1. ' The aforementioned criminal appeals are arising out of the same Crime No,47 of 1982, registered with Police Station Hala, under sections 302, 404, 148 and 149, P.P.C. And by common judgment these appeals are being disposed of.
2. ' Appellants have called in question the impugned judgment, dated 24-5-2000 passed by the learned IInd Additional Sessions Judge, Hyderabad, in S.C. No,251 of 1983, whereby they have been convicted and sentenced to suffer under section 302 read with section 149, P.P.C. For life imprisonment on three counts under section 404, P.P.C. To suffer R.I. For 2 years and under section 148, P.P.C. To suffer R.I. For 1 year. Each of accused is further directed to pay fine of Rs,1,00,000 each.
3. In case of deposit of fine, half of the same be given to the legal heirs of the three deceased and in case of default each accused will suffer R.I. For 1 year more. Accused are given benefit of section 382-B, Cr.P.C.
4. ' Brief facts of the case are that on 18-10-1982, Police of Police Station Hala, submitted the challan against the appellants before Civil Judge and F.C.M., Hala. In challan accused Ali Gul was shown in police custody while remaining accused were shown as absconders. Since the offence under section 302, P.P.C. Was exclusively triable by the Court of Sessions, therefore, the case papers were sent to the Court of Sessions, Hyderabad, from where the trial Court received the case by way of transfer for disposal according to law.
5. ' On 8-5-1982 at about 7-00 p.m. Complainant Sahib Dino appeared at Police Post Kando of Police Station Hala and lodged his report against the accused in respect of incident which took place on the same day at about 1-00 p.m. At Salaro Forest near Village Chandi Bhachho Deh Kando Taluka Hala, alleging therein that their relatives namely Misri Ali Nawaz alias Nazoo and Aloo Bhacho today in the early morning have taken their cattles for grazing in Salaro Forest and at about 1-00 p.m. He was available in his house situated in village Chandi Bhacho, where he heard the fire-arms reports, on which complainant Sahib Dino. Muhammad Saleh, Hadi Bux, Mian Bux and Laiq who were available in the village went to the directions from where fire reports were coming and when they reached near Tubewell of Saeed where they saw that accused Kamal Khoso, Naseer Faqir, Tilo, Bulando, Razoo, Sadiq, Ismail, Gul Sher, Rahim, Muhammad Rahim, Adloo, Khadim, Sharif, Haji Bozdar, Qamaruddin, Bilawal and Khamiso who were armed with guns and rifles with whom complainant party had old enmity and they within the sight of complainant and above witnesses fired upon Misri, Ali Nawaz alias Nazoo and Aloo Bachho who died as result thereof and they also took away the licensed rifle and double-barrel gun which were with Misri and Nazoo. Police after the registration of report visited the place of Wardat prepared the Mashirnama of Wardat, Lash Chekas Form, Danishnama, despatched the dead bodies to Medical Officer for post-mortem, recorded 161, Cr.P.C. Statements of witnesses during investigation arrested accused Ali Gul and after completing the investigation and observing all kind of legal formalities challaned the accused as stated above.
6. ' During the pendency of case, accused Razoo, Muhammad Rahim, Haji Bozdar, Ismail and Nazroo were arrested while accused Kamal Khoso, Naseer Faqir and Tillo were killed in police encounter while remaining absconding accused who had shifted to some unknown place and their whereabouts are not known and after examining the process-server and observing legal formalities proceedings against accused Kamal Khoso, Naseer Faqir and Tillo were abated while remaining absconding accused were declared as proclaimed offenders. After supplying the police papers to accused under valid receipt a formal charge at Exh.32 was framed against the accused to which they pleaded not guilty and claimed their trial vide their pleas at Exhs.33 to 39, therefore, prosecution witnesses were summoned.
7. ' The prosecution in order to prove its case examined P.W.1 Allah Dino at Exh.42 (previous Exh.18 and produced sketch at Exh.19), P.W.2 Saleh Bhacho he is eye-witness at Exh.43, he was examined in Court on 8-3-1995, P.W.3 Gul son of Siddiq at Exh.44, P.W.4 Mian Bux at Exh.45, he is also eye-witness, P.W.5 Hadi Bux at Exh.46, he is also eyewitness, P.W.6, S.I.P. Syed Muhammad Shah at Exh.61, he is Investigating Officer of the case and has produced daily diary entry of Police Post Kando, Mashirnama of Wardat, Danishnama, Mashirnama of Wardat, recovery of empty cartridges and empty bullets and photostat copies of licences of rifle and double-barrel gun which were with deceased and after commission of offence took away by accused, photostat copy of F.I.R., Mashirnama of recovery of blood-stained clothes of deceased and verification reports of licensed double-barrel gun and rifle at Exhs.52 to 64. P.W.7 Dr. Abdul Rashid at Exh.65, who had conducted the post-mortems of deceased Ali Nawaz alias Nazoo, Misri and Aloo Bhacho and had delivered the postmortem reports to concerned police but the said reports were not available in police papers and same were incorporated in police case diaries which he has produced alongwith his deposition. Repeated process against remaining P.Ws. Including the complainant was issued but the same could not be served upon them. Complainant Sahib Dino and P.W. Liaque before their examination died and thereafter, learned D.D.A. Closed the side of prosecution vide statement at Exh.68.
8. ' The trial Court also recorded the statements of accused under section 342, Cr.P.C. At Exhs.70 to 75, in which they have denied the allegations of prosecution and have stated that they are innocent and have been falsely implicated in this case by complainant, party and prayed for justice. Neither they examined themselves on oath nor adduced any evidence in their defence.
9. ' After hearing the learned counsel for the parties, the learned trial Court passed the judgment in terms as stated above.
10. ' I have heard Messrs Syed Madad Ali Shah, Nibhando Khan and Muhammad Azeem Panhwar learned counsel for the appellants and Rasheed Ahmed Qureshi, Assistant Advocate-General, Sindh for the State. I have also gone through the material available on record and evidence adduced by the prosecution with the assistance of the learned counsel for the parties.
11. ' Mr. Syed Madad Ali Shah, learned counsel for the appellants Bulando, Nazaro and Ismail, has argued that there is a delay in lodging F.I.R. Of six hours. According to him occurrence has taken place on 6-5-1982 at 1-00 p.m. The report has been registered firstly at police post on 6-5-1982 at 7-00 p.m. And thereafter, F.I.R. Has been registered with Police Station Hala, at 9-00 p.m. Whereas the distance between the place of Wardat and police station is 3-1/2 miles and according to him enmity is admitted in the contents of the F.I.R. And he has drawn my attention on the contents of F.I.R. Which reveal that old enmity has been admitted by the complainant. According to him complainant has not been examined. Eye-witness Latif was not examined on account of death. He has further submitted that the witnesses who have been examined by the prosecution are not narrating the clear episode of the incident particularly with regard to time of occurrence.
12. According to him P.W. Saleh has stated before the trial Court that the incident took place at morning time at about 10-11 p.m. Whereas P.W. Sain Bux in his cross-examination has informed with regard to time of occurrence to complainant 1-30 p.m. According to him P.W. Mian Bux has given time of occurrence at 6-00 a.m. And place of incident is being narrated different. Mr. Shah has argued that except P.W. Hadi Bux none of the witnesses has implicated the appellants and according to him their evidence cannot be relied upon as they are not speaking truth before the trial Court. He has convassed that the fundamental requirement before the trial Court is not to see whether the witnesses are interested or disinterested. The requirement is to see whether he is honest witness or dishonest and in the present case the witnesses are dishonest witnesses and their evidence cannot be relied upon. He has placed reliance on a case reported in 1979 SCM R 214.
13. He has, further contended that no recovery has been effected from any accused, no Mashir has been examined, post-mortem notes were missing, no Ballistic Expert Report has been produced before the trial Court. He has further argued that although blood-stained clothes of deceased are said to have been secured by Investigating Officer but there is nothing on record whether those blood-stained clothes were sent to Expert. He has further submitted that no report of Chemical Expert has been produced by the prosecution before the trial Court. He has further argued that there were other witnesses available who claimed to be eye-witnesses and 50 accused persons duly armed came at Wardat when they have killed 3 persons they could have killed the rest of the witnesses. According to him why they should create any evidence against them when they can kill 3 persons, they could have killed more other persons and the version of the witnesses is not being narrated in accordance with the prosecution story and their evidence is at the stake. He has further argued that there is no incriminating evidence at all against the appellants, according to him 116 empties were found at the place of Wardat as per the evidence of the Investigating Officer and the same empties have not been produced before the trial Court nor sent to Expert. According to him before recovery of any weapon if empties are recovered, it is the duty of the Investigating Officer to send those empties forthwith to the Expert and in the present case the same has not been done by the Investigating Officer. There is no independent corroboration. Mr. Shah has further submitted with regard to motive that prosecution is advancing two motives, one as there is tribal dispute and old enmity whereas in F.I.R. It has been stated that accused came for committing theft of buffaloes and the occurrence took place. According to him which motive is correct is not established.
14. According to him who caused fatal blow to deceased is a baffling enigma and it is not clear from the evidence and record and in support of his contention he has relied on 1992 SCM R 545; 1999 PCr.LJ 680-683, 1998 PCr.LJ 779, 1997 M LD 997. With regard to occurrence Mr. Shah has placed reliance on 1999 SCM R 729. On the point of post-mortem report he has placed reliance on 1997 PCr.LJ 459 and while elaborating his contention on the question of post-mortem reports and doctor's evidence he has contended that the original post-mortem reports have not been produced. According to him doctor has copied from the police case diaries and has admitted that it is not in his handwriting. According to him dead body has been produced on 6-5-1982 at 9-00 p.m. Whereas Investigating Officer admits that he has sent dead body on 7-5-1982 at 7-45 a.m. Mr. Shah has criticized with vehemence the evidence of Medical Officer being false with regard to receiving of the dead body. Different kind of weapons have been used during the commission of the offence as being claimed by the prosecution but the bullet injuries have been found on the person of deceased persons and in support of his contention he has relied on 1988 PCr.LJ 500, 1982 SCM R 545. Mr. Shah has further submitted that P.W. Hadi Bux has stated before the trial Court that he narrated the facts to Sahib Dino which shows that he was not present and he is not eye-witness.
15. According to him it appears that incident is unwitnessed. If Sahib Dino has gone to lodge report who was not present at Wardat in view of evidence of P.W. Hadi Bux, the others could have gone to police station for lodging the F.I.R. And who had stopped them from lodging the report and yet Sahib Dino had gone to lodge report and according to him the entire case appears to be doubtful and concocted, consultations, maneuvering have taken place before the registration of the F.I.R.
16. And has placed reliance on 1995 SCMR 2008 SCMR 1847, 1997 SCM R 438, 1989 MLD 103, Mr. Shah has further contended that the Investigating Officer has recorded the statements of the witnesses under section 161, Cr.P.C. On 7-5-1982 at 9-00 a.m. And there is a delay of 24 hours while recording their statements under section 161, Cr.P.C. And such delay goes unexplained by the prosecution and has placed reliance on 1974 PCr.LJ 400, PLD 1963 SC 17, 1993 SCM R 550 and has emphasized that the time is not certain with regard to incident. He has further elaborated his contentions with regard to time of occurrence and has drawn my attention on the evidence of P.W. Saleh who has stated that the occurrence has taken place at 10/11 a.m. And he has resiled from F.I.R. As the claim of the prosecution is that incident has taken place at 1-00 p.m. According to him Saleh has not supported the case of prosecution and has not implicated any accused. He has also drawn my attention on the evidence of P.W. Gul who has stated that the occurrence has taken place at sun- set time. P.W. Mian Bux has narrated the time of incident at 6-00 a.m. It is only P.W. Hadi Bux who has said in his cross-examination the incident had taken place at 1-00 p.m. Mr. Shah has contended that in these circumstances the presence of witnesses at the place of Wardat is doubtful and their evidence is not inspiring confidence. He has placed reliance on 1999 PCr.LJ 1565- 67, 1985 SCM R 1573. Finally he has argued that the case against the appellants appear to be riddled with not only material contradictions with regard to time of occurrence but the witnesses are not honest witnesses and have caused dent in the version of the prosecution case and benefit of doubt goes to the accused. He has also placed reliance on 1995 SCM R 1345 by contending that if the slightest doubt is created against the accused the benefit is to be accorded in favour of accused not in favour of prosecution and has prayed that the appeals may kindly be allowed.
17. ' Mr. Muhammad Azeem Panhwar, learned counsel for the appellant Haji Bozdar, has also drawn my attention on the judgment at page 9 paragraph 10 and according to him the learned Judge has misread the evidence and has not taken into consideration the entire evidence of the witnesses and has further adopted the arguments rendered by Mr. Syed Madad Ali Shah.
18. ' Mr. Nibhando Khan, learned counsel for the appellant Muhammad Rahim has also adopted the arguments of Mr. Syed Madad Ali Shah.
19. ' On the other hand Mr. Rasheed Ahmed Qureshi, learned Assistant Advocate-General, Sindh, submits that prosecution witnesses have implicated the present appellants and delay has been explained. He has further submitted that it is an old case and if there is any contradiction with regard to time of occurrence it has been occurred on account of the witnesses who are illiterate and has supported the judgment.
20. Admittedly it is not clear as to who caused the fatal blow to the deceased. There is a delay in lodging F.I.R. Complainant is not eye-witness and when other witnesses were available they could have gone to police station and lodged the F.I.R. I have gone through the evidence of the witnesses who have been examined by the trial Court and have very carefully examined their evidence and they are narrating different time of occurrence which shows that either they were not available at the place of Wardat or they are suppressing the material facts. I have also noted carefully that the doctor's evidence is also false one with regard to receiving of dead body and he has not produced the original post-mortem reports and he has copied the notes from police case diary and he has admitted in his deposition that those notes which have been produced before the trial Court are not in his own handwriting. It is a case of prosecution that different kind of weapons have been used during the commission of offence but according to post-mortem reports only pellet injuries have been found on the persons of deceased persons and thus, the ocular testimony is not being supported by the medical evidence. Occurrence has taken place at different place as being narrated by the prosecution witnesses and some witnesses have deposed that the dead bodies were lying in the forest but the other witnesses have stated that the dead bodies were found at Village Chandi Bhachoo lying on cots. There is no recovery of weapons from the present appellants. No Ballistic Expert Report has been produced on record. I have also carefully examined that 116 empties are said to have been recovered from the place of Wardat which has been admitted by the Investigating Officer and the same has not been sent to Expert. It has been held by the superior Courts that the recovery of crime-empties recovered before recovery of the weapon to be sealed at once and are to .Be sent to Ballistic Expert even without waiting for recovery of weapon in order to minimise chances of manipulation and in the present case this has not been done. I have also noted with surprise that no report of Chemical Expert has been produced by the prosecution. Admittedly the blood-stained clothes have been secured by the Investigating Officer of the deceased but the same have not been sent to expert. There is also delay in F.I.R. Of six hours.
21. Enmity is admitted not only in the F.I.R. But also it has been admitted by the witnesses in their depositions. Had the witnesses present at place of Wardat they could have narrated the entire true facts of the case before the trial Court but in the present case the witnesses particularly P.W. Saleh has narrated the time of incident at 10-11 a.m. And has resiled from the contents of F.I.R. As it is a claim of the prosecution that incident had taken place at 1-00 p.m. P.W. Saleh has not supported the case of prosecution and has not implicated any accused. I have carefully gone through his evidence. P.W. Gul has also stated before the trial Court with regard to time of occurrence as sun- set time whereas P.W. Mian Bux has narrated time of incident 6-00 a.m. While P.W. Hadi Bux has narrated the time of occurrence at 1-00 p.m. With regard to the time of occurrence and the prosecution case the witnesses examined by the prosecution before the trial Court have not married to each other and they have given conflicting version and their presence appears to be doubtful at Wardat. I have very carefully examined their evidence and their evidence is not inspiring confidence. I have also carefully gone through the evidence of P.W. Hadi Bux who has deposed that he has narrated the facts of incident to complainant Sahib Dino which shows that Sahib Dino was not present at the place of Wardat. I have also examined very carefully the R&Ps of the case and admittedly the statements of the witnesses have been recorded after a delay of 24 hours when all the witnesses were easily available at the place of Wardat and there is no explanation whatsoever from the side of the prosecution as to why there is a delay of the examination of the witnesses under section 161, Cr.P.C. And I am fortified by the decisions reported in 1974 PCr.LJ 400. Authorities reported in PLD 1963 SC 17, 1993 SCM R 550 and thus, prosecution has injected the elements of suspicion in its case. In view of discrepancies pointed out in the evidence of the witnesses it can be said safely that the witnesses have not sanctity for truth and have spoken lie and they have rendered themselves as unreliable witnesses. Prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. Learned A.A.-G. Has not rendered a valuable assistance to Court while arguing the case and has argued the case half- heartedly.
22. Upshot of the whole discussion of evidence produced in this case is that all the pieces of evidence produced suffer from inherent deficiencies and one defective piece of evidence cannot corroborate another piece of defective evidence. I, therefore, give benefit of doubt to the appellants and set aside their conviction and sentence. In the result appellants are acquitted and appeals are allowed. They shall be released forthwith if not wanted in any other case.
23. ' Above are the reasons of my short order, dated 15-2-2001.