ZULFIQAR ALI SANGI, J.--- Appellants Haji son of Sheral and Chattal son of Lal Bux Jatoi have assaile d the judgment dated 27.01.2016 passed by learned II-Additional Sessions Judge, Khair pur in Sessions Case No.430 of 2013 arising out of FIR No.20/2013 offence under sections 460, 459, 404, 337H(2), P.P.C. Police Station, Piryaloi whereby they were convicted and sentenced them to 'Imprisonment for life' with the benefit of section 382-B, Cr. P.
C .
2. Precisely , the prosecution case is that complainant Syed Ibrahim Shah lodged FIR on 10.03.2013 alleging therein that on 10.03.2013 at 1:30 a.m. midnight Complainant, his father Syed Sikandar Ali Shah and other Family members woke-up on the cries saw and identified accused persons armed with K.Kovs and guns. Sikandar Shah father of complainant grappled with the accused persons, then accused Suleman alias Fouji made a straight fire shot of K.Kov upon him, which hit him on his left side below the nipple, who fell down, then accused Gulzar alias Jam made straight fire shot upon Mst. Amira aged about 8/9 years which hit on her both thighs. Then accused Mohammad Sallah Jatoi took the licenced gun of the complainant's father , accused Soonharo Jatoi broken the iron box and took out Rs.50,000/- while accused Haji took out Nokia mobile of complainant's father . The accused Hakim took out NIC from the pocket of the complainant while other accused persons took out golden ornaments viz. two ladies rings and other ornaments as well as other valuable articles worth Rs.55000/- from the boxes. Thereafter accused persons made aerial firing ran away . The complainant then saw his father Sikandar Ali Shah who sustained firearm injury on below-left nipple and blood was oozing. The complainant then appeared at Police Station and lodged FIR.
3. After the usual investigation, the police submitted challan against the appellants/accused before the competent Court of law. The learned trial Court completed all legal formalities and framed charge against the appellant/accused to which they pleaded not guilty and claimed trial, such pleas were obtained from them at Exs.3 and 4.
4. In order to prove its case, the prosecution examined PW-1 lady doctor Mrs. Mumtaz Abbasi at Ex.5 who produced police letter at Ex.5-A and final medical certificate at Ex.5-C. PW-02 Mehdi Hassan was examined at Ex.6 who produced police letters and handing over the dead body to the legal heirs at Ex.6-A and B. PW-03 ASI/I.O. Mohammad Ashraf Tunio was examined at Ex.7 who produced memo of the arrest of both accused, entry of leaving Police Station, memo recovery of crime weapon from accused Chattal, entry of leaving P.S., memo of crime weapon from accused Haji, arrival entry at Exs.7-A to 7-F, PW-4 ASI Moha mmad Ashraf was examined at Ex.8 who produced inquest report, memo of wardat, memo of injuries on the perso n of Mst. Humaira memo of last worn clothes of deceased, letter to SSP for obtaining permission for sending property to the chemical examiner , letter to Mukhtiarkar for sketch and report at Ex.8-F , letter to the chemical examiner , and chemical report at Exs.8-A to 8-H respectively . PW-05 Tapedar Moul a Bux was examined at Ex.9 who produced a sketch, and report at Ex.9- A. PW-6 mashir Imran Ali was examined at Ex.11 who produced FIR at Ex.11-A. PW8 witness Syed Tahir Shah was examined at Ex.12. PW-09 I.O. Mohammad Ashraf Bugti was examined at Ex.13. PW-10 Dr. Mohammad Hussain was examined at Ex.14 who produced a Police letter at Ex.14-A and postmortem at Ex.14-B. PW-11 injured witness Miss Humaira was examin ed at Ex.15. PW-12 Syed Tayab Shah was examined at Ex.16 and PW- 13 ASI Riaz Hussain was examined at Ex.18. Learned ADPP for the State produced Photostat copy of the examiner's report along with his statement at Ex.19. Thereafter , learned ADPP for the State, closed the side of prosecution evidence at Ex.20.
5. After completion of prosecution evidence, learned trial court recorded the statement of the appellant in terms of section 342, Cr.P.C. at Exs.21 and 22, wherein they denied the prosecution case and claimed their innocence, however neither they examined themselves on oath nor led evidence in their defense.
6. The learned trial Court after hearing the Counsel for the appellants learned ADPP for the State and considering the evidence, passed impugned judgment, which has been assailed through instant appeal.
7. Learned counsel for the appellants/acc used contended that the appellants are innocent and have falsely been involved in this case with mala fide intention; that the impugned judgment is against the law; that there are major contradictions in the evidence of witnesses which creates serious doubt in the prosecution case but the trial court ignored the same in violation of settled principles of law; that prosecution not proved the case against the appellants beyond a reasonable doubt; that there is conflict in ocular evidence and medical evidence. Lastly , he prayed that the appeal of the appellant may be allowed and they may be acquitted by extending them the benefit of the doubt.
8. Conversely , learned D.P.G, while controverting the contentions of learned Counsel for the parties submitted that the prosecution proved the case against the appellants beyond a reasonable doubt; that there is no major contradiction in the evidence of prosecu tion case; that learned trial court had rightly convicted the appellants.
Lastly , he prayed that the appeal of the appellants may be dismissed.
9. I have heard learned Counsel for the parties and have examined the record carefully with their able assistance.
10. On scrutiny of the evidence, I find the case of the prosecution against the appellants is doubtful on each aspect and the prosecution has failed to prove the case against appellants. The main prosecution witnesses gave their evidence as under:-
11. PW-7 Syed Ibrahim Shah {complainant) was examined; he deposed that on 10.03.2013, he along with his father Sikandar Shah, brother Tayyab Shah and Tahir Shah were sleeping in the house. At about 01:30 a.m.
(midnight), they heard some noise and woke up, saw and identified accused on electric light as Sallah with KK, Haji with KK, Soonharo with KK, Gulzar with KK, Gul Hassan with KK, Hakim with. KK and Chattal with Scissor (Kenchi). He deposed that accused Salla h made a straight fire upon his father , which hit on his chest under the nipple, who fell down on the cot, then accused Sallah took the gun of his father laying on the cot, accused Hakim took mobile phone while accused Haji took NIC of his father , accused Soonharo entered in the room, broken Iron Box and took golden ornament worth of Rs.55000/-, cash of Rs.50,000/-. Accuse d Gulzar made a fire upon his niece Humaira, which hit her, at legs, then went away making aerial firing. Co-villa gers came there and they took dead body towards RHC Garhi Mori for post mortem where Doctors asked him that they will conduct the post mortem after FIR. On such, he took the dead body towards Police Station where his FIR was registered and after FIR again he took dead body towards Hospital where post mortem was conducted and the dead body was delivered to him under a receipt. He further deposed that on the same day Police visited the place of incident and collected empties of KKs and Guns from the spot. He was cross-examined and during cross-examination, he stated that they brought the dead body from the place of incident to Hospital at 09:00 am by Datsun. He further stated that they also brought Baby Humaira along with a dead body at Hospital and got admitted her there and then had gone towards Police Station. He stated during cross-examination that he does not remember how much empties of KK and 12 bore cartridges were collected by the Investigation Officer from the spot. He admitted that Police had not taken away the broken locks and "KUNDAS" of the door and Iron Box as case property . 'He also stated during cross-examination that some villagers had taken the footprints of the accused but he was not with them as he was with the dead body of his father . He admitted that villagers who had taken the footprints returned at the time of Isha Prayer and some police officials were also with the villagers. He stated in his cross-examination that the accused were not known to him prior to, this incident. From the evidence of complainant regarding the taking footprints of the accused persons and his admissio n that prior to the incident he did not know the accused persons, it established that the incident was unseen and the story was managed one.
12. PW-8 Syed Tahir Shah (Eye-witness) deposed that this incident took place on 10.03.2013 when he along with his father Sikandar Ali Shah, brother Ibrahim Shah, Tayyab Shah, niece Humaira Shah aged about 7/8 years were available in the house and about 1:30 a.m., they heard some noise from the side of cattle/cows and woke up, they saw on electric bulbs and found ten (10) accused were standing near the cattle with the intention to commit theft and were identified as Suleman alias Fouji with KK, Gulzar with KK, Hakim with Rifle, Muhammad Sallah with KK, Soonharo with Gun, Haji with Gun, Chattal with Scissor (Kenchi) and three were unidentified. He further deposed that they raised crises of thief thief, on which accused Suleman grappled with his father and unidentified accused caught hold his father from arms and then accused Suleman made straight fire with KK which hit him under the nipple. Accused Gulzar made fire with KK at his niece Humaira which hit at her legs. Accused Muhammad Sallah took the licensed gun of his father along with the license. Accused Haji also took the Nokia mobile of his father , which was lying at the cot. Accused Hakim took NIC of his father . Accused Soonharo has broken the locks of Iron Boxes and robbed Rs.50,000/- two ladies gold rings, earrings, and other valuabl e household articles. Thereafter accused went away by firing in the air. He further deposed that his brother Ibrahim Shah had gone to PS Piryaloi and lodged FIR and thereafter , took the dead body to RHC Garhi Mori, where post mortem was conducted. During cross-examination, he stated that he took the dead body towards RHC by Datsun and police was with him and he does not remember that whether he took away the dead body before the arrival of the complainant from PS or after his arrival. He further stated that firstly they had brought the dead body at Police Station and after obtaining the letter they took the dead body towards RHC. During cross-examination, he denied that they had traced the footprints of the accused after the incident.
13. PW-11 Humaira (injured) was examin ed; she deposed that the incident was taken place about two years back at night time. She deposed that accused Gulzar made a fire upon her, which hit on her legs while accused Suleman made a straight fire upon her maternal grandfather Sikandar Shah, which him at the chest, other accused robbed away household articles, cash amount and gun. She did not depose a single word against the present appellants . During cross-examination, she stated that PW Tahir Shah took her to hospital for treatment. She also stated that she was brought in hospital in the evening time on the next date of the incident.
14. PW-12 Syed Tayyab Shah (eye-witne ss) deposed that on 09.03.2013, he was present in his house along with his father Syed Sikandar Shah, PWs Tahir Shah, complainant Ibrahim Shah, Mst. Humaira and other family members. They heard some noise from the side of cattle at about 01:30 am (midnight), woke up and identified accused Suleman armed with KK, Gulzar alias Jam armed with KK, Muhammad Sallah with KK, Hakim with Rifle, Soonharo with Gun, Haji with Gun and Chattal with Scissor (Kenchi) and three were unidentified. He further deposed that as soon as they woke up all the accused came near to his father and grappled with him, unidentified accused caught hold his father from arms and then accused Suleman made a straight fire of KK, which hit his father on the left side of chest and was through and through. Accused Gulzar made a straight fire at Baby Humaira which hit her on her legs. Accused Muham mad Sallah took the licensed gun of his father along with a license lying at the cot. While accused Haji took CNIC of Ibrahim Shah. Accused Haji also took the mobile phone of his father lying at the cot. Accused Soonharo robbed Rs.50,000/- lying in the Iron Box and other accused also broken the locks of Iron Box and robbed away golde n ornaments and other household articles at gunpoint. He deposed that the complainant took Baby Humaira towards PS for letter and treatment while he and other PWs remained with the dead body . Thereafter police came at the spot and took the dead body towards RHC Garhi Mori for post mortem purpose. During cross-examination, he stated that they had not chased the accused after the incident. He also stated that the accused used to cross through their land and the people of locality disclosed their names at the time when they were crossing through their land. He during cross-examination also stated that he along with the complainant took away Mst. Humaira towards Police Station informed the Police about the incident and then-Police came at the spot.
15. From the assessment of the above three eye-witnesses, who were contradicted each other on each aspect of the case. Taken away the dead body towards the Hospital and Police Station is contradictory , the role played by each accused at the time of the incident is contradictory , presence of appellants at the time of the incident is not supported by the injured victim, identification of the accused persons on the bulb light is doubtful, taken away cash, gun and mobile phone by the accused is contradictory and the weapons carried by the accused at the time of the incident is also doubtful. The approach of injured witness Baby Humaira towards the I B Hospital is also doubtful.
16. Besides these eye-witnesses, who given contradictory evidence, the prosecution also examined PW-1 Mumtaz Abbasi, the Senior WMO RHC Garhi Mori, who examined the Baby Humaira, who during cross-examination admitted that there is overwriting at the place of father's name in the medical certificate. She also stated during cross-examination that only injured had appeared along with a Police letter in her office. She also admitted during cross-examination that she has not mentio ned in the provisional certificate that whether the injuries are fresh or old.
She also stated during cross-examination that on the provisional certificate, the number is mentioned as 82/83- 2013 while in the final medical certificate it has been shown 83/84-2013 and also admitted that as per her opinion there was no fracture at the person of deceased. On scrutiny of the medical certif icate of Baby Humaira, the date and hours of arrival are mentioned as 10.03.2013 at 04:30 pm. It is un-understandable that when Baby Humaira received firearm injuries at 1:30 a.m. in the morning and was not produced before Doctor immediately but was produced at 04:30 pm after thirteen (13) hours of the incident which creates very serious doubt in the prosecution story .
17. PW-2 Mehdi Hassan, who was Police Constable, he negated the version given by complainant in his evidence and deposed that on 10.03.2013, he was posted as PC at Police Station Piryaloi in Investigation Branch. On that day at 2.00 am in the night, he along with SIO Muhammad Ashraf Bugti gone towards the place of wardat, where the dead body of Sikandar Narejo was lying, the dead body was given to him by SIO for post mortem purpose along with police letter . Thereafter , he took the dead body towards RHC Garhi Mori for post mortem and handed over to Doctor Muhammad Hassan at 4:00 am, he received the dead body at 05:00 am and then handed over to Syed Ibrahim Shah. His evidence is also contradicted with the evidence of Doctor Muhammad Hassan (PW-10), who deposed that he started post mortem at 04:20 am and finished the same at 05:10 am.
18. PW-10 Doctor Muhammad Hassan was examined, who during cross-examination denied that complainant brought dead body at 09:00 am or 11:00 am at the hospital and stated during cross-examination that one Police Constable had brought the dead body for post mortem purpose and he handed over the dead body to the same Police Constable along with last worn clothes.
19. PW-4 Muhammad Ashraf Bugti (Investigation Officer) was examined, he deposed that he received FIR No.20/2013 for investigation on 10.03.2013 and complainant also appeared before him. He visited the place of wardat along with complainant and others, inspected the dead body of deceased at the place of incident, which was lying on a cot at the place of wardat and prepared such inquest report so also mashirnama of injuries. He also took cloth (Rethee), which was lying below the dead body and some blood was on it. He cut some pieces from it and sealed. He collected 15 empties of 12 bore cartridges and 10 empties of KK from the spot. He further deposed that one Baby girl was also sleeping near the deceased and sustained injuries. He prepared such mashirnama of wardat at 0300 hours. He further deposed that he shifted the dead body towards the hospital for post mortem through PC Mehdi Hassan. He deposed that he found the footprints of 8/9 persons available at the place of incident, then he traced the footprints along with villagers and lost the same in Bagerji forest near the houses of accused Haji Jatoi and others but accused were not available in their houses, thereafter , they returned at Police Station. He further deposed that on 12.10.2013, he received post mortem report of deceased and on 13.10.2013 he sent property to the chemical examiner for, analysis purpose. Then on 16.03.2013, he handed over the case papers to ASI Muhammad Ashraf for further investigation. During cross-examination, he stated that he had not collected bloodstained earth from the spot, the injured had not gone along with the dead body , but later on, she had gone for treatment by Syed Tayyab Shah on Suzuki Pickup. He admitted in cross- examination that there is overwriting at the letter of injured that previously Sikandar Ali had been shown as father of injured and later on Wilayat Shah has been written. He further stated in cross-examination that they directly traced the footprints of the accused from the place of incident and the place of the incident would be 10/12 miles away from the houses of the accused. Firstly they had gone at the protective band of the river when traced the footprints of accused and then had gone towards the houses of accused by Police and private vehicles via. Sukkur Barrage.
It was 04 or 04:30 pm when vehicles reached there. They reached the houses of the accused at 12:00 noon or 01:00 p.m. They also called the police officials from Sukkur District. He further stated in cross-examination that electric bulbs were available near the place of the incident but he had not collected the same.
20. PW-3 Muhammad Ashraf Tunio was examined, who deposed that on 17.03.2013, he received police papers for investigation and on 26M3.2013, arrested appellants in presence of Syed Imran Shah and Syed Abdul Qadir Shah.
On 01.04.2013, during interrogation, he took out appellant Chattal Jatoi from police lockup vide entry No.8 for interrogation purposes. During interrogation, accused admitted about guilt and showed his willingness to produce scissor (lock cutter) used in the commission of crime then he along with other police officials went towards pointed place i.e. graveyard of Mian Abro, wherefrom accused voluntarily produced one scissor (lock cutter) lying under the bushes of Khabar tree. He prepared such mashirnama and came back to Police Station. He further deposed that on the same day at 1345 hours, he took out accused Haji Jatoi from police lock-up vide entry No.12 and during interrogation, the accused admitted his guilt and showed his willingness to produce the gun used in the crime. He proceeded along with police officials and reached the pointed place, where the accused produced one SBBL Gun, lying in the bushes. Gun was not loaded while three live cartridges were lying in a separate bag. He prepared such mashirnama and then brought the accus ed at Police Station where he registered a separate FIR of 13-E of Arm Ordinance. During cross-examination, he stated that neither he had produced DD entry regarding his departure nor mentioned the said entry in mashirnama of the arrest of the accused. He also admitted that he had not disclosed the arrival entry after the E arrest of the accused in his evidence nor produced the same.
21. PW-06 Imran Ali (mashir) was examined, who deposed that on 10.03.2013, Investigation Officer appointed him the mashir of inspection of the place of the incident where the dead body of Syed Sikandar Ali Shah was lying on the cot. Investigating Officer prepared inquest report and recovered ten (10) empties of 12 bore cartridges and 15 empties of KK and prepares such mashirnamas. Investigating Officer also prepared mashirnama of last worn clothes of deceased obtained from Medical Officer. He further deposed that on 26.04.2013, accused Haji and Chattal were arrested and Investigating Officer prepared such mashirnama in his presence. Investigation Officer had also recovered scissors from Chattal and gun from Haji along with four live cartridges. The mashir did not depose about the date and time of recovery of crime articles from appellants nor pointed out the place of recovery in his examination-in-chief. During cross-examination, he stated that Investigating Officer had taken bloodstained earth in his presence whereas Investigat ing Officer negated the same. He further stated in his cross-examination that the lock of outer door was in cutting condition but the Police had not collected the same whereas he stated that in mashirnama of inspection of the place of incident, it is mentioned that Investi gating Officer collected ten (10) empties of KK and 15 empties of cartridg es of 12 bore and also admitted that the empties of available in Court are ten (10) in number .
22. I have carefully examined the statements under section 342, Cr.P.C. of appellants wherein incriminating piece of material viz. post mortem and other medical evidence, recovery of crime weapons, recovery of empties from the place of the incident had not put to appellants while recording their statements under section 342, Cr.P.C. it is well- settled principle of law that all the incrimin ating pieces of evidence available on record in the shape of examination- in-chief, cross-examination or re-examination of witnesses are required to be put to the accused, if the same are against him while recording his statement under section 342, Cr.P.C. in which the words used "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him." which demonstrate that not only the circumsta nces appearing in the examination-in-chief are put to the accused but circumstances appearing' in cross-examination or re-examination are also required to be put to the accused if they are against him because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order , 1984, as has been held by Honourable Supreme Court of Pakistan in the case of Muhammad Shah v. The State (2010 SCMR 1009 ). It is also a settled principle of law that the piece of evidence which is not put to the accused in the statement under section 342, Cr.P.C. that cannot be relied upon against him. Reliance is placed on the cases of lmtiaz alias Taj v.
The State 2018 SCMR 344 (2) Qadan and others v. The State 2017 SCMR 148 and Mst: Anwar Begum v.
Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 .
23. From the above discussion, it is evident that there are serious doubts in the case of the prosecution. It is settled law that even a single doubt in the prosecution story is disastrous and its benefit must go to the accused. In this regard, I would like to place reliance on the case of Tariq Pervez v. The State (1995 SCMR 1345 ) wherein Honourable Supreme Court of Pakistan held as under:- "The concept of benefit of doubt to an accused person is deep rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a single circumstance which creates reasonable doubt in a prudent mind 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".
24. For the above reasons, this Jail appe al is allowed and the conviction and sentence awarded to the appellants by the trial court vide judgment dated 27.01.2016 in Session Case No. 430/2013, Crime No. 20/2013, Police Station Piryaloi under sections 460, 459, 404, 337-H(2), P.P.C. is set-aside and the appellants are acquitted of the charge. The appellants are in jail they shall be released forthwith if not required in any other custody case.