ZULFIQAR AHMAD KHAN, J. Appellant above-named was tried by learned 1st Additional Sessions Judge Dadu in Sessions Case No.675/2014, arising out of Crime No.43/2014, registered at P.S. Johi, District Dadu under Sections 302, 504, 34, P.P.C. Vide judgment dated 13.03.2017, the appellant/accused was convicted and sentenced to suffer life imprisonment and to pay the fine of Rs.50,000/-. In case of default in payment of fine, appellant was ordered to suffer SI for 06 months more. Benefit of Section 382-B, Cr.P.C. was however extended to the appellant.
2. In off-shoot case, appellant was also tried by learned 1st Additional Sessions Judge Dadu in Sessions Case No.265/2014, arising out of Crime No.48/2014, registered at P.S. Johi, District Dadu under Section 25 of Sindh Arms Act, 2013. Vide judgment dated 13.03.2017, the appellant/accused was convicted and sentenced to suffer R.I. for seven years and to pay the fine of Rs.25,000/-. In case of default in payment of fine, appellant was ordered to suffer SI for two months more. Benefit of Section 382-B, Cr.P.C. was however extended to the appellant.
3. The relevant facts of the Sessions Case No.675/2014 as disclosed in the judgment of trial court reads as under:-- "That complainant and accused Manzoor Maganhaar are neighbors. Manzoor Maganhaar had kept cabin in the street as such he was asked to remove the same on which harsh words exchanged between Manzoor and complainant's son Ghulam Murtaza and Manzoor was annoyed with his son. It is further alleged that on 02.04.2014 complainant, his son Ghulam Murtaza aged about 18 years, his brothers Muhammad Bux and Hussain were getting done the work of their house when at 11:45 hours accused Manzoor with Repeater, Ali Nawaz with SBBL Gun and Allah.
Warayo with SBBL Gun came out from their house. Accused persons abused the complainant's son and disclosed that he was not allowing to keep the cabin hence would be murdered. Saying so, accused Manzoor made fire from his repeater upon Ghulam Murtaza in order to commit his murder which hit him on right side of neck, accused Ali Nawaz made gunfire upon Ghulam Murtaza which hit him on right hand and right side of back of chest, accused Allah Warayo also made gunfire which hit to Ghulam Murtaza on left armpit and shoulder who fell down raising cries, then accused persons went towards southern side while abusing. Complainant's son Ghulam Murtaza died on the spot. Complainant gave such information to Police and removed the dead body to Taluka Hospital Johi, where ASI Zameer Jatoi came along with staff, who completed necessary proceedings and after post-mortem the dead body was handed over to complainant.
The complainant after funeral, got lodged his FIR to the above effect.
4. The relevant facts of the Sessions Case No.265/2014 as disclosed in the judgment of trial court reads as under:-- "that on 16.04.2014 accused Ali Nawaz son of Jumma Maganhaar was already in police custody remand in Crime No. 43/2014 under sections 302, 504, 34, P.P.C. of Police Station Johi and during interrogation accused admitted his guilt and disclosed that during committing that crime he was armed with .12 Bore SBBL Gun which he has hidden in Iron trunk in a room of his house and ready to produce the same. The complainant then under daily diary entry No. 16 at 1630 hours left Police Station along with his staff and mashirs Sikandar Ali and Ghulam Shabir and at 1700 hours reached at the house of accused situated in Naeen Colony Dadu. Accused led the police party and mashirs in a room of his house and produced a .12 Bore SBBL Gun before complainant which he taken out from an Iron box and disclosed that he had made fire upon deceased Ghulam Murtaza from that Gun. The gun was checked which was in working condition and smell of fire was coming from it. On enquiry failed to produce license of his gun, the gun was sealed and such mashirnama was prepared in presence of mashirs. Then the accused and recovered gun were brought at P.S where complainant lodged present case on behalf of State."
5. Challan was submitted. Copies of the relevant papers were supplied to the appellant, the Charge (Ex.05) framed to which the appellant pleaded not guilty and claimed to be tried vide pleas at Ex.06.
6. At trial, prosecution examined PW-1 complainant Ghulam Mustafa at Ex.7 who produced receipt at Ex.7/A and FIR at Ex.7/B, P.W-2 eye-witness Hussain at Ex.8, P.W-3 eye-witness Muhammad Buz at Ex.9, P.W-4 mashir Sikandar Ali at Ex.10 who produced mashirnama of dead body, Danistnama, mashirnama.of clothes, mashirnama of place of incident, mashirnama of arrest of accused, mashirnama of recovery at Ex.10/A to Ex.10/F, P.W-5 Dr. Noor Hussain Khoso at Ex.11 who produced police letter and post-mortem report at Ex.11/A and at Ex.11/B, P.W-6 Investigation Officer ASI Zameer Hussain Jatoi at Ex.12 who produced daily diary entries Nos. 07, 09, 06, 16 and 19 at Ex.12/A to Ex.12/E, chemical examiner report at Ex.12/F and FSL report at Ex.12/G and P.W-7 Tapedar Iqbal Ahmed at Ex.13 who produced sketch of the place of incident at Ex.13/A. Thereafter, learned DDPP for the State vide his statement closed the side of prosecution at Ex.14.
7. Statement of appellants under section 342, Cr.P.C. recorded at Ex.15; wherein he denied the allegation and pleaded' innocence. However, he did not opt to appear in the witness box for recording statement on oath to disproye the allegation of the prosecution under section 340(2), Cr.P.C. and he also lead no defence.
8. Learned trial Judge after hearing the learned counsel for the parties and examining the evidence available on record, through its judgments dated 13.03.2017 convicted and sentenced the appellants as stated supra.
9. Learned counsel for the appellant has argued that there was no reason for the complainant and his witnesses to have been available at the place of incident and at the time of incident to witness the incident, as they are working at different places; that the appellant has been implicated due to previous dispute over keeping a cabin in street which is clear from the contents of FIR; learned counsel for the appellant has placed reliance upon page 244 of "Parikh Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology ("7th Edition)" where reference has been given that when a shot gun is fired, then what kind of wounds are formed. Counsel stated that the prosecution case is that the victim was fired upon from a distance of about 20 feet (around six yards) and the said text book points that the wound caused by a shot gun at such a distance would be irregular wound with satellite pallet pattern of diameter reaching 5 inches which obviously has not been seen on the body of deceased. Counsel states that on this single ground, prosecution's case falls flat on earth as it could not be proved that victim died from a gun-shot of the appellant even if all other un-natural stories are believed, as well as he referred to ballistic examination report which shows that out of three empties, only one was found 'similar' but once again the question remains whether a .12 bore shot gun fired from a distance of about 20 feet will cause 0.5 c.m. x 0.5 c.m. wound. In support of his contentions he has relied upon cases of Muhammad Idrees and another v. The State and others (2021 SCMR 612) and Muhammad Bilal versus The State (2021 YLR 1252).
10. Conversely, the learned D.P.G. while supporting the impugned judgment argued that all the prosecution witnesses have fully supported the case against the appellant beyond any Shadow of reasonable doubt. He prayed for dismissal of instant appeal.
11. I have carefully heard the learned counsel for the appellant as well as learned DPG and scanned the entire evidence in the light of case law cited by the counsel for the appellant.
12. Perusal of FIR shows that at the time of incident appellant Ali Nawaz and co-accused Allahwarayo both were armed with BBL guns however, two firearm injuries on right hand and right side of back of chest of deceased have been attributed to appellant Ali Nawaz. Medical Officer in post-mortem sport of deceased has described the said two injuries as under:- One lacerated wound of firearm measuring 0.5 cm x 0.5 cm (tissue deep) at right scapular area with inverted margins (entrance wound) communicating through and through front of right chest measuring 1 cm x 1 cm (issue deep) with inverted margin (exit wound).
One lacerated firearm injury at the back of right wrist joint measuring 0.5 cm x 0.5 cm (tissue deep) with inverted margin (entrance wound) communicated through and through front side of right wrist joint measuring 1 cm x 1 cm (tissue deep) with inverted margin (exit wound).
PW.1 Ghulam Mustafa in his cross-examination has deposed that:- "The accused Manzoor fired at the distance of 20 foot, while the rest of accused also fired on the same distance."
In page 244 of "Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology (7th Edition)" reference has been given that when a shot gun is fired, then what kind of wounds are formed. The prosecution case is that the victim was fired upon from a distance of about 20 feet (around six yards) and the said text book points that the wound caused by a shot gun at such a distance would be irregular wound with satellite pallet pattern of diameter reaching 5 inches which obviously has not been seen on the body of deceased.
13. Report of Forensic Science Labortory Hyderabad-shows as under:-- "Two 12 bore crime empties now marked as "C2" and "C3" were not fired from the above mentioned 12 bore SBBL shot gun No.131169, in question, in view of the following major points i.e. striker pin marks, breech face marks and extractor marks etc are Dissimilar."
In view of above report, it could not be proved that victim died from a gun-shot of the present appellant even if all other un-natural stories are believed, as ballistic examination report shows that out of three empties, only one was found 'similar' but once again it is doubtful whether a .12 bore shot gun fired from a distance of about 20 feet will cause 0.5 c.m. x 0.5 c.m. wound or not. As such there is conflict between the ocular account and the medical evidence of the prosecution.
Furthermore, it is by now well settled that medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53), "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103) and "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410).
14. As regards to the conviction and sentence of the appellant recorded by the trial court for offence under section 25 Sindh Arms Act, 2013 vide judgment dated 13.03.2017 is concerned, since allegedly recovered gun and empties were sent together to the Forensic Science Laboratory for comparison, therefore, said recovery is inconsequential and report of the Forensic Science Laboratory is of no help to the case of prosecution.
15. As seen from the foregoing, this case is marred with endless discrepancies, illegalities and many questions remain un-answered. In the given circumstances, where there are discrepancies in witnesses statements, medico-legal evidence and where the post mortem report does not support the version of the prosecution, it would be advantageous to focus on the evidence led by the dead body that speaks the truth with impartial scientific knowledge advancing justice as it is said that while witnesses may chose to utter whatsoever words, or say things which could have multiple meanings, but in a mortality case it is only the dead body that never lies and provides un-biased truth to decipher the cause of death (A Dead Body Never Lies by Rohayu Binti Shahar, Adnan and Fatin Amin by Penguin Random Books) which does not support the prosecution case that 0.5 x 0.5 cm wound could be caused by a shotgun.
16. For the aforementioned reasons, I have no hesitation to hold that the prosecution has miserably failed to prove its case against the appellant/accused. Resultantly, by short order dated 09.05.2022, the convictions and sentences recorded by the trial court vide judgments dated 13.03.2017 were set aside and the appeals were allowed. Appellant Ali Nawaz was acquitted of the charges.
17. Above are the reasons of said short order.