Full Judgment Text & Judicial Ruling

2021 Y L R Note 148 [Sindh (Larkana Bench)] Before Zulfiqar Ali Sangi, J NAZIR AHMED BROHI and another---Appellants Versus The STATE---Respondent Criminal Jail Appeal No. S-72 of 2018, decided on 1st March, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 504, 506(2), 337-A(i), 337-F(iii), 337-F(v) & 337-L(2)---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation, shajjah-i-khafifah, mutalahimah, hashimah, causing hurt---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused were charged that they made firing upon the complainant party, due to which the mother and wife of complainant died while four others were injured---Allegation against the co-accused, as per FIR was that three years prior to the incident brother of co-accused made allegation of Karap upon the brother-in-law of the complainant, such faisla was held and brother-in-law of the complainant took oath on Holy Quran for clarification but the accused did not accept the faisla and was saying that if complainant allowed the brother-in-law of the complainant to reside with them he would cause harm to them---No date and time of allegation of karap was mentioned in the FIR nor any of witness deposed in their evidence before the Trial Court in that respect---No date of faisla was mentioned nor the person (nek-murd) before whom the faisla was held was examined by the Investigating Officer nor the same was examined before the Trial Court by the prosecution---Date and time of the threats allegedly issued by the accused was also not mentioned in the FIR, statements of the witnesses under S.161, Cr.P.C. and none of the witnesses deposed such fact before the Trial Court---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 504, 506(2), 337-A(i), 337-F(iii), 337-F(v) & 337-L(2)---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation, shajjah-i-khafifah, mutalahimah, hashimah, causing hurt---Appreciation of evidence---Benefit of doubt---Accused were charged that they made firing upon the complainant party, due to which the mother and wife of complainant died while four others were injured---Record reflected that Investigating Officer under the direction of the Trial Court submitted supplementary report before Judicial Magistrate---Accused was arrested without any order or issuance of warrants from any court of law---Judicial Magistrate on the subsequent report passed the order without issuing notice to the accused and assigning any reason---Judicial Magistrate sent up supplementary report to the Court of Sessions under S.190(3), Cr.P.C.---Said supplementary challan was entrusted to the Trial Court---Trial Court did not pass any order in respect of the joining of the accused and started the trial against the accused---Not only the rights of hearing of the accused by passing the said orders for joining him as an accused was violated but the right of defence was also not given to him---Object of framing a charge was to enable the defence to concentrate its attention on the case that he had to meet, and if the charge was framed in such a vague manner that the necessary ingredients of the offences with which the accused was convicted was not brought out in the charge, then the charge was defective---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 504, 506(2), 337-A(i), 337-F(iii), 337-F(v) & 337-L(2)---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation, shajjah-i-khafifah, mutalahimah, hashimah, causing hurt---Appreciation of evidence---Delay of more than thirty six hours in lodging the FIR---Effect---Accused were charged that they made firing upon the complainant party, due to which the mother and wife of complainant died while four others were injured--- Complainant, after the incident, immediately approached the police and police came at the place of vardat took the dead bodies and referred the injured persons to the hospital---Investigation was started before the FIR and on 02-03-2016 mashirnama of inspection of injuries, mashirnama of inspection of dead body and the inspection of the place of vardat and recovery of the empties and other articles from the place of vardat were papered on same day before the FIR---In all those documents the complainant had not named any of the accused---Scrutiny of the entry and the material available on record coupled with the unexplained delay in registration of FIR, it was established beyond a shadow of reasonable doubt that the FIR was registered with consultation and the deliberations, which cut the roots of prosecution case and made it doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances. Zeeshan alias Shani v. The State 2012 SCMR 428 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 504, 506(2), 337-A(i), 337-F(iii), 337-F(v) & 337-L(2)---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of peace, criminal intimidation, shajjah-i-khafifah, mutalahimah, hashimah, causing hurt---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Accused were charged that they made firing upon the complainant party, due to which the mother and wife of complainant died while four others were injured---Record showed that the prosecution examined three eye-witnesses and they had deposed almost same facts as deposed by the complainant---None of the eye-witnesses deposed that at the time of incident accused was present at the place of incident nor they had assigned any role against him---None of the witnesses even deposed that the incident took place on the instigation of the accused during their examination-in-chief---Eye-witness, during the examination-in-chief deposed that accused present in court was the same---Whereas co-accused present in court was not available on spot but he had instigated other accused and the occurrence had taken place on his instigation---No evidence on record that the co-accused instigated any of the accused for the commission of the offence---Investigating Officer had not deposed a single word against the accused nor he deposed that the name of accused was not mentioned in the final report under S.173, Cr.P.C. due to mistake---Investigating Officer had also not stated a single word about the application for joining the accused as accused in the case before the Trial Court---Nothing was recovered from the possession of accused and he was arrested without collecting evidence against him---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances. (e) Criminal trial--- ----Evidence--- Presumption--- No presumption, in the absence of strong evidence of unimpeachable character and legally admissible evidence. (f) Criminal trial--- ----Court, duty of--- Scope--- Mere heinous or gruesome nature of crime was not to detract the court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to accused person being indefeasible and inalienable right of an accused. (g) Criminal trial--- ----Benefit of doubt--- Scope---Prosecution had to prove its case beyond reasonable doubt and where even a single circumstance which created reasonable doubt in the mind of a prudent man come in the evidence of the prosecution, the benefit must go to the accused not as a matter of grace or concession but as a matter of right. Tariq Parvaiz v. The State 1995 SCMR 1345 rel. Noor Muhammad Soomro for Appellants. Muhammad Noonari, Deputy Prosecutor General for the State. Date of hearing: 12th February, 2021. JUDGMENT ZULFIQAR ALI SANGI, J.---Through this criminal jail appeal, appellants Nazir Ahmed and Muhammad Ismail have impugned the judgment dated 31.07.2018, passed by learned Additional Sessions Judge-II, Mehar, in Sessions Case No.207/2016, re; St. v. Nazeer Ahmed and others, arising out of Crime No. 02/2016 of Police Station Bhand Maari (District Dadu); whereby the appellants were convicted and sentenced as under: Under section 302(b), P.P.C. To imprisonment for life for each murder as "Tazir". Under section 324, P.P.C. To undergo R.I for seven years each. Under section 504, P.P.C. To undergo one year with fine of Rs.5000/- each, and in case of non-payment of fine to undergo S.I for three months more. Under section 506(2), P.P.C. To undergo R.I for three years each with fine of Rs.5000/- each and in case of failure in payment of fine to undergo S.I for three months more. Under section 337-A(i), P.P.C. In respect of injuries to injured Meer Muhammad to undergo R.I. for one year each as "Tazir". Under section 337-L(2), P.P.C. In respect of injuries Nos.2 and 3 to PW Meer Muhammad to undergo R.I for one year each. Under section 337-F(v), P.P.C. In respect of injury to PW Nizamuddin, Mst. Bibi Khatoon to undergo R.I for three years each as "Tazir" and to pay "Daman" of Rs.20,000/- to injured Nizamuddin and Mst. Bibi Khatoon by each of them. Under section 337-F(iii), P.P.C. In respect of injuries to injured Muhammad Asif, to undergo R.I for three years each as "Tazir". The benefit of section 382-B, Cr.P.C. was also extended to the appellants. 2. The facts of the prosecution case are that, on 03.3.2016 complainant Meer Muhammad Brohi lodged FIR at Police Station Bhand Maari, alleging therein that he used to cultivate the land of one Suhail Ahmed Soomro situated in Deh Sona Bindi. The complainant, his brother Siddique, Ramzan and brother-in-law Nizamuddin were residing in separate katcha houses and about three years prior to the incident the accused Ibrahim Brohi and others had levelled allegation of "Karap" against Nizamuddin, as such Nizamuddin had given them such "fasila" on Holy Quran before Nekmards of locality, but brohter of accused Ibrahim, namely, Ismail had not accepted such "fasila" and he used to ask complainant not to allow Nizamuddin to reside with him, otherwise he will cause them harm. On 01.3.2016, the complainant along with his mother Mst. Fatima, his wife Mst. Zeenat and other family members after having night meals went to sleep and the lights were glowing. On 02.3.2016 at about 12.30 night the complainant, his mother, his wife, his brothers Siddique, Ramzan and Nizamuddin, his sister Bibi Khatoon, her minor son Asif woke up on barking of dogs and came out of their respective houses, and noticed accused Ibrahim having Kalashnikov type rifle, Hyder having repeater gun, Nazir armed with gun accompanying one unidentified person with open face; all of them were standing in the courtyard of complainant's house. Out of them, accused Ibrahim asked complainant that he had restrained him do not give stay to Nizamuddin with him, who is their "Karo", hence they will teach them lesson, saying so, accused Ibrahim caused butt blows of Kalashnikov type rifle to complainant on his head, on which complainant's mother Mst. Fatima and his wife Mst. Zeenat intervened and tried to rescue him and in the meantime accused Ibrahim fired from Kalashnikov type rifle shots at mother of complainant Mst. Fatima which hit her and she fell down on the ground. Accused Hyder fired repeater gun at complainant's wife Mst. Zeenat with intention to commit murder; she also fell down rising cries. Accused Nazir fired gun shot at complainant's brother-in-law Nizamuddin and his sister Mst. Bibi Khatoon and her minor son Asif, who also fell down on the ground. Thereafter, accused persons presumed them to be dead and left scene of offence by raising slogans and firing in the air. After departure of the accused persons, the complainant saw that all the persons who were fired at were lying in injured condition and out of them Mst. Fatima and Mst. Zeenat succumbed to injuries on the spot. The dead-bodies were left in house, while injured were removed to police-station and then to hospital. Ultimately, the FIR was registered to the above effect. 3. After the matter was investigated, the investigation officer submitted the charge sheet against the appellants, thereafter on completing formalities the charge against the appellants was framed at Ex.6, to which they pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution examined as many as 10 witnesses who exhibited various documents in support of the prosecution case where after the prosecution closed its side. The appellants/accused recorded their statements under section 342, Cr.P.C. No appellant gave evidence on oath or called any DW in support of their defence case. Thereafter the trial court, after hearing the parties and on assessment of the evidence, convicted and sentenced the appellants through the impugned judgment dated 31.07.2018 as mentioned earlier in this judgment. Hence the appellants have filed the instant appeal against their conviction. 5. It is pertinent to mention here that, during pendency of appeal the legal heirs of the deceased, as well as injured persons entered into compromise with appellant Nazir Ahmed. Such joint applications to the effect of compromise were filed and after fulfillment of all the legal formalities applications were allowed and appellant Nazir Ahmed was acquitted of the charge by way of compromise vide order dated 04.01.2021. Therefore only the appeal in respect of appellant Muhammad Ismail is heard. 6. Learned counsel for the appellant contended that the prosecution witnesses are closely related inter-se, and no active role has assigned to the appellant Muhammad Ismail but he was convicted and sentence only on the charge of conspiracy. Learned counsel next contended that prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, therefore, their evidence is un-reliable and un-trustworthy. Learned counsel further submitted that prosecution failed to prove the case against the appellant Muhammad Ismail beyond a reasonable doubt therefore the appellant may be acquitted by extending him the benefit of the doubt. 7. Learned D.P.G. while supporting the impugned judgment submitted that the prosecution case has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction. He further added that all the prosecution witnesses fully supported the case and there are no material contradiction in their evidence and the prosecution proved its case against the appellant beyond a reasonable doubt and therefore, he prayed that the appeal of the appellant may be dismissed. 8. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General Sindh and perused the record and the evidence which was read over by them with their able assistance. 9. On reassessment of the entire evidence produced by the prosecution I am of the view that the prosecution has not proved its case against the appellant Muhammad Ismail beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. 10. As per FIR the allegation against the appellant Muhammad Ismail is that three years prior to the incident Ibrahim Brohi (co-accused and the brother of appellant) made allegation of Karap upon Nizamuddin the brother in law of the complainant, such faisla was held and Nizamuddin took oath on Holy Quran for clarification but the appellant did not accept the faisla and was saying that if complainant allowed the Nizamuddin to reside with them he would cause harm to them. 11. No date and time of allegation of karap is mentioned in the FIR nor any of witness deposed in their evidence before the trail court in this respect. No date of faisla is mentioned nor the person (nek-murd) before whom the faisla was held was examined by the investigation officer nor the same was examined before the trial court by the prosecution. The date and time of the threats allegedly issued by the appellant is also not mentioned in the FIR, section 161, Cr.P.C. statements of the witnesses and none of the witnesses deposed such fact before the trial court. 12. It is observed that after the investigation the investigation officer submitted the report under section 173, Cr.P.C before concerned Magistrate against accused Nazir Ahmed showing him in the custody, Ibrahim and Hyder as absconders, however the name of the appellant was not mentioned in any of the column of the report under section 173, Cr.P.C. Learned Magistrate on the report under section 173, Cr.P.C took the cognizance of the offence under section 190, Cr.P.C and passed the following order:- "Cognizance is taken. Admit and register. I.O will submit final medical certificates in trial court. Interim report is treated as final. Sd/- 02.04.2016" 13. The appellant Muhammad Ismail was not joined by the Learned Magistrate and after issuance of proclamation under sections 87 and 88, Cr.P.C and having declared the accused Ibrahim and Hyder as proclaimed offenders supplied the papers to accused Nazir Ahmed and keeping in view that the case was triable by the court of Session sent up the case to the court of Session under section 190(3) Cr.P.C vide order dated 06.05.2016. On 10.5.2016 the R and Ps was received by the court of Sessions Judge by showing that the matter is already fixed on 18.5.2016. Again on 18.5.2016 the case was adjourned with directions to the accused to engage his counsel and on 29.6.2016 the case was transferred to court of II-Additional Sessions Judge, Mehar for disposal according to law. It is observed that learned Magistrate, learned Sessions Judge Dadu or 2nd Additional Sessions Judge, Mehar has not joined the appellant Muhammad Ismail in the proceedings. 14. On 29-12-2016 I.O. Police Station Bhand Mari submitted an application before the trial court i.e. 2nd Additional Session Judge Mehar (Mr. Ghulam Ali Kanasiro) for joining the accused (appellant Muhammad Ismail) in the charge sheet which is reproduced as under:- IN THE COURT OF 2ND ADDITIONAL SESSIONS JUDGE, MEHAR The State Versus Nazir and others Crime No. 02/2016 P.S. Bhand Mari under sections 302, 324, 109, 337-H(2), 504 and 34, P.P.C. APPLICATION FOR JOINING OF ACCUSED IN CHARGE SHEET. It is respectfully submitted that Sessions Case Crime No.02/2016 Police Station Bhand Mari is pending on the file of this Honourable Court. That sir, the charge sheet in this case was submitted before learned concerned Magistrate against accused Nazeer, Ibrahim and Hyder but accused Ismail son of Ghous Bakhsh was not shown in the charge sheet. Although accused Ismail son of Ghous Bakhsh is also shown/nominated in the FIR and 161, Cr.P.C statements of witnesses but due to oversight mistake the name of accused Ismail son of Ghous Bakhsh was not inserted in the charge sheet presented before learned Magistrate. It is therefore, requested that the name of accused Ismail son of Ghous Bakhsh may kindly be inserted in the charge sheet. Sd/- I.O Bhand Mari P.S 15. Learned trial judge without issuing notice or giving an opportunity of hearing to the appellant passed the following order on the above application:- "Order" I.O is directed to submit supplementary report in court of concerned Magistrate. Sd/- 29.12.2016 16. Record reflects that investigation officer under the direction of the trial court submitted supplementary report before the concerned Magistrate on 04.01.2017 however the appellant was arrested on 03.01.2017 without any order or issuance of warrants from any court of law. The learned Magistrate on the subsequent report passed the order without issuing notice to the appellant and assigning any reason and the same is reproduced as under:- ORDER "Subsequent report is accepted Sd/- 04.01.2017" 17. Learned Magistrate after the above order sent up supplementary report to the court of session under section 190(3) Cr.P.C. and on 07-01-2017 Sessions Judge, Dadu passed the following order on the supplementary challan:- "Supplementary Challan received from the Court of Civil Judge and Judicial Magistrate-II, Mehar under section 190(3), Cr.P.C. Case is already fixed on 17.01.2017. This supplementary challan is transferred to the court of learned Additional Sessions Judge-II, Mehar for disposal according to law, as the main case was already transferred. Sd/- Sessions Judge, Dadu Surprisingly the 2nd Additional Judge did not pass any order in respect of the joining of the appellant and started the trial against the appellant. 18. Not only the appellant's right of hearing by passing the above orders for joining him as an accused was violated but the right of defence was also not given to him during the trial. The charge against the appellant was not framed properly and the whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offences with which the accused is convicted is not brought out in the charge, then the charge is defective. In other words it can be said that the main object of framing of charge is to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue so that evidence could be confined to such points. The charge must allege all facts which are essential factors of the offence in question. But no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon circumstances of each case. The appellant was charged for the offence for which no material was available with the trial court against the appellant Muhammad Ismail even the allegation of not accepting the Faisla of nek murd in my view was and is not an allegation which constitute any offence and the same is not mentioned in the charge. 19. The witnesses whose evidence was used against the appellant were not cross-examined on his behalf. The complainant, PW-2 Nizamuddin, PW-3 Muhammad Ramzan and PW-4 Mst. Bibi Khatoon who are all eye-witnesses were examined on 22-07-2017, 15-08-2017 and 16-12-2017 respectively and on all the dates their cross-examination was reserved for the appellant. Record reflects that they were not called again for the said purpose but Ex. 13 the statement on behalf of the appellant was taken on record showing that cross was adopted and the same was adopted without re-calling of the witnesses. Turning to the merits of the case on the basis of evidence produced by the prosecution. 20. The incident took place on 02-03-2016 at 0300 hours and the FIR was registered on 03-03-2016 at 1530 hours. After the incident complainant immediately approached the police and police came at the place of vardat took the dead bodies and referred the injured persons to the hospital. Investigation was started before the FIR and on 02-03-2016 mashirnama of inspection of injuries, mashirnama of inspection dead body and the inspection of the place of vardat and recovery of the empties and other articles from the place of vardat was papered on 02-03-2016 before the FIR and in all these documents the complainant has not named any of the accused. The investigation officer however produced the entry dated 02-03-2016 recorded at 0130 hours which is reproduced as under:- "This time it is noted, we were present at the P.S. that a person namely Muhammad Ramzan son of Abdul Rehman Brohi resident of Ghar Penhja Sona Bhindi Forest came present at the P.S. and stated the reality that some people of their Brohi community have trespassed in their house and started arm firing. In that firing, his mother Mst. Fatima and his brother's wife are murdered. And his sister Mst. Bibi Khatoon his brother in law Nizamuddin Brohi his brother Meer Muhammad and Muhammad Asif have also got injured in the firing. That they have brought the injured at the P.S. and they are asking for the medical letter. The medical letter is given to them. Such entry is made." On careful scrutiny of the entry and the material available on record coupled with the unexplained delay in registration of FIR it is established beyond a shadow of reasonable doubt that the FIR was registered with consultation and the deliberations and which cut the roots of prosecution case and make it doubtful. Reliance is placed on the case of…

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