SYED MUHAMMAD FAROOQ SHAH, J. The appellant Muhammad Yameen Elahi, presently confined in Central Prison Karachi by filing the captioned appeal under section 410 Cr.P.C, sought the relief to set aside the impugned judgment dated 21.2.2007 and acquit him from the charge as the appellant was convicted in Sessions Case No. 81/1998, under section 302-B PPC for life imprisonment and sentenced for seven years under section 324 PPC and fine of Rs. 10, 000/- and in default he shall undergo three months more punishment; benefit of section 382 Cr.P.C, was however, extended to him by the learned 3rd Additional District & Sessions Judge, Karachi Central.
2. Facts in nutshell are that Muhammad Zaheer lodged FIR with Police Station Sharifabad on 25.12.1997 at 1430 hours that he alongwith Nadeem Bhai, Aman Ejaz Arif and Fareed were standing in Gali No. 1 near Bilal Masjid, Moosa Colony, they saw Yamin, Ayaz, Munna, Nadeem alias Bhai Nawab, Jameel @ Jimmi, Agha Nazir @ Bakhtar Band duly armed on three motorcycles, started indiscriminate firing, in result of which Amin, Fareed, Ejaz and Muhammad Arif received fire arm injuries and the accused persons after causing injuries fled away from the place of occurrence. The complainant took the injured to hospital where the injured Aman succumbed due to injuries. Police reached at hospital and got recorded statement of complainant Muhammad Zaheer under section 154 Cr.P.C. on dated 25.12.1997 at about 1730 hours, which was later-on incorporated in FIR No. 269/1997. During investigation accused Nadeem @ Bhai Nawaz was arrested while remaining accused including Yamin absconded. The Investigating Officer conducted the investigation, prepared the inquest report, visited the place of incident and got recorded the statement of the injured witnesses and after obtaining medical certificate of the respective injured persons, submitted the charge sheet in the court of law, by showing the present appellant as an absconder.
The trial of accused Nadeem was concluded by the learned trial court, which culminated in his acquittal due to non-examination of the complainant and eye-witnesses. The case of all the absconding accused including appellant was kept on dormant file vide judgment dated 18.12.1999.
3. It appears that the present accused/appellant was arrested on 05.9.2005 and case was tried against him after framing the charge by the court, to which the appellant pleaded not guilty and claimed trial.
4. At trial, the prosecution, in support of its contention examined P.W-1 S.I Hazar Khan at Ex.50. He produced the memo of arrest of accused Ex.50-A, P.W. Nadeem Faisal at Ex.52. Advocate for the accused has filed statement to the effect that he adopted the evidence of P.WS Abid Soomro who recorded the statement of the complainant under section 154 Cr.P.C. at Ex. 53, P.W Moinuddin and Muhammad Zaheer are reported to be untraceable. Statement of the process server H.C Jamiluddin was recorded at Ex.55; P.W S.I Tasaduq Muneer Shaikh at Ex.56; who produced copy of Roznamcha entry at Ex.56/A; P.W Dr. Muhammad Khalid at Ex.57, who produced the medical certificate of the deceased Amanullah Ex.57-A, medical certificate of injured Eijaz at Ex.57/B, medical certificate of injured Muhammad Arif at Ex.57/C and medical certificate of injured Fareed at Ex.57/D. Learned DDPP, closed the prosecution side vide statement Ex.58. The certified copy of the examination-in-chief and cross-examination of the P.Ws as annexure 'D' to 'D-7' respectively.
5. The appellant was examined under section 342 Cr.P.C. at Exh: 59 and after hearing the arguments, learned trial court awarded the sentence to the appellant as stated supra.
6. The points require consideration in this case are as under: i) Whether the appellant alongwith other co-accused named in the charge sheet, with their common object made firing, in result of which the deceased Amanullah succumbed to injuries and PW Ejaz, Muhammad Arif and Fareed had received fire arm injuries on their person. ii) Whether the conviction awarded by the trial court to the appellant on sole testimony of P.W Ghulam Fareed, had not shown his appearance during first round of trial ? iii) As to whether identification parade of appellant after his arrest conducted after about five years and 9 months of earlier judgment before Court is confidence inspiring in Criminal Justice System ?
7. On the above points Mr. Aamir Mansoob Qureshi learned counsel for the appellant and learned A.P.G. argued at length and relied upon the case law. Arguments heard and record has also been perused carefully. All points are taken together, for determination.
8. Learned counsel for the appellant at the very outset submitted that solitary testimony of PW Ghulam Fareed, wherein he did not assign specific role to the Appellant in commission of offence and injuries caused to deceased, was dangerous to award conviction to the appellant who is behind the bar(s) since last about nine years period, though the remaining accused person to whom identical role was assigned has already been acquitted. Learned counsel further submitted that the trial court did not consider the absence of motive behind the alleged incident, the delay in lodging the FIR, delay in recording the statements of the PW's who were shown to be the eye- witnesses of the alleged incident, while the alleged incident had taken place in broad day light and delay in lodging the FIR and statements of P.Ws at belated stage without explanation creates doubt. It is next contended by the learned counsel for the appellant that learned trial court has committed gross illegality while passing the judgment as the complainant and other injured witnesses were not produced by the prosecution and the court only appreciated the statement of complainant recorded under section 154 Cr.P.C. wherein the name of PW Ghulam Fareed did not appear. Learned counsel submitted that even otherwise PW Ghulam Fareed in his cross examination admitted that no weapon or bullet was found present before the court during trial which shows that recovery has not been effected from the appellant as the appellant was not arrested at the spot but he was arrested after years together on 5.5.2005, he was challaned under section 512 Cr.P.C, without showing his father's name and address. Learned counsel further submitted that trial court has miserably failed to consider the case law as laid down by the superior courts while deciding the important points of the case of prosecution as it is an admitted position that no independent witness was produced /examined by the prosecution. More so, there is no connecting evidence against the appellant except solitary statement of PW Ghulam Fareed who had reasons to involve the appellant falsely due to affiliation of the appellant with a political party. It is argued that learned trial court did not record the question of abscondence of the appellant and nonappearance of PW Ghulam Fareed during first round of trial. To support his contentions, learned counsel placed his reliance on the following cases:
(i) NOOR ZAMAN V/S ABDUL LATIF & ANOTHER (2012 P.CR.L.J. 569)
(ii) MUHAMMAD DIN V/S THE STATE (PLD 1959 SC (PAK) 491)
(iii) ROHTAS KHAN V/S THE STATE (2010 SCMR 566)
(iv) MUHAMMAD SADIQ V/S NAJEEB ALI & ANOTHER (1995 SCMR 1632)
(v) AMIR ABDULLAH V/S THE STATE (1980 SCMR 51)
(vi) MEHMOOD KHAN V/S AHMED & 2 OTHERS (1972 SCMR 620)
(vii) MAMOON & ANOTHER V/S THE STATE (PLD 1962 (WP) KARACHI 800)
(viii) RIAZ V/S THE STATE (1998 P.CR.L.J. 1613)
(ix) GUL MUHAMMAD @ GULLO & ANOTHER V/S THE STATE (1974 P.CR.L.J. 400)
(x) ASTAM KHAN V/S THE STATE (NLR 1995 CRIMINAL 185)
(xi) GHULAM MURTAZA V/S THE STATE (PLD 1989 KARACHI 293)
9. Conversely, learned Assistant Prosecutor General, Sindh submits that conviction may be recorded under solitary evidence of PW- Ghulam Fareed, if found reliable. In support of his contentions he placed reliance upon the cases reported as1980 P.Cr.L.J. 898, 1973 SCMR 473, 1969 SCMR 76, 1993 SCMR 585, PLD 1975 SC 160, PLD 1988 SC 133, 2005 YLR 2427), 2004 P.Cr.L.J. 1138, 1995 SCMR 1793 and PLD 1988 Karachi 539.
10. Admittedly, the statement of PW Ghulam Fareed, on whose sole testimony the conviction was awarded to the appellant by the trial court, was recorded on the next date of incident and even otherwise deposition of PW Ghulam Fareed is totally contrary to his statement recorded under section 161 as incorporated in the judgment. P.W. Ghulam Fareed in his statement before police implicated the accused Yamin with specific role; however the deposition of PW Ghulam Fareed reflects that no specific role in commission of offence of causing injury to the injured person including the deceased has been assigned. For the sake of convenience the examination-in-chief of PW Ghulam Fareed is reproduced as under:- " This incident took palce on 25.12.1997. At the time of incident I was present at Moosa colony near Bilal Masjid. Accused Yamin, Munna Ayaz, Nazir Bakhatar Band and Shakeel came on two motorcycles and started firing. In the result of firing I had received fire arm injuries on my left leg and deceased Aman who expired in hospital due to fire arm injury. Police recorded my statement.
Accused Yamin present in the court is same."
11. The above statement of PW Ghulam Fareed reflects that there are general type of allegations of causing indiscriminate firing upon the deceased and injured persons. The names of injured persons Muhammad Zubair, Ejaz, Muhammad Arif and Amanullah are appearing in the FIR except PW Ghulam Fareed. The complainant of this case has also not been examined without any plausible explanation though he is an eye witness. Medical evidence of Dr. Muhammad Khalid reflects that injuries sustained to the injured Ghulam Fareed would be caused by fire arm injury but no bullets were recovered from the body or any empty or weapon from the appellant.
12. From perusal of the record, it transpires that the Trial Court while attending the plea of the appellant/accused facing trial, by reading the evidence could not judge credibility and demeanor of the witness in view of the principle that every person is presumed to be innocent unless proved guilty. On re-appraisal of sole testimony of injured Ghulam Fareed without any corroboration brought on record by prosecution a different view may be drawn with regard to manifest wrong, perversity or uncalled conclusion from facts provided on record as material evidence has been misread blatantly to an extent that miscarriage of justice has occasioned. Particularly in the instant case, the remaining injured persons and complainant did not implicate the appellant in commission of offence, so much so that during first round of trial, acquittal judgment was recorded due to non appearance of P.Ws/Complainant. Perusal of impugned judgment reveals that the learned trial Court has seriously been erred to rely on statement of P.Ws recorded u/s 161 Cr.P.C. and so also statement of complainant recorded u/s 154 Cr.P.C, without recording their depositions, though it appears that on same reasons and ground co-accused Nadeem had been acquitted by the Trial Court vide judgment pronounced on 18-12-1999. Moreso, there is no motive of commission of offence. Serious illegalities have been committed by the Trial Court while recording conviction and by observing that on examination of evidence of P.W Ghulam Fareed it appears that he has not been able to disclose that which accused caused injury to the deceased Aman or other injured but he involved the accused with common object, and reached at the conclusion that all are equally responsible. Name of PW Ghulam Fareed does not appears in the FIR and inspite of hectic efforts neither he was served with summons nor he did appear before the court, during first round of trial. In the case of Muhammad Din V/s The State (PLD 1959 S.C. 491) the full Bench of apex court did not consider it safe to rely on the sole testimony of eye-witness not mentioned in First Information Report and held dangerous to act on evidence of such witness. Reliance in this respect may also be placed on full bench rulings reported as1980 SCMR 51, 1972 SCMR 620 and PLD 1962 (W.P) Karachi 800 and 1998 P.Cr.L.J. 1613. The appellant has served almost more than half of the awarded sentence, though there was no sufficient corroboratory evidence brought by the prosecution on record to award him conviction. Suffice is it to say that solitary evidence of PW Ghulam Fareed creating doubt in prudent mind and was not sufficient for recording conviction, hence his evidence is not trustworthy and confidence inspiring, which is uncorroborated by any other piece of evidence.
13. So far as the case law relied upon by the learned A.P.G. is concerned, the same is not relevant to the facts of the present case. In criminal cases, the authority in one case is hardly helpful in another case as each case has its own facts and circumstance.
14. For what has been discussed above, it is settled that for extending benefit of doubt, it is not necessary that there should be many circumstances creating doubt and if there is a circumstance which creates reasonable doubt about the guilt of the accused then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. As discussed above, in the instant case there are sufficient circumstances which creates doubt upon the prosecution case. The conviction cannot be recorded merely on probabilities and prosecution has to prove its case beyond any shadow of doubt, which the prosecution has miserably failed to prove in the instant case. Resultantly, vide short order dated 24 Oct: 2013 the appeal was allowed, the conviction and sentence awarded to the appellant was set- aside and aforementioned are the reasons of said order.
The captioned appeal is decided in the manner indicated above.