SARDAR ALI Versus State
1. MUHAMMAD SALEEM JESSAR, J.--- Through this appeal Appellants have assailed Judgment dated 21.08.2008, handed down by learned Sessions Judge, Nawabshah (now Shaheed Benazirabad) in Sessions Case No.48/1998 (re: The State v. Sardar Ali and others), being outcome of FIR No.08/1998 registered at Police Station Kazi Ahmed, under sections 302, 324 read with section 34, P.P.C., whereby he convicted the accused/appellants for the offence punishable under section 302(b), P.P.C. and awarded them sentence of Life Imprisonment for causing death of deceased Rajab Ali. The accused were further convicted for offence punishable under section 324, P.P.C. and sentenced each of them to undergo imprisonment for seven years for causing injuries to witness Sain Bux Khoso. Both the accused, appellants were also directed to pay compensation of Rs.1,00,000/- (Rupees One Lac only) each to the legal heirs of deceased Rajab Ali and Rs.10,000/- (Rupees ten thousand only) each to injured Sain Bux. In case of default in payment of same each accused was directed to further undergo sentence of six months more for each amount. They were also directed to pay fine of Rs.50,000:- (Rupees Fifty Thousand only) each and in default to suffer imprisonment of one year more for offence under section 324, P.P.C. The sentences of imprisonment were ordered to run concurrently. However, the appellants were extended benefit of section 382-B, Cr.P.C.
2. The crux of the prosecution case, as per FIR lodged by complainant Muhammad Jumman Chandio on 09-02-1998 are that he used to ply Suzuki Van on road from Kazi Ahmed to Village Maqbool Shah. On the day of incident i.e. on 09-02-1998 at about 0530 p.m. he took passengers in the Suzuki Van from Kazi Ahmed for village Maqbool Shah. His nephew Rajab Ali, who was a driver in police department. also boarded the van and sat on the roof top of the Suzuki along with other passengers including one Sain Bux, while complainant's brother Din Muhammad was seated inside the Suzuki Pickup. At about 06:15 p.m. when the Suzuki reached near village Hanif Chandio on link road, complainant saw three persons riding on a motorcycle coming from the opposite direction and they signaled to stop the Suzuki. Complainant stopped the Suzuki and saw that those persons were Nawaz son of Peeral Chandio holding 222 Rifle. Sardar Ali son of Arbab Ali Chandio having a gun and third one was Arbab Ali who was driving the motorcycle and after parking motorcycle Arbab Ali declared that Rajab Ali was their KARO (adventurous) and they will kill him. Thereupon Nawaz fired from his Rifle which hit Rajab Ali who fell down on roof top. Accused Sardar Ali also fired from his gun at Rajab Ali but shot missed and hit passenger Sain Bux who was sitting beside Rajab Ali who also fell down. Thereafter, all the three accused ran away on their motorcycle. Complainant then took deceased Rajab Ali and injured Sain Bux in his Suzuki to R.H.C. Kazi Ahmed and after admitting them in the hospital, he went to PS Kazi Ahmed and lodged report which was registered as Crime No. 08/1998 under sections 302, 324, 34, P.P.C.
3. During investigation, accused Sardar Ali was arrested on 11.05.1998 and he is alleged to have led to the recovery of the gun on 15.05.1998. After completion of usual investigation, case was sent up for trial before the Court of Session Nawabshah.
4. In order to prove its case against the accused, prosecution examined complainant Muhammad Jumman at Ex. 6, PW Haji Din Muhammad at Ex.8, PW Sain Bux at Ex.9, Dr. Abdul Rashid M.O. at Ex.11, Muhammad Ramzan Mashir at Ex.15, I.O. SIP Muhammad Sulleman Bhutto at Ex.16, Muhammad Aslam Bhatti at Ex.18, H.C. Rehmatullah Brohi at Ex. 20, Ali Asghar at Ex.23 and Tapedar Hussain Bux Bhatti at Ex.24.
5. Accused Arbab Ali died during trial. Accused Muhammad Nawaz and Sardar Ali in their statements recorded under section 342, Cr.P.C. denied the prosecution allegations and claimed their false involvement in the case due to enmity with investigating officers, SHO Muhammad Sulleman Bhutto and SIP Ali Gohar Qureshi. However, both the accused neither examined themselves on oath nor produced any witness in their defence.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties trial Court vide impugned judgment convicted and sentenced the appellants accused. as stated above. Against the said judgment the appellants have preferred instant appeal.
7. I have heard learned counsel for the appellants 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 contended that the appellants have been falsely involved in the present case. They further contended that due to injuries sustained by the deceased as well as injured their clothes were stained with blood but neither the bloodstained clothes were secured nor sent to laboratory for matching the blood group of the injured as well as the deceased. As per evidence, the blood of injured as well as deceased found on the roof of the Suzuki pickup as well as on the ground was not bifurcated or recognized specifically to the extent that which drop of the blood was of deceased and which drop of blood was of injured PW Sain Bux. As per evidence of prosecution witnesses, particularly evidence of injured PW Sain Bux, the accused had fired upon them from their facing/front side; however, injured Sain Bux sustained injury on the backside of his head although there is, at all, no evidence that anybody or accused had fired from their back. Medico-legal Officer, who allegedly examined injured PW Sain Bux categorically denied to have examined him, even according to him, P.W. Sain Bux did not appear before him and that the medico-legal certificate issued in respect of the injured was fake and he disowned the signature available on the said certificate. It was argued that neither any weapon was recovered from accused Muhammad Nawaz nor was produced by him although he voluntarily appeared before the trial Court. As far as weapon allegedly produced by appellant Sardar Ali is concerned, it was not recovered from his possession but after two days of his arrest such recovery was affected, however, he was acquitted of the said charge. It was further contended that Suzuki pickup was also full of other passengers but none from the passengers was associated as witness, who could be the natural and independent witness: even the Suzuki pickup was not produced by the complainant nor was secured by the police during the investigation. I.O. of the case had admitted the fact that he had got enmity with appellant Sardar Ali. In such a situation, the provisions of Article 129 illustration (g) of Qanun-e-Shahadat, 1984 are fully attracted in facts and circumstances of the case. Lastly they prayed for setting aside the impugned judgment and acquittal of the appellant/accused.
9. In support of his contention, learned counsel placed reliance upon the decisions report as (1) Ayub Masih v. The State (PLD 2002 Supreme Court 1048), (2) Rasool Muhammad v. Asal Muhammad and 3 others (1995 SCMR 1373), (3) Muhammad Shah v. The State (2010 SCMR 1009), (4) Ataullah alias Qasim v. The State (PLD 2006 Karachi 206), (5) Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), (6) Abdul Khaliq v. The State (1996 SCMR 1553) and (7) Ata Muhammad and another v. The State (1995 SCMR 599).
10. Learned DPG opposed the grant of appeal and supported the impugned judgment on the ground that all the prosecution witnesses had supported the case of prosecution while the ocular version is also corroborated by circumstantial evidence. According to her, the contradictions as well as discrepancies pointed out by the defend, are of minor nature and cannot be taken into consideration in this case. She prayed for dismissal of the appeal and upholding the impugned judgment. She placed reliance upon the case-law; (1) Amal Sherin v. The State (PLD 2004 SC 371), (2) Sajjad Husain Bhatti v. The State (2001 PCr.LJ 1808) and (3) Saleh Muhammad alias Hashim Marri v. The State (2013 PCr.LJ 692).
11. I have gone through the material available on the record. It seems that there are certain contradictions/admissions in the evidence of prosecution witnesses which go against the prosecution and in favour of the accused. Complainant Mohammad Jumman in his cross-examination made following admissions:
12. "P.W. Din Mohammad is my brother ........ The roof of Suzuki became bloodstained after incident.........
13. P.W. Haji Din Mohammad in his evidence deposed as under:
14. "Arbab Ali disclosed that they will kill Rajab Ali as he is their Karo."
15. In his cross-examination he admitted:
16. "The blood had falled (sic.) on the roof of Suzuki as well as on pucca road ...... It is incorrect to say that accused persons had levelled allegation on Rajab Ali of illicit relations of sister of Mohammad Nawaz and Arbab Ali, but they had dispute with father of accused Mohammad Nawaz over land" ......
17. Injured P.W. Sain Bux made following admissions:
18. "Arbab disclosed that Rajab is their Karo therefore, they will kill him .......... I had bleeding. My clothes were blood staining but blood did not fall on ground. The blood of deceased fell on the roof of Suzuki, as well as on the ground......It is not fact that I had stated in my 164, Cr.P.C. statement that Nawaz had fired with rifle at deceased. It is not fact that I had stated in my 164, Cr.P.C. statement that Arbab Ali had fired at Rajab Ali with rifle. (Note: Confronted. He has stated so) ...... It is incorrect to say that we had dispute over land with Peeral Khan father of accused Arbab. It is correct to say that I had stated in my 164, Cr.P.C. statement that there was dispute between us and Peeral Chandio over land."
19. P.W. Dr. Abdul Rashid in his examination-in-chief deposed as under:
20. "I had not examined injured Sain Bux in this case. I produce medical certificate of injured Haji Sain Bux son of Yar Mohammad Khoso, at Ex.13, it does not bear my signature."
21. In his cross-examination he made following admissions:
22. "Injured Sain Bux was not produced before me for Examination treatment and certificate."
23. P.W. Mohammad Ramzan, who acted as mashir in the case, deposed in the examination-in-chief as under: "police had secured four empties of 222 rifle and one empty of 12 bore cartridge, blood stained earth and police sealed empties and blood stained earth at the place of wardat and prepared such mashirnama of wardat in my presence and co- mashir Mohammad Sahban. The case property viz. one sealed packet containing 4 bullets of 222, (seal opened in the court) empty cartridge of .12 bore in unsealed condition, and blood stained earth produced in sealed condition and gund (sic,) produced in the court in unsealed condition."
24. In his cross-examination he admitted as under:
25. "On the southern side of road there was blood of injured Sain Bux, while blood of deceased Rajab Ali was lying on the northern side of road.......It is fact that accused Sardar has been acquitted from 13(d) case by the J.M. Sakrand......It is incorrect to suggest that injured Sain Bux had no injury on his person. Voluntarily says that he had injury on left side of neck."
26. P.W. SIP/SHO Sulleman in his examination-in-chief deposed as under:
27. "I secured 4 empties of 222 rifle and the empty cartridge of .12 bore, I sealed these articles at place of wardat and also prepared such mashirnama of wardat and recovery of blood stained earth etc........
28. In his cross-examination he made following admissions:
29. "It is fact it is not mentioned in the mashirnama of wardat that .12 bore cartridge was sealed. Voluntarily says but I had sealed the same. Again says I do not remember whether I had sealed empty of .12 bore cartridges at the place of wardat or not ...... the blood of the deceased was lying at the katcha place towards northern side. There was also blood on the southern side of the road which was bleeded by injured Sain Bux, while on the north side there was blood of deceased Rajab Ali which was secured by me. It is fact that I had not specifically mentioned this fact in the mashirnama of wardat...."
30. According to alleged eye-witnesses, the accused had fired upon the deceased from front side. Dr. Abdul Rashid also in his cross-examination admitted, "The shot causing injuries Nos.1 and 2 was fired from front of deceased." Out of these shots, the shot allegedly fired by accused Sardar Ali at deceased Rajab Ali missed and hit at the head of injured Sain Bux. However. as per medical certificate Ex.13 as well as mashirnama of injuries Ex.15-C. injured Sain Bux sustained injury on the backside of his head although no prosecution witness has deposed that accused had fired from the back side. Yet, mashir P.W. Ramzan made totally a different statement and deposed that injured Sain Bux had injury on left side of neck. Thus, apparently there are material contradictions in the ocular testimony and medical evidence.
31. According to the evidence of injured P.W. Sain Bux, blood did not fall on the ground from his injury, whereas SHO Sulleman deposed, "There was also blood on the southern side of the road which was bleeded by injured Sain Bux." Likewise, mashir Mohammad Ramzan also deposed, "On the southern side of road there was blood of injured Sain Bux."
32. Besides, Medico-legal Officer, namely, P.W. Dr. Abdul Rashid in his evidence categorically denied to have examined injured Sain Bux and he also disowned his alleged signature on the Medical Certificate Ex.13. He also denied the suggestion in the cross-examination that injured Sain Bux was produced before him for examination, treatment and certificate. This also creates serious doubts in the prosecution case.
33. It has come in the evidence of mashir namely P.W. Mohammad Ramzan that when the seal of the alleged case property was opened in the Court, the same contained empty cartridge of .12 bore in unsealed condition. Likewise, the gun produced was also in unsealed condition. This is also fatal to the prosecution case.
34. It has also come in evidence that due to injuries allegedly sustained by the deceased as well as injured, their clothes were stained with blood but neither the bloodstained clothes were recovered nor sent to laboratory for matching the blood group of the injured as well as the deceased, nor is there any evidence that the bloodstained earth recovered from the spot was sent to chemical examiner for examination and report.
35. In the case of Syed Manzar Abbas v. The State reported in 2002 PCr.LJ 1566 [Lahore], the accused wad acquitted, inter alia, on the ground that no blood-stained earth or crime empty was taken into possession by the police from the place of incident. Yet in another case reported as Mohammad Shahbaz v. State (2009 PCr.LJ 1428 [Lahore]). the accused was acquitted, inter alia, for the reason that during investigation last-worn clothes of the deceased were not recovered by the police. In the case reported as Pervez Masih v. The State (2005 PCr.LJ 1232) a Full Bench of Honourable Federal Shariat Court held as under:
36. "However, we are afraid evidence of the recovery of crime weapon by itself being evidence of purely corroboratory nature, in the absence of any direct or substantive evidence alone, was not sufficient to bring home charge against the appellant, particularly when neither Serologist's report nor Chemical Examiner's reports were produced or tendered in evidence so as to prove that the "Churri" was bloodstained and if it was so, it had human blood and was of the same group as was of the deceased."
37. It is also worthwhile to point out here that the gun allegedly produced by accused Sardar Ali was neither scaled nor the same was sent to Ballistic Expert for matching the same with the empty cartridge allegedly secured from the spot. Even the trial Court itself has discarded the evidence regarding recovery by observing as under:
38. "23. No doubt the empties were recovered from the scene of offence and sealed there and even empty of cartridge was taken from place of incident and gun was said to be produced by accused Sardar but unfortunately the same were not sent to Ballistic Expert for getting certificate of matching of the same. The rifle said to be used in commission of offence by accused Nawaz is not recovered. Thus the important piece of evidence though available but could not be secured, which could be used as corroboration but that important piece of evidence has been lost."
39. It is also noteworthy that P.W. Haji Din Mohammad has made two different statements in his evidence regarding motive, inasmuch as; in his examination-in-chief he deposed that at the time of incident accused Arbab Ali disclosed that they will kill Rajab Ali as he is their Karo, whereas in his cross-examination, he categorically denied the suggestion that accused persons had levelled allegation on Rajab Ali of having illicit relations with sister of Mohammad Nawaz and Arbab Ali and stated that the accused had dispute with father of accused Muhammad Nawaz over land. On the other hand, injured P.W. Sain Bux denied such suggestion by stating, "It is incorrect to say that we had dispute over land with Peeral Khan father of accused Arbab".
40. Apart from above, there are also other discrepancies in the evidence brought on the record, for instance; P.W. Sain Bux in his earlier affidavit allegedly sworn before the CMO of the trial Court had exonerated the accused and did not support prosecution version but the trial Court has ignored this important factor; no independent witness either travelling in the Suzuki or from the locality has been examined by the prosecution, thus the provisions of Article 129 illustration (g) of Qanun-e-Shahadat, 1984 are fully attracted in the case; the names of the appellants/accused were not disclosed in the Inquest Report; the alleged motive was old one and related to one year prior to the alleged incident despite that it is not understandable that as to why the accused ignored the same for such a long period although admittedly the deceased used to visit the village of the accused; the Suzuki pickup wherein the complainant, deceased, injured and alleged eye-witnesses were boarding at the time of alleged incident was not secured by the I.O. and even no bloodstains were secured from its roof top where allegedly the deceased and the injured had sustained injuries; and lastly the motorcycle allegedly used by the accused at the time of alleged incident was also not secured.
41. Needless to emphasize that it is a 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, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:
42. "In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
43. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:
44. "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."
45. The accumulative effect of the above said contradictions, infirmities/flaws in the prosecution case is that serious dents have been put and doubts 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:
46. "The concept of benefit of doubt to an accused person 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."
47. For the foregoing reasons, by short order dated 21.08.2019 instant appeal was allowed and the impugned judgment handed down by learned Sessions Judge, Nawabshah (now Shaheed Benazirabad) in Sessions Case No.48/1998 (re: The State v. Sardar Ali and others), being outcome of FIR No. 08/1998 registered at Police Station Kazi Ahmed, under sections 302, 324 read section 34, P.P.C. was set aside and the appellants were acquitted from all the charges. Appellants were present in Court on bail, their bail bonds were cancelled and sureties furnished by them were also discharged.
48. Above are the reasons for the said short order.
49. JK/S-136/Sindh Appeal allowed.