SOOMER Versus State
OMAR SIAL, J.--- The Appellants have challenged a judgment dated 8-1-2016 passed by the learned III-Additional Sessions Judge, Mirpur Mathelo. In terms of the said judgment, the Appellants were convicted and sentenced as follows:- a) For an offence under section 148, P.P.C.: R.I for three years. b) For an offence under section 302(b), P.P.C. to imprisonment for life and to pay a compensation of Rs.200,000 to the legal heirs of the deceased (or suffer S.I. for two years more). c) For an offence under section 324, P.P.C.: Appellant Gul Hassan was sentenced to five years imprisonment.
Through this common judgment I will dispose of all the captioned appeals.
1. Brief facts of the prosecution case as narrated in the FIR are that on 25-11-2009 at about 1600 hours the complainant, namely, Raees Muhammad Mitho lodged a complaint with the Police Station stating therein that he has an old enmity with one Palio Chachar. He further narrated that on 24-11-2009, his son Ali Zaman and nephew Sher Muhammad were returning back home on their motorcycle. The complainant along with one Muhammad Saifal and one Abdul Jabbar was also on a motorcycle following the other two. All of sudden fourteen accused persons, heavily armed, appeared on the road and stopped the motorcycle on which Ali Zaman and Sher Muhammad were riding. On the instigation of accused Mehrab and accused Hazoor Bux, accused Wazeer and accused Ali opened fires on Ali Zaman. Accused Gul Hassan and accused Akbar opened fires on Sher Muhammad. Ali Zaman died on the spot and Sher Muhammad was injured. Subsequently, Sher Muhammad also died. The FIR was registered against the accused.
2. The charge against ten accused was framed on 19.02.2014 to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined thirteen witnesses PW-1 Abdul Raheem was the police officer who handed over the dead body of Ali Zaman to his relatives. PW-2 Sarfraz was the doctor who examined the injured Sher Muhammad and the deceased Ali Zaman at Taluka Hospital, Ubauro. PW-3 Mitho was the complainant. PW-4 Abdul Jabbar was an eye-witness of the incident. PW-5 Khair Muhammad was the witness to the various memos prepared by the police. PW-6 Shahnawaz was the police officer to whom the hospital handed over the dead body of Ali Zaman. PW-7 Mumtaz Hussain was the Doctor who carried out the postmortem of Ali Zaman. PW-8 Yar Muhammad was the first investigating officer of the case. PW-9 Anwar Ali was the second investigating officer of the case. PW-10 Haji Muhammad was the police officer who arrested Mir Hassan. PW-11 Muhammad Ali was the police officer who witnessed the memo of arrest of Mir Hassan. PW-12 Hafiz Dilbar was the police officer who arrested accused Ali. PW-13 Muhammad Ali was the tapedar who prepared the sketch of the scene of incident.
4. The accused recorded the statements under section 342, Cr.P.C. on 12-6-2015 and pleaded innocence. They also stated that they had been falsely involved in the case; that Ali Zaman and Sher Muhammad were injured in a road accident and that the news of the accident was also published on 25-11-2009 edition of the daily Sindhi newspaper Sobh. They also stated that a local minister was behind this false allegation as there was an enmity between the parties. The accused also recorded the statements on oath under section 340(2), Cr.P.C. on 13.07.2015.
5. On 08.01.2016 the impugned judgment was announced.
6. I have heard the learned counsel for the appellant as well as learned APG. The complainant and his counsel remained absent despite notice. My observations are as follows:-
7. From the nine persons who faced trial, only two are alleged to have fired at Ali Zaman and Sher Muhammad. Appellant Hazoor Baksh is accused of instigating the other accused whereas apart from Gul Hasan and Ali son of Sachal, others were allegedly present there. No evidence was led in trial to establish common intention of the accused.
8. The evidence reveals that the prosecution had relied primarily on three persons to support its case. First, is the complainant PW-3 Mitho himself; two and three are the eye-witnesses to the incident and its immediate aftermath, namely, PW-4 Abdul Jabbar and Mohammad Saifal. Saifal was not examined in trial thus Mitho and Abdul Jabbar were left as the two eye-witnesses to prove the case.
9. Mitho in his testimony deposed that he left his house situated in Rais Jan Muhammad Chachar village alone some time in the morning of 24-11-2009 and went to Kamoon Shaheed for some work. From Kamoon Shaheed he boarded a bus to Chowk Marri, where the shops of his son and cousin (the deceased) were situated, and reached the shops at 4:00 p.m. He categorically deposed that he was alone through out and that the two eye-witnesses joined him at the shops a few minutes after his arrival there. He also deposed that Abdul Jabbar Mohammad Saifal and himself stayed at the shops for about ten to twelve minutes and then they left without having any tea. Deceased Ali Zaman and Sher Muhammad were on one motorcycle whereas Mitho, Abdul Jabbar and Saifal on another motorcycle.
10. In complete contradiction to Mitho, Abdul Jabbar deposed that he along with Mitho and Sailal had left together on a motorcycle from Rais Jan Mohammad Chachar Village and came together to Ubaro town - "we all three came on one motorcycle." They stayed for six to seven hours in Ubaro town and then went to the shops at Chowk Marri together where they sat for nearly one hour and had tea arranged by deceased Ali Zaman.
11. Mitho deposed that he alone brought the injured and deceased to the police station in Ubaro in a Mazda vehicle and reached the police station at 8:00 p.m. In contrast to what Mitho deposed, Abdul Jabbar deposed that he along with Saifal and Mitho brought the injured and deceased to the police station in a Shehzore vehicle and that they reached the police station at "6:00 or 6:15 p.m.", If Mitho's version is to be believed then it negates the version of Abdul Jabbar as well as the memo of injuries sustained by Sher Mohammad which shows that Sher Mohammad's injuries were seen by SIP Sher Muhammad at the police station at 6:20 p.m. well before the time Mitho deposed they had reached the police station. If Abdul Jabbar's version is to be believed that would mean that the complainant was being dishonest. In either case the casualty is the credibility of both the witnesses.
12. Deceased Sher Mohammad was said to be referred to the Rahim Yar Khan hospital the same day as that of the incident i.e. 24-11-2009. Abdul Jabbar and Saifal accompanied him to the Rahim Yar Khan hospital. Abdul Jabbar deposed that Sher Mohammad stayed in the Rahim Yar Khan hospital for two days and one night and was then discharged and referred to the hospital in Larkana on 26-11-2009. The prosecution during trial produced no evidence to establish the link of the injured being treated in the Rahim Yar Khan or being referred from there to the Larkana hospital. Mitho, in his testimony pleaded ignorance on the ground that he had become unconscious at the police station of Ubaro. Be that as it may, to me it seems odd that he made no effort whatsoever to follow up or visit the injured in Rahim Yar Khan. No medical record of the Rahim Yar Khan hospital was produced. What is more surprising is that on 26-11-2009 at 9:00 p.m. when the doctor PW-2 Sarfraz Ahmed examined the dead body of Sher Mohammad he recovered two pellets from the cranial cavity of the deceased. The state of the art (according to the prosecution) hospital at Rahim Yar Khan where Sher Mohammad was admitted for two days and one night (according to the prosecution again) did not provide any medical treatment to him and let the pellets be in his brain and then send him off in that shape to a far lesser equipped Larkana hospital two days later simply does not appeal to logic. The dishonesty of the prosecution witnesses, once again, is apparent.
13. The memo of injuries to Sher Mohammad and the memo of examination of the dead body of Ali Zaman, both do not reveal that the two had sustained fire arm injuries.
14. The section 161, Cr.P.C. statements of Abdul Jabbar and Saifal were recorded by the police on 17-12-2009 after a delay of twenty three days. This inordinate and unexplained delay creates doubts regarding the accuracy and credibility of these statements.
15. The motive for the murders as alleged by the complainant is that he had a matrimonial dispute with a man named Palio Chachar who had committed the murder of one Niaz Mohammad in 2006. Palio Chachar had then abducted the son of the complainant in that case. In the abduction case Palio was absconding. No effort was made by the prosecution to prove the motive once it was alleged. On the face of it, the Appellants have no nexus with Palio Chachar. It was not even explained why the Appellants would kill the deceased if Palio Chachar had a dispute with the man called Niaz Muhammad.
16. The pellets ostensibly recovered from the cranial cavity of Ali Zaman and Sher Mohammad though handed over to the police by the concerned doctors were not seized under a memo nor were they produced in trial. No recovery of any weapon ever was effected. The cartridges ostensibly recovered from the place of incident were not sent to the ballistic examiner to determine what type of weapon had they been discharged from. The blood stained collected by the investigating officer on 25-11-2009 was not sent to the chemical examiner till 18-1-2010. Where and how this property was secured remained unexplained. Even otherwise, the practice of the police to collect blood stained earth without matching the same with the blood of the injured or deceased is absolutely meaningless.
17. PW-11 Muhammad Ali, the tapedar who made the site sketch revealed that the same had been prepared just one month before his testimony in court. The incident occurred on 24-11-2009 whereas the testimony of the tapedar was recorded on 7-5-2015. According to the tapedar's own deposition, it was PW Abdul Jabbar who identified the place to him and told him where the parties were placed. The sketch does not add any weight to the prosecution case.
18. It seems strange that fourteen heavily armed persons who were according to the prosecution out to kill would spare the three eye-witnesses knowing fully well that they will identify and depose against them for the murders.
19. PW-5 Khair Muhammad and another Mohammad Bux are cited as witnesses to seven different memos prepared between 1820 hours on 24-11-2009 to 2115 hours on 26-11-2009. Only Khair Muhammad was examined in trial. It appears that he was actually summoned on each occasion to come and witness the memos prepared. This aspect of the case too, coupled with the others mentioned above, sheds doubt on the prosecution story and raises suspicion whether the memos were, even made on the site as claimed by the prosecution.
20. In my view, for the reasons given above, the prosecution failed to establish its case beyond reasonable doubt. Accordingly, giving the benefit of doubt to the Appellants, the appeal is allowed, the Appellants are acquitted of the charge and should be released forthwith if not required in any other case.
JK/S-46/Sindh Appeal allowed.