JAMSHED Versus State
SYED MUHAMMAD FAROOQ SHAH, J.--- Captioned Criminal Jail Appeal forwarded by the Superintendent, Central Prison, Hyderabad, has been directed against the impugned judgment, pronounced in Sessions Case No.351 of 2005, under sections 302, 324, 114 and 34, P.P.C., registered with P.S. Oderolal, thereby both the appellants were convicted and sentenced to suffer R.I. for life under section 302(b), 34, P.P.C., they were further convicted under section 544-A, Cr.P.C. to pay Rs.100,000/- as compensation, which shall be paid to the legal heirs of deceased Nizamuddin son of Muhammad Achar as compensation; in case of non -payment of compensation, the accused to suffer SI for six months more, however, benefit of section 382-B, Cr.P.C. was extended to them.
2. Arguments advanced by learned counsel for accused persons are considered in view of depositions of prosecution witnesses, defence evidence and in light of the case law cited by them. Learned D.P.G. has also been heard.
3. Succinctly, story of the prosecution case as narrated by the complainant Muhammad Ayoob son of Muhammad Achar in FIR No.31 of 2005, lodged on 20.10.2005, at P.S. Oderolal, is that he was Sepoy in Pak Army in Baloch Regiment and was performing his duty at Lahore Head Quarter and his elder brother Nizamuddin (deceased) was a Primary School Teacher and used to reside at his village Rajab Hingoro. They developed a dispute with appellants on exchange of hands of a girl, as the appellants/accused had refused to hand over a girl to Nizamuddin and on 19.10.2005, he received telephonic message that his brother Nizamuddin was killed and his relative Arshad Ali received injuries from the hands of accused persons. He rushed to his native village and reached on 20.10.2005; he made inquiry from his relative Arshad Ali, who disclosed him that he along with, deceased and Ghulam Hyder was coming from village Tahir Hingoro to his own village Rajab Hingoro; on 18.10.2005, at about 1930 hours, they reached beside their village Rajab Hingoro, where they saw four persons were standing on katchi patri in front of them. They identified them on the moon light to be Khalid son of Loung, armed with pistol, Habibullah son of Rajab was also having pistol, Jamsheed Ali and Nazir Ahmed were armed with hatchets, were standing at some distance. Suddenly, accused Jamsheed instigated them to finish the complainant party; thereby accused Khalid and Habibullah started firing upon them with intention to kill them in result of which he received bullet injury on his left foot and raised cries, whereupon the villagers came running there and accused on seeing them ran away towards cotton crop and they also saw that Nizamuddin received a fire shot and was lying on the ground. The villagers took them to the police station from where they were shifted to the hospital. Injured Nizamuddin succumbed to the injuries and after completing formalities, dead body was handed over to them by police for funeral. Injured was provided medical treatment. Thereafter, the complainant proceeded towards police station and lodged FIR. On completion of usual investigation, concerned police submitted the challan in the Court of law. After making compliance of section 265-C, Cr.P.C., the trial Court framed charge, to which they pleaded not guilty and claimed trial.
4. Prosecution, to prove its case, examined all material witnesses and on completion of such exercise, statements of accused were recorded under section 342, Cr.P.C., wherein neither they led any defence evidence, nor examined themselves on oath under section 340(2), Cr.P.C.
5. Points for determination framed by the trial Court are as follows:-
(1) Whether on the date, time and place as alleged by the prosecution, the deceased namely Nizamuddin died unnatural death due to receiving firearm injuries?
(2) Whether on the date, time and place as alleged by the prosecution the accused above named committed murder of Nizamuddin by inflicting firearm injuries and inflicted injuries to PW Irshad Ali?
(3) What offence has been committed by the accused?
6. Death of Nizamuddin was admittedly caused by firearm injuries, hence point No.1 was answered by the trial Court in affirmative after reproducing the piece of medical evidence.
7. Point No.2 was a crucial and contested one; while appreciating the prosecution evidence, the trial Court decided the point No.2 as affirmative. Consequently, the appellants were convicted, as mentioned, supra.
8. Careful perusal of prosecution evidence reveals that the evidence of complainant is hearsay, to whom injured Irshad Ali disclosed about the details of incident, as he was not present at the time of incident and after two days he lodged FIR while believing the version of injured Irshad Ali to be correct. PW-2 Muhammad Hashim is a formal witness, who acted as mashir of inquest report, mashirnama of injuries and mashirnama of dead body, cloths etc. and place of occurrence. PW-3 injured Irshad Ali is a material eye-witness on whose narration the complainant lodged FIR stated that at the instigation of accused Jamshed, accused Habibullah and Khalid made straight fire shots which hit to him and Nizamuddin. He has specifically stated in examination-in-chief that deceased Nizamuddin received injuries and fell down on the ground and become unconscious and during firing he (Nizamuddin) sustained firearm injury at left side of his foot. He has further stated that his statement under section 164, Cr.P.C. was recorded by the Magistrate at Matiari. While reading the cross-examination of PW-3 Irshad Ali, learned counsel submits that neither this P.W in his statement under section 161, Cr.P.C. nor 164, Cr.P.C. named his villagers who gathered at the place of occurrence though he has admitted that at the place of occurrence the villagers reached. He has further stated in cross-examination, conducted by Advocate for accused Khalid that after first aid and bandage he was discharged from civil hospital. He further admitted that all P. Ws. are related and accused are also his relatives, but denied that on account of dispute over property, the incident had taken place and voluntarily stated that they were having dispute over marriage of a girl, however, he has denied that he has given the name of accused persons due to enmity. While reading the relevant portion of ocular account of P.W-4 Ghulam Hyder, it is argued by learned counsel for accused persons that though this witness has supported the statement of injured Irshad Ali, but in his cross-examination he has stated that the occurrence was happened at 7.00 p.m. and the distance between accused persons and them was about 2 feet. He has further stated in cross that soon after cries the villagers reached at the place of occurrence, but they did not make efforts to follow and capture the accused persons. PW-5 ASI Muhammad Yaseen, who conducted initial proceedings/investigation stated that he prepared the documents including a letter whereby the injured was referred to R.H.C. Orderolal and stated that the date shown on it is 18.10.2006, however, due to writing style the date appears as 15.10.2015. PW ASI Muhammad Yaseen has also stated that he conducted investigation prior to the lodging of FIR. He further stated that no recovery was made from accused Khalid.
9. Medical Officer Dr. Shakeel Ahmed, who conducted autopsy of dead body of Nizamuddin was also examined by the prosecution. He stated in cross-examination in the following words:-
"I cannot say if the injuries caused were bullets or pellet injuries, the injuries caused from the distance of more than 5 feet. I cannot say which kind of weapon was used."
10. P.W-6 ASI Muhib Ali, who conducted later investigation, admitted in his cross-examination that in the instant crime, the villagers made application to Sessions Judge, Hyderabad for illegal confinement of ten (10) persons and due to the orders of Sessions Judge, Hyderabad, a raid was conducted for illegal confinement of those persons and they were recovered from his illegal custody. He further admitted that on his such act, he was punished accordingly; further admitted that he handed over mashirnama of injuries, Danistnama, mashirnama of last wearing cloth of deceased through department and he did not verify the mentioned documents from the witnesses in whose presence the documents were prepared. He has admitted that above mentioned documents do not contain the present crime. He has also admitted that the documents were prepared on 18.10.2005 and he received the same on 20.10.2005. He has also admitted that as per entry No.16 one Anwaruddin disclosed that Nizamuddin son of Achar Hingoro and Irshad son of Pohro Hingoro became injured by some unknown culprits and they came at P.S. for obtaining letter of treatment, however, he has denied that he was deposing falsely.
11. Learned counsel for appellant submitted that first information was made by one Anwar Hingoro which depicts from the statement of P.W. Muhammad Hashim, who acted a marginal witness of almost five mashirnamas and inquest report as well. The contents of inquest report (Ex.13) shows that on 18.10.2005 at 2100 hours one Muhammad Anwar Hingoro informed on telephone that some unknown persons had fired upon Nizamuddin who sustained injuries and died in the way to the hospital. By producing the inquest report, mashir Muhammad Hashim in cross-examination confirmed that it is written in Danistnama that one Muhammad Anwar Hingoro informed through telephone that due to firing of some unknown culprits, Nizamuddin became injured and in the way to the hospital he succumbed to injuries. He has further stated that mashirnama of injuries was prepared in Civil Hospital, Hyderabad and that FIR was lodged after preparation of inquest report and mashirnamas. He has also admitted his relationship to the complainant and stated that complainant is his maternal cousin, on whose request he acted as mashir. Learned counsel submits that FIR was lodged by the complainant being not an eye-witness, after inordinate delay of about 49-1/2 hours by brother of the deceased. Learned counsel further submitted that why alleged eye-witnesses, brothers/sisters and mother of the deceased were mum for two days and kept awaiting of arrival of the complainant, which shows deliberation and consultation, more particularly, in view of the information conveyed by one Anwar Hingoro to the police, by informing that some unknown assailants caused injuries to Nizamauddin. Both learned counsel for the appellants pointed out the material contradictions in between ocular/medical evidence. Mr. Amjad Ali Sahito, learned counsel for appellant Jamshed submitted that as per statements of both eye-witnesses, accused fired from pistol when they were at the distance of two feet, however, the Medical Officer stated that he cannot say that as to whether injuries were caused by bullets or pellets. Eye-witnesses deposed that accused fired from the distance of two feet but the M.O. stated that injuries were caused from the distance of five feet. By not supporting the ocular testimony, the Medical Officer categorically stated that he cannot say about the weapon used in the crime. Learned counsel further contended that in view of above material contradiction, there are mislinks in the assertion of prosecution as medical evidence did not support the ocular account and in such peculiar circumstances, the superior Courts extended benefit of doubt to the accused persons. To support his contentions, Mr. Amjad Ali Sahito placed reliance on the cases reported as (1) 2014 SCMR 1698 (2) 2005 YLR 2229 (3) 2014 SCMR 749 (4) 2007 SCMR 1812 (5) 2011 PCr.LJ 1801 and (6) 2009 PCr.LJ 940. However, Miss Nasira Shaikh, advocate for co-appellant Khalid also placed relaiance on the cases reported as (i) 1972 SCMR 435 (ii) 2008 SCMR 95 (iii) 2010 SCMR 1122 (iv) PLD 2005 Supreme Court 484 (v) PLD 2004 Supreme Court 663 (vi) PLD 2007 Lah. 606 (vii) 1988 MLD 28 (viii) 1988 PCr.LJ 63 (ix) 1991 PCr.LJ 298 (xi) 2001 PCr.LJ 1682 (xii) 2002 PCr.LJ 1603 and (xiii) 2005 PCr.LJ 1425 (xiv) 2006 PCr.LJ 84 (xv) 2008 PCr.LJ 194 (xvi) 2009 PCr.LJ 43 (xvii) 2009 PCr.LJ 506 (xviii) 2003 YLR 1054 (xix) 2008 YLR 763 and (xx) 2008 YLR 1608.
12. Crime weapon, allegedly used in the commission of crime has also not been recovered by the police. So far as motive of occurrence is concerned, the assertion of the complainant party is that accused party did not give the hand of their girls to deceased Nizamuddin. Learned counsel in such context submits that if accused party did not give the hand of their girl to deceased Nizamuddin then Nizamuddin or any one of the complainant party would have killed anyone from the accused party and the accused party had no reason to kill Nizamuddin. It is contended that accused persons have falsely been implicated by Wadero Ayoub, who is a big landlord, however, accused persons are poor persons and they cannot even afford to engage counsel hence they filed appeal from Jail. To sum up arguments, learned counsel submitted that ocular evidence was interested, inimical, contrary to law and unlawful without any independent corroboration.
13. It has also come on the record through prosecution evidence that villagers gathered at the place of occurrence but none of them acted as mashir or witness of the incident. In the case of Ashique Hussain v. The State (1993 SCMR 417), the Honourble Supreme Court held that ocular version was not consistent with medical evidence; eye-witnesses were not reliable and their presence at the spot was doubtful, recovery of gun from accused after 13 days of his arrest is highly doubtful; evidence of motive was not satisfactory; defence plea, even if not proved, was sufficient to cast doubt on the credibility of prosecution case, which was even otherwise also doubtful. There is no cavil with the proposition that if ocular evidence is found trustworthy and inspiring confidence, the same cannot be discarded merely for the reason that witnesses are interested or related inter se, as mere relationship of the witness was not meant that witness was interested and his testimony was not reliable to be believed as held in 2002 SCMR 7587(sic.) and 1997 SCMR 373.
14. Keeping in view the medical evidence, as discussed supra, the ocular account cannot be safely relied upon to be trustworthy or confidence inspiring. Specific charge regarding the pistol injury was framed but neither the alleged pistol was recovered nor the Medical Officer supported the ocular account, however all these points were not considered by the trial Court by awarding conviction and sentence to the appellant.
15. Suffice is to say that testimony of the eye-witnesses is not in consonance to the medical evidence, hence cannot be considered reliable and trustworthy and their presence at the place of incident is also doubtful, more particularly, the first informant who intimated the police about occurrence on telephone, did not implicate the appellants. It is settled law that onus rest upon the prosecution to prove its case beyond shadow of reasonable doubt and it never shifts upon the accused, except in the cases under Article 121 of Qanun-e-Shahadat, 1984. It is also settled principle of law that for the purpose of benefit of doubt, to an accused, more than one infirmity is not required. Single infirmity creating reasonable doubt in the mind of reasonable and prudent person regarding the truth of charge makes the whole case doubtful, as held in reported judgment 2008 SCMR 1221. In another reported judgment of apex Court 2008 SCMR 1086, the principle laid down is that accused is most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has admitted plea or not.
16. Whatever mentioned above, I reached at the irresistible conclusion that there are material contradictions in between medical and ocular account; FIR lodged after delay of about two days, without any plausible explanation, therefore, deliberation and consultation cannot be brushed aside. The first informant who informed the police about the injuries and death of deceased Nizamuddin has not been put in the witness box as a witness of prosecution. The appellants were arrested on 27.10.2005 and being UTPs they are facing the agony of lengthy legal proceedings since last about 10 years (by excluding the remission period). Consequently, the instant appeal is allowed and impugned judgment is set aside. The appellants are acquitted of the charge. They shall be released forthwith if not required in any other case.
YN/J-14/Sindh Bail granted.