' SADIQ HUSSAIN BHATTI, J.---Above named six accused were put on trial in the Court of Ist Additional Sessions Judge, Badin in Sessions Case No,186 of 2010 for offences under section 302, 324, 506(2), 337-H(2), 147, 148, 149, P.P.C. Which had arisen out of F.I.R. No,204 of 2010 registered at Police Station Badin on 30-5-2010 at 7-30 p.m.
2. Briefly the facts of the prosecution case as contained in the above F.I.R. Are as under:-- "Complainant Muhammad son of Mehar on 30-5-2010 at 7-30 p.m. At Police Station Badin reported that he is hari of Zamindar Zafar Nizamani. Ramzan Khaskheli and others are not on good terms with said Haji Zafar Nizamani over the landed property' therefore, they asked the complainant to leave the harp of Zafar Nizaman but they refused on which accused were annoyed with complainant party. On 29-5-2010, he, his nephew Alam were present in their houses near the land, it was about 7-00 p.m., accused Muhammad Ramzan armed with rifle, Gullan having repeater, Saleh having pistol, Vikio having BBL gun, Sharif, Muhammad Ali having hatchets.
Accused Muhammad Ramzan abused and asked them to leave the harp and then made straight fire from rifle which hit his nephew Alam who received bullet injury on right shoulder and chest, due to this Alam fell down on earth and blood was oozing, Gullan made straight- fire with intention to commit Qatl-e-amd but he fell down and fire was missed. In the meantime, his cousin Khamoon and nephew Gul Sher rushed there and the accused ran away while issuing threats of murder. The complainant then arranged the vehicle and brought the injured Alam at Police Station Badin, obtained such letter for treatment of injured from Civil Hospital, Badin, wherefrom he was referred to Hyderabad Hospital to whom the complainant left the injured at Hospital and came and narrated the facts to Haji Safar.
' During treatment injured succumbed injuries and section 302,, P.P.C. Was inserted on the basis of death certificate produced by the complainant."
3. Pursuant to the registration of above case, Police arrested the accused and after usual investigation submitted the charge sheet against the accused in the Court of law.
4. Relevant documents as required under section 265-C, Cr.P.C. Were supplied to the accused on execution of receipt vide Exh.01.
5. The charge was framed against the accused for offence punishable under sections 302, 324, 506(2), 337-H(2), 147, 148, 149, P.P.C. Vide Exh.02. The accused above named pleaded not guilty and claimed to be tried vide their pleas at Exhs.3 to 8.
6. During the trial proceedings, prosecution examined following P.Ws to prove its case:-- ' P.W.1. Muhammad at Exh.9, complainant/eye-witness. He produced F.I.R. As Exh.9/A.
P.W.2. Gulsher at Exh.10, eye-witness.
' P.W.3. Dr. Muhammad Aslam at Exh.11. He produced request letter Exh.11/A, MLC Exh.11/B, request letter to A.M.S., L.U.M.C. Hospital, Hyderabad at Exh.11/C.P.W. Khamoon was given up by prosecution as Exh.12.
' P.W.4. HC Ghulam Akbar at Exh.13.
' P.W.5. Dr. Ghulam Hussain at Exh.14.
' P.W.6. Manthar at Exh.15, mashir.
' P.W.7. SIP Hameedullah at Exh.16, Investigating Officer.
' P.W.8. SIP Syed Sajjad Shah at Exh.17, Investigating Officer.
' P.W.9. Tapedar Ali Nawaz at Exh.18.
' P.W.10. Zaffar Ali at Exh.19.
' Prosecution closed its side vide Exh.20.
7. The statements of accused 1. Ramzan,
2. Saleh,
3. Muhammad Ali,
4. Vikio,
5. Gullan and 6. Shareef were recorded under section 342, Cr.P.C. Vide Exhs.21 to 26 respectively. All the above named accused denied the prosecution allegations levelled against them and stated that they have fallen prey of previous enmity over the land with Zamindar Zafar Nizamani and complainant was his HARI.
The accused neither examined themselves on Oath nor examined any evidence in defence.
8. After ,hearing the learned advocates of the respective parties and necessary perusal of the record, the learned trial Court convicted and sentenced the appellant No,1 under section 302(b), P.P.C. To suffer rigorous imprisonment for life and to pay fine of Rs,100,000 and in default whereof shall suffer S.I. For six months more. The trial Court further convicted and sentenced the remaining co-accused to suffer R.I. For 20 years and to pay fine of Rs,50,000 each and in case of default in payment of fine, they shall suffer S.I. For six months more. The amount of fine which is actually the compensation as envisaged under section 544-A, Cr.P.C., if recovered be paid to the L.Rs, of the deceased Alam. All the above named accused are further convicted under section 148, P.P.C. To suffer R.I. For three years and to pay fine of Rs,5000 each, in default whereof to suffer S.I. For six months more. All the accused are extended the benefit of section 382-B, Cr.P.C.
9. Being aggrieved and dissatisfied by the above judgment dated 22-9-2011, the appellants/accused have filed this Criminal Appeal, impugning the above judgment.
10. During the course of arguments, the learned counsel for the appellants/accused raised the following contentions:--
(1) Prosecution case is set up, hence there is much inconsistency in their testimonies.
(2) That the entire prosecution case is doubtful as complainant has stated that they were present at the land, but mashir of the place of vardat states that place of incident was located in front of the house of P.W. Malook.
(3) From the perusal of the record, it appears that some fake person who died after eight days of the incident whereas complainant states that injured/deceased Alam died after 15 days of the incident.
(4) That the identity of deceased was missing as prosecution neither produced the record of admission of injured/deceased at Hyderabad nor his discharging and referring him to Karachi for treatment.
(5) The trial Court while convicting the accused did not go through the cross-examination of Dr. Ghulam Hussain.
(6) That the death certificate issued by Dr. Ghulam Hussain is invalid and have no evidentiary value.
(7) That there was no any dying declaration of deceased recorded either by police, Magistrate or Doctor, but the trial Court has mentioned that injured himself mentioned about firearm injury, hence it is dying declaration.
(8) That the trial Court on the basis of fake death certificate, connected the accused with alleged crime and has convicted them without any evidence.
(9) That under the circumstances, the prosecution has failed to prove the case against the accused beyond any reasonable doubt. Hence the appeal be accepted and all the accused be acquitted.
11. Conversely, the learned counsel for the State has opposed the above contentions and submitted that there is sufficient evidence against the accused to connect them with the alleged crime.
12. Having heard the above contentions of the learned advocates and have appraised the evidence recorded by the trial Court along with the relevant record.
13. The entire prosecution case rests on the following pieces of evidence:--
(i) Ocular evidence.
(ii) Recovery of crime weapon.
(iii) Medical evidence.
(iv) Motive.
14. To prove ocular evidence, prosecution examined complainant Muhammad Khan, he deposed that deceased Alam was his nephew. He further stated that on 29-5-2010 at about 7-00 a.m., he along with his nephew Alam and P.W. Gulsher were present at their land. At that time accused Ramzan armed with rifle, Sharif and Vikio armed with D.B. Guns, Saleh being armed with pistol along with other 5/7 persons came there. Accused Ramzan started abusing them and he fired at Alam which struck him at his shoulder and chest. Thereafter, accused went away abusing them.
The motive as disclosed by complainant is that accused on several times asked them to leave HARAP of Haji Zafar Nizamani, since the complainant and his family members were cultivating the agricultural land for Haji Zaffar Nizamani, the accused were annoyed. The complainant further deposed that he brought the injured Alam to Civil Hospital, Badin from where the injured was referred to Civil Hospital, Hyderabad and from Hyderabad the injured was referred to Karachi, where Alam succumbed to the injuries and expired after eight days. Complainant states that he lodged the F.I.R. Under section 324, P.P.C. On 30-5-2010. Doctor handed over the dead body of deceased Alam to his brother. He produced the F.I.R. As Exh.9/A. The contents of the F.I.R. Exh.9/A were read over to him. Thereafter, police visited the place of vardat as shown to them by complainant in presence of mashirs.
' In the cross-examination, complainant deposed that deceased Alam was about 15/16 years old.
He brought the injured at Badin Hospital at about 8-00 or 9-00 a.m. He remained there for about one and half hour. He deposed that he lodged the F.I.R. On 30-5-2010 and prior to that he never visited police station. He stated that injured Alam remained as indoor patient for about 15 days but he did not go with injured Alam to Karachi Hospital. Police visited the place of vardat after three days of lodging of the F.I.R. He disclosed in his deposition that deceased Alam was operated upon thricely by Medico Legal Officer. There was wheat and JAN crop in the field. He admitted the suggestion as correct that there were 3/4 other F.I.Rs lodged against accused persons but he denied that he has lodged the F.I.R. Against the accused at the instance of Zamindar Zaffar Nizamani. He also denied the suggestion that said Zaffar Nizamani wants to usurp the land of accused persons as such he used him tool in this case.15. Another eye-witness Gulsher deposed that he is Hari of Haji Zaffar. On 29-5-2010 he along with deceased Alam, complainant Muhammad Khan and Khamoon were working in agricultural land situated in Deh Defri. He further deposed that at 7-00 a.m. On that day accused Ramzan came and started abusing them and further told them that he has restrained them not to work for Haji Zaffar. P.W. Gulsher further deposed that they replied him that since they were HARIES of Haji Zaffar hence working for him. This annoyed accused Ramzan and he fired rifle shot at Alam which struck him at right shoulder. Accused Vikio who was armed with gun and accused Gullan who was armed with repeater fired upon Muhammad Khan, complainant who saved himself by lying down. Accused Saleh was armed with pistol, Shareef and Mulfammad Ali were armed with hatchets. Accused went away, complainant brought a vehicle and he removed the injured Alam to hospital for treatment.
' In the cross-examination he stated that it is correct that without looking at the accused he said that accused present in the Court are same. He clarified that he had seen the accused before recording the evidence in the Court. He admitted that complainant is his cousin. He remained at the place of vardat when complainant shifted the injured Alam to hospital. Police arrived at place of vardat after 8/10 days of the incident. He deposed that he had stated in his police statement that accused Vikio and Hasan had fired at complainant. Postmortem examination of deceased was not conducted by Doctor. He admitted that complainant had lodged some other F.I.Rs, against same accused.
16. P.W. HC Ghulam Akbar has deposed that on 29-5-2010 he was posted as duty officer at PS Badin, on that day at about 9-30 a.m. One Zahid Nizamani brought the injured Alam and his driver at PS and disclosed that his Hari has received injuries. He issued such letter for treatment and before that he noted the injuries on the person of Alam. He had received injuries over right shoulder near chest. He kept such entry in the Roznamcha and prepared the memo of injuries in presence of mashirs Manthar and Malook. On 30-5-2010 at 7-30 p.m. Complainant Muhammad Khan came and disclosed the facts of cognizable offence as such he registered an F.I.R. Bearing No,204 of 2010 under section 324, P.P.C. And handed over the papers to the investigation team.
' In the cross-examination, he deposed that it is correct that Zahid did not disclose the name of any accused person. He admitted that he did not mention in the F.I.R. That Zahid had informed the police about the. Incident.
17. Alleged incident occurred on 29-5-2010 at 7-00 a.m. As a result of which Alam received firearm injury. On the same day at 9-30 a.m. Zamindar Zahid had taken the injured along with his driver to PS Badin where he informed the duty officer Ghulam Akbar that his HARI has received injury. The duty officer noted the same in. Roznamcha, inspected the injured and found one firearm wound on right shoulder extending towards his chest. Such memo was prepared in presence of mashirs Manthar and Malook. Strangely the duty officer did not lodge the F.I.R. Though the memo shows that injured was serious but he treated it non-cognizable offence.
18. On the following day at about 7-30 p.m. He lodged the F.I.R. At the behest of complainant Muhammad Khan. This definitely is unnecessary delay regarding the same incident.
19. Complainant did not say in his testimony that accused fired at him and he saved his life by ducking whereas another eye-witness Gulsher states that accused Vikio armed with gun and Gullan with repeater fired at complainant who was down and saved his life. Complainant also did not say that accused Sharif and Muhammad Ali were armed with hatchets but at the same time Gulsher states that accused Sharif and Muhammad Ali were armed with hatchets. This P.W. Takes a twist, stating that he has stated in his 161, Cr.P.C. Statement that accused Vikio and Hassan had fired at complainant. Criminal as well as civil litigation is pending between the parties. P.W. Guisher has deposed that complainant has filed some other cases against the accused.
20. Mashir Manthar did not say that empties were secured from the place of vardat and same were sealed at the spot.
21. Crime weapon viz. Rifle recovered at the pointation of accused Ramzan, in presence of the mashir but he has not stated that whether it was sealed at the spot or not.
22. P.W. Manthar deposed that police visited the place of incident on the next day but other P.Ws state that police visited vardat after 8/10 days of the incident.
23. Another important thing is that P.Ws are divided that after how many days deceased Alam died.
Some P.Ws say after 8 days and some say after 15 days. Complainant in his deposition stated that Alam succumbed to the injuries and died after 8 days of the incident but in the cross examination deposed that "deceased Alam remained admitted in Civil Hospital, Hyderabad for about 15 days."
24. Complainant says that deceased was 15/16 years old. P.W. Zahid says deceased was 26/27 years old so also M.O.
25. I have also considered the aspect that injured did not receive the proper treatment. The poor chap was taken from place to place as if he was treated as private patient. No doubt as deposed by complainant, the deceased was operated upon thricely his wound accumulated Pus and was bleeding per rectum which could not be controlled. He was not treated well by doctors, thus it cannot be ruled out that injuries and operated parts might have been aggravated hence injured did not survive.
26. Thus for the forgoing reasons, the evidence did not inspire confidence. Prosecution case is full of contradictions and inconsistencies hence the Court cannot rely on such type of evidence.
27. ' Accordingly, I allow this appeal. The appellants Saleh, Muhammad Ali, Vikio, Gullan and Sharif are on bail, their bail bonds stand cancelled and surety discharged. However, the appellant Muhammad Ramzan is in jail, he shall be released forthwith if not required in any other case.