NOORO alias NOOR MUHAMMAD SHAR Versus State
ABDUL RASOOL MEMON, J.--- The instant criminal appeal has been filed by appellants Nooro alias Noor Muhammad Shar and Papoo alias Ali Murad Essani against the conviction and sentence passed by the ATC Judge Shikarpur. As per Judgment dated 08.9.2014, the appellants were convicted under section 302(b), P.P.C. read with section 34, P.P.C. and awarded imprisonment for life and to pay compensation of Rs.50,000,/- under section 544-A, Cr.P.C. on the legal heirs of the deceased P.C. Noor Muhammad by such accused in case of default in payment to undergo 06 months' S.I. and also convicted and awarded sentence under section 353, P.P.C. for two years. They were further convicted under section 7 of A.T.A. and sentenced to suffer R.I. for life and forfeiture of their property to State. All the sentence were ordered to run concurrently. However, they were extended benefit of section 382(b), Cr.P.C.
2. The prosecution story in a nutshell is that on 17.01.2007. Inspector Syed Javed Hussain Shah, SHO Sultan Kot lodged FIR alleging therein that on the day of incident he along with his staff namely ASI Sanaullah, P.C. Israr Ahmed, Shah Ali Bakhrani, Azizullah and DPC Ali Hassan Brohi during patrolling in official vehicle on main road at 2245 hours received wireless message that one tractor and trolley were robbed from the jurisdiction of P.S. New Foujdari vide Crime No.9/2007 under section 17 of (Enforcement of Hudood) Ordinance, 1979. On receiving such information, complainant party reached at Chohi Minor Picket where P.C. Noor Muhammad and Ghulam Hussain were already on duty. They started NAKABANDI. In the meanwhile one tractor came from northern bank of Chohi minor and on head lights of vehicle they saw and identified accused Shah Muhammad Essani (since dead) with K.K., Murad Ali Essani with G-III and two unknown persons with K.K. The driver of the tractor was also armed with K.K. When the police party gave signal to stop them, the culprits made direct firing upon police and speedily went to village WADA MACHHI. Police chased the accused and an encounter took place with them for about 10/15 minutes in which fires made by the accused Shah Muhammad hit P.C. Noor Muhammad who died at the spot. Accused Shah Muhammad also sustained firearm injuries and succumbed to his injuries while the rest of the accused fled. The tractor was taken into police custody and the dead bodies were referred to Civil Hospital Shikarpur vide memo produced at Exh. 18/B witnessed by P.C. Israr Ahmed and A.S.I. Sanaullah (not produced) which followed by FIR (Exh. 20/A).
3. SIO Muhammad Yousuf took up the investigation, inspected the dead bodies of both the deceased P.C. Noor Muhammad and accused Shah Muhammad vide memo at Exh. 18/C, visited the place of incident, collected blood stain earth, nine (9) empty shells of S.M.G and 13 of G-III and prepared such mashirnama (Exh. 18/A). He also recorded 161, Cr.P.C. statements of witnesses, who disclosed the name of applicant/accused Nooro as one of the culprits with Papoo. After completing investigation challan of the case was submitted in the trial Court in absentia. Subsequently accused Nooro alias Noor Muhammad was arrested while accused Papoo having obtained protective bail appeared and joined the case proceedings, later on he absconded and when arrested in some other case, he was also produced in this case. At the trial, prosecution examined SHO/complainant Syed Javed Hussain Shah (Exh.20), P.W. Israr Ahmed Kori (Exh. 18), P.W. Ghulam Hussain Brohi (Exh. 23), Dr. Ejaz Hussain Memon (Exh. 11). SIP Shah Muhammad (Exh. 12), Muhammad Hashim Mirani (Exh. 22), Tapedar Muhammad Anwar (Exh. 13) and H.C. Umed Ali (Exh. 26). Thereafter the Prosecution closed the side.
4. The appellants/accused in their statements under section 342, Cr.P.C. denied the charge and pleaded their innocence. They however, did not examine themselves on oath under section 340(2), Cr.P.C. and in disproof of the charge nor produced any witness in defence.
5. Learned trial Judge having believed the evidence produced by the prosecution held the appellants/accused guilty and awarded them sentence as mentioned in para-1 supra.
6. Learned counsel for the appellants argued that neither the name of appellant Nooro alias Noor Muhammad nor features or description of this accused are given in the FIR but his name was disclosure by the witnesses in their statement under section 161, Cr.P.C. for which no explanation is furnished by the prosecutions; that the identification of the present appellants is said to have been made on the head lights of the vehicles from the distance of 60/65 paces which is unbelievable and that no any sort of recovery is effected from the appellants/accused: that no any bullet had hit to police vehicle and there are allegations of only ineffective firing against the present appellants and that no independent and trustworthy evidence is brought on record to convict the appellants/accused in the alleged offence.
7. Learned D.P.G for the State while opposing this appeal has contended that presence of the witnesses has not been disputed as one of the police personnel namely P.C. Noor Muhammad was murdered in the encounter with the accused; that the prosecution witnesses have identified both the accused/appellants in Court which is sufficient to prove the charge; that no enmity has been alleged against the prosecution witnesses for falsely implicating them; that they in furtherance of their common intention committed alleged offence along with co-accused Shah Muhammad (deceased), therefore, they are equally responsible and have rightly been convicted by the trial Court.
8. In order to prove its case, the prosecution has produced the complainant Inspector Javed Hussain Shah, P.W. P.C. Israr Ahmed, he also acted as mashir of place of wardat, recovery of dead bodies and K.K. of the deceased accused Shah Muhammad and P.W. P.C. Ghulam Hussain as an eye-witnesses in addition to medical and recoveries. After considering the submissions of the learned counsel for the parties and going through the evidence on record, we find ourselves in agreement with the learned counsel for the appellants that the case of the prosecution is doubtful in nature against the appellants. First we take up the medical evidence. Dr. Hafiz Hussain P.W. 1 on 17.01.2007 at 3.00 a.m. (night) conducted the postmortem examination of deceased P.C. Noor Muhammad and found the following on external examination.
INJURIES:
1. One LTP wound measuring about 1.5 c.m. in diameter into cavity deep present over anferiolaterial aspect of left fore head with inverted margins blacking present around it (wound of entry).
2. One LTP wound measuring about 5 CM in diameter with averted margins present over occipital area of skull (wound of exit).
9. In the opinion of the doctor, the death accrued as a result of shock and haemorrhage due to causing of firearm injuries.
10. On the same day at 5.00 a.m. at (night) he also subjected the dead body of deceased accused Shah Muhammad to postmortem examination and found the following injuries on external examination:-
1. One LTP wound measuring about 7 CM in diameter into cavity deep present in front of chest just left to mid of strummer with inverted margins blackening present around it (wound of entry).
2. One LTP wound measuring about 12 CM in diameter present over left lumber region with everted margins (wound of exit).
11. In this case doctor also formed same opinion that death accrued due to firearm injuries caused to him at left lung and heart. As provided under Q.4.23 of Parkhs' Text Book of Medical Jurisprudence and Toxicology (for class rooms and court rooms) Revised Edition 2013 (P.4.44) blackening on entrance wound is appeared when fire is made from near range under three feet. As per medical evidence both the deceased received firearm injuries with blackening, it shows that both had received firearm injuries from near range of under three (3) feet which is not the prosecution case. Complainant Inspector Javed Hussain Shah has stated that the tractor of accused was at the distance of 120 yards from police mobile and accused made firing upon police party at the distance of about 50/60 paces, that could make about 150 feet. Had firing made from such a distance of 50/60 paces, there would not have been blackening on entry wound of both deceased. It indicates that either complainant was not present at the time of alleged incident or firing was not made in the manner as alleged by the prosecution.
12. So far ocular evidence is concerned, it is an admitted fact on record that neither appellant/accused Nooro alias Noor Muhammad was named in the FIR nor his features were given therein but after registration of FIR his name was disclosed by the witnesses in their 161, Cr.P.C. statement. Though the alleged eye-witnesses were all along present along with complainant but they did not disclose the name of this appellant/accused Noor Muhammad alias Nooro. P.W. P.C. Israr Ahmed and P.C. Ghulam Hussain throughout their statements have not disclosed the reason which prevented them from not disclosing the name of above appellant Nooro to complainant before or at the time of lodging FIR as such disclosure of his name subsequently by alleged eye-witnesses after registration of FIR and his identification after about 06 years in trial Court by complainant is far from belief and carries no weight.
13. Apart from above, as per FIR deceased accused Shah Muhammad and appellant accused Murad Ali had K.K. and G-III respectively while two unidentified accused had also K.K. one of them was driving the tractor but this version given in the FIR is not supported by PWs P.C. Ghulam Hussain and P.C. Israr Ahmed by deposing differently that deceased accused Shah Muhammad was driving the tractor at the time of alleged incident. In cross-examination, P.W. P.C. Ghulam Hussain stated that due to firing front tyre of the tractor was burst but this statement of above P.W. is contradicted by the complainant. He deposed that no any bullet hit to the tractor or tyre of the tractor. Complainant deposed that all accused got down from tractor and accused Shah Muhammad received bullet injuries when he was at the distance of 10 paces from tractor but P.W. P.C. Israr Ahmed has given quite different story. He has stated that the accused who was driving the tractor received firearm injury on his abdomen while sitting on driver seat. First of all as per complainant, accused Shah Muhammad was not driving the tractor and when he received firearm injury, he was at the distance of about 10 paces from tractor. Secondly, as per medical report/evidence, deceased accused has not sustained fire injury on abdomen but on chest. The above contradictions show that one of the P.Ws is definitely telling lie and thus their evidence is unbelievable. Furthermore, FIR speaks that accused while crossing the police party on tractor made firing except driver and when reached at village WADA MACHHI accused stopped their tractor and made firing upon police, out of which fire shot of accused Shah Muhammad hit to deceased P.C. Noor Muhammad. As per evidence of I.O. DSP Muhammad Yousuf, nine (9) empty shells of SMG and thirteen (13) of G-III were secured by him from place of wardat whereas complainant stated that he himself fired 90 rounds and besides that his staff also made firing at the time of alleged incident. He further stated that while crossing on the tractor from 10/15 paces accused had made firing upon police and in retaliation police also returned fire but it is astonishing to note that when lights of both vehicles were on and firing was made from close range of 10 to 15 paces, none from either side had sustained any injury even a single scratch was not received by the police vehicle or tractor of the accused. However, when firing said to have been made from the distance of about 50/60 paces in complete darkness, one of the fires made by deceased accused hit to P.C. Noor Muhammad who died on spot. This version of P.Ws seems to be far from belief. Had culprits fired upon police party with object of causing Qatl-i-amd the same was not beyond possibility from the accused when they are said to have made first firing at the distance of 10/15 paces. Not only that but it also could not be possible to identify during such exchange of heavy firing in odd hours of night that fire hit to deceased P.C. was made by deceased accused. Throughout their statements, complainant and alleged eye-witnesses have not assigned any specific role to appellant accused Ali Murad except his presence at the time of alleged incident. No recovery of any weapon is effected from him as such, no report of ballistic expert is brought on record to show if any empty shell was fired by this accused. Even nothing is brought on record to show that any empty shell said to have been recovered from the place of incident was found fired from K.K. allegedly recovered from deceased accused. The evidence of P.W. SHO Sher Muhammad SIP Muhammad Hashim, ASI Sobho Khan and H.C. Umed Ali is formal one as in their presence only arrest of accused persons was made as such need no further discussion.
14. All these put together create doubt that either the alleged eye-witnesses were not present together at the time of alleged incident or the incident had not occurred as alleged by the prosecution. Had these P.Ws been present together on wardat as alleged in the case, there should have been no such contradictions on material points and the accused cannot be deprived of benefit of such doubt. It is settled law that it is not necessary that there should be many circumstances for extending benefit of doubt but if a simple circumstance creates a doubt then accused becomes entitled to its benefit not as a matter of grace or concession but as a matter of right. Reliance is placed on cases reported in 2008 SCMR 1221 and 1995 SCMR 1345.
15. For the reasons discussed above, we are of the view that the impugned judgment passed by the trial Court was not based on correct appreciation of evidence, therefore, while allowing the appeal by extending benefit of doubt by this Court by short order appellants were acquitted vide order dated 05.4.2016 and they were ordered to be released forth with if not required in any other case.
16. The above are the reasons for our short order dated 05.4.2016.
WA/N-37/Sindh Appeal allowed.