ATTAULLAH KHOSO Versus RIAZ HUSSAIN KHOSO
ADNAN-UL-KARIM MEMON, J.--- Through instant Criminal Acquittal Appeal, appellant/complainant, namely, Attaullah Khoso has impugned the judgment dated 29.12.2011 passed by the learned VII Additional Sessions Judge, Larkana in Sessions Case No.59/2009 arising out of FIR No, 50/2007 under sections 302, 147, 148, 149 of P.P.C. Police Station Rehmatpur, whereby Respondent No. 1/accused, namely, Riaz Hussain son of Suleman Khoso was acquitted from the charge of murder of deceased Khan Muhammad alias Rehmatullah.
2. The precise allegations against the respondent No.1, as per aforesaid FIR lodged on 15.10.2007 at 10.50 a.m., are that on the said day at 9.30 a.m. he along with co-accused persons, namely, Sunho, Mumtaz, Asghar and Ali Asghar having committed murder of Khan Muhammad alias Rehmatullah, the brother of the complainant, at Jamali Street, Nazar Muhalla, Larkana by causing firearm; injuries, fled away from the place of incident.
3. After usual investigation police submitted the Challan against the accused persons and the trial Court having completed proceedings under sections 87 and 88 of Cr.P.C. against the absconding accused persons kept the case on dormant file, vide Order dated 18.8.2009. On 9.12.2009, respondent No.1 was arrested thereafter police submitted the supplementary Challan. The charge was framed against the respondent No.1 at Ex.7 to which he pleaded not guilty and claimed to be tried. His plea was recorded at Ex.7-A.
4. In order to substantiate the charge, the prosecution examined seven witnesses i.e. P.W-1 Attaullah at Ex.9, PW-2 Tanveer at Ex.10, he produced receipt of delivery of dead body at Ex.10-A, PW-3 Naimatullah at Ex.11, PW-4 Ali Nawaz at Ex.12, he produced Mashirnama of arrest of accused at Ex.12-A, PW-5 MLO/Dr. Munir Ahmed at Ex.13, he produced Postmortem Report of deceased Khan Muhammad alias Rehmatullah at Ex.13-A, PW-6 Saleem Ahmed at Ex.14, he produced sketch of place of incident at Ex.14-A and PW-7 DSP Ghulam Murtaza at Ex.15, he produced Chemical Report at Ex.15-A. The statement of respondent No.1 was recorded under section 342, Cr.P.C. at Ex.17 in which he claimed his implication as false. He, however, did not examine himself on oath under section 340(2), Cr.P.C. nor lead any witness in his defense.
5. Learned Trial Court after hearing the parties acquitted respondent No. 1, vide judgment dated 29.12.2011, which has been impugned by the appellant/complainant in this criminal acquittal appeal.
6. Mr. Abdul. Rasheed Soomro, learned counsel for appellant, has argued that the learned trial Court has erred in acquitting respondent No.1 without looking into evidence led by the prosecution; which fully establishes the guilt of respondent No 1. He has further contended that the learned Trial Court due to certain minor contradictions in the evidence of the prosecution witnesses acquitted respondent No.1, otherwise ocular as well as medical evidence fully support the case of prosecution. He has also contended that the respondent No. I caused murder of deceased by firing shots in broad day light, who died at the spot. In support of his contentions, the learned counsel has relied upon the case of Niaz Ahmed Khan v. Khalid Pervez (2012 PCr.LJ 1840), Qasim Ali and another v. The State (2009 PCr.LJ 769), Shamsud Doha v. The State and another (2005 PCr.LJ 310), Mst. Dur Naz and another v. Yousuf and another (2005 SCMR 1906), Riaz Hussain v. The State (2001 SCMR 177) and Muhammad Aslam and others v. The State (2001 SCMR 223).
7. Conversely, Mr. Farooq Ali Bhutto, learned counsel for the respondent No.1 while supporting the findings recorded by the learned trial Court, has maintained that the postmortem report of the deceased clearly shows that alleged incident did not occur in a manner as narrated by the complainant in the FIR. He has further maintained that as per deposition of MLO Dr. Munir Ahmed, he received the dead body of the deceased at 12 a.m. (night) and as per his opinion the deceased died three hours before the postmortem. Whereas, the Complainant alleged that the incident took place at 9:30 a.m. This contradiction alone reflects that the story was concocted by the Complainant to connect the Respondent No.1 falsely in the present case due to previous enmity. He further added that Respondent No.1 is rightly acquitted by the learned Trial Court. In support of his contentions he has relied upon the case of Dr. Israr-ul-Haq v. Muhammad Fayaz and another, (2007 SCMR 1427), Muhammad Shafi v. Muhammad Raza and others (2008 SCMR 329), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602) and Muhammad Fazil v. Bashir Ahmed and another (2009 SCMR 1382).
8. Mr. Khadim Hussain Khooharo, learned Additional P.G. on behalf of the State supported the impugned judgment and argued that the prosecution has failed to establish its case beyond shadow of doubt, hence, the impugned judgment being well reasoned requires no interference. However, he clarified the position that the doctor has inadvertently mentioned the date in the postmortem as 16.11.2007 instead of 15.10.2007 though he has already mentioned the actual date of receiving the dead body of deceased Khan Muhammad viz. 15.10.2007 at the top of the postmortem report.
9. We have heard learned counsel for the parties and have gone through the material available on record and the case law cited at the Bar.
10. It appears that the loaned-trial court has recorded acquittal of Respondent No.1, while referring some contradictions in the evidence of PWs and some lapses in investigation, which might be termed minor in nature but mainly entering the fact that the date of post mortem of deceased in post mortem report has been mentioned by PW 5 MLO Dr. Munir Ahmed as 16.11.2007, while the incident has occurred on 15.10.2007 about one month prior to his post mortem but prosecution failed to explain as to why the post mortem was conducted after one month. The perusal of the evidence recorded in the case shows that on the said point neither any cross was made by the defence counsel nor any clarification was sought by the learned trial court during examination of said PW, if fit was in fact any delay of one month in conducting post-mortem of dead body of deceased or it was due to inadvertent mistake in mentioning the date of post mortem of dead body of the deceased, which was received for post mortem on 15.10.2007. Such ambiguity in our opinion cannot be cleared without re-examination of PW 5 Dr. Munir Ahmed. We therefore set aside the impugned judgment dated 29.12.2011 passed by the learned VII Additional Sessions Judge Larkana in Sessions case No. 59/2009 and remand the case to the learned trial court for decision afresh after re-examination of PW 5 MLO/Dr. Munir Ahmed and hearing the parties.
11. The Respondent No.1 is on bail before this court he will remain on bail before the trial court, however shall furnish fresh surety in the sum of Rs. 200,000/- (rupees two lac only) and P.R bond in the like amount before the learned trial court.
12. The learned trial court is directed to conclude the trial within the period of two months and shall submit such compliance report through Additional Registrar of this Court.
JK/A-10/Sindh Case remanded.