OMAR SIAL, J.---This appeal has been preferred against the judgment dated 29.7.2013, passed by learned 2nd Additional Sessions Judge Khairpur. In terms of the said judgment the Appellant was convicted and sentenced to life imprisonment for offence under section 302(b), P.P.C. and to pay a compensation of Rs,100,000/- (one lac) under section 544-A, Cr.P.C. to the legal heirs of deceased Muharram Ali.
2. Brief facts of the prosecution case are that on 31.5.2008 complainant namely Manzoor Hussain made a report at Police Station Sadig Kalhoro stating therein that he and one Nehal had a dispute over some buffaloes. On 31.5.2008 when the complainant along with his brother Muharram Ali, his cousin Muhammad Aslam and relative Muhammad Ismail were grazing their buffaloes 12 heavily armed persons appeared at 3.30 p.m. Two out of these 12 persons namely Nehal and Nizam first stated that there was a dispute over money between them and the complainant party and then proceeded to fire directly with their Kalashnikovs on Muharram Ali. The assailants then took away 12 buffaloes owned by the complainant party. Muharram Ali expired on the spot. On such report police lodged an FIR bearing No,01/2008 under section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 147, 148, 149 and 337-H(2), P.P.C.
3. On 06.3.2010 the charge against four accused namely Ali Hassan, Zamir Ahmed. Muhammad Kamil and Nizamuddin (the present appellant) was framed to which all the four pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined ten witnesses. P.W.1 Niaz Hussain was the police officer who wrote down the FIR. PW-2 Sahib Dino who was the police officer who took the dead body to Taluka Hospital Gambat for the postmortem. PW-3 Manzoor Hussain was the complainant. PW-4 Muhammad Ismail was said to be an eye-witness. PW-5 Manzoor Hussain was the police officer who arrested the accused Ali Hassan and Zamir. PW-6 Majid Ali was Medical Officer who conducted the postmortem. PW-7 Muhammad Aslam was said to be an eye-witness.
PW-8 Sonal was the witness to the memo. of arrest of Ali Hassan and Zamir. PW-9 Atta Muhammad who was the first Investigating Officer and PW-10 Ghulamullah Sarohi was the Tapedar who prepared the site sketch.
5. On 27.7.2013 the accused recorded their statements under section 342, Cr.P.C. in which they claimed their innocence.
6. On 29.7.2013 the learned trial court announced the impugned judgment in terms of which out of four accused facing trial only the present appellant was sentenced whereas the remaining three were acquitted.
7. I have heard the learned counsel for the appellant and the learned DPG and have also examined the record of the case. The complainant and his counsel remained absent despite notice. For the sake of brevity the arguments of learned counsel are not being reproduced as they form part of the record. Suffice to say that the learned counsel for the appellant has reiterated the grounds contained in his memo. of appeal, whereas the learned DPG has reiterated the prosecution case.
My observations are as follows.
8. According to the prosecution the entire incident is said to have been motivated by a dispute over buffaloes. The stealing of twelve buffaloes, details and prices of which were meticulously given by the complainant in the FIR, was never proved in trial. No buffalo was recovered by the police even though it is obvious that in a small village with fifty to sixty houses according to one prosecution version and hundred houses according to another, it would not have been very difficult to find the buffaloes had they been stolen. All accused people were acquitted of the charge of robbery. This aspect and failure of the prosecution to adduce any evidence on this count, sheds a suspicious light on the entire prosecution story.
9. Another aspect of the case that suggests mala fide on the complainant part of the complainant party is the inclusion of accused Ali Hasan and Zamir Ahmed in this case. When the incident is said to have occurred on 31-5-2008, the complainant had stated in the FIR that there were three unidentified persons amongst the assailants. The names of Ali Hasan and Zamir Ahmed were included as accused on the statement of Muhammad Ismail on 3-6-2008, who otherwise is said to be present on the scene when the incident occurred and was said to be an eye-witness. Why did he not identify the two accused at the same time remained unexplained. To me it suggests that the net was widened by the complainant party with mala fide intent. Be that as it may, such intent casts a doubt on the integrity of the prosecution witnesses.
10.The complainant's version in trial was that the accused shot Muharram Ali and then took away the buffaloes. While leaving the scene they also resorted to aerial firing. PW-4 Muhammad Ismail who was said to also be an eye-witness to the incident deposed that the accused remained on the spot and "exchanged hot words with us and made fires for about thirty minutes. Accused after thirty minutes went away after making aerial firing along with the cattle." PW-7 Muhammad Aslam who also was said to be the eye-witness to the incident gave his own version by deposing that the accused continued firing for twelve to fourteen minutes. Apart from the considerable difference in their accounts as to how long the firing continued, it is also odd that in spite of such firing only seven Kalashnikov bullet empties were recovered from the site; even though the twelve accused were armed with Kalashnikovs, rifles and shot guns.
11. The motive for the murder as alleged in the FIR is that there was a dispute on account of buying and selling of buffaloes between the complainant and the accused Nihal and Nizam. No evidence was led in trial to prove this motive. It also seems odd that while the accused killed one person, they let all the others live knowing fully well that they would implicate the accused. In the burst of fire as claimed by the prosecution witnesses, no other person, animal or property was injured or damaged. Even the injuries attributed to Muharram are on his buttocks and arm. All prosecution witnesses are unanimous that the accused were standing very close to the complainant party and according to the complainant all the four members of the complainant side grappled with and resisted the assailants.
12. The complainant in the FIR did not specify the seat of injuries on the deceased. In his testimony in trial he deposed that the deceased had been hit with two bullets; one on his left shoulder and one on his right thigh. PW-4 Muhammad Ismail deposed that the deceased was hit by two bullets, one on his left. arm and one on his hip. PW-7 Mohammad Aslam did not disclose the seat of injuries. The post-mortem report however indicates that the deceased had three injuries; one on the left arm, and one each on the right and left buttock. The post mortem report further opines that the deceased was alive for a period of thirty minutes after receiving injuries. This is in contradiction to the prosecution witnesses version that the deceased died immediately on the spot after receiving the injuries. The medical evidence does not coincide with the ocular version.
13.PW-2 Sahib Dino in his testimony deposed that the dead body was taken from the scene of incident to the hospital for the purposes of post mortem in a private datsun vehicle that had been arranged by the complainant. The complainant in his testimony also deposed the same. PW-9 Atta Mohammad, the Investigating Officer and one of the first police officers who reached the scene of incident however deposed that the dead body was brought from the place of incident in a tractor trolley and not a datsun vehicle. The same police witnesses i.e. P.W-2 Sahib Dino and PW-9 Atta Mohammad (both who were said to have accompanied the complainant from the police-station to the scene of incident) deposed that they had walked from the police station to the scene of incident. In complete contradiction, the complainant deposed that they had come in a private datsun vehicle from the police station to the scene of incident. Apart from this contradiction, the prosecution remained silent on the details of this mysterious datsun. The driver or owner or of this datsun was never investigated by the police. Quite obviously, at least one of the witnesses is being dishonest in this account casting a suspicion on the entire credibility of the prosecution witnesses.
14. PW-9 Atta Mohammad in his cross-examination admitted that the cot on which the deceased was brought from the scene of incident to the hospital was stained with blood; yet, he did not seize the said cot as case property. The blood stained clothes the deceased did not reveal that there were bullet holes in them. No weapon was recovered from the Appellant and neither were the empties ostensibly recovered from the place of evidence sent to the ballistic expert to determine the type of weapon from which they had been fired. The blood stained earth and clothes were not sent to the forensic laboratory to determine whether the blood was the same as that of the deceased or not.
15. The statements of the prosecution eye-witnesses were recorded after four days of the incident for no apparent reason. Such unexplained delay of four days sheds doubt on the accuracy and credibility of these witnesses. The Investigating Officer also admittedly did not record the statements of any other person who was said to have reached the spot after the incident. I also find it rather odd that in spite of firing by the accused continuing for thirty minutes by one account, no police man or villager had come to the spot of incident when the tiring was in progress even though the police station was said to be nearby and the other houses in the village close by as well. Sometime after the incident however according to PW-7 Muhammad Aslam, twenty to twenty-five villagers had reached the scene. This witness however did not remember the names of any villager who had come. Sounds surprising keeping in view the fact the accuracy with which this witness identified the accused.
16. In view of the above, I am of the view that considerable doubt was created in the prosecution case. Accordingly, the prosecution failed to prove its case beyond reasonable doubt. The benefit of doubt should have gone to the Appellant in accordance with well settled principles of law.
17. In view of the above, the Appellant is acquitted of the charge and should be released forthwith if not required in any other case.