KHADIM HUSSAIN alias KHADIM Versus State

MUHAMMAD SALEEM JESSAR, J.--- Through this Criminal Appeal the appellants have assailed the impugned judgment dated 19.06.1997 passed by learned Vth Additional Sessions Judge, Shikarpur in Sessions Case No.48 of 1994 arising out of FIR No.81/1994 registered at Police Station Khanpour, District Shikarpur under sections 324/337-A(iii) Qisas and Diyat Ordinance read with sections 147, 148, 149 and 34, P.P.C., the appellants namely Khadim Hussain alias Khadim son of Maghan, Nazo alias Ali Nawaz son of Sattar Dino, Mohammad Siddique son of Manghan and deceased accused Raza Mohammad alias Mullan son of Nazo were convicted and sentenced to R.I. for three years each and to pay Arsh of Rs.19,000/- which is 10% of the Diyat amount of Rs.190,000/- and in case of non-payment of Arsh, accused were ordered to undergo R.I. for six months more. By the same judgment, co-accused Saleh son of Nabi Bux was acquitted. However, the accused were extended benefit of section 382-B, Cr.P.C.

2. Precisely, the facts of the prosecution case, as disclosed by complainant Ubaidulah in the FIR, are that on 05.07.1994 the complainant went towards his land and when he reached near the boring of Allah Bux accused namely Nazoo. Sattar Dino, Khadim Hussain. Mohammad Siddiqui, Raza Mohammad and Saleh came from a Wahi. At that time accused Saleh had a hatchet while other accused were armed with lathies. On the instigation of accused Saleh, other accused inflicted lathi blows to the complainant who raised cries which attracted Nazir Ahmed and Ghulam Hussain who intervened at the spot and rescued the complainant, whereupon accused fled away. The complainant was brought at the police station where he got registered FIR.

3. During investigation, police have arrested accused and recovered lathies at their pointation. After completing the investigation, challan was submitted in the competent court of law against the present appellants as well as co-accused Saleh (since acquitted), whereas accused Sattar Dino was let off by the police. A formal charge was framed against the accused to which they pleaded not guilty and claimed to be tried.

4. In order to prove its case, prosecution got examined complainant Ubedullah at Ex.9 who produced FIR as Ex.10. P.W. Nazeer Ahmed was examined at Ex.1l. Vide statement Ex.12 P.W. Ghulam Hussain was given up while P.W. Jan Mohammad who acted as mashir was examined at Ex.13 who produced mashirnamas of injuries, place of wardat, arrest of accused Khadim, Raza Mohammad and Nazoo, recovery of lathies from the said accused, mashirnama of arrest of accused Siddique and Sattar Dino, arrest of accused Saleh as Ex.14 to Ex.20 respectively. P.W. Dr. Nooruddin was examined at Ex.21 who produced Medical Certificate as Ex.22 and X-ray plate at Ex.23. Investigating Officer P.W. Imdad Hussain Sangi was examined at Ex.24. P.W. SIP Fida Hussain Lahori was examined at Ex.25. Thereafter, prosecution side was closed vide statement Ex.29.

5. Statements of accused were recorded under section 342, Cr.P.C. at Ex.30 to 34, wherein they denied prosecution allegations and claimed to be innocent. They got examined D.W. Mohammad Yakoob in their defence at Ex.36, however they did not examine themselves on oath and thereafter side of their defence was closed by their Counsel vide his statement, Ex.37.

6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court vide impugned judgment convicted and sentenced the accused/appellants, whereas co-accused Saleh was acquitted, as stated above. Against the said judgment instant appeal was preferred by the appellants, however during pendency of the appeal accused Raza Mohammad alias Mullah expired as such the proceedings against him were abated vide order dated 06.11.2012.

7. I have heard learned counsel for the appellants, learned counsel for the complainant as well as learned D.P.G. appearing for the State and perused the material available on the record.

8. Learned counsel for the appellants has contended that the appellants have been falsely involved in the present case. He further contended that although co-accused Saleh, who was allegedly armed with hatchet and had instigated other accused, has been acquitted by the trial Court, while on the same set of evidence present appellants have been convicted which is contrary to the settled principles of Criminal Administration of Justice and not permissible under the law. He further contended that although independent witnesses were available but P.W. Nazir Ahmed who was cousin of the complainant was examined as such he was an interested witness. He further contended that in all the mashirnamas, only P.W. Jan Mohammad was associated as mashir although independent persons of the locality were available at the time of preparation of mashirnamas, hence there is violation of section 103, Cr.P.C. He further contended that the report of Radiologist was not produced in evidence, as such the injury allegedly sustained by the complainant could not be said to be grievous in absence of report of the Radiologist. He further contended that admittedly there was enmity between the parties, as such false implication of the accused cannot be ruled out. He prayed for setting aside the impugned judgment and acquittal of the appellants. In support of his contentions he relied upon the case of Najaf alias Najii and another v. The State and another vide 2017 PCr.LJ 197 and the case of Sarfraz Masih v. The State vide 2017 PCr.LJ 280.

9. Conversely, learned counsel for the complainant supported the impugned judgment and contended that the trial court has passed the judgment in accordance with the law and on the basis of evidence brought on record. According to him, prosecution witnesses have fully supported the prosecution case. He further contended that crime weapons viz. lathies were recovered from the accused at their pointation and the medical evidence is in consonance with the ocular testimony, therefore, the impugned Judgment does not suffer from any impropriety and is speaking one. He therefore has prayed for dismissal of the instant appeal and maintaining the conviction and sentence awarded to the appellants.

10. Learned D.P.G. appearing for the State although adopted the arguments advanced by learned counsel for the complainant; however, he submitted that the offence pertains to the year 1994 and about 23 years have elapsed and as yet the litigation has not concluded, although sentence awarded to the accused is only imprisonment for three years, therefore, he proposed that a lenient view may be taken as the appellants have already been punished adequately.

11. From the perusal of the evidence of the complainant it seems that he has made certain admissions which caused dents in the prosecution story. In his cross-examination he stated as under:

"The P. Ws were not with me at the time I reached the police station. Voluntarily says that I was all alone and had come to PS alone. I have stated in my FIR that I had got myself taken to the P.S. Voluntarily states that by this I meant that I got myself fallen in a vehicle. From the place of incident I went to road by foot and then fetched a vehicle, but I do not remember as to what kind of vehicle it was."

There is glaring contradiction in his statements made in the FIR as well as in his examination-in-chief vis- -vis. the statement made in his cross-examination, in as much as in his examination-in-chief he deposed, "I was brought by the P.Ws at P.S. Khanpur" whereas in his cross-examination he stated, "The P.Ws were not with me at the time I reached the police station. Voluntarily says that I was all alone and had come to PS alone." It is also very strange that even he did not remember as to in what kind of vehicle he reached the police station.

The statement of the complainant is also contradictory to the deposition of P.W. Jan Mohammad, who allegedly acted as mashir of injuries, wherein the said mashir stated as under: "the police had noted down the injuries on the person of complainant in my presence at the police station....... The police prepared such mashirnama. Its contents were read over to me and I put my signature on it. I produce the said mashirnama as Ex.14."

The complainant has, at all, not deposed a single word about presence of P.W. Jan Mohammad at the time when he reached the police station for lodging of FIR or, for that matter, preparation of mashirnama of injuries in presence of P.W. Jan Mohammad.

P.W. Nazir Ahmed also made a different statement in his evidence. He deposed as under:

"Some 15 or 16 persons took the complainant to the village. I live in the same village, where the complainant resides. I had also accompanied with the complainant to village. I do not know as to with whom the complainant has gone to lodge report, from his village."

His statement is contradictory to the statement of the complainant made in the FIR as well as his deposition wherein there is no mention of the fact that the complainant was first taken by 15 or 16 persons including P.W. Nazir Ahmed to his village and from there the complainant had gone to P.S. for lodging of FIR.

There are also contradictions in 161, Cr.P.C. statements of prosecution witnesses, vis-a-vis. their depositions. P.W. Imdad Hussain, I.O. of the case, stated in his cross-examination as under:

"It is correct that P.W. Nazir Ahmed had stated in his deposition under section 161, Cr.P.C. that all the accused including accused Saleh, had inflicted hatchet and lathi blows to complainant. It is correct that P.W. Ghulam Hussain in his statement under section 161, Cr.P.C. has stated that accused Saleh and others jointly, inflicted lathi and hatchet injury to complainant."

It is also noteworthy that in the FIR as well as in their depositions the prosecution witnesses have stated that accused Saleh had hatchet in his hand whereas other accused were armed with lathies. It is also an admitted position that it was accused Saleh on whose instigation other accused persons had inflicted lathi blows to the complainant. Besides, as stated above, P.Ws Nazir Ahmed and Ghulam Hussain in their 161, Cr.P.C. statements had stated that accused Saleh had also inflicted hatchet injuries to the complainant. Despite this, accused Saleh has been acquitted by the trial Court, whereas on the same set of evidence appellants have been convicted although the case of appellants was at par rather on better footing than that of co-accused Saleh who allegedly duly armed with hatchet had caused grievous injury to the injured/ complainant specifically while the appellants' role was that of general in nature for which only 'Daman' could have been imposed. In this view of the matter, it seems that the trial Court without proper appreciation of evidence has wrongly convicted, the appellants thereby causing miscarriage of justice, as the injury was caused with hatchet and same was with co-accused Saleh and he has been acquitted.

12. As stated above, it has come in evidence that co-accused Saleh (since acquitted) had caused hatchet blows to injured/complainant while the appellants had allegedly caused lathi blows. According to the evidence of Medico Legal Officer, all the injuries allegedly sustained by the complainant/injured were simple in nature except one which was also not inflicted on the vital part of his body. It will be conducive to reproduce the relevant portion from examination-in-chief of Dr. Nooruddin Abro, Ex.21 wherein he has deposed as under:

"From the X-ray plate bearing No.KP/357 dated 07.07.1994, it revealed a fracture of 5th Metacarpal Bone. Whereas, X-Ray of Skull and Left Elbow Joint showed no fracture on Boney lesion. Hence injury No.02 was treated to be grievous and the rest of injuries were declared as simple. All the injuries appeared to have been caused by some hard and blunt substance and were fresh in duration."

It has not been brought in evidence that the lathis allegedly used in commission of offence and subsequently recovered at the pointation of appellants were capable to cause heavy blow, resulting in causing grievous injuries to the injured/ complainant. Presumption could be drawn that the Hachet could have been capable to cause such grievous injury irrespective of the fact whether its right side or wrong side was used. If the evidence of M.L.O is to be considered that all the injuries appeared to have been caused with hard and blunt substance, then the wrong side of Hachet could have caused grievous injury.

In order to ascertain the nature of all the injuries particularly injury No.02, it will be essential to reproduce hereunder the details of injuries as mentioned in the Medico Legal Certificate issued by Dr. Nooruddin Abro:

"01-One diffused swelling measuring 04 cm in ammeter present over posterior aspect of Right elbow joint.

02-One lacerated wound measuring 02cm x 0.5cm muscle deep present over dorsal aspect of Right hand on its medial side.

03-One swelling measuring 05cm in diameter present over left parietal region of Skull.

04-One abrasion measuring 0.5cm in diameter present over left side of face, below outer canthus of eye.

05-One abraded swelling measuring 06cm x 02cm present over posterior aspect of right thigh.

X-Ray Advised:

01 Right Hand A P Et. Lat: View.

02 Skull A P Et. Lat: View.

03 Right Elbow Joint A P Et. Lat: View.

The X-Ray plate of injured bearing No. KP-357 dated 7.7.1994 done at: R.H. C. Khanpur. X-Ray Right Hand shows fracture of mid of 5th metacarpal bone; while X-Ray of Skull and left elbow joint show no any fracture.

(DR: NOORUDDIN ABRO) MO R.H.C. KHANPUR"

Perusal of Medico Legal Certificate shows that although Injury No.02 was declared to be grievous in nature, but same was not on vital part/skull/head of the injured/complainant, even it discloses the muscle deep wound but not showing the fracture, warranting application of section 337-A (iii), P.P.C., therefore, section 337-A(iii), P.P.C. would not be applicable. In order to properly substantiate the findings arrived at by the trial Court in the impugned judgment regarding conviction and sentence of the appellants in terms of section 337-A(iii), P.P.C. it seems to be essential to reproduce hereunder the contents of the said section:

"337-A Punishment of Shajjah. Whoever, by doing any act with the intention of thereby causing hurt or any person, or with the knowledge that he is likely thereby to cause hurt to any person, causes:

(i)

(ii)

(iii) Shajjah-i-hashimah to any person, shall be liable to arsh which shall be ten percent of the diyat and may also be punished with imprisonment of either description for a term which may extend to ten years as ta'zir.

(iv)

(v)

(vi)

13. Per the definition of 'Shajjah-i-hashimah', whoever causes shajjah fracturing the bone of the victim and without dislocating it is said to have caused 'Shajjah-i-hashimah'.

From this definition, it is crystal clear that 'fracturing the bone of the victim' is a mandatory ingredient for declaring an injury to be `Shajjah-i-hashimah'. In the instant case, the vital injury has not been shown to have had fractured bone of skull or any other part of the body of the injured/complainant, even the grievous injury, as opined by the Medico Legal Officer, does not show the bone fracture which may warrant the conviction and sentence for committing an offence of causing `Shajjah-i-hashimah' punishable under section 337-A(iii), P.P.C., despite that the trial Court has found the appellants guilty of `Shajjah-i hashimah' and has also sentenced the appellants to pay 'Arsh' which shall be ten percent of the `Diyat' and may also be punished with imprisonment of either description for term of three years out of ten years.

14. The doctor in his cross had admitted that no radiologist was appointed at Khanpur, R.H.C., so also at Shikarpur. However, the same was available at CMC Hospital Larkana but he did not send the X-ray plate and films to radiologist at Larkana CMC for confirmation. It is impossible that injury caused with lathi would have been proved to be grievous. P.W. Nazir had deposed that co-accused namely Saleh (since acquitted) had inflicted hatchet blows to complainant.

The incident is said to have taken place on 05.07.1994, whereas arrest of appellants and recovery of alleged lathies was effected on 12.07.1994 after lapse of seven days. Most important aspect of the case is that it is beyond imagination of a man of prudent mind that the offender would keep the hatchet with which he had allegedly committed the offence in his safe custody for producing the same before the Investigating Officer. Often the wooden sticks, after committing the offence are either destroyed or thrown to unknown place. This also creates serious doubts to the recovery of the alleged crime weapons itself.

Admittedly, report of the Radiologist was not produced during the course of evidence. In the absence of said report, the finding/opinion of the Medical Officer declaring injury No.2, allegedly sustained by the complainant to be grievous, cannot be said to be just and proper. Rather, in such circumstance, the said injury could be treated as 'simple and not `grievous'. In the case reported as Khushi Mohammad alias Munshi and others v. The State (1991 PCr.LJ 1635), Honourable Lahore High Court held as under:

"The only legal point which has been raised by the learned counsel for the petitioner is that in this case, although the doctor in the witness box stated that injury received by the victim of attack was grievous but the report of the Radiologist was not placed on record, therefore it was argued that the offence will not be covered under section 325, P.P.C. It is further pertinent to mention that petitioners could not have been convicted under section 325, P.P.C. because the victim of attack received injury with blunt weapon."

Similar observations were also made in the cases reported as Mohammad Hassan v. State (1991 PCr.LJ 1081), Ghulam Qadir v. The State (1993 MLD 2042), Mohammad Bakhsh v. State (1989 PCr.LJ 1803) and Hakim Ali v. State (1989 MLD 886).

15. Besides, 'rule of consistency' demands that if an accused has been extended certain concession then other accused having same or similar role is also entitled to the same treatment. Learned trial Judge has violated this settled principle of law as, on the one hand, he has acquitted accused Saleh while on the basis of same set of evidence he has convicted the appellants. In the case reported as Mohammad Asif v. The State (2017 SCMR 486), Honourable Supreme Court held as under:

"It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case."

16. Yet there is another aspect of the case. It has come in the evidence that both, P.Ws Nazir Ahmed and P.W. Ghulam Hussain, witnessed the alleged incident. However, P.W. Nazir Ahmed who is cousin of the complainant was examined whereas P.W. Ghulam Hussain was given up and not examined by the prosecution. This is also injurious to the prosecution case as it is settled principle of law that despite availability of disinterested witnesses, non-examination of such witnesses in the case gives inference, as envisaged under Article 129(g) of Qanun-e-Shahadat Order, that in case such witnesses had been examined, they would have deposed against the prosecution. In the case of Bashir Ahmed alias Manu v. The State reported in 1996 SCMR 308 it was held by Honourable Supreme Court that despite presence of natural witnesses on the spot they were not produced in support of the occurrence and adverse inference under Article 129(g) of Qanun-e-Shahadat Order could easily be drawn that in case they were produced, they would have not supported the prosecution version. In another case reported as Mohammad Shafi v. Tahirur Rehman (1972 SCMR 144) it was held that large number of persons had gathered at the place of occurrence but prosecution failing to produce single disinterested witness in support of its case, therefore no implicit reliance could be placed on evidence of interested eye-witnesses. In the case of Ghulam Shabir v. Bachal and another vide 1980 SCMR 708, it was observed that no witness of locality nor owner of hotel was produced in support of prosecution case nor any independent evidence to corroborate testimony of the three eye-witnesses was produced, as such, the acquittal was upheld by the Honourable Supreme Court.

On the other hand, P.W. Nazir Ahmed who is admittedly closely related to the complainant was examined. There is no cavil to the proposition the evidence of related witnesses is also worth-reliance, however for this it requires strong corroboration from other pieces of evidence. In the case of Zahoor Ellahi v. The State reported in 1997 SCMR 385, it was held that eye-witnesses who were related to the deceased, their evidence required independent corroboration. Similar observations were made by Honourable Supreme Court in case of Umar Hayat and 3 others v. The State vide 1997 SCMR 1076 and in case of Ata Muhammad and another v. The State vide 1995 SCMR 599.

17. There also appears weight in the contention raised by learned counsel for the appellants that despite availability of independent witnesses of the locality, only P.W. Jan Mohammad was made mashir for the purpose of all the mashirnamas which, being violation of section 103, Cr.P.C., also causes damage to the prosecution case. The Investigating Officer, P.W. Imdad Hussain stated in his evidence as under:

"The mashirs were called through the constable from the complainant's village........ I did not try to take any other person near the Bus Stop Faizu, to act as mashir of the arrest of the aforesaid accused. Voluntarily says the same persons i.e. mashirs of vardat, acted as mushirs. There were hotels and shops near the Faizu Bux stand from where I arrested the aforesaid accused... ..... It is correct that so many persons were available at the bus stand I do not know the distance of the village of the persons who acted as mashirs of arrest of the accused. While I prepared the mashirnama of arrest of the accused I had called the same mashir of the vardat from their village. The mashirs of vardat did not remain with me from the (time) of preparation of the mashirnama of vardat till preparation of the mashirnama of the arrest of the accused."

From above, it is clear that despite availability of independent persons of the locality, the I.O. did not associate any of the said persons to act as mashir. It must be stated that in view of provisions of section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as State v. Bashir and others (PLD 1997 SC 408) Honourable Supreme Court held as under:

"As regards above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103, Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."

18. As regards the plea taken on behalf of the accused that, in fact, due to old enmity prevailing between the parties, complainant party has falsely implicated the accused in the case, it may be observed that the Superior Courts have time and again held that enmity is a double-edged weapon which would cut both ways and where, on the one hand, it may be a motive for implicating the accused falsely, on the other hand it could also be termed as strong motive for committing offence by the accused.

The accumulative effect of the above said contradictions in the evidence of prosecution witnesses and infirmities/flaws in the prosecution case is that serious dents have been put and doubts have been created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-

"The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

19. For the aforesaid reasons, by a short order passed on 06.03.2018 instant appeal was allowed and conviction and sentences including imposition of fine awarded to the appellants vide impugned judgment dated 19.06.1997 was set aside. The appellants Khadim Hussain alias Khadim, Nazo alias Ali Nawaz and Mohammad Siddique were acquitted of the charges. They were present on bail, their bail bonds stood cancelled and sureties submitted by them were also discharged.

20. Above are the reasons for the said short order.

21. Let file be consigned to record; however, R&Ps of Sessions Case No. 48 of 1994 Re. Khadim Hussain alias Khadim and others be remanded to learned Trial Court. The copy of Judgment shall also be transmitted to learned Sessions Judge, Shikarpur along with R&Ps through MIT-II for compliance.

JK/K-28/Sindh Appeal allowed.