GUHRAM Versus State
OMAR SIAL, J.--- The Appellants have challenged a judgment dated 5-4-2016 passed by the learned IVth Additional Sessions Judge, Mirpur Mathelo. In terms of the said judgment the Appellants were convicted and sentenced as follows: a) Two years' R.I. and a fine of Rs.5,000/- or S.I. of one month in default for an offence under section 149, P.P.C. b) Two years' R.I. and a fine of Rs.5,000/- or S.I. of one month in default for an offence under section 148, P.P.C. c) Life imprisonment and Diyat for an offence under section 302(b), P.P.C. d) Seven years' R.I. and compensation of Rs.10,000/- or R.I. of three months more for an offence under section 324, P.P.C. e) Seven years' R.I. and one-third Diyat amount to be paid to one injured for an offence under section 337-D, P.P.C.
2. Through this judgment I will dispose of the appeal.
3. Brief facts of the prosecution case are that on 6-11-2011, a man named Lakhmir came to the police station in Ubaro and reported that he had a dispute with a man named Raees Mitho Chachar and that about four or five months ago Raees had threatened him. Lakhmir further reported that two days ago i.e. on 4-11-2011, he along with Shehzadi, Zuhran, Noor Hassan and Ghulam Yaseen were cutting grass in their land when at 10:30 a.m., fifteen persons all armed with different: weapons appeared on a tractor trolley. Lakhmir recognized eleven out of the fifteen persons. All eleven were charged in this crime.
4. Lakhmir went on to narrate that Out of the persons who came, two named Jan Muhammad and Badrah, instigated the other persons and upon their instigation, Guhram, Pannah and Nawaz opened fire on Shahzadi and Jindal and Fagiro opened fire on Zuhran. The accused also opened fire on Lakhmir and the other men present but they were miraculously not hit by any bullet in the firing even though they stood two to three feet away from the two ladies. Thereafter, all the fifteen persons ran away on the tractor trolley on which they had come. Shahzadi was found hit by three bullets whereas Zuhran was hit by two. Zuhran died at later date.
5. Lakhmir took the two injured ladies to the police station from where he obtained a relevant letter for the hospital at Daharki. The ladies were first taken there and from there the two ladies were referred to the hospital in Rahim Yar Khan. The complainant then went to the police station and lodged the FIR bearing number 373/2011 on 6-11-2011 under sections 324, 148, 149 and 114, P.P.C. (as Zuhran had not died till that time).
6. Charge against nine accused was framed on 29-6-2013 to which all nine pleaded not guilty. One accused Raees Mitho died during the proceedings whereas two others, namely, Jindal and Faqiro (the two accused of firing at Zuhran) were declared absconders.
7. To prove its case the prosecution examined eight witnesses. PW-1 Dr. Meer Hassan was the doctor who examined the two injured ladies at the hospital in Daharki. PW-2 Lakhmir was the complainant. PW-3 Shahzadi was one of the injured ladies. PW-4 Noor Hassan was an eye-witness. PW-3 Dr. Zaibunissa was the lady doctor who examined the dead body of Zuhran at the Daharki hospital when the same was brought for post mortem. PW-6 Abdul Khalique was the investigating officer. PW-7 Qadir Baksh was a witness to the memo. of injuries as well as the inspection and the memo. of arrest of Guhram and Pannah. PW-8 Muhammad Iqbal was the author of the memo of injuries of the two ladies.
8. The accused recorded their statements under section 342, Cr.P.C. on 15-2-2016 and pleaded innocence while citing enmity due to a past murder case as the reason for the false case.
9. On 5-4-2016 the impugned judgment was passed in terms of which all the accused who were tried except the three Appellants herein, were acquitted.
10. I have heard the learned counsel and the learned APG and have also examined the record of the case. The complainant and his counsel remained absent despite notice. My observations are as follows.
11. The complainant stated in the FIR that there existed an enmity between the parties on the grounds that the complainant party had earlier registered an FIR against some members of the accused party for the murder of one Mehrab Chachar. The current incident was said to have occurred as a consequence of the complainant party not compromising with the accused party for the murder of Mehrab Chachar. No evidence of any nature was produced in trial to substantiate this claim. It was not even identified in trial who amongst the accused party was nominated in the earlier murder. The motive for the current incident, as claimed by the complainant went unproved in trial.
12. While there are certainly instances of violence against women on the pretext of honor; I find it odd that in such a case where the actual protagonists in the earlier case of Mehrab Chachar were present on, the spot, the heavily armed accused party chose to injure the women present on the scene. With all the evil that has perpetrated our society, harming womenfolk and children in such quarrels still remains a rarity. According to the complainant fifteen persons of the accused party (who came with children accompanying them on the tractor trolley according to PW-2 Lakhmir) were armed with deadly weapons and they opened fire from a relatively short distance on the complainant party but did not manage to kill or even hurt the male members of the complainant party. His story does not appeal to a prudent mind.
13. PW-3 Shahzadi is one of the injured ladies in this incident. Her evidence has to be evaluated with the background of her being a twenty five years old lady from a conservative, rural society where the interaction between women and men from outside the family is minimal. It comes as a surprise then when she in her testimony very accurately identifies each of the men of the accused party who came to the spot together with the type of weapon each carried. Not only does she identify all the accused, she in spite of being hit by a rifle shot in her breast, a rifle shot on her thigh and a rifle shot in her back, could also identify each person who's bullet hit her as well as the sequence in which they fired at her. To make matters more surprising, she after being hit by all three bullets and in the midst of the alleged indiscriminate firing also identified with great accuracy the persons and the sequence in which they hit her companion Zuhran.
14. It is stated in the FIR as well as the witness statements that all three Appellants carried rifles with them. It is the case of the prosecution, that Shahzadi was fired at by the three Appellants only. PW-1 Dr. Meer Hassan, who examined the injured ladies held in his medical report that the injuries caused to the ladies were those of shot gun fires. Indeed, when one looks at the description of the injuries given by the doctor they seem to be have been caused by pellets. Perhaps, if Shahzadi was hit by rifle bullets as claimed by the prosecution from a distance of five feet she might have died on the spot. Shahzadi in her testimony deposed that she was hit from a distance of five feet. The. doctor Meer Hassan states in his report that she was injured from a distance of thirty feet.
15. Shahzadi's version as well as the injuries found on her by Dr. Meer Hassan, both reveal that she was hit on the chest, back and thigh. Surprisingly, the complainant Lakhmir stated in his deposition that Appellant Pannah "made a straight fire on Mst. Shahzadi which hit her on her forehead." Shahzadi deposed that Appellant Nawaz's fire hit her back whereas complainant Lakhmir deposed that Appellant Nawaz shot at her hips and the bullet went through her body. PW-7 Qadir Bux a witness to the memo of injuries deposed that two of the three injuries to Shahzadi were "through and through". The complainant's version and that of the witness is not supported by the medical report neither by Shahzadi herself.
16. Complainant Lakhmir deposed that he took the police with him to the Rahim Yar Khan hospital on 7-11-2011 for the purpose of recording the statements of Shahzadi and Zuhran. Shahzadi deposed that the police came to the Rahim Yar Khan hospital on 11-11-2011 when it recorded her statement as well as that of Zuhran. Interestingly, the investigating officer PW-6 Abdul Khalique deposed that he had recorded the statements of the two ladies at their home.
17. While Shahzadi in her deposition narrates events till her reaching the Rahim Yar Khan hospital and then again when the police recorded her and Zuhran's statements on 11-11-2011, the complainant Lakhmir deposed that immediately after sustaining the injuries, the two ladies had become unconscious. Shahzadi, according to Lakhmir remained unconscious for "about 15/17 days" whereas Zuhran remained unconscious for "about a month or so before her death". The contradictions are obvious.
18. Lakhmir deposed that "it is incorrect to suggest that the injured ladies were treated by male doctor, namely, Meer Hassan Kolachi". Shahzadi also deposed that no first aid was given to the ladies at the Daharki hospital. However, prosecution's own first witness is Dr. Meer Hassan Kolachi of the Daharki hospital deposed that he examined both ladies at the hospital. It also seems odd that while it is claimed that the two ladies were in critical condition no first aid was even given to them in the Daharki hospital.
19. The incident is said to have occurred on 4-11-2011 and the FIR in the case filed on 6-11-2011 by Lakhmir. In his testimony however, Lakhmir deposed that "I had remained at Rahim Yar Khan with injured ladies for about 4 days. I had lodged the FIR on the 5th day of the incident."
20. As regards Zuhran, the appellants are not accused of causing any fire and injuries to her, yet I observe that Lakhmir deposed that she was hit by two bullets one hit her on her lower abdomen and the other on her left shoulder. Shahzadi deposed that Zuhran was hit by one bullet on her left shoulder, one bullet on her waist and third bullet on her right shoulder. PW-1 Dr. Meer Hassan deposed that Zuhran had two bullet wounds only on her left shoulder. The medical report does not reconcile with the ocular version.
21. Zuhran's post mortem was conducted by PW-5 Dr. Zaibunissa. She said in her report that the body was brought to her on 26-12-2011. According to Shahzadi, Zuhran died on 12-11-2011, a day after she had recorded her statement on 11-11-2011, Dr. Zaibunissa recorded yet another injury on the right side lumbar area of Zuhran, which by all accounts had not been seen or recorded, by any other witness Dr. Zaibunissa deposed that Zuhran had come to the hospital on 16-12-2011 and was discharged whereas no account of such a visit comes up in the testimony of any other prosecution witness. This version is completely in contradiction to that of other witnesses. The accuracy with which Dr. Zaibunissa states the time between injuries and death in her report, certainly casts doubt on the independence of this witness.
22. Lakhmir in his testimony deposed that he registered the FIR at about 9:00 or 9:30 p.m. This is in line with the time on the FIR. Doubt occurs due to his succeeding statement i.e. "At about half an hour in lodging FIR the police was boarded on mobile at the time of inspection of place of Wardat. I was at my home when police arrived at place of incident for inspection. I, Qadir Baksh and Allah Bux were present when police inspected the place of incident. It was about 12-00 noon time." PW-6 Abdul Khaliq the investigating officer deposed that he examined the place of incident at 9:00 a.m. On 7-11-2011. The contradiction is obvious and does not require comment.
23. The investigating officer PW-6 Abdul Khidique could not prove any evidence in trial to establish that he was present in the police station on 6-11-2011 when the FIR is said to have been registered. Neither could he produce entries pertaining to his departure or arrival from and to the place of incident. He also deposed that he spent only two to three minutes at the site of incident. It seems odd that in two to three minutes he made the recoveries of four .12 bore shells, three empties of 7mm sealed the same, gave details of the surrounding lands and also prepared the memo of site inspection all in two to three minutes.
24. PW-6 Khalique also deposed that he did not collect any blood stained earth from the spot, that there were no foot marks at the place of incident, that he recorded no evidence to prove that the ladies were even present there at the time of incident and that no weapon had been recovered. The empties ostensibly collected from the scene by this witness were never produced in trial and neither was any forensics conducted. To make matters worse for the prosecution, the investigating officer did not even recognize the Appellants in trial.
25. The investigating officer admitted that he had not recorded the color of the cartridges recovered from the scene. The complainant deposed that they were white cartridges. The witness to the memo of site inspection deposed they were red cartridges. As mentioned above, the cartridges were never produced in trial.
26. The evidence of prosecution is replete with material contradictions, however, in view of the above observations I have formed the view that by no stretch of imagination did the prosecution prove its case against the Appellants beyond reasonable doubt.
27. above are the reasons for my short order dated 13-4-2017 in terms of which I allowed the appeal, acquitted the Appellants of the charge(s) and ordered them to be released of our required in any other case.
JK/G-14/Sindh Appeal allowed.