OMAR SIAL, J.----The Appellants have impugned the Judgment dated 15-9-2015 passed by the learned 1st Additional Sessions Judge at Naushehro Feroze. In terms of the said Judgment the Appellants were convicted and sentenced as follows:--
(a) For an offence under sections 302(b), 148, 149 and 34, P.P.C. life imprisonment with compensation of Rs, 50,000 each to be paid to the legal heirs of deceased Gaji (or suffer S.I. 6 months more in default).
(b) For an offence under section 337- H(2): R.I. for 3 months and a fine of Rs, 10,000 each (or S.I. for 1 month more in default).
1. Brief facts of the prosecution case as narrated in the FIR are that on 9-6-2010 at 1200 hours, the complainant Shahul lodged a report at Police Station Moro about the murder of her son Gaji Almani at 1030 hours earlier that day. In her report she stated that she along with her son Gaji Almani was going to Moro for medical treatment on a motorcycle while her daughter Reshma and her son Gulab were on another motorcycle accompanying them. At about 1030 hours when they reached Garden City on the Dadu-Moro road they were waylaid by 6 persons on two motorcycles.
She identified five of them as Latif Almani, Haji Photo Almani -- all armed with pistols, Kouro Almani and Bashir Almani armed with country made pistols whereas the sixth unidentified person (who was later identified Allah Dad Sangrah) was armed with a shotgun. Accused Latif made a straight fire from his pistol at her son Gaji which fire hit his chest; accused Haji Photo shot Gaji in his left eye; accused Bakhshial shot Gaji in his right eye; accused Kouro and Bashir Almani shot Gaji on his back. Gaji died on the spot after which all the accused made their escape on their motorcycles while firing in the air. First Information Report No,198 of 2010 under sections 302, 337-H(2), 148, 149 and 504, P.P.C. was registered on the report of Shahul. The trial against 8 accused commenced before the learned Additional Sessions Judge Naushehro Feroze. Six of the accused were the ones identified by Shahul, whereas two others, namely Khuda Bux Sangrah and Abbas Almani were added in as accused by the police at a later date. Accused Khuda Bux was subsequently acquitted under section 265-K, Cr.P.C. on 10-10-2013. The remaining accused apart from Allah Dad Sangrah and Haji Photo Almani (the present Appellants) were declared absconders.
2. The charge against the Appellants was framed on 19-4-2011 to which they pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined 10 witnesses. PW-1 Shahul was the complainant. PW-2 Reshma was the eye-witness. PW-3 Qurban was the witness to the memo of inspection of the dead body and injuries, the memo of site inspection and the memo of seizure of the clothes of the deceased. PW.4 ASI Muhammad Azeem Rajpur was the first investigating officer of the case. PW-5 ASI Muhammad Nooh was the police officer who wrote down the FIR. PW-6 PC Khadim Hussain was the officer who arrested Appellant Allah Dad Sangrah, recovered the pistol and prepared the memo of arrest and recovery. PW-7 Dr. Asadullah was the doctor who performed the post mortem on the deceased. PW-8 S.I. Wali Muhammad Chung was the second investigating officer of the case. PW-9 Zahid Abbas was the tappedar who prepared the site sketch. PW-10 Sohail Ahmad was the Judicial Magistrate who conducted the identification parade in connection with Appellant Allah Dad Sangrah.
4. The impugned judgment was announced on 15-9-2015 in which the Appellants were convicted and sentenced whereas the case of the remaining accused, except Khuda Bux Sangrah, was put on dormant file.
5. I have heard the learned counsel for the Appellants as well as the learned APG. The complainant and his counsel remained absent despite being at notice. I have also examined the available record with the assistance of the learned counsel. My observations are as follows.
6. The statements under section 342 Cr.P.C. of the Appellants were recorded on 5-8-2014. Appellant Allah Dad stated that he was innocent and had been falsely implicated in the case. Appellant Haji Photo stated that he was innocent and had been falsely implicated in this case due to a previous enmity arising out of his son'smarriagewith the granddaughter of the complainant. On 6-9-2014 the Appellants also recorded their statements on oath under section 340(2), Cr.P.C. in which they elaborated on the reasons why they had been implicated.
7. PW-1 Shahul, with great precision, accounted for five bullet shots inflicted upon the deceased by five of the six assailants, namely, one shot to the chest by accused Latif, one shot to the right eye by accused Bakhshial, one shot to the lefteye by accused Photo, and a shot each on the back by the accused Kouro and accused Bashir respectively. The same sequence of injuries was also deposed by PW-2 Reshma. Contrary to the version of these two witnesses i,e, Shahul and Reshma, the memo of inspection of the dead body prepared on the spot by the police, records four injuries on the deceased - an injury to each eye of the deceased and one injury each on the back and chest. In complete contradiction to the version of the witnesses, the post mortem report produced by PW-7 Dr. Asadullah records thirteen fire arm injuries on the deceased. Further, the post-mortem report shows that only two bullets have entry and exit wounds whereas eleven have only an entrance wound. Dr Asadullah admitted to have recovered only one bullet and one pellet from the body of the deceased. He has no explanation as to where the remaining ten bullets went if his report showed that they had entered the body. The pellet found from the body of the deceased is also not corroborated by the eye-witnesses Shahul and Reshma, as both said that the assailants fired from pistols. In view of the foregoing the medical evidence by no stretch of imagination corroborates the ocular version.
8. When PW-1 registered the FIR she recorded that six accused came on two motorcycles to kill the deceased. She identified five of the assailants with names and parentage whereas the sixth was unidentified who she at `a later date implicated through a further statement. At the trial, however, eye-witness PW-2 Reshma deposed that "it is a fact that at time of the incident, there were five persons, two on one motorcycle and three on another." Further, PW-1 Shahul deposed that "it is a fact that accused Khuda Bux was not present at the time of the incident at the place of the incident, but the police has implicated him in this case". The complinant' s attempt to throw the net wide becomes apparent from her exaggerated version at the time of lodging the report and the police's mala fide is also apparent as they implicated people in this crime without an iota of evidence against them.
9. It is an admitted position that there was a long standing murderous dispute between the parties.
The motive therefore in the present case is a double edged sword. It can be a motive for the killing as well as a motive for the complainant to falsely involve the accused in this murder. The onus of proof to establish the motive was on the complainant. No proof however was produced at trial by the prosecution to corroborate the prosecution version that the present murder was an outcome of some earlier murders committed by the assailants against the complainant's family. It appears that the complainant party attempted to throw the net wide. The motive was alleged by the prosecution in trial but remained Unproved.
10. Eye-witness PW-2 Reshma recorded her statement under section 161, Cr.P.C.; no reason was given for this delay. This witness also testified that "the contents of my statement under section 161, Cr.P.C. were not read over to me by the police". Similarly PW-1 Shahul also deposed that her D statement implicating the Appellant Allah Dad was recorded by the police after "11/12 days"; again no reason was given for the delay. Shahul also deposed that on the third day of the incident the police had come and taken her thumb impression on some document. She had no clue what the document was. The Hon'ble Supreme Court has held in Rahat Ali v. The State (2010 SCM R 584) that "It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCM R 550."
11. PW-1 Shahul and PW-2 Reshma have both deposed that Reshma was present on the scene of occurrence and is an eye-witness. PW-3 Qurban however contradicts this by deposing at the trial that "Gulab Almani informed me on cell phone that deceased Gaji Almani has been murdered therefore he called me at Garden City Society. After receiving message on phone I along with my sister Mst. Reshma reached at Garden City, where Gulab was present with the dead body."
Reshma's presence on the scene is extremely doubtful. Further, PW-1 Shahul deposed that after lodging the FIR she came back with the police to the place of incident. Contradicting her claim, PW- 4 ASI Muhammad Azeem deposed that when he came to the scene of occurrence the complainant was not present there.
12. Gulab, who was an eye-witness to the incident, was not examined at trial. There was no cogent reason given for his absence. In such circumstances, the provisions of Article 129 (illustration g) of the Qanun-e-Shahadat Order, 1984 will come into play and it will be presumed that had he been examined he would have not supported the prosecution case.
13. All the supposed eye-witnesses are related inter se. In spite of the fact that the place of occurrence was a busy road and according to the prosecution many people had gathered, there was no independent corroboration of the facts as alleged by the eye-witnesses. In fact PW-4 ASI Muhammad Azeem acknowledged that it was a busy road where the murder occurred and many people had gathered but he did not ask anybody to become a witness. Two eye-witnesses PW-2 Reshma and PW-3 Qurban were admittedly also residents of Hyderabad. Their explanation regarding their presence on the spot is intensely weak and does not inspire any confidence.
14. PW-1 Shahul deposed "leaving PWs Gulab and Mst. Reshma dead body of deceased Gaji at place of wardat, 1 came at Police Station Moro, where lodged FIR of the incident against accused."
Indeed, PW-2 Reshma's version is also the same. In complete contradiction to the deposition of these witnesses, PW-5 Mohammad Nooh deposed that when Shahul came to register the FIR "her daughter Mst. Reshma and son Gulab were with her." It is apparent from this contradiction that at least one set of witnesses was dishonest.
15. The memo of seizure of the clothes of the deceased prepared by PW-4 Mohammad Azeem does not reveal that the clothes had bullet holes in them. Neither the inquest report nor the post mortem record the same.
16. It is the prosecution story that when accused Allandad was arrested on 21-6-2010, he was carrying with him a pistol which was said to have been stolen by him from the deceased after the deceased was killed. A highly improbably story which became even more unbelievable when accused Allandad was said to have led the police four days later to his house from where the licence or the pistol in the name of the deceased was recovered. It seems highly odd that a person after having committed a murder would preserve the weapon and licence of the deceased. In this regard, it would not be out of place to mention the observation made by the Hon'ble Supreme Court in Muhammad Asif v. The State (2017 SCM R 486): "It is, normal practice and conduct of culprits that when they select night time for commission of such crime, their first anxiety is to conceal their identity so that they may go scot-free unidentified and in that course they try their level best to conceal or destroy each piece of evidence incriminating in nature which, might be used against them in the future thus, human faculty of prudence would not accept the present story rather, after committing crime with the dagger, the appellant could throw it away anywhere in any field, water canals, well or other place and no circumstances would have chosen to preserve it in his own shop if believed so because that was susceptible to recovery by the police."
The dishonesty of the police and the witnesses becomes apparent when the FSL report records that the empties of the pistol recovered from the place of incident match the pistol of the deceased recovered from the accused Allandad. This would mean that the empties of the .30 bore pistol collected from the spot were fired by the deceased Gaj i A lmani .
17. PW-10 Suhail Ahmed Mashori deposed that he had conducted the identification parade of accused Allandad on the application of PW-8 Wali Muhammad Chang. In complete contradiction to this version Wali Mohammad Chang deposed that he had not produced accused Allandad for an identification parade.
18. The deceased's blood ostensibly collected from the spot was sent for analysis. Such analysis is of absolutely no use as the blood collected was not matched with the blood of the deceased. This practice of the police of collecting blood samples without conducting the necessary forensics becomes absolutely meaningless in such a situation.
19. When the prosecution version is put in juxtaposition with that of the defence, it is the defence version that inspires more confidence.
20. Medical evidence not corroborating the ocular evidence; dishonest prosecution witnesses; alleged eye-witnesses who do not appear to have been present on the spot and whose testimony reflects dishonesty; dishonest, incompetent and tainted with mala fide investigation; unexplained delay in recording the statements of eye-witnesses; chance witnesses whose explanation for being on the spot was completely untrustworthy; material contradictions and improvements in the depositions of the eye-witnesses; ballistic report in complete contradiction to the prosecution story; no meaningful forensics being conducted; no bullet holes on the clothes of the deceased; unnatural conduct attributed to the accused by sparing the other eye-witnesses, knowing fully well that they would depose against the accused; no independent corroboration; interested and related witnesses whose testimony appears tainted with malice and an unproved and unrealistic motive, all make me form the view that the prosecution failed to establish its case beyond reasonable doubt. In accordance with well-settled principles of law, the benefit of such doubt should have gone to the accused.
21. In view of the above, the appeal stands allowed, the Appellants are acquitted of the charges against them. They should be released forthwith it not required in any other case.