Full Judgment Text & Judicial Ruling

2020 Y L R Note 94 [Sindh] Before Muhammad Saleem Jessar, J MUHAMMAD AKRAM---Appellant Versus The STATE---Respondent Criminal Appeal No. 313 of 2014, decided on 12th September, 2019. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 397, 114 & 34---Qanun-e-Shahadat (10 of 1984), Art. 71---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, abetment, common intention---Hearsay evidence---Scope---Appreciation of evidence---Benefit of doubt---Accused was charged that during the commission of dacoity, he made firing upon the father of complainant who was hit and died---Employee of the deceased was allegedly involved in abetment for committing the offence---Admittedly, complainant was not eye-witness of the incident and that he was informed about the alleged incident by his wife---Such fact showed that a person whose evidence was hearsay had become complainant in the case, thus, the statement of complainant had no evidentiary value by virtue of the provisions of Art. 71 of the Qanun-e-Shahadat, 1984---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 397, 114 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, abetment, common intention---Appreciation of evidence--- Contradictions in the statements of witnesses--- Effect---Accused was charged that during the commission of dacoity, he made firing upon the father of complainant who was hit and died---Complainant in his evidence had deposed that he received telephonic call from his home that someone had made fire upon his father---Witness deposed that the complainant told that he received call from his wife that a fire was made in their house and she had seen one person while running outside---Brother of wife of complainant/witness made a contradictory statement by deposing that he had received telephone call of his sister/wife of complainant informing him that deceased had been murdered and that she had further disclosed that accused who was armed with weapon ran away from the house---If complainant's wife had seen the present accused while running away from the house duly armed with firearm weapon then why she did not tell that fact to her husband---Prosecution, in circumstances, was bound to have examined complainant's wife as she claimed to be an eye-witness of the incident in order to unearth the true and factual aspects of the incident---Such failure of prosecution was fatal to the prosecution case---Appeal against conviction was allowed, in circum-stances. 1995 SCMR 693; 1995 SCMR 614; 1997 SCMR 1999; 2003 PCr.LJ 1563; 2000 PCr.LJ 894; 2001 PCr.LJ 622; 2003 MLD 595; 2001 PCr.LJ 557; 1999 PCr.LJ 73 and 2003 SCMR 1164 ref. (c) Penal Code (XLV of 1860)--- ----Ss. 302, 397, 114 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, abetment, common intention---Appreciation of evidence---Benefit of doubt---Statement of eye-witness---Unnatural conduct of witness---Scope---Accused was charged that during the commission of dacoity, he made firing upon the father of complainant who was hit and died---Employee of the deceased was sole eye-witness, who admitted that although he had witnessed the incident but due to fear he had left the house of the deceased---Even on the next day when complainant enquired from the witness about the incident he did not tell anything to him---After 2/3 days when deceased had expired, said witness disclosed the fact of alleged incident to the complainant---Accused in his statement under S.342, Cr.P.C. as well as in his statement on oath had stated that he knew the eye-witness who was working with deceased from whom accused was used to collect chemical for the company---Allegedly, said eye-witness told the accused that although he would bring receipt for one kilo chemical but he would give the accused chemical weighing two kilos and then they would distribute fifty fifty share of the amount gained from such illegitimate deal amongst themselves---Said practice continued for nine months and thereafter the accused felt guilty and discontinued the same---Three days before the alleged incident, the accused disclosed all such facts to the deceased whereupon the deceased got annoyed with the eye-witness---Accused further stated that prior to murder of the deceased, eye-witness had warned him that he would see him---Trial Court had not properly taken into consideration statement of the accused under S.342, Cr.P.C. as well as his statement on oath---Evidence of alleged eye-witness, in circumstances, was unworthy of reliance---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302, 397, 114 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon and robbed chemical on the pointation of accused---Reliance--- Scope---Accused was charged that during the commission of dacoity, he made firing upon the father of complainant who was hit and died---Record showed that alleged robbed chemicals were sold by the present accused to some shopkeeper in the market---Although the said chemicals had been allegedly recovered from a particular shop/godown but very strangely the owner and/or occupant of the said shop who had allegedly purchased the chemicals, or for that matter, retained the robbed chemicals, had neither been made accused nor associated at least as a witness in the case, which created serious doubt in the prosecution story as no explanation, at all, had been offered by the Investigating Officer for such lapse on his part---Investigating Officer had admitted in his evidence that when he went to recover the weapon the people had gathered there---Admittedly, Investigating Officer did not associate any independent person as attesting witness from the place of recovery of weapon and that he also did not prepare memo of site inspection wherefrom the weapon was recovered---Said fact seemed to be clear violation of the provisions of S.103, Cr.P.C.---Said aspect of the matter must not be lost sight of---Recovery of the alleged crime weapon as well as robbed chemicals on the pointation of the accused, in circumstances, had lost its evidentiary value---Appeal against conviction was allowed, in circumstances. State v. Bashir and others PLD 1997 SC 408 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302, 397, 114 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, abetment, common intention---Appreciation of evidence---Benefit of doubt---Roznamcha entry, non-production of---Effect---Investigating Officer admitted in his cross-examination that he had not produced roznamcha entry before the court---Likewise, witness who registered the FIR also admitted in his evidence that he had not produced the roznamcha entry in the court---In absence of any roznamcha entry, it became suspicious as to whether, Investigating Officer or police party, as the case may be, had in fact left the police station to the place of arrest, incident and/or recovery or not---Such facts were fatal to the prosecution case---Appeal against conviction was allowed, in circumstances. Mour v. The State 2016 PCr.LJ 1706 and 2017 PCr.LJ 992 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302, 397, 114 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon and crime empty to the expert for analysis---Effect---Accused was charged that during the commission of dacoity, he made firing upon the father of complainant who was hit and died---Record showed that crime weapon was secured on 26.10.2010, whereas the same was received by the Ballistic Expert on 04.11.2010 about nine days after the alleged incident---No plausible explanation had come forward from prosecution side for such delay, which created doubt in the veracity and credibility of such recovery, so also the report of the Ballistic Expert---Recovery in question was inconsequential, in circumstances. Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293 and Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779 rel. (g) Criminal trial--- ----Benefit of doubt---Principle---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of accused. Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel. (h) Criminal trial--- ----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story. Tariq Pervaiz v. The State 1995 SCMR 1345 rel. Ms. Azra Iqbal for Appellant. Ms. Rubina Qadir, A.P.G. for the State. Ashfaq Rafiq Janjua for the Complainant. Date of hearing: 27th August, 2019. JUDGMENT

MUHAMMAD SALEEM JESSAR, J.---Through this appeal Appellant has assailed Judgment dated 30.10.2014, handed down by learned IIIrd Additional District and Sessions Judge, Karachi Central in Sessions Case No.652/2010 (re: The State v. Mohammad Akram and others), being outcome of FIR No.949/2010 registered at Police Station North Nazimabad under Sections 302/ 397/34, P.P.C. whereby the accused/ appellant Mohammad Akram alias Babo has been convicted for the offence punishable under Section 302(b), P.P.C. for committing murder of deceased Sheikh Mohammad Farooq and has been awarded sentence of imprisonment for life (R.I.) However, the appellant was extended benefit of Section 382-B, Cr.P.C. It may be pointed out here that other two co-accused namely Faizan son of Jung Sher and Mohammad Farooq son of Mohammad Umer had already been acquitted under section 265-K, Cr.P.C. by the trial Court vide order dated 09.9.2014. Briefly, the facts of the prosecution case are that on 25th October, 2010, ASI Deedar Hussain being duty officer at Police Station North Nazimabad, Karachi, received information conveyed by Dr. Shiraz Ali MLO of Abbasi Shaheed Hospital. Karachi regarding arrival of the corpse of one Sheikh Muhammad Farooq son of Sheikh Ghulam aged about 70 years, with the history that he has died by means of firing during the commission of dacoity by someone in House No. A-77, Block C, North Nazimabad, Karachi. On such information, ASI Deedar Hussain after recording such entry in daily station diary, went to Abbasi Shaheed Hospital after obtaining permission from concerned MLO, inspected the dead body of deceased, prepared such memo and inquest report and the concerned MLO conducted autopsy on the dead body of deceased. The said ASI also recorded statement of son of the deceased namely, Sheikh Mohammad Asim under section 154, Cr.P.C. wherein the said complainant stated that he is running Chemical Trading Business in their office situated in the house in which his father was residing. On 25th October, 2010, he had gone to New Karachi for some work and his wife informed him on telephone that someone had committed murder of his father who is lying in injured condition. On such information he reached at his home and noticed that his father was lying in unconscious condition. On inquiry about the said culprit, it was disclosed to him that he was a person of tall height who used to visit at their house in connection with business and meet with his father, who seemed to be Babo. The complainant took his father to Abbasi Shaheed Hospital but in the way he died. Complainant claimed that the said Babo used to take loan from his father and his father was having some cash and mobile phone which were also missing. The said ASI after completion of usual formalities, returned back to police station, where on the basis of 154, Cr. P.C. he registered FIR. After registration of FIR, further investigation was entrusted to SIO PI Jaffar Khan Baloch, who inspected the place of incident, seized one empty of .30 bores pistol and on 26th October, 2010 he arrested accused Muhammad Akram alias Babo, and on his pointation he recovered one pistol of 30 bore having three live bullets in its magazine and one in chamber. During interrogation accused Muhammad Akram disclosed that he along with his two companions namely Faizan and Farooq took away 20 bags of titanium dioxide by loading the same in Suzuki Pickup, which were also recovered on the pointation of accused Muhammad Akram on 29th October, 2010. On completion of usual investigation, I.O. submitted challan against three accused named above for the offences under sections 302/397/34, P.P.C. by showing accused Muhammad Akram in custody while remaining accused Faizan and Farooq as absconders. However, accused Faizan after getting pre-arrest bail joined the trial. After observing formalities under section 87/88, Cr.P.C. against accused Farooq, he was declared proclaimed offender. Thereafter, a formal charge was framed against the two accused on 17th November, 2011 vide Ex. 4, to which they pleaded not guilty and claimed trial. However, accused Muhammad Farooq after obtaining pre-arrest bail joined the trial therefore, amended charge was framed against all three accused on 1St September, 2012 vide Ex. 7 and again another amended charge was framed on 19th January, 2013 vide Ex. 9. In order to prove its case, prosecution examined as many as eight witnesses, namely complainant Sheikh Muhammad Asim son of Sheikh Muhammad Farooq as PW-1 at Ex. 5, who produced his 154, Cr.P.C. statement, memo of inspection of corpse of deceased, inquest report, receipt for receiving dead body, memo of inspection of place of incident, memo of arrest of accused Muhammad Akram alias Babo, memo of seizure of pistol on pointation and production of accused Muhammad Akram, memo of seizure of robbed 20 bags of chemical powder and superdiginama of chemical bags at Ex. 5-A to 5-1 respectively, Muhammad Aamir son of Muhammad Ashraf was examined as PW-2 at Ex. 10, whereas Sheikh Hafiz Muhammad Arif Wasim son of Muhammad Amin was examined as PW-3 at Ex.11. ASI Deedar Hussain was examined as PW-4 at Ex.12, who produced letter addressed to concerned MLO for issuance of cause of death and carbon copy of FIR as Ex. 12-A and 12-B respectively. Muhammad Adnan son of Muhammad Imran was examined as PW-5 at Ex. 13, who produced photocopy of his 164, Cr.P.C. statement as Ex. 13-A, Inspector Jaffer Khan Baloch was examined as PW-6 at Ex. 14, who produced reports of chemical examiner and FSL as Exs. 14-A and 14-B respectively, Shafqatullah Unar Judicial Magistrate as PW-7 at Ex. 16, who produced application submitted by the I.O. for recording of 164, Cr.P.C. statement of eye-witness Muhammad Adnan and 164, Cr.P.C. statement of Muhammad Adnan at Exs. 16-A and 16-B, respectively and Dr. Shiraz Ali MLO as PW-8 at Ex. 21, who produced MLC issued arrival of corpse of deceased, post mortem report and cause of death certificate at Exs. 21-A to 21-C respectively, whereas PW HC Mozammil Shah was given up by learned ADDP who vide statement Ex.15 closed prosecution side. After recording the statements of seven PWs, statements of all accused under section 342, Cr.P.C. were recorded on 31st May, 2014 vide Exs. 18 to 20 respectively. However, on 12th June, 2014 learned advocate for the complainant filed an application under section 540, Cr.P.C. for calling Dr. Shiraz Ali MLO of Abbasi Shaheed Hospital, Karachi, on the ground that the said MLO had carried out autopsy on the corpse of deceased but his name was not cited in the calendar of witnesses in the charge sheet, which was allowed vide order dated 4.7.2014, hence, the statement of said MLO was recorded. Thereafter, again statements under section 342, Cr.P.C. of all three accused were recorded on 26th August, 2014 vide Ex.22 to Ex.24 respectively, wherein they denied the allegations and stated that they are innocent and have been falsely implicated in the instant crime, whereas accused Muhammad Akram claimed that PW Adnan used to give extra bags of chemical secretly without the knowledge of the deceased and took illegal money from him. Such practice was continued for two years and when he refused to give money for that purpose, the said PW became angry with him and accused brought such facts into the notice of deceased, therefore the said PW Adnan has deposed against him and falsely involved him in instant case. However, accused Faizan and Muhammad Farooq neither examined themselves on oath under section 340(2), Cr.P.C. nor produced any witness in their defence but accused Muhammad Akram has examined himself on oath vide statement Ex. 25, however, he too did not examine any witness in his defence. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against the said judgment the appellant has preferred instant appeal. I have heard learned counsel for the appellant, learned counsel for the complainant as well as learned A.P.G. appearing for the State and perused the material available on the record. Learned counsel for the appellant contended that the appellant has been falsely involved in the present case. He further contended the complainant is not an eye-witness of the incident, as he was informed by his wife on telephone that his father had sustained bullet injury and was lying injured, however his wife being natural witnesses was not arrayed as a witness in the case. As regards remaining prosecution witnesses, learned counsel submitted that they were not named in the FIR. He further contended that the alleged robbed bags of chemical although had been shown to have been recovered by the police during investigation on the pointation of the appellant from the shop situated at Juria Bazaar, Karachi, but the shopkeeper to whom the appellant allegedly sold out the chemical was not arrayed as witness. According to him, in fact such shopkeeper should have been booked under section 412, P.P.C. for possessing / retaining the robbed property of this crime for which no plausible explanation has been offered by the prosecution. He further contended that although the crime weapon viz. 30 bore pistol was allegedly thrown by the appellant at somewhere else but subsequently on his pointation the same was secured from another place for which separate FIR under the Arms Ordinance was registered against him in which appellant has been acquitted. He further contended that while proceeding towards place of recovery of the pistol as well as chemical bags, no independent person from the locality was associated as attesting witness which is clear violation of Section 103, Cr.P.C. He further submitted that the Suzuki Pickup upon which alleged chemical bags were loaded and taken away by co-accused was also not recovered by the I.O. during investigation. He further argued that the co-accused who allegedly took away the alleged chemical bags have been acquitted of the charge. He further contended that Roznamcha (daily diary entries (DD)) entries were not produced by ASI Deedar Husain and I.O. Jaffar Khan Baloch before the trial Court. According to him, all these factors create serious doubts in the prosecution case benefit whereof should have been extended to the accused/appellant but the trial court has failed to do so. Lastly he prayed for setting aside the impugned judgment and acquittal of the appellant / accused. In support of her contentions, she relied upon the case of Deedar Ahmed v. The State (2016 PCr.LJ 1911). Conversely, learned counsel appearing for the complainant supported the impugned judgment and opposed the appeal. According to him, all the prosecution witnesses have fully supported the prosecution case. He further submitted that the trial court while delivering the impugned judgment has discussed all the relevant points and sound and cogent reasons have been assigned for its findings, therefore the impugned judgment does not call for any interference by this Court. He prayed for dismissal of the appeal and maintaining the impugned judgment. In support of his submissions he placed reliance upon the case-law reported In 1995 SCMR 693, 1995 SCMR 614, 1997 SCMR 1999, 2003 PCr.LJ 1563, 2000 PCr.LJ 894; 2001 PCr.LJ 622, 2003 MLD 595, 2001 PCr.LJ 557, 1999 PCr.LJ 73 and 2003 SCMR 1164 Learned APG appearing for the State while supporting the impugned judgment, submitted that there is no misreading or non-reading of evidence and the trial court has property appreciated and evaluated the evidence of the prosecution witnesses, therefore the impugned judgment does not call for any interference. She further contended that the empties secured from the spot also matched with the crime weapon recovered on the pointation of accused/appellant. According to her, confidence inspiring evidence of even a sole witness is sufficient to maintain conviction. She further submitted that no enmity is alleged by the accused with the complainant party or the police. She also prayed for dismissal of the appeal and upholding the impugned judgment. While going through the evidence of the prosecution witnesses, various contradictions/admissions have been found in their evidence, so also there are certain discrepancies / legal flaws which put dents in the prosecution case. Complainant Shaikh Mohammad Asim in his examination-in-chief deposed as under: "On 25.10.2010 I went to New Karachi in connection with my personal work when I received telephonic call from my home that my father is lying in injured condition as some one has made fire upon him." In his cross-examination he made following admissions: "It is correct to suggest that my statement under section 161, Cr.P.C. is based on information given to me by my wife and one of the eye-witness who was my father's personal servant. It is correct to suggest that I am not eye-witness of the incident. It is correct to suggest that my wife is not witness in this case .. I do not remember when I.O. took my statement under section 161, Cr.P.C. either after one day, second day or third day. Accused Akram was arrested from outside of the factory premises. It is correct to suggest that the people were gathered at the place of arrest of the accused Akram. I do not know whether police asked from the public to be acted as witness of arrest of the accused Akram or not It is correct to suggest that no P.W. of the locality was taken from the place where on the pointaton of accused Akram pistol and other articles were recovered . It is correct to suggest that the case property i.e. 20 bags are not present . I do not know whether the police made witness to the owner of the godown. I do not know whether the I.O. of the case contacted with the owner of godown or not. It is correct to suggest that our business is to sell the chemical in bags It is correct to suggest that P.W. Mohammad Adnan is my servant and Shaikh Mohammad Arif is my brother in law. " P.W. Mohammad Aamir in his examination-in-chief deposed as under:-- "The complainant told me that he had gone to New Karachi for his personal work and received call from his wife that a fire has made in their house and she has seen one person while he was running outside." P.W. Shaikh Hafiz Mohammad Arif Wasim, who is brother-in-law (wife's brother/sala) of the complainant in his examination-in-chief deposed as under: "I received telephone call of my younger sister she stated some incident has occurred in her house and crying that Abu/father has been murdered .. I gave hope to her meanwhile she disclosed that accused Babu who was armed with weapon ran away from the house, therefore, I went to hospital where I saw the dead body was lying there..." In his cross-examination he made following admissions: "It is correct to suggest that I am brother in law of complainant .. I do not know whether the owner of that bungalow besides which recovery was effected has not been taken as witness in this case." P.W. ASI Deedar Hussain in his cross-examination admitted as under:- "It is correct to suggest that I have not produced the roznamcha entry today in the court It is correct to suggest that all the formalities were completed at PS...." P.W. Mohammad Adnan is the star witness in this case as he is the only alleged eye-witness of the incident. In his examination-in-chief he narrated the facts of the incident by stating that on 25.10.2010 i.e. on the date of the incident he was available in the office of deceased Shaikh Mohammad Farooq and was busy in his work when the bell of the door rang. Deceased asked him to open the door and bring appellant Akram and he complied with his instruction. Thereafter, he went downstairs and when after some time he again came in the office he saw the appellant having a pistol in his hand who extended…

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