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Petitioner: GHULAM MUHAMMAD and others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Amjad Ali Sahito Title: GHULAM MUHAMMAD and others vs The STATE Case No.: Criminal Appeal No. S-96 of 2017 Date of Judgment:2018-06-01 Reported As: 2019 YLR 2037 Result: Appeal allowed
JUDGMENT
JUDGMENT AMJAD ALI SAHIT O, J.---The above named appellants were tried by learned 1st Additional Sessions Judge, Kandhkot, in Sessions Case No,92 of 2016, State v. Ghulam Muhammad and others , for offence punishable under sections 302, 362, 114, 506/2, 148, 149, P.P.C., vide Crime No,34/201 1, registered with Police Station, Miani Badani, whereby they were convicted and sentenced as follows;- To imprisonment for life as Tazir for an offence punishable under section 302(b), P.P.C. and to pay compensation of Rs,100,000/- (one lac) each to the heirs of person killed, in case of failure of payment of compensation, all the accused shall undergo S.I for six months. The present accused are also convicted for an offence punishable under section 364 and sentenced them R.I. for seven years with fine of Rs,25,000/- each, in case of failure of payment of fine to suf fer S.I. for .six months more. The present accused are also convicted for an offence punishable under section 506/2, P.P.C. and sentenced them R.I. for five years and fine of Rs, 10,000/ -each, in case of failure of payment of fine to suffer S.I. for three months more. However , all the above sentences awarded to the accused were ordered to run concurrently . The benefit of Section 382-B Cr .P.C. was also extended to them. 2. The concise facts of the case as narrated by complainant Eidan son of Ghulam Qadir Bhutto in his FIR lodged on 22.06.201 1, at about 1500 hours, are that his nephew Rafiq Ahmed aged about 22/23 years dealt with business of milk and he after collecting the milk used to proceed to Kashmore. Yesterday i,e, 21.06.201 1, his nephew Rafiq Ahmed left on his motorcycle with milk for Kashmore via-link road Badani Shakh, while complainant, his brother Abdul Sattar and nephew Ali Muhammad went after him on their motorcycles for their own work by adopting link road Badani Shakh. When at about 09.00 a.m, they reached at link road leading to village Yaro Khan Mazari, they saw and identified accused namely Bachal son of Mitho, 2). Yousif son of Abdul Khaliq, both by caste Mazari,
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resident of Adiyo Wah, Taluka Kashmore, duly armed with T.T. Pistols, Ghulam Muhammad son of Guddu, Dodo son of Hashim, resident of Village Sadiq Mazari, Taluka Kashmore, Barkat, 6). Shoukat, both sons of Fouj Ali, 7).Shahbaz son of Suhrab, by caste Mazari, resident of village Fouj Ali Mazari, Taluka Kashmore, and two unknown culprits, who if seen again will be identified. Of them, accused Barkat and Shoukat were armed with guns, while the remaining had K.Ks in their hands. Accused signaled the complainant party to stop whereupon they stopped their motorcycles. Accused Shahbaz and Shoukat instigated rest of the accused to abduct Rafiq Ahmed, whereupon the remaining accused on point of weapons after de-boarding his nephew Rafiq Ahmed from his motorcycle took him towards northern side, on which the complainant asked the accused that as to why they are abducting his nephew Rafiq Ahmed, whereupon all the accused asked the complainant party to remain mum, else they would be done to death. Due to fear of weapons, the complainant party remained silent. Thereafter , his nephew Rafique Ahmed offered resistance with the accused at distance of about 10 paces, on which accused Bachal Mazari made pistol shot straightly upon his nephew Rafiq Ahmed with intention to commit his murder which hit him on his chest while accused Yousif Mazari also made pistol shot at him which hit him on his left arm muscle, and he fell down, all the accused 'then fled way towards eastern side. The complainant party saw Rafiq Ahmed having fire arm injuries on his chest and left arm, was bleeding and died. Thereafter , his dead body was taken to police station, wherefrom after obtaining inquest report, it was shifted to Taluka Hospital, Kashmore for postmortem examination, which was then was brought at village for burial purpose. The complainant after getting free from there, came at Police Station Miani alias Badani and lodged the FIR against the accused to the above effect for offence punishable under sections 364, 302, 506/2, 114, 148, 149, P.P.C. The investigation officer after observance of legal formalities submitted the report under section 173, Cr.P.C. before Civil Judge and Judicial Magistrate, Kashmore, for offence punishable under sections 362, 302, 506/2, 114, 148, 149, P.P.C., by showing accused/appellant Ghulam Muhammad in custody , co-accused Bachal, Yousif and Dodo as absconders while the names of accused/appellants Barkat, Shoukat and Shahbaz were placed in column No, 2, who were subsequently joined to face the trial. 3. On 08.12.2015, the learned trial Court after observing all the legal formalities, framed the amended charge against all the accused/appellants (Exh. 11), for offence punishable under sections 302, 362, 114, 506/2, 148, 149, P.P.C., to which they pleaded not guilty and claimed trial. 4. In order to establish the accusation against all the accused/ appellants, the prosecution then led its' evidence and examined PW-01 Complainant Eidan Bhutto at Exh.12, he as per record produced FIR of the present case at Exh.1 1 /A. PW-02 Abdul Sattar at Exh.13. PW-03 Jan Muhammad at Exh.14, he as per record produced mashirnama of inspection of dead body at Ex.13 /A, Danistnama at Exh.13 / B, and mashirnama of place of incident at Exh.13/C respectively . PW/Eye-witness Ali Muhammad and first mashir Dhani Bux were given-up by the learned ADPP for the State vide statement at Exh.15. PW-04 ASI/SIO Akbar All at Exh.16, he as per record produced departure entry , mashirnama of arrest of accused and recovery so also entry of arrival at P.S at Exh.15/A to D respectively . PW-05 ASI Khan Muhammad at Exh.17, he produced receipt of delivery of dead body to its legal heirs with statement of PC Murad Ali stating therein that he handed over the dead body to complainant after postmortem examination. PW-06 PC Shabir Ahmed at Exh.18. PW-07 PC/ Proces s Server Sadaruddin at Exh.19, he produced the copy of summon with his endorsement disclosing therein that SIP/SIO Bashir Ahmed Khoso died naturally at Exh.19/A and B respectively . PW-08 Dr.Mushtaq Ahmed at Exh.20, he produced postmortem report of deceased at Exh.20/A, inquest report at Exh.20/B. PW-09 Tapedar Mir Hazar at Exh.21,he produced sketch of vardat at Exh.21/A. The side of prosecution was then closed by learned ADPP for the State vide statement at Ex.22. 5. Statements of all the accused/ appellants were recorded under Section 342, Cr.P.C. at Exs. 23 to 26 respectively , wherein they denied the prosecution allegations levelled against them by pleading their innocence. However , they did not examine themselves on 'Oath in terms of Section 340(2), Cr.P.C. nor produced any witness in their defence. 6. The learned Trial Court, after hearing the learned counsel for the parties and going through the material brought on record, awarded conviction and sentence against the present accused/appellants as stated above, vide
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judgment dated 26.10.2017, which the present appellants have impugned before this Court by way of filing instant appeal. 7. Mr. Athar Abbas Solangi, Learned counsel for the appellants contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been involved in this case by the complainant party; that the FIR has been lodged with considerable delay without furnishing any plausible explanation which reflects consultation, that there is conflict between the ocular and medical evidence, all the witnesses cited in the case are closely related inter-se and are hostile against the appellants; that there are several other material contradictions in the evidence of witnesses, which are fatal to the prosecution case; that the deceased and witnesses were proceeding on their separate motorcycles, which neither were secured by the police, nor were shown by the Tapedar in sketch of vardat; that appellants Barkat, Shoukat and Shahbaz were found innocent by police during course of investigation and their names were placed in column No, 2, who were joined subsequently by learned Magistrate; that initially the FIR was registered for offence punishable under section 364, P.P.C. which meant for kidnapping the abductee for murder but no motive has been shown in the FIR by the complainant; that the complainant party already knew the accused party with their names, parentage and residential address but there was no mention that how the complainant party knew them previously and presently; that complainant Eidan being a teacher and eye-witness of the occurrence has failed to produce his leave account when the alleged date and time of the incident was shown by him on 21.06.201 1, at 09.00 a.m. (morning); that appellant Ghulam Muhammad has been acquitted from the case relating to recovery of crime weapon from him under Arms Ordinance. He lastly contend ed that the prosecution has miserably failed to prove the case against the appellants and thus, according to him, under the above mentioned facts and circumstances, the appellants are entitled for their acquittal. In support of his contention, he relied upon the case laws reported as 2006 PCr.LJ 1826, (2). 1995 SCMR 127, (3). 1982 SCMR 178, (4). 1997 SCMR 25, (5). 1999 SCMR 697, (6). 2005 YLR 2301 , (7). 2005 YLR 1757 , (8). 2005 YLR 1629 , (9). 2005 YLR 1490 , (10). 2005 YLR 2192 , (11). 2000 YLR 1307 , (12). 2000 YLR 862, (13). 2005 YLR S6, (14). PLD 1994 SC 368, (15). PLD 2000 Karachi 94, (16). 2006 MLD 1104, (17). 2000 YLR 2123 , (18). 2004 YLR 2787 , (19). 2000 YLR 3166, (20). 2003 MLD 820, (21). 2004 YLR 2343 , (22). PLD 2005 SC 63, (23). 2005 YLR 627, (24). 2001 SCMR 41, (25).2005 YLR 1226 , (26). 2005 YLR 1240 , (27). 2003 SCMR 457, (28). PLD 1998 Karachi 502, (29). 1969 SCMR 461, (30). 2005 YLR 2972 , (31). 2005 YLR 3174 , (32). 2005 PCr .LJ 1442, (33). 2005 PCr .LJ 1384, (34). 2011 YLR 2238 and (35). 2018 MLD 394 . 8. Mr. Altaf Hussain Surhio and Mr.Safdar Ali Bhutto, learned counsel for the complainant on the other hand argued that the appellants are named in the FIR with specific role of causing fire shot injuries to the deceased; that the ocular version is consistent with medical evidence; that the FIR has been lodged promptly; all the witnesses have supported the version of the complainant; that on 21.06.201 1, it was month of June, and the Government of Sindh usually declares June and July as Summer holidays, hence question of taking leave does not arise, that there is no enmity between the parties, therefore, the false implication of the present appellan ts does not arise; that there was no material contradiction in the evidence of prosecution witnesses, in such situation, the learned trial Court has rightly appreciated the evidence for recording the conviction and sentence of the appellants in accordance with law and thus lastly prayed for dismissal of the instant appeal. In support of their conten tions, they relied upon case-law reported as 2018 PCr.LJ Note 46 p. 55, (2). 2009 SCMR 523, (3). 2009 SCMR 1133, (4). PLD 2006 SC 109, (5). 2015 YLR 2642 , (6) 2005. SCMR . 49, (7). 2005 SCMR 1568 , (8). 2007 SCMR 1519 , (9). 2007 SCMR 518, (10). 2011 SCMR 429, (11). 2011 SCMR 725, (12). 2003 SCMR 884, (13). 2015 MLD 92, (14). 2010 SCMR 1020 , (15). 2008 SCMR 222, (16). 2015 YLR 150, (17). 2015 YLR 2018 , (18). PLD 2002 SC 52, (19). 2015 YLR 1015 , (20). PLD 2015 SC 424, (21). Cr.LJ 265 Lahor e, (22). 2015 SCJ 368 (e) SCAJK, (23). 2008 YLR 2496 , (24). PLD 2004 SC 663, (25). PLD 2004 SC 271, (26). 2001 SCMR 199, (27). 1971 SCMR 659, (28). 1971 SCMR 530, (29). 2007 MLD 151 1, (30). 2012 SCMR 1869 , 2015 PLD Lahore 426, and 2016 MLD 730 . 9. Mr. Sharafuddin Kanhar , Learned A.P.G for the State supported the arguments advanced by learned counsel for the complainant and prayed for dismissal of the instant appeal. In support of his contention, he also relied upon case law reported as 2011 YLR 2238 and 2018 MLD 394 . 10. I have heard learned counsel for the parties and have minutely perused the record.
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11. On evaluation of the material brought on the record, it appears that the case of prosecution depends upon the ocular testimony produced in shape of statements of complainant Eidan Bhutto (PW-01) and his brother eye- witness Abdul Sattar (PW-'02), who both tried to support the case of prosecution but on proper scrutiny , their testimony was found inconsistent. 12. A bare perusal of the FIR would make it quite clear that complainant as well as other eye-witnesses never successfully established themselves to be natural witnesses rather admittedly were the chance witnesses. A "chance witness' is one who, in the normal course, is not supposed to be present on the crime spot. Thus, it is always requirement of safe administration of justice that before believing evidence of such a witness, the witness must offer cogent, convincing and believable explanation justifying his presence at a place where normally he is believed to be not present. Reference in this regard may well be made to the case of Mst. Rukhsana Begum and others v . Sajjad and others (2017 SCMR 596 ) wherein it is observed as: "17. In ordinary parlance, a chance witness is the one who, in the normal course is not supposed to be present on the crime spot unless he of fers cogent, Convincing and believable explanation, justifying his presence there". 13. It is a matter of record that though the complainant claims to have gone after the deceased but never attempted to disclose the nature of the work for which he did so. On the other hand, complainant in his cross-examination admitted that he was serving as teacher but on the eventful day he admitted that he did not attend his duty and when the suggestion was put to him that he was present at the time of incident in his school, which was denied by him and he stated that he got leave for some personal work on the day of incident and admitted that he had not exhibited any proof of his leave on the day of incident. The admission of the complainant that on fateful day he otherwise would have been on duty but had taken the leave had brought prosecution under legal obligation to have produced such a leave application and in absence thereof the legal presumption within meaning of Article 129(g) of Qanun-e-Shahadat Order , 1984 would be nothing but otherwise. Though, during course of arguments a plea has been raised that since the incident took place in month of June when vacation of summer is observed in education department. This plea in existence of said admission of the complainant has lost its value. Even otherwise, it is surprise to note that complainant Eidan being teacher having knowledge and experience of more than 28 years did not know that in the month of June and July, usually the Government of Sindh declares the summer holidays. In any way what legally can safely be concluded is that in ordina ry course the complainant does not accompany the deceased, therefore, it was always obligatory to have placed a reasonable explanation for doing so. It is the claim of the complainant that he along with his witnesses including deceased were boarded on separate motorcycles and milk jars were carried by the deceased on his motorcycle but neither the investigation officer has recovered milk jar nor motorcycle of the deceased to justify the version of the complainant, even the availability of the motorcycle with milk jar has not been disclosed by the Tapedar in the sketch of vardat. The prima facie failure of the complainant in giving any reasonable explanation for accompanying the deceased to carry milk-jar which too after taking leave from his duties was always sufficient to bring his claim of an eye-witness as doubtful. In the case Rukhsana Begum supra, it is held as: 18. In the instant case, this witness has shown no work or definite purpose of visit to crime spot, therefore, his presence on the crime spot is not believa ble and his testimony , for this reason alone is rejected. More so, when for reaching the spot, he had confronted surging waves of fast flowing water of the river . A single doubt reasonably showing that a witness/ witnesses presence on the crime spot was doubtful when a tragedy takes place would be suf ficient to discard his/their testimony as a whole. ... In another case of Muhammad Rafiq v . The State (2014 SCMR 1698 ), it has been observed as:- "3....Both the said eye-witnesses had claimed that although they lived about one kilometer away from the scene of the crime yet they were present near the spot because they were working as labourers at a project regarding construction of the banks of Kanda Minor at the relevant time which project was being undertaken quite close to the place of occurrence. Before the learned trial Court the said eye-witnesses had utterly failed to establish the stated reason for their presence near the place of occurrence at the relevant time as much as they had failed to give any detail of the project in issue and they did not even know the name of the contractor who had hired them as labourers for the purpose.
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14. Further , from evidence of the complainant there also appears another aspect which remained unexplained the complainant. The complainant, claiming to be eye-witness, had taken the dead , body to police station where inquest and Danistnama were prepared by the duty officer ASI than Muhammad with advice to the complainant to lodge the FIR but he surprisingly preferred to obtain a letter for postmortem only while saying to lodge the FIR later. Such conduct of the complainant is quite strange particularly when the complainant in FIR not only specifically named accused persons but also gave their parentage and address even. Here , a referral to case of Wajahat Ahmed v . State (2016 SCMR 2073 ), being relevant to said position, is made hereunder:- "7. ....Rather in his cross-examination he has stated that he along with his injured wife visited PS Gogera at about 1.30/2 PM on 26.10.2010 i.e almost immediately after the occurrence but did not make any statement regarding the occurrence. The failure of complainant (PW1 ) to report the incident to the police when he visited the police station along with his injured wife (deceased Mst. Surayya Bibi) casts serious doubt on the veracity of his statement made before the learned trial Court. 15. It also appears from the record that PW Dr. Mushtaq Ahmed in his evidence revealed that he received the dead body on the same day and started its postmortem examination at about 11.30 a.m. and finished it at 12.30 p.m., thereafter , the dead body of deceased Rafiq Ahmed was handed over to the complainant under receipt but he instead to lodge the FIR returned to his village. As per available record the complainant came to lodge the FIR on the following day. Such deliberate delay in bringing the details of the incident (FIR), in absence of any plausible explanation, would always go against the prosecution. I would not hesitate that mere delay in lodgment of FIR is never fatal but the Court shall always require an explanation from prosecution for such delay particularly where the complainant did reach to police station yet avoided to record the FIR as such attitude will always leave a possibility of deliberation and consultation. Muhammad Nadeem alias Deemi v. State (2011 SCMR 872), wherein it is observed as:- 6. So far as the FIR is concerned, it was, no doubt, delayed by 17 hours, yet seen in the light of attending circumstances of the case, the delay stands explained. It is an established principle of law and practice that in criminal cases the delay , by itself, in lodgi ng the FIR is not material. The factors to be considered by the Courts are firstly that such delay stands reasonably explained and secondly , that the prosecution has not derived any undue advantage through the delay involved. .. In another case of Muhammad Zubair v . State (2007 SCMR 437 ), it is observed as: "4. ... Generally delay in lodging FIR cannot in all cases lead to the inference that the case set up in the FIR is necessarily true or false, however , it is relevant circumstance to be considered.... 16. The prima facie failure on part of the complainant in not explaining the reaso n for not promptly recording the FIR was always bringing the veracity under clouds. It has also come on record that the complainant admitted that Badani Shakh road is a common public-road and he introduced Sain Dino the father of deceased, who arranged the vehicle from Badani Town and about 15/20 private persons also gathered after the incident but his version is belied by his own FIR, which is totally silent about the presence of father of deceased as well as availability of said private persons at the venue of occurrence. The complainant further admitted that he arrived at police station along with Sain Dino the father of deceased, PW Abdul Sattar , Ali Muhammad, Jan Muhammad, Dhani Bux and other relatives of the vicinity and they spent half an hour at police station but his version is cohtradicted by PW/ASI Khan Muhammad who in his cross-examination admitted that he consumed two hours in Karwai made by him on 21.06.201 1 and on the very next day, the complainant came alone at police station and lodged the FIR. After lodging the FIR, the place of incident was shown by him to SHO on 22.06.201 1 at about 1600 hours, who secured empties from the place of incident as well as blood stained earth when the place of incident as per complainant is a public road which is frequented by traffic but he found empties in undamaged cond ition, so also collected the blood from the place of incident. The recovery in such manner , being not logical one, leads to an adverse inference that when no such police official was deputed thereon to cover the blood stained earth as well as empties, till its inspection by the investigation officer then such recovery after lapse of 31 hours of registration of FIR has lost its sanctity . Even otherwise, it was obligatory upon the duty officer ASI Khan Muhammad to have attempted to visit the place of incident or could have lodged the FIR when the inquest report and Danistnama were prepared by him.
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This also casts serious doubt about claimed status of this witness as eyewitness. ASI in his evidence admitted that prior to registration of FIR, he prepared inquest report, Danistnama as well as mashirnama of inspection of dead body but the perusal of inquest report/Lash Chakas Form (Exh.20/B) reveals crime number thereon, which has also belied the ocular account. Dr. Mushtaq Ahmed in his evidence deposed that on 21.06.201 1, he received the dead body of deceased Rafiq Ahmed through PC Ali Murad for postmortem under reference letter bearing No,648/201 1, which was identified by Khan Muhammad and Maroof Ahmed. (cousins of the deceased) whereas the complainant in his FIR has not shown the presence of PWs Khan Muhammad and Maroof at venue of occurrence and rather disclosed that he had taken the dead body of deceased to Taluka Hospital for postmortem examination, which after its postmortem was handed over to him for burial purpose, which create serious doubt about claim of the complainant to be an "eye-witness" and consequence thereof would be nothing but to reject such testimony . 17. The prosecution in order to prove the version of the complainant examined his brother eye-witness Abdul Sattar (PW-02), who in his evidence deposed that after the death of deceased, they arranged the conveyance and took the dead body at Police Station Miani Badani, where SHO Khan Muhammad Brohi issued letter to them for postmortem of deceased and then they came at Hospital Kashmore for postmortem, and after the postmortem they took the dead body to village for its funeral ceremony . This witness though narrated on same line but had not supported the complainant's version regarding preparation of memo of inspection of dead body , inquest report and Danistnama by ASI Muhammad Khan. Had he been with the complainant, he would not have forgotten about such important Karwai which even had taken more or less two hours. In his cross-examination, he admitted that his residential address written in NIC is village Biland Khan Bhutto which is at distance of 1-1/2 to 2 kilometers from the village of Ghulam Qadir Bhutto. This also casts serious doubt about claimed status of this witness as eye-witness. Thus, except evidence of such chance witnesses, which too without explanation of their presence at the crime spot was always sufficient to prove their presence at the place of incident to be doubtfu l. Reference may well be made…
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