SHAUKA T ALI RAKHSHANI, J.---Impugns the judgment dated 25th of October , 2014 ("Impugned Judgment") rendered by Ist Additional Sessions Judge Dadu, Camp at Central Prison Hyderabad in case FIR No.56/201 1 (Ex.20/ A) registered with Police Station Khuda Abad under section 17(3) of Offences Against Property(Enforcement of Hudood) Ordinance, 1979 (VI of 1979) ("Hudood Ordinance") read with sections 302, 324, 147,148 and 149 of the Pakistan Penal Code [Act XLV of 1860] ("Penal Code") whereby appellants namely Jumo, Manzoor alias Meer Hazar , Najoo alias Ali Gohar , Mehar alias Ghulam Abbas (died on 24th February , 2016) and.
Saleh were found guilty and as such were convicted and sentenced in the following terms: i) Under section 147 of the Penal Code, each of the appellant to suf fer R.I. for six months. ii) Under section 148 of the Penal Code, each of the appellant to suf fer R.I. for one year . iii) Under Section 324 of the Penal Code, each of the appellant to suffer R.I. for five years with fine of Rs.2000/- or in default thereof to further undergo S.I. for two months each. iv) Under section 337-F(i) of Penal Code, each of the appellant to suffer six months' R.I. and to pay Rs.2000/- as Daman. The appellants were directed to remain in jail until payment of Daman amount. v) Under section 302(b) of the Penal Code, each to suffer life imprisonment with fine of Rs.100,000/-(Rupees one lac only) or in default to further undergo S.I for six months for two counts i.e. for committing qatl-i-amd to deceased Muhammad Khan as well as deceased Muhammad Siddique with further order that if fine on both counts is recovered, it shall be paid to the legal heirs of deceased Muhammad Khan and Muhammad Siddique separately , as compensation under section 544-A of The Code of Criminal Procedure [Act V of 1898] ("The Code").
2. The instant criminal appeal has been received from Hon'ble High Court of Sindh, Circuit Court Hyderabad vide order dated 24th of March, 2015 for want of jurisdiction, which was time barred. The appellants being aggrieved from the Impugned Judgment preferred Criminal Appeal No.1 1-K of 2015.
3. On 4th of October , 2011 at about 1.00 p.m. Complainant Allah Rakhio (P.W.1) appeared in Police Station Khuda Abad and got registered the FIR. bearing No.56/201 1 (Ex.20/A) contending therein that on the same morning his uncle Muhammad Khan, cousins Muhammad Siddique and Faheem (P.W.3) on their motorcycle whereas he along with his brother Allah Rakhio and Awais Karni (P.W.2) on his motorcycle were following them towards Bhan town, When at about 7.00 a.m, they reached in between village Mushtaq Jamali to Kanhiri road near agricultural land of Hajan Shah, six persons armed with Kalashnikovs known to be Jumo, Manzoor , Meeral, Mehar , Saleh and Najoo Saleh alias Gul stopped the vehicle of his uncle Muhammad Khan, alighted them and Jumo, Manzoor and Meeral fired on Muhammad Khan while Najoo, Mehar and Saleh fired at Muhammad Siddique and Faheem (P.W.3), resultantly they fell down, amongst them Muhammad Khan and Muhammad Siddique succumbed to their injuries whereas Faheem (P.W.3) also received fire arm wounds who ran towards cotton crops whereas perpetrators while making aerial firing made their escape good. According to complainant Allah Rakhio (P.W.1), Faheem (P.W.3) told him that the culprits took away licensed pistol, cash amounting to Rs.100,000/-(Rupees one lac only) and two Nokia mobile sets from Muhammad Khan. He added that subsequently a Datsun Pickup was arranged whereby both the dead bodies and injured Faheem (P.W.3) were shifted to Bhan Saeedabad hospital, whereas his brother Allah Dino informed the police officials of Police Station Khuda Abad whereafter police arrived at the hospital and after compliance of the legal formalities gave referral letter for medical treatment to injured Faheem (P.W.3), following post mortem of the deceased persons at Civil Hospital Dadu.
The motive of the occurrence was stated to be that in the year, 1992 an encounter took between the police and the dacoits, wherein two dacoits Ahmad and Ismail Mamani Panhwar were murdered and brother of one of them namely Jumo Panhwar (appellant) blamed and held responsible the complainant party for such incident, therefore, he used to advance threats to take revenge of his brother .
4. Dr. Sikandar Ali (P.W.4) conducted postmortem of deceased persons and issued medical certificate (Ex.23/D) of deceased Muhammad Khan and (Ex.23/ E) of deceased Muhammad Siddique, by observing the following injuries:- - "Deceased Muhammad Khan: 1) Large fire arm lacerated wound of entry 2.5 cm in diameter into tissue deep over left side of face with burning and blackening, exit 1.5 cm diameter into tissue deep on right armpit averted margins.
2) Fire arm lacerated wound of entry 1.5 cm in diameter into tissue deep with burning and blackening inverted on right iliac region as exit 1.0 cm diameter into tissue deep averted margins on left loin.
3) Fire arm lacerated wound of entrance 1.5 cm diameter into tissue deep inverted margins burning and blackening on left buttock cross to left thigh then entering to right thigh and exit from left side of right thigh from mid 1/ 3.
Internal examination.
Head: skull was normal upper and lower jaw and soft tissue and Oral cavity destroyed.
Neck: Trachea was penetrated, neck structure damaged Chest: right lung penetrated plural cavity filled with blood. Other structures normal. Two rips on left side fractured.
Abdomen: Small intestine penetrated. Peritoneal cavity filled with blood. Stomach empty left between destroyed.
Genitals: Normal.
Opinion: After examination of deceased I was of the opinion that all the injuries were ante mortem.
Death was occurred due to blood and shots. All the injuries were caused with fire arm weapon, injuries Nos.1, 2 and 3 were suf ficient to cause death in ordinary course of life individually and collectively . Probable duration between injury and death was about ten minutes, however , probable time between dead and examination was about two hours.
Deceased Muhammad Siddique: i) Fire arm lacerated wounds of entrance four in number each measuring 1.5 cm in diameter into tissue deep inverted margins with burning and blacke ning on front of chest with exits from back respectively measuring 2.0 cm diameter into tissue deep averted margins. ii) Fire arm lacerated wound of entrance on lower 1/3 of left upper arm with complete destruction of bones and tissues.
Internal examination Head: Normal Neck: Normal Chest: Both the lungs, heart penetrated. Chest cavity filled with blood. Several rips are fractured.
Abdomen: Normal Stomach empty .
Genitals: Normal Opinion: After completing examination I am of the opinion that all the injuries are ante- mortem. Death occurred due to cardio pulmonary damage, bleeding and shock.
All the injuries were fire arm weapon and suf ficient to cause death in ordinary course of life individually and collectively . The time between injury and death about 10 minutes. The time between death and postmortem about 4 to 6 hours".
Injured Faheem (P.W.3) was also examined and treated by Dr. Sikandar Ali (P.W.4) who observed one fire arm injury as 0.5 cm in diameter at his nipple on right side of chest. The nature of injury was determined as Ghyr-Jaifah- Damyiah 337-F(i) of the Penal Code caused with fire arm weapon. The time between examination and injury was stated to be about 2 to 3 hours.
5. Imdad Hussain ASI (P.W.5) was entrusted with the investigation of the case who stated to have arrived at Bhan hospital and got prepared Inquest reports of deceased persons Muhammad Khan and Muhammad Siddique (Ex.24/B and Ex.24/C) respectively and injury sheet of Faheem (P.W.3) (Ex.2 4/E) as well as got conducted postmortem of the deceased persons. He added that at 1.40 p.m. he went to the place of incident, secured blood stained clothes as well as collected twenty empties of Kalashnikovs lying scattered on the crime scene and prepared note of inspection (Ex.24/G) and subsequently handed over the investigation to Ayaz Ali Bughio, SIP (P.W.7). On 6th of October , 2011, Ayaz Ali, SIP (P.W.7) took into the possession the blood stained clothes of deceased persons Muhammad Khan and Muhammad Siddique through recovery memo. (Ex.25/A) and recorded the statements of Allah Dino and Awais Karni. On 10th of October , 2011 nominated accused Meeral was arrested but during investigation he was let free by him (PW.7), while exercising jurisdiction under section 497 of The Code on the basis of deficient evidence, following submission of challan on 16th of Nove mber , 2011 under section 512 of The Code. During investigation the appellants were arrested and sent up to face consequences of their deeds.
6. On 21st November , 2013, the appellants were formally charged afresh under section 17(4) of the Hudood Ordinance read with sections 147, 148, 149, 302, 324 and 337-H(2) of Penal Code.
After repudiation of the allegations so putforth in the formal charge, the prosecution in order to establish their culpability produced as many as 7 (seven) witnesses. The appellants were though examined under section 342 of The Code, but none of them opted to refute the allegations through making statement on oath or to produce defence evidence.
It is worthwhile to make note of the fact that during examination under section 342 of the Code appellant Ali Gohar alias Najoo denied his alias to be Najoo by producing his CNIC (Ex.28/A), appellan t Saleh produced copy of an FIR bearing No.42/2003 (Ex.29/ A) and claimed to have been involved falsely due to previous enmity , appellant Mehar disputed his name as Mehar and stated that his name is Ghulam Abbas son of Jumo as such to support his contention he produced Electoral List (Ex.30/A). Appellant Manzoor also disputed his name as Manzoor and stated that his actual name is Mir Hazaar son of Muhammad Suleman and as such produced his CNIC (Ex.31/A).
Accused Jumo professed his innocence and urged to have falsely been implicated due to old enmity .
A full-fledged trial concluded in holding the appellants guilty of the charges, following into their conviction and sentence as mentioned in the para (supra).
7. We have heard Mr.Aijaz Shaikh counsel for the appellants, Mr. Zafar Ahmad Khan Additional Prosecutor General Sindh on behalf of the State and Mr. Faqir Rahmatullah Hisbani counsel for the complainant and perused the record carefully and minutely with their able assistance.
8. Mr. Aijaz Shaikh, learned counsel for the appellants inter-alia contended that there is an unexplained delay of six hours in lodging of the FIR as such deliberation and consultation with ulterior motive cannot be ruled of consideration. He added that one of the accused Meeral was let free for deficient evidence who had been assigned the similar role as of the appellants, which has put a serious dent in the case of the prosecution. According to him, the trial Court has categorically held that no dacoity has been proved, making the case doubtful to the extent of the appellants as well. He maintained that conduct of the prosecution witnesses, who have furnished ocular account is absolutely improbable and against human nature. Referring to the factum that as to why the culprits neither snatched their property nor fired at them, allowing them to become witnesses and deposed against them in the court of law is unbelieveable. Continuing his arguments, he added that the material witness Allah Dino, stated to be an eye-witness of the occurrence has not been produced which adversely effect the case of the prosecution and that despite availability of the eye-witnesses, Awais Karni (P.W.2) and injured Faheem (P.W.3), recording their statement with delay has diminished the evidentiary value of their testimony . He argued that no recovery of crime weapon has been effected from the appellants, connecting them with the crime. In support of his arguments he referred to the judgments; (i) PLD 2019 SC 64, (ii) 2017 SCMR 596, (iii) 2008 SCMR 1572 , (iv) 2001 SCMR 424,
(v) 1972 SCMR 74 .
On the other hand learned Additional Prosecutor General Sindh vehemently oppo sed that the contentions so put forth by the learned counsel for the appellants and urged that there is sufficient direct evidence against the appellants, holding them culpable of the crime of murder and decoity . He added that the time, day, place of crime and weapon used have not been specifically repudiated and denied which strengthens the case of the prosecution.
He maintained that the delay in lodging the FIR and recording statement of the prosecution witnesses has been sufficiently explained enough, having no adverse impact upon the testimony of eye-witnesses.
Learned counsel for the complainant argued that there is no contradiction in the testimony of the prosecution witnesses and submitted that since enmity has been proved, therefore, the findin gs of the Trial Court based on proper appreciation of evidence need not to be interfered with. He admitted that although release of accused Meeral has not been challenged but he was specifically attributed role of firing upon the deceased persons, then no benefit can be availed thereby . He added that the statement of the deposition of prosecution witnesses is consistent in nature, suffering from no infirmity and contradiction. He argued that the prosecution has successfully proved the crime committed by the appellants and as such have rightly been convicted and awarded sentence by the Trial Court, henceforth requested for dismissal of the appeal for having no merits.
9. After due consideration and thorough scrutiny of the prosecution evidence on record, we have concluded that the entire case of the prosecution rests upon the ocular testimony of prosecution witnesses Allah Rakhio (P.W.1), Awais Karni (P.W.2) and Faheem injured (P.W.3), motive wedded with the medical evidence and report of Chemical Examiner (Ex. 26/B) pertaining to blood stained clothes of the deceased persons and injured.
Allah Rakhio (P.W. 1) reiterated the contentions so put forth in the FIR, holding the appellants culpable of the murder of deceased Muhammad Khan, Muhammad Siddique and causing injuries to Faheem (P.W.3) as well as snatching away motorcycle, a licensed pistol and two mobile sets of deceased Muhammad Khan. Admittedly , there is delay of six hours in lodging the FIR with an explanation that after shifting the dead bodies to village for burial, he went to Police Station and lodged the FIR. We are mindful of the legal compuls ion that the FIR requires to be registered soon as possible, otherwise delay diminishes its evidentiary value, but in the instant case the explanation offered seems natural to the extent of lodging FIR, having no adverse effect upon the case of prosecution; beside deserving strict scrutiny of the statement of complainant (P.W.1) with regard to nomination of the appellants.
10. Meticulous recital of the deposition of the complainant (P.W.1), Awais Karni (P.W.2) and Faheem (P.W.3) have not been found by us to be confidence inspiring and truthful on manifold reasons, particularly in view of the peculiar circumstances of the instant case. Complainant (P.W.1), obviously had enough time in hospital, when he met Imdad Hussain ASI (P.W.5) to make statement about the occurrence and B nominate the culprits, but he did not do so at the earliest. Moreover , his brother eye-witness Allah Dino, who has not been produced without any cogent reason, had informed the Contingent of Police Station Khuda Abad on phone, about the occurrence who also did not name the appellants. Nomination of the appellants after six hours does culminate in grave suspicion, leading to deliberation and consultation.
The statement of Awais Karni (P.W.2) was recorded on 8th of October , 2011 whereas the statement of Faheem injured(P .W.3) was recorded on 10th of October , 2011 whereof no explanation has been offered by said witness as well as the Investigating Officer Ayaz Ali (P.W.7). Awais Karni (P.W.2) admittedly had not received any injury and was available but despite being available his statement was not recorded, casting suspicion. Faheem injured(P .W.3) has received a kissing wound by firearm on his chest and on the very next day he was discharged so there was again no reason for recording his statement with a delay of almost six days. He admitted in the cross- examination that the police had come for condolence. He stated not to be sure that from which hospital he was discharged. Allah Rakhio(P .W.1), Awais Karni (P.W.2) and Allah Dino (not produced) stated to have witnessed the occurrence from a distance of 40/50 paces, not too far from the place where the deceased persons were done to death and looted. They have furnished a detail account of firing made by appellan ts, receipt of the injuries by the deceased persons as well as by the injured Faheem (P.W.3) but strangely enough no attempt was made to rescue them.
11. Another intriguing aspect of the case is that Allah Rakhio (P.W.1) testified that after the occurrence Faheem injured told them that the culprits have taken away the motorcycle, a licensed pistol and two mobile sets of his father but when injured Faheem (P.W.3) appeared in court, he did not utter a single word with regard to the fact that the culprits took away the aforementioned ariticles. Matter does not end here, if Allah Rakhio (P.W.1) had witnessed the occurrence then as to why he stated that Faheem (P.W.3) told him regarding taking away of the said articles by the culprits raising questions with regard to his presence on the crime scene.
The testimony of the eye-witnesses Allah Rakhio (P.W.1) and Awais Karni (P.W.2) has been held to be insuf ficient to conclude the culpability of the appellants with regard to commission of decoity , while deciding point No.3 in negative at para-30 of the Impugned Judgment. Furthermore, during investigation on the basis of insuf ficient evidence one of the culprits who had allegedly made direct firing was let free for being innocent. The complainant party did not challenge his release or findings of innocence recorded by the Investigating Officer Ayaz Ali (P.W.7) at any forum, albeit Awais Karni (P.W.2) in cross-examination voluntarily stated that since accused Meeral had brought "Quran Sharif", therefore, they had forgiven him in the name of Almighy Allah. As stated herein before accused Meeral was specifically nominated and attributed role of firing by the eye-witnesses and injured, then how come on the basis of false oath in the name of Almighty Allah his plea was accepted, who the witnesses had seen him committing the crime as charged.
12. Furthermore, the eye-witnesses of the occurrence Allah Rakhio (P.W.1) and Awais Karni (P.W.2) deposed that the appellants encircled them all and after alighting the deceased from the motorcycle made direct firing upon the deceased persons and injured Faheem (P.W.3) but surprisingly none of them including Allah Dino received a slightest harm in the occurrence, making the entire story and their presence doubtful because it is absolutely against human conduct not to harm the prosecution witnesses Allah Rakhio (P.W.1), Awais Karni(P .W.2) and Allah Dino (not produced) and let them go, to subsequently become witnesses against them in the court of law .
It is also pertinent to mention here that the complainant party claims that the entire family was being threatened by the appellants to take revenge, as such not only the deceased persons were target but the prosecution witnesses who did not receive any harm in the occurrence, were also target but to the utter surprise they were not harmed, despite there being no intervention from any corner , which fact is indigestible.
13. Besides, having been found the ocular account to be improbable and unnatural, the unexplained delay in recording the statements of Awais Karni (P.W.2) and Faheem injured (P.W.3) under section 161 of The Code has diminished the evidentiary value of their deposition, whereupon no reliance can be placed. In this regard help is sought from the dictum expounded by the apex court in the case of Imran Ashraf and 7 others v. The State (2001 SCMR 424) wherein it was held that where no plausible explanation is offered by the prosecution for not recording the statement of eye-witness immediately after the registration of the case, then the evidence of such witness becomes incredible, which view was further endorsed in the case of Muhammad Asif v. The State (2017 SCMR 486). We are also fortified with the ratio laid down in the case of Mst. Rukhsana Begum and others v. Sallad and others (2017 SCMR 596). In the said case P.Ws were encircled along with the deceased but the P.Ws remained unhurt. It was observed that such behavior on the part of the accused persons ran counter to natural human conduct and the behavior explained in the provisions of Article 129 of the Qanun- e-Shahadat Order , 1984. At one more juncture it was observed that two deceased and P.Ws. were encircled and was under direct and immediate threat of death but he was still able to give photographic narration of the occurrence by attributing individual role to each one of the several accused by itself is suf ficient to disbelieve his presence at the crime spot at the fateful time.
14. The presence of the un-injured prosecution witnesses is highly doubtful, as they failed to justify their presence on the crime scene. None of them furnish ed any plausible justification as for what purpose they were going towards Bhan, following the deceased persons on their motorcycle. They have even failed to give the details of the motorcycle of the culprits, deceased and of their own. Undeniably , the culprits were not on visiting terms with the eye-witnesses including injured. The occurrence lasted more or less for five minutes and that too when incriminate firing was made by the perpetrators as such identification of the appellants in such a situation also raises suspicion upon the probability of the ocular account furnished by them.
15. One of the most important and crucial witness of occurrence Allah Dino has not been produced in court, casting adverse inference upon the prosecution case because non-production of such an important witness has inferred us to believe that, if he had appeared before the court, he would have not supported the case of the prosecution.
Moreover , there are, material contradictions in the statements of eye-witnesses and injured (P.W.3) with regard to arrangement of the Datsun pickup and shifting of the dead bodies and the injured to hospital. Neither the driver of the Datsun Pickup nor the passengers holding aboard were associated as witnesses to prove the factum of presence of the eye-witnesses.
The testimony of the eye-witnesses Allah Rakhio(P .W.1), Awais Karni (P.W.2) and Faheem injured (P.W.3) as discussed herein before is absolutely untrustworthy , non-confidence inspiring and improbable, having no worth of reliance as they have manipulated and tailored the prosecution version. It may also be suffice to observe that testimony of a witness cannot be believed to be true merely for the reason that he had sustained injuries in the occurrence. Faheem (P.W.3) has recorded his statement on 10th of October , 2011 and as such being under the influence of his elders, seems to have involved the appellants at their behest and dictation. It is improbable to identify the culprits within a spell of 2/3 minutes of occurrence, more particularly , when the culprits suddenly appeared and straightway opened indiscriminate firing, resulting into the death of two persons and inflicting injuries to him.
16. To corroborate and substantiate the testimony of aforesaid prosecution witnesses who have furnished the ocular account, the prosecution has failed to collect any independent corroborativ e evidence such as recovery of crime weapon or the plundered motorcy cle, licensed pistol and amount of Rs.100,000/- (Rupees one lac only) belonging to deceased Muhammad Khan from the appellants.
17. In so far as the medical evidence is concerned, it is now settled that the medical evidence cannot be at all considered as a corroborative piece of evidence. The postmortem reports and the certificate of injuries can only be used as a confirmatory evidence with regard to kind of weapon, duration and angle of injuries and so on so forth but it cannot be considered as an instrument of identifying and connecting the accused with the crime. In this regard reference may be made to the cases of Kaleem Ullah v. The State and another (2018 YLR 2363 ), Hashim Qasim and another v. The State (2017 SCMR 986) and Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ).
18. Motive alleged by the complainant party has not been substantially proved through any documentary or any other independent corroborative evidence . If that be, the motive itself is not proof of a crime rather a cause of a crime, which independently needs to be proved through coherent and tangible evidence. In this case, the prosecution has failed to establish the crime otherwise, therefore, the motive itself looses its worth.
19. The defence plea of the appellants regarding substitution of Ali Gohar as Najo, Ghulam Abbas son of Jumo denying to be Mehar , Meer Hazar son of Muhammad Suleman denying to be Manzoor , the learned counsel for the appellant showed reluctances to argue and agitate the defence plea raised during trial. He argued that since the prosecution has failed to bring home the charge against them, thus their defence plea even otherwise becomes redundant.
20. For the purpose of extending benefit of doubt to the appellants more than one infirmity is not required rather a single doubt is enough to extend such benefit not as a matter of grace and concession but as a matter of right; [See; Mst. Asia Bibi v . The State (PLD 2019 SC 64 ), Faheem Ahmed Farooqui v . The State (2008 SCMR 1572 )].
After due scrutiny and reappraisal of evidence, we have reached to an irresistible and firm conclusion that the prosecution has miserably failed to substantiate the allegations beyond any shadow of doubt, entitling the appellants for the benefit of doubt.
21. Upshot of the above discussion culminated into acceptance of appeal, setting aside of the Impugned Judgment dated 25th of October , 2014 rendered by learned 1st Additional Sessions Judge, Dadu/Camp at Central Prison Hyderabad by means of our short order dated 22nd of April, 2019, following into the reasons mentioned herein before.