work, where Ghulam Dastagir alias Abdul Razzak met us in his Jeep No.BA-954, Karachi, who told them he is going to Kazi Ahmed, so you should follow. Uncle left Nawabshah in his jeep and we followed him in car and when we reached Petrol Pump of Syed Ali Ahmed Shah, stopped our car for petrol and went to Petrol Pump whereas my uncle alone went towards Kazi Ahmed. At about 1-45 p.m. When Jeep of my uncle reached the Sim Nala Deh40 Dad, meanwhile we again followed him. Meanwhile two Cars of white colour crossed us and then crossing the jeep of my uncle they stopped it. From cars, accused each namely Abdul Rahim son of Muhammad Rind armed with KK, Khuda Dad son of Abdul Rahim Rind with pistol, Allah Bux son of Muhammad Hassan with-pistol, Habibullah son of Muhammad Umar Rind armed with gun, Hussain son of Mangar Khan with gun and two unidentified persons having guns in their hands all residents of Sehwan. Accused Inayat having pistol in his hand was driving the car. They stopped my uncle and then all accused fired from their arms upon Ghulam Dastagir. Then accused in their cars went away. Due to fear we did not go ahead, then we saw Abdul Razak alias Ghulam Dastagir was having firearm injuries on both sides of his face, neck and on other parts of body and was bleeding and was lying dead in vehicle. Leaving the P. Ws. On the dead body, I came at Police Station and lodged the F. I. R. "
3. S.H.O. Police Station Taluka Nawabshah recorded the above F.I.R. And took up the investigation, recorded the statements of P.Ws, inspected the place of incident and arrested the appellant/accused and after completing the same, submitted the charge-sheet against the accused Hussain Bux Rind under custody whereas the rest co-accused were shown as absconders.
4. During trial proceedings, relevant documents were provided to the appellant/ accused as required under section 265-C, Cr.P.C. Vide Exh.
1.
5. A formal charge Exh.2 was framed against the appellant/accused, who pleaded not guilty of the alleged offence.
6. Thereafter, absconder accused Abdul Rahim son of Muhammad Hassan Rind was arrested by Police and sent up for trial.
7. Following the procedure as laid down under section 265-C Cr.P.C., charge Exh.01 was amended and fresh amended charge Exh.06 was framed against appellant/accused and Abdul Rahim Rind to which they both pleaded not guilty vide their plea as Exhs.7 and 8 respectively.
8. Prosecution in order to prove its case, examined P.W.1 Muhammad Anwar Otho as Exh.13, who produced F.I.R. Exh.13/A, P.W.2 Ali Muhammad as Exh.14, cross-examination of this P.W. Was reserved by the trial Court for want of time, but before the cross-examination of this P.W., be ensued, co- accused Abdul Rahim Rind was killed on 25-6-2008. The trial Court in order to prove the death of co-accused Abdul Raheem Rind examined HC Dilber of Police Station Taluka Nawabshah as Court witness Exh.15 who produced death certificate in respect of deceased Abdul Rahim Rind issued by Police Surgeon Hyderabad as Exh.15/B and F.I.R. No.76/2008 lodged by complainant Khuda Bux Rind in respect of the murder of co-accused Abdul Raheem Rind as Exh.15/C.
9. The trial Court after examining the statement of court witness and record produced by him in respect of the murder of co-accused Abdul Raheem, passed the order dated 23rd July, 2008, abating the proceedings against co-accused Abdul Rahim (deceased) and case to proceed against other accused.
10. P.W.3 Dr. Akhter Ali examined as Exh.16, who conducted the postmortem examination of deceased Ghulam Dastagir who found eleven firearm injuries over respective parts of his body. He issued such postmortem examination report as Exh.16/A. According to M.L.O, the death of deceased has occurred due to "cardiorespiratory failure, due to profuse bleeding and damage to vital organs such as lung as a consequence of firearm injuries."
11. P.W.4 Muhammad Ibrahim examined as Exh.17. He produced memo of inspection of place of incident, dead body of deceased Ghulam Dastagir alias Abdul Razzak, jeep with shattered pieces of glass panes, blood-stained cassettes, empty cartridges and spent bullet of Kalashnikov. The blood-stained articles were sealed. He produced memo as Exh.17/A. Memo of arrest of accused Hussain and recovery of loaded DB gun, produced as Exh.17/B.
12. P.W.5 Muhammad Siddique Otho, Process server A.S.-I. Ali Raza at Police Station Taluka Nawabshah was examined as Exh.24 who deposed that SIP Ghulam Shabir Seehar Investigating Officer has since expired and produced such death certificate as Exh.24/B issued by Nazim Union Council Moro.
13. P.W.6 HC Syed Ibrar Hussain Shah of Police Station Taluka Nawabshah was examined as Exh.26, to prove the signature and handwriting of the late. I.O. SIP Ghulam Shabir Seehar.
14. P.W.7 Inspector Raja Farrukh of Police Station Taluka Nawabshah registered F.I.R. Of this case, inspected place of incident, sent the dead body for postmortem examination and recovered, sealed the incriminating articles, photographed the site, recorded the statements of P.Ws. Siddique and Ali Muhammad under section 161, Cr.P.C. And then handed over the case papers to SHO Ali Gohar Qureshi CIA incharge for further investigation.
15. P.W.8 Khalid Hussain Tapedar examined as Exh.28. He prepared the sketch of the place of incident and produced the same as Exh.28/A. Prosecution closed its side vide Exh.29.
16. The statement of accused Hussain Bux Rind was recorded vide Exh.30. He neither examined himself on Oath nor examined any defence witness. He simply prayed mercy and pleaded innocence. Learned DDPP by. Filing application submitted Chemical Examiner's report in two leaves and Ballistic Expert's report in two leaves.
17. Learned counsel for the appellant/accused contended that appellant has been falsely involved in the case in hand due to previous enmity; there are material contradiction on many points in the deposition of the witnesses who are interested witnesses and inimical to the appellant/accused; no any independent person was associated by complainant to act as a witness in this case; medical evidence is not supported by ocular testimony; the alleged incident is unwitnessed and the complainant party in order to save their skin from the cases pending against them have falsely lodged this F.I.R. He lastly prays for acquittal of the appellant/accused. In support of his contentions, learned counsel has relied on the following case-law:--
(i) Khalid alias Khalidi and 2 others v. The State (2012 SCM R 327).
(ii) Qalander Said v. The State and another (2013 YLR 759).
(iii) Abdul Rehman v. The State (2012 YLR 533).
(iv) Abdul Sattar v. The State (2012 YLR 580).
(v) Abdul Ghafoor alias Multani v. The State (2013 YLR 771).
18. On the other hand, learned D.P.G. For the State vehemently opposed the contentions raised by learned counsel for the appellant and supported the impugned judgment on the ground that appellant has rightly been convicted by the learned trial Court as he has been named in the F.I.R.
With specific role of causing murder of deceased Ghulam Dastagir. All the P.Ws. Have supported the version of complainant as well as medical evidence.
19. Prosecution case in fact hinges on the following pieces of evidence:-- ' Ocular testimony, furnished by complainant Muhammad Anwar Exh.13, he deposed that deceased Dastagir alias Abdul Razak was his uncle and he used to reside with him in Unnar Mohalla Kazi Ahmed. About 3/4 months prior to this incident a matrimonial dispute arose between Muhammad Ibrahim Otho and co-accused Abdul Rahim Rind, which subsequently turned into tribal feud. In order to settle the matrimonial dispute between the two tribes, Othas and Rinds, the talks were going on and during these talks his uncle deceased Dastagir alias Abdul Razak was actively participating, as a result thereof the people from Rind tribe were annoyed and extended threats to deceased on telephone to keep himself away from this dispute else he will be killed. Complainant further deposed that on the day of incident i.e. 24-10-1998 he along with Muhammad Siddique and Ali Muhammad had come from Kazi Ahmed village to Nawabshah in a car with some personal work, where he met his uncle deceased Dastagir who later left Nawabshah for village Kazi Ahmed in his jeep, we also followed him in our car on the way we feuled our car from the Petrol Pump of Ali Ahmed Shah meanwhile his uncle proceeded ahead during they saw two white cars crossed him car and when he alongwith witnesses reached seepage drain in deh 40, they saw that accused Abdul Rahim Rind armed with KK, accused Khudad, Allah Bux armed with pistols, Habibullah, Hussain Bux armed with guns so also two unidentified persons were armed with guns and also accused Inayat Rind who was driving the car was armed with pistol. Complainant further deposed that all the above named accused duly armed with respective weapons started firing at his uncle deceased Dastagir who was in his jeep in order to commit his murder. Thereafter, all the accused named above escaped from the scene of offence. They saw that deceased Dastagir had multiple injuries over his person and was lying dead. Complainant leaving the witnesses to guard over the dead body, went to Police Station Taluka Nawabshah and lodged the F.I.R., which was registered. He produced the F.I.R. As Exh.13/A and brought the police at the place of wardat. Police took up the investigation. Complainant further deposed that in his presence police secured four empty bullet cases of Kalashnikov, one empty case of pistol, two spent cartridges, two blood-stained video cassettes and broken pieces of glass and plastic and seat cover and sealed them at the spot and prepared such memo and referred the dead body of deceased for postmortem examination. Case property was produced in the Court duly sealed and the same was de-sealed and shown to the complainant, it was seat covers, cassettes, shattered pieces of glasses which was acknowledged by complainant to be same.
20. In the cross-examination complainant deposed that he was well conversant with the facts of the matrimonial dispute over the abduction of girls of both the tribes OTHAS and RINDS. The car in which he and witnesses were travelling was hired by him from Kazi Ahmed and was driven by a driver. He also deposed that on that day they had come to Nawabshah from Kazi Ahmed to purchase spare parts of Tractor, they purchased the same and were kept in the Diggi of car. He admitted that village of Jamalis and garden are near to place of incident and the petrol pump of Ali Ahmed Shah could be about 200 yards away from place of wardat. He also admitted that villagers from Garden and village of Jamalis had arrived at the place of incident after about 25 minutes so also persons from petrol pump were attracted and came at the wardat. He also admitted that one Ghulam Hussain was uncle of deceased Dastagir alias Razzak who had expired one and half year before this incident. He further deposed that a JIRGA regarding this matrimonial dispute was held at Nawabshah in which the arbitrators were Sardar Yar Muhammad Rind, Shahnawaz Junejo, S.P Mushtaque Ahmed Mahar, Deputy Commissioner Agha Sahib, Rais Sher Muhammad Unnar, Sardar Khan Muhammad Dahar and Sardar Ghulam Nabi Rahu and others to decide the matter regarding the murder of Abdul Razzak and abduction of girls. He admitted that co-accused Abdul Raheem and appellant/ accused Hussain Bux were declared as accused, but the decision was not acted upon and that we did not complain to the Sardars that decision of the JIRGA was not acted upon by the other side. He admitted that daughter of accused Hussain Bux was also abducted by Molvi Essa, Khuda Bux and Ibrahim and that case is still pending before Additional Sessions Judge, Sehwan. He denied the suggestion that he has not seen the incident and that he was informed about the incident at village Kazi Ahmed and denied that he has falsely involved the present accused.
21. Both the eye-witnesses P.W.2 Ali Ahmed Otho and P.W.5 Muhammad Siddique Otho have supported the version of the complainant in examination-in-chief but in the cross-examination have deposed that they are caste fellows and relatives of complainant and both the P.Ws. Have deposed that they have come to Nawabshah in a hired car which was driven by a driver who had seen the incident. Complainant and the eye-witnesses have deposed that after the incident so many people had gathered at the place of wardat.
22. From the above evidence of all the three P.Ws,, it is quite clear that all the witnesses are inter related and are residents of different villages. They have admitted enmity between them over the abduction of girls and have admitted that a JIRGA was also held before Sardars. Now as to enmity is concerned, it cuts both ways. It has also emerged from their evidence that place of incident is surrounded by habitation, there are villages, garden, petrol pump and more over quite busy road.
No one from them examined to corroborate their testimony. Even they could have examined any attendant from the petrol pump wherefrom they fueled their car.
23. It is also very strange that an independent person, the driver of the car was with them who according to P.Ws. Witnessed the incident but he was not examined. The law is very strict on that issue which says that no number of witnesses are required to prove a certain test but a testimony of a single independent witness is sufficient to warrant conviction. Evidence is always weighed and not counted.
24. Mashir Muhammad Ibrahim is not resident of the locality but resident of village Daur and was called by I.O. To act as mashir from village Daur.
25. It is also very strange that chemical examiner's report and Ballistic Expert's reports were not produced through P.W. Inspector Raja Farrukh, but the same were produced by DDPP after the statement of accused was recorded. The law says that any piece of incriminating evidence must be put to accused, so that he should be in position to give its reply.
26. In the statement of accused no any question regarding the recoveries of empties was put to accused, even not a single question regarding his arrest was asked so also no question regarding the recovering of crime weapon DB gun was asked to enable the accused to clarify his position.
27. Under the circumstances, no evidentiary value is attached to this type of arrest and recovery.
28. No importance can be attached to the evidence of Tapedar who has prepared the sketch after a decade of the incident.
29. Death of deceased is proved through the evidence of MLO. He has described the injuries, some of the injuries having charring that mean fired from a very close range within three feet. Injuries do not speak about the author of injuries.
30. In view of the above discussion and scrutiny of evidence from all angles, I am of the considered view that the prosecution has failed to prove the guilt of accused through unimpeachable ocular testimony. The basic principle of law is that conviction must be based on evidence beyond any shadow of doubt because the damage resulting from erroneous sentence is irreversible and principle that it is better to acquit person than to punish an innocent one, as the prosecution has failed to prove the guilt of appellant/accused beyond any shadow of doubt, therefore, the conviction of appellant cannot be maintained. Resultantly, while extending the benefit of doubt, I allow this appeal filed by the appellant by setting aside his conviction and sentence. Accused Hussain Bux son of Manger Rind be set at liberty if not required in any other case. 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.