MUHAMMAD IQBAL MAHAR, J.---Through this appeal, the appellant has called in question the Judgment dated 15.12.2010 passed by the learned Sessions Judge, Hyderabad in S.C. Case No,1046/ 2009, whereby he was convicted for offence under section 353, P.P.C. And sentenced to suffer R.I.
For 02 years, under section 324, P.P.C. To suffer R.I. For 10 years, under section 337-D to suffer R.I. For 10 years and to pay Arsh of Rs,20,000/- to injured HC Bajar Khan and also convicted under section 302, P.P.C. And sentenced to death as Tazeer and the appellant was ordered to be hanged from neck till death.
2. The prosecution case in nutshell is that on 19.12.2007 complainant Inspector Gul Muhammad along with other police officials took prisoner Ali Sher alias Negal and 26 other prisoners in prisoner van to produce them in several courts and reached at Sessions Court Sanghar. Police Constables Nazar Gul, Mazhar Ali and Mir Muhammad duly armed with weapons were deputed to keep the prisoners in safe custody. HC Bajar Khan, PC Muhammad Din and PC Khushi Muhammad were going to produce accused Ali Sher in the Civil Court Sanghar and complainant was watching them, when MTN and police constables reached at the gate between old building of Sessions Court at 1045 hours, saw three persons standing near wall. Out of them the complainant party identified appellant while two were unknown persons of Brohi community. As soon as the UTPs reached near them, one of them having beard asked Ali Muhammad that he is their enemy prisoner Ali Sher Pathan and directed Ali Muhammad to kill him. Thereafter Ali Muhammad and a young man took out pistols whereupon HC Bajar Khan' came ahead and restrained them on which unknown persons made straight fires upon HC Bajar Khan with intention to kill which hit on his abdomen and left side. On further instigation of same person having beard, accused Ali Muhammad made four fire shots upon prisoner Ali Sher alias Negal Pathan in order to commit his murder which hit him on his head, chest and abdomen. Due to injuries, prisoner Ali Sher and HC Bajar Khan fell down.
Accused persons asked that they have taken revenge of their kidnapped lady and then accused persons ran away, complainant party followed them but could not succeed to apprehended them.
The injured prisoner Ali Sher and HC Bajar Khan were shifted to Hospital where prisoner Ali Sher succumbed to injuries and injured HC Bajar was referred to Nawabshah. The complainant after leaving other prisoners at District Jail, appeared at P.S. And lodged FIR on same day at 1600 hours.
3. During course of investigation, police arrested the appellant and submitted challan showing co- accused Muhammad Gul as absconder.
4. A formal charge was framed against the appellant at Ex.5 to which he pleaded not guilty and claimed his trial.
5. In order to prove its case, prosecution examined P.W.1 Inspector Gul Muhammad at Ex.8, he produced FIR at Ex.8/A, departure entry No,52 at Ex.8/B, PW.2 HC Bajar Khan at Ex.10, PW.13 ASI Manzoor Ahmed Bhatti at Ex.11, he produced mashirnama of arrest of accused Ali Muhammad and recovery of motorcycle at Ex.11/A, mashirnama of recovery of pistol with magazine at Ex.11/B, P.W.4 Muhammad Ayub at Ex.13, he produced mashirnama of sealing of clothes of deceased at Ex.13/A, P.W.5 HC Muhammad Din at Ex.14, PW.6 HC Khushi Muhammad at Ex. 15, PW.7 PC Nazar Gul at Ex.16, PW.8 LNK Mazhar Ali at Ex.17, PW.9 Dr. Shabbir Ahmed at Ex.18, he produced letter for conducting postmortem of deceased Ali Sher at Ex.18/A, medical certificate at Ex.18/11, letter for injured HC Bajar Khan at Ex.18/C, provisional medical certificate of injured HC Bajar Khan at Ex.18/D, PW. 10 SIO Ghulam Sarwar at Ex.19, he produced mashirnama of place of wardat at Ex.19/A, report of Forensic Laboratory at Ex.19/B, Ballistic Expert report at Ex.19/C, PW.11 SIP Yar Muhammad at Ex.20, he produced mashirnama of injuries of Bajar Khan at Ex.20/A, Dead body examination form at Ex.20/B, Danistanama at Ex.20/C, P.W.12 LNK Din Muhammad at Ex.21, P.W.13 PC Budhal Khan at Ex.22, he produced receipt of dead body at Ex.22/A, PW.14 SIP Abdul Sattar at Ex.23, he produced attested copy of FIR No,06/2008 at Ex.23/A, PW.15 Tapedar Ghulam Raza at Ex.24, he produced sketch at Ex .24/A, PW.16 PC Ghulam Mustafa at Ex.25 and then closed its side.
6. Statement of appellant under section 342, Cr.P.C. Was recorded, wherein he denied the prosecution allegations and pleaded his innocence. Neither he examined himself on oath nor led any evidence in his defence.
7. The learned trial court after hearing the parties and appraising the evidence, convicted the appellant as mentioned above.
8. Learned counsel for the appellant, inter alia submitted that the appellant is innocent and has been nominated by the complainant in the belated FIR, hence false implication of the appellant after consultation cannot be ruled out; that all the eye-witnesses including injured HC Bajar have not implicated the appellant in their evidence except complainant but the evidence of complainant is not supported by any sort of corroboration; that alleged incident took place within the premises of Sessions Court but none from the court staff was examined or cited as witness which casts clouds over the prosecution case. Lastly they submitted that the prosecution has failed to substantiate the charge against the appellant, hence their conviction by the learned trial court is not sustainable in law and is liable to be set-aside.
9. Learned Deputy Prosecutor-General while refuting the submissions made by rival side, argued that the complainant has fully supported the prosecution case which got corroboration from circumstantial evidence in shape of recovery of pistol from the appellant at his plantation, recovery of blood stained earth from spot, blood stained clothes of deceased coupled with the recovery of empties from the place of wardat as well as medical evidence. He added that the impugned Judgment does not suffer from infirmity hence instant appeal is liable to be dismissed.
10. We have given anxious consideration to the arguments advanced by the learned counsel for the appellant, learned DPG for the State and perused the record with their able assistance.
11. Perusal of record reflects that the alleged incident occurred at 10.45 a.m. And was reported at 1600 hours i.e, after about five hours whereas the distance between the place of incident and police station was only two kilometers and the explanation given by the complainant does not seem plausible.
12. The prosecution examined in all seven eye-witnesses of the incident including injured HC Bajar Khan but except complainant none has implicated the appellant. The main eye-witness as well as injured of the incident deposed as under:- "At 11.00 a.m. We received call from J.M.I. San ghar for production of accused Ali Sher. Then along with two police constables, we took accused Ali Sher along with another UTP for production of accused before the court of JM-I, Sanghar. I do not remember the names of those two constables, who were accompanied with me. When we were near the court, there I received a fire arm injury on my abdomen from wall side. I fell down and became unconscious. On the next day, I came in senses. I did not see any person who made fire. I came to know later on that accused Ali Sher has also received the injury and died. I did not see that who caused the injury to accused Ali Sher.
' Same is deposition of P.W.5 HC Muhammad Din, who had deposed as under:-- "I cannot identify the accused, who is present in court because at the time of incident, the accused was muffled face.
' P.W. Khushi Muhammad in his chief examination has deposed as under:-- "The two persons who fired upon the UTP Ali Sher and HC &jar Khan were with muffled faces, therefore, I cannot see their faces. Therefore, I do not recognize or identify the present accused All Muhammad as a culprit of this incident.
' P.W. PC Nazar Gul deposed as under:-- "I do not know how and in what manner the deceased Ali Sher was subject to Qatal or who caused the injuries to UTP All Sher and HC Bijar Khan. I cannot say whether present accused Ali Muhammad was amongst those culprits who made the firing upon the deceased, because they were with muffled faces. Later on I came to know that accused AU Sher has dispute with Brohi community over a rishta/hand of a girl".
' The evidence of P.W.8 Mazhar Ali is not different to that of the above named eye-witnesses. He deposed as under:-- "I suddenly heard the voice of firing. I ran towards the side wherefrom I heard the voice of firing.
We saw that a person, who was nuffled face with chadar made firing upon UTP Ali Sher and then ran away. I did not follow them. I did not see the face of that culprit, therefore, I cannot say whether the accused present in court is same. The accused AU Muhammad present in court, I cannot say that whether he was said culprit or not ' The above evidence of the eyewitnesses clearly shows that they have not implicated the appellant. Now we are reverting to evidence of complainant SIP Gul Muhammad. In FIR he nominated the appellant with his parentage, caste and full address but during trial he did not explain as to how he identified the appellant as to whether they were known to each other prior to this incident, therefore, in absence of such explanation nomination of the appellant in the case with his full description in the FIR lodged with delay of five hours makes the version of complainant doubtful, especially when his version is not supported by eye-witnesses who were his subordinates including the injured.
We have perused the Medical evidence very carefully which also has not supported the version of complainant. We would like to reproduce relevant portion of evidence of complainant as under:- "The accused AU Muhammad fired with pistol upon the HC Bijar Khan. Thereafter, those two persons again directed Ali Muhammad to take chance and fire at Ali Sher. Thereafter, Ali Muhammad made firing upon Ali Sher and he made four fires of pistols upon All Sher. One hit him on the head, other on chest and third on abdomen while 4th one fire was missed.
' It is clear that five injuries were caused to injured HC Bajar and three to da. Ceased Ali Sher but as per evidence of Medical Officer, there are four injuries on the person of deceased and on the body of HC Bijar, thus the medical evidence also does not corroborate the version of complainant. Not only this but the Medical Officer has produced a letter of police at Ex.18/A, which he received along with dead body of deceased Ali Sher for postmortem and according to Medical Officer he received this letter at 1.30 p.m.
He started postmortem at 2.00 pm and finished at 3.00 pm whereas the FIR of the incident was registered at 1600 hours (4.00 pm) but letter Ex. 18/A which was sent to Medical Officer three hours prior to judgment of FIR bears Crime No,154/ 2007 under sections 302, 324, 353, P.P.C. This also makes the prosecution case doubtful.
Apart front the above the empties recovered from the place of incident on 19.12.2007 were sent to the Forensic Science Laboratory after 51 days and the delay in sending such empties to the Laboratory has destroyed penitentiary value of such piece of evidence as such cannot be considered to be corroboration of the ocular testimony of the complainant. In this regard reliance is placed on the case of All Sher and others v. The State (2008 SCM R 707).
Admittedly the incident took place in court premises but none from the court staff has been examined by the prosecution. Not only this but at the time of incident, deceased prisoner Ali Sher was handcuffed along with another prisoner namely Adnan in one chain but neither said UTP Adnan sustained any injury nor he was examined by the prosecution.
14. In view of the above circumstances, we are of the firm view that the prosecution has miserably failed to prove charge against the appellant beyond shadow of doubt. Accordingly, impugned Judgment dated 15.12.2010 passed by learned trial court is set-aside. Consequently, the appellant is acquitted from the charge. Reference is answered accordingly.
14. We have allowed this appeal and acquitted the appellant by our short order dated 24.11.2015 for the foregoing reasons.