AMJAD ALI SAHITO, J. Through this criminal appeal, appellants Atta Muhammad, Zulfiquar alias Dabo and Riaz Ahmed have impugned the judgment dated 29.10.2019, passed by the learned Additional Sessions Judge/Model Criminal Trial Court, Jamshoro at Kotri in Sessions Case No.19 of 2017 (Re-the State v. Atta Muhammad and others) emanated from Crime No.112 of 2016, registered at P.S. Sehwan for an offence under sections 302, 324, 353, 147, 148, 149, P.P.C, whereby the appellants have been convicted under section 302(b), P.P.C. for murdering ASI Niaz Hussain and sentenced to death with direction to pay compensation under section 544-A, Cr.P.C. of Rs.500,000/- (Rupees five lac) each to the legal heirs of deceased. The accused/appellants were also convicted for offence under sections 324/ 147, 148, 149, P.P.C. and sentenced to suffer R.I for 07 years with direction to pay fine of Rs.10,000/- (ten thousand) each, in default whereof to undergo S.I for 03 months more. Accused/appellants were also convicted for offence under section 353, P.P.C. and sentenced to suffer R.I for 02 years with direction to pay fine of Rs. 10,000/- each or to undergo S.I for 02 months more. All the above sentences were ordered to run concurrently. However, the benefit of section 382-B, Cr.P.C. was extended to the appellants. The death sentence awarded to the appellants was however subject to confirmation by this Court as required under section 374, Cr.P.C.
2. The brief facts of the prosecution case as disclosed in the FIR are that complainant P.C. Mukhtiar Ali of P.S Sehwan has lodged an FIR on 09-08-2016 at 0600 hours stating therein that on 08-08- 2016 he along with ASI Niaz Hussain Panhwar left P.S vide entry No.25 at 2030 hours for patrolling on one government motorcycle. During patrolling when they reached Khosa Mohallah Sehwn, one white-coloured Parado Type vehicle came from the opposite direction, on which, complainant party gave the signal to the said vehicle to stop considering the same as dubious. On this, the said vehicle stopped and five persons alighted from it. They were identified on the street and searchlight as accused Ghulam Hussain son of Habibullah Rind, Atta Muhammad son of Umar Khan Rind, residents of Khosa Muhalla Sehwan armed with pistols and three unknown persons with open faces armed with Kalashnikov rifles. They all pointed the weapons to them and caught hold of them. In the meantime, Ghulam Hussain Rind made straight fire shots from his pistol upon ASI Niaz Hussain Panwhar intending to kill him which hit him on his chest, abdomen and arm etc who fell raising cries and became seriously injured. The other accused pushed the complainant who fell and the accused also made straight fires upon him, but the complainant saved himself by taking cover of footpath and fire went missed. Due to fear and harassment, the complainant did not fire with his weapon and all the accused hurriedly fled away in the same vehicle. The complainant conveyed such information on the phone to his superior officers and in that result Government mobile No. SP4329 reached there at the spot from which H/C Abdul Hakeem, PC Muhammad Umar, PC Jawed Ahmed, PC Arbab Ali and driver PC Rustam Ali alighted and with their assistance. The injured ASI Niaz Hussain Panhwar was shifted to Taluka Hospital Sehwan where SHO P.S Sehwan reached and gave a letter for treatment to M.O from where the injured above named was being shifted at Civil Hospital Hyderabad during which he succumbed (Shaheed) to the injuries.
Thereafter, the complainant lodged FIR.
3. On completion of the investigation, the challan of this case was submitted showing accused Atta Muhammad Rind, Zulfiqar alias Dabo and Riaz Ahmed, in judicial custody, while co-accused Ghulam Hussain, Muhammad Shoaib, Faheem and Ghulam Mustafa were shown as absconders before the Court of Anti-Terrorism Hyderabad. Thereafter the case was transferred to the Court of Sessions Judge Jamshoro from where it was entrusted to the learned trial Court on 25-1-2017 for disposal following the law. Thereafter, a charge against accused Atta Muhammad, Zulfiqar alias Dabo and Riaz Ahmed was framed at Ex.7, in which they pleaded not guilty and claimed for trial, vide their pleas at Ex.7/A to 7/C respectively.
4. During the trial, the prosecution examined as many as 11 witnesses and brought certain documents on record. Thereafter learned ADPP closed the side of the prosecution vides his statement at Exh.25.
5. Appellants in their statements recorded under section 342, Cr.P.C. (Ex.26 to 28 respectively) denied the allegations of the prosecution and claimed their innocence. Appellant Atta Muhammad however while recording his statement has brought on record a copy of judgment dated 13.08.2016 passed in Sessions Case No.300 of 2014 as well as a copy of C.P. No. D-2156 of 2012. The appellants however neither examined themselves on oath nor produced any witness in their defence to disprove the prosecution allegations.
6.The learned trial Court after hearing the learned counsel for the respective parties and appraisal of the evidence convicted and sentenced the appellants in a manner as stated above. The conviction and sentence recorded by the learned trial Court have been impugned by appellants before this Court by way of filing the instant captioned appeal.
7. Mr. Noorul Haq Qureshi, learned counsel for the appellants mainly contended that the impugned judgment is opposed to facts, law and equity; that the trial court has failed to appreciate the material placed before it and convicted the appellants; that the trial court has miserably misconceived the evidence recorded and the witnesses in their respective cross-examinations left room of doubt which is favouring the appellants; the factual aspects of the case have not been properly examined judiciously nor given due care and weight as such conviction is not sustainable under the law. He added that there is no ocular evidence except complainant/P.C. Mukhtiar Ali; that the fire arm injury was caused by co-accused Ghulam Hussain, who is still absconder in this case and the present appellants had not played any active role in commission of the alleged offence; that there is no documentary proof to show that the police party had left P.S for patrolling in routine; that the deceased was not in uniform at the time of incident; that complainant had stated that two accused had caught hold of him and two accused had caught hold of the deceased but he did not disclose specifically their names that who had caught hold of him and who had caught hold of the deceased at the time of occurrence; that complainant has also admitted that he did not disclose their names in the FIR also; that no any independent witness from the houses situated near the place of incident was picked up as witness; that there is political enmity due to which the appellants have been implicated by the police party; that in this case the mashirs of arrest and recovery are relatives of deceased and belonged to district Dadu whereas the incident is alleged to have been taken place in district Jamshoro; that the alleged recovery has been foisted upon the appellants Zulfiqar alias Dabo and Riaz in to order to strengthen the case; that no identification parade was held in this case as there is difference in number of dummies as stated by the P.Ws and written in memo of identification parade. He concluded that for all the above reasons the prosecution had failed to prove its case against the appellants beyond a reasonable doubt and thus for all the above reasons the impugned judgment should be set aside and the appellants acquitted. In support of his contentions, he relied upon the cases of Nazir Ahmad v. The State (2018 SCMR 787), Muhammad Arif v. The State (2019 SCMR 631), Imtiaz alias Taj v. The State and others (2018 SCMR 344), Muhammad Ilyas and another v. Ameer Ali and another (2020 SCMR 305), Muhammad Asif v. The State (2017 SCMR 486), Mst. Asia Bibi v. The State and others (PLD 2019 Supreme Court 64), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), Mst. Zahida Bibi v. The State (PLD 2006 Supreme Court 255), Muhammad Nadeem alias Banka v. The State (2011 SCMR 1517), Abbas v.
The State (2008 SCMR 108), Muhammad Bilal and another v. The State and others (2021 SCMR 1039) and Liaquat Ali v. The State (2008 SCMR 95).
8. On the other hand, learned Deputy Prosecutor General for the State while rebutting the above contentions and supporting the impugned judgment, argued that strong and substantial evidence has been brought on record to connect the appellants with the commission of the alleged offence; that all prosecution witnesses in their evidence have supported the complainant; that prosecution has proved its case by bringing strong and substantial evidence on record; that the medical evidence is also supportive to the circumstantial evidence; that while giving its findings learned trial Court has discussed all substantial pieces of evidence and in the facts and circumstances of the case has rightly convicted the appellants. Lastly, he prayed for the dismissal of the instant appeal.
9.(sic.) We have heard the learned counsel for the parties and gone through the material and have minutely perused the record which is made available before us.
10. On perusal of the record it reveals that prosecution case solely depends upon dying declaration made by the deceased ASI Niaz Hussain as same was recorded by Inspector/SHO in presence of Deputy Medical Superintendent, Taluka Hospital Sehwan, Zafar Iqbal the then ASP, as well as CMO duly signed by ASI Niaz Hussain, whose thumb impression is also available on said dying declaration. Further, the ocular evidence. furnished by complainant PC Mukhtiar Ali of P.S Sehwan.
On crucial day viz 09.08.2016 P.W-1 Dr. Sahib Khan was posted at Syed Abdullah Shah Institute, Sehwan. At about 02:30 a.m one police mobile had brought injured ASI Niaz Hussain who was severely injured having injuries of bullets on his body. The treatment was provided to him and at that time another doctor namely Dr. Ghulam Rasool was also present alongwith the said doctor. At that time ASI Niaz Hussain was conscious and was capable to give/recording his statement. During those days Zafar Iqbal was posted as SP who went to the hospital and recorded the statement/dying declaration of ASI Niaz Hussain. The statement was recorded in presence of P.W-1 Dr. Sahib Khan and P.W-2 Dr. Ghulam Rasool. In his dying declaration, injured ASI Niaz Hussain disclosed that accused Ghulam Hussain had fired upon him. Said dying declaration was produced by P.W/Dr. Sahib Khan at Ex.11/A. For convenience, the English translation of the said dying declaration is produced as under:- "STATEMENT OF ASI NIAZ HUSSAIN DATED 09.08.2016 I ASI Niaz Hussain son of Ghulam Hyder by caste Panhwar resident of Village Ghulam Pannwar Taluka and District Dadu at present posted at P.S Sehwan state that on 09.08.2016 I along with Police Constable Mukhtiar Ali were on patrolling and at Khosa Mohalla Sehwan we stopped one suspected Parado type vehicle for checking purpose in which Ghulam Hussain Rind and others were sitting. In the meanwhile, Ghulam Hussain Rind made straight fires upon me from his pistol. I am in injured condition and near to die. I have to give a reply to Almighty Allah. This is my statement.
The injured is conscious and he is in position to give statement Sd/- TI Dr. Sahib Khan C/inst (CMO)
03443251901 41206-1511702-7 LTI & Sd/- ASI Niaz Hussain Panhwar P.S Sehwan.
Wintess Sd/ TI Dr. Ghulam Rasool DMS Tal H. Sehwan 41206-2965106-3 Mob. No. 0306-3035412 Sd/- Inspector/SHO Sehwan P.S."
11. The principle regarding the evidentiary value of dying declaration can hardly make the basis of conviction without further corroboration from an independent source. There are so many decisions to the effect that dying declaration can be considered on the decree of sensitivity under the law because it was made by the person who was on dying way, so would not tell lie to implicate an innocent person. In the case in hand, deceased ASI Niaz Hussain while recording his dying declaration has implicated co-accused Ghulam Hussain, who had fired upon him and he has not implicated other accused persons. "Furthermore, he disclosed that "they were on patrol duty. They stopped one suspicious Parado type Vego vehicle in which accused Ghulam Hussain was sitting and meanwhile he fired upon him". On the contrary, the story narrated by the complainant/PC Mukhtiar Ali is quite different. In his evidence recorded before the trial Court, he deposed that "they were busy in checking, meanwhile a suspicious big parado vehicle came there. They signalled them to stop the vehicle. Thereafter, all four doors of the vehicle were opened and five people alighted from it. One was accused Ghulam Hussain Rind, one was Atta Muhammad and the remaining were unidentified. Two accused persons caught hold of him and two caught hold of deceased Niaz Hussain and then accused Ghulam Hussain made fire from his pistol upon ASI Niaz Hussain. Two unknown accused persons were caught holding him (P.C Mukhtiar Ali) and after firing they went away. Such information was given to "15" and he rook ASI Niaz Hussain to Taluka Hospital Schwan". Whereas P.W-1 Dr. Sahib Khan in his evidence disclosed that "at about 02:30 a.m night a police mobile brought the injured". Neither the name of the complainant is mentioned in the dying declaration nor the doctor disclosed that P.C Mukhtiar Ali (complainant) was also present there. Further, the deceased had not disclosed the number of accused persons who were available in the Parado vehicle nor he has stated that two accused persons had caught hold of him then accused Ghulam Hussain fired upon him.
12. At the time of recording said dying declaration Dr. Ghulam Rasool was also posted as Deputy Medical Superintendent at taluka hospital Sehwan. He has also disclosed in his evidence that injured ASI Niaz Hussain came with injuries with a police letter bearing No.969 dated 09.08.2016. He produced the said letter at Ex.12/A. Following injuries were found on the person of injured: "Injury No.01: Fire arm entrance wound 2-1/2 cm in diameter, margins inverted with blackening at the center of lower sternum.
Injury No.02: Fire arm exit wound 5-1/2 cm in diameter, oval shaped at the lower side of back of chest margins everted.
Injury No.03: Fire arm entrance wound 2-1/2 cm in diameter margins inverted at right upper abdomen right hypoconerioun with blackening.
Injury No.04: Fire arm exit wound 5 cm in diameter margins inverted at the left lumber region.
Injury No.05: Fire arm crushed wound with deformity and blackening irregular of 7 cm with bone expose at the medial side of right upper arm.
Injury No.06: Fire arm entrance wound 2 cm margins inverted with blackening at the right renal region.
Injury No.07: Fire arm exit wound 5 cm in diameter, margins everted at the left renal region."
13. While recording his evidence before the trial Court P.W-1 Dr. Sahib Khan in cross-examination has denied that "It is incorrect to say that since I got friendship with complainant party hence I gave a false statement."
14. To prove its case, the prosecution also examined P.W-4/H.O Abdul Hakeem. He deposed that "when he arrived at Golden Chowk he was on patrol duty with other police officials, he heard fire shots. On hearing such fire shots they rushed towards the street and found ASI Niaz Hussain Panhwar and P.C Mukhtiar Ali ASI Niaz Hussain was in injured condition. P.C. Mukhtiar Ali disclosed that accused Ghulam Hussain and others have made fires upon ASI Niaz Hussain and caused injuries to him. They took the injured to the hospital for treatment where the SHO of P.S Selman and ASP also arrived and met with the medical officer. The statement of injured ASI Niaz Hussain was recorded in hospital and he was then referred to Civil Hospital Hyderabad." This P.W has also supported the version of P.W-I that in their presence dying declaration of deceased was recorded and no tampering into said dying declaration was made. It is also proved that at the time of making statement the deceased ASI Niaz Hussain was in his senses and capable to record his statement.
15. After the arrest of the appellant namely Atta Muhammad, Zulfiquar alias Dabo and Riaz Ahmed, they produced the respective crime weapons which were sent to the office of the Chemical Examiner and received reports with the opinion that empties secured from the place of the incident were fired from the said respective weapons. Surprisingly, the deceased in his dying declaration had disclosed that only 05 shots were made by accused Ghulam Hussain at the occurrence but as per evidenced of complainant/P.C Mukhtiar Ali they secured 05 plus 10 K.Ks empties (total 15 empties) empties shells from the place of incident and the allegation against present appellants was only that two of them caught hold of the complainant P.C Mukhtiar Ali and two have caught hold of the deceased ASI Niaz Hussain, then accused Ghulam Hussain fired from his pistol.
Thereafter by leaving the injured they ran away, which reflects that to strengthen the case, prosecution have made dishonest improvements to strengthen the case showing the recovery of alleged crime weapons.
16. It is also an important aspect of the case that after their arrest, the accused/appellants were put to an identification parade where they were picked up by the witnesses. Except for this piece of evidence no other evidence is available on record against the appellants. Even it is not clear from the evidence of prosecution witnesses that after the arrest of accused Zulfiquar alias Dabo and Riaz Ahmed they were kept in safe custody and witnesses have no chance to see them. All the prosecution witnesses are police officials and most of them were posted at the same police station hence possibility cannot be ruled out that before holding of the identification parade accused were seen by them.
17. The prosecution also examined ASP Mazhar Iqbal. He deposed that "On the day of the incident he was posted as ASP Sehwan and was present in his house where he received information that some criminals had fired upon ASI Niaz Hussain and he was taken to hospital. He reached at Hospital and found ASI Niaz Hussain in injured condition. He recorded the video of ASI Niaz Hussain in which he disclosed that accused Ghulam Hussain son of Habibullah Rind along with four persons, four persons had caught him and accused Ghulam Rind had made four/five fires upon him. The CD has been produced as Article-04 of Ex.19. The CD has been played in open Court in presence of the counsel for accused as well as the State." It is important to note here that as per P.W-1/Dr. Sahib Khan's evidence ASP was present and he reached the hospital and in his presence, a dying declaration of injured ASI Niaz Hussain was recorded and he has also confirmed that four accused persons caught hold of ASI Niaz Hussain then accused Ghulam Hussain has made 4-5 fires upon him. First, it is impossible and second, it is not appealing to prudent mind that four accused persons caught hold of the injured at midnight and then the accused Ghulam Hussain made 5 fires upon him but none of them received a single scratch from such firing. Furthermore, P.C. Mukhtiar Ali in his evidence has disclosed that two accused caught hold of him and two caught hold of deceased ASI Niaz Hussain. Whereas evidence of ASP Mazhar Iqbal as well as the statement made by the deceased in his dying declaration are contrary to each other.
18. It is important to observe that Article 46 of the Qanun-e-Shahadat Order, 1984 which deals with dying declarations is not based on such assumption. The relevancy of a dying declaration depends on the premise that in the circumstances no better evidence can be provided than the statement of a dying man. There is no cavil to the proposition that for ascertaining genuineness of a dying declaration is, whether intrinsically it rings true, whether there is any chance of mistake on the part of the dying person in identifying or naming his assailants, and whether it is free from being prompted by any outside quarter and was not inconsistent with other evidence and circumstances of the case. In reply to the first question as above, dying declaration was indeed recorded in presence of two doctors namely Dr. Sahib Khan and second Dr. Ghulam Rasool Daudpoto. Furthermore, the deceased ASI Niaz Hussain was in conscious condition as confirmed by said doctors. As regard question No.2 is concerned, no chance of mistaken identification of the assailant by the deceased is there as he has clearly given the name of one absconding accused Ghulam Hussain as his assailant with a specific role that he had made fires upon him. Such contention was confirmed by ASP Mazhar Iqbal that he has also recorded the video of dying man ASI Niaz Hussain. In respect of question No.3, the said dying declaration was free from being prompted by any outside quarter. In the instant case, the deceased has not implicated any of the appellants but has implicated only one accused namely Ghulam Hussain, who is still absconder: Further, no motive is cited in the FIR against the appellants.
19. In view of what has been discussed above, the evidence of the complainant and other police constable does not appear to be trustworthy and inspired confidence. In this context, we are fortified by the dictum laid down in the case of Zafar v. The State (2018 SCMR 326), wherein the Hon'ble Supreme Court of Pakistan has held that:- "11. Having discussed all the aforesaid aspects of the case, it has been observed by us that medical evidence, motive, recovery and for that matter absconding of appellant are merely supportive/corroborative piece of evidence and presence of eye-witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/corroborative piece of evidence to convict the appellant on capital charge."
20. It is a settled proposition of law that the prosecution is bound to prove its case beyond a shadow of a doubt. If a reasonable doubt arises in the prosecution case, the benefit of same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also a well-embedded principle of criminal justice that it is not necessary that there must be so many doubts in the prosecution case if there is a reasonable doubt arising out of the prosecution evidence pricking the judicious mind, the same would be considered sufficient for giving its benefit to the accused. In this respect, reliance is placed upon the case of Mohammad Mansha v. The State (2018 SCMR 772);- "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."
21. In view of the above, the prosecution has miserably failed to prove its case against the appellants beyond a shadow of reasonable doubt, therefore, by our short order dated 08.12.2021, the instant Criminal Appeal No.D-197 of 2019 was allowed, the impugned judgment dated 29.10.2019, passed by learned Additional Sessions Judge/Model Criminal Trial Court, Jamshoro at Kotri in Sessions Case No.19 of 2017 (The State v. Atta Muhammad and others) being the outcome of Crime No. 112 of 2016 of P.S. Sehwan, under sections 302, 324, 353, 147, 148, 149, P.P.C., was set aside and the appellants Atta Muhammad, Zulfiquar alias Dabo and Riaz Ahmed were acquitted of the charge with the direction that they shall be released forthwith if they are not required in any other custody case. Resultantly, confirmation case No.44 of 2019 was replied in negative and disposed of 'accordingly. These are the reasons for said short order.