GAMAN BANGULANI Versus State
SHAMSUDDIN ABBASI, J.--- Through captioned appeal, appellants Gaman, Abdul Rehman and Abdul Raheem have challenged the vires of the judgment dated 05.12.2012, handed down by the learned Additional Sessions Judge-I, Jacobabad, in Sessions Case No.179 of 2008, arising out of FIR No.93 of 2005 registered at Police Station Thul, District Jacobabad, for the offences punishable under sections 302, 337-H(2), 148 and 149, P.P.C., through which they were convicted under section 302(b), P.P.C. and sentenced to undergo life imprisonment for committing murder of Bilawal Khan Bangulani. The appellants were also ordered to pay compensation of Rs.200,000/- (Rupees two hundred thousand only) jointly to the heirs of deceased Bilawal Khan Bangulani under section 544-A, Cr.P.C. and in default thereof they were ordered to suffer simple imprisonment for six months more, however, benefit in terms of section 382-B, Cr.P.C. was extended in favour of the appellant.
2. The appellants have preferred the present appeal against their conviction and sentence, referred to above, whereas the applicant/complainant Ghulam Rasool has filed Criminal Revision No.07 of 2013 seeking enhancement of sentence from life imprisonment to death, hence we deem it appropriate to decide the same together through this single judgment.
3. First Information Report in this case has been lodged on 18.10.2005 at 9.00 pm whereas the incident is shown to have taken place on the same day at 5.30 pm. Complainant Ghulam Rasool son of Bilawal Khan has stated that there exists enmity between Motio Bangulani and Yousif Bangulani and the father of the complainant being "Mukadam" of the tribe used to ask Motio Bangulani to sit with Yousif Bangulani and arrive at a "Faisla" and based on this Motio Bangulani was annoyed and used to say that since the father of the complainant is supporting the opponent party, therefore, he would be done to death. On the fateful day the complainant along with his father Bilawal Khan, uncle Abdul Razak and cousin Hafiz Abdul Nabi went to Murad Wah for condolence. After condolence, they were returning back in the evening time through pavement leading from Mongi Bridge to Naseer Shakh. It was about 5.30 pm when they reached near village Jandal Samejo, all of a sudden five persons emerged from minor-water course, who were identified as Abdul Rehman, Abdul Raheem, Khoobo all sons of Bhaiyan Bangulani, Gaman son of Motio and Muhib Ali son of Mir Khan, by caste Bangulani. Out of them, Abdul Rehman was armed with Kalashnikov, Abdul Raheem and Gaman with rifles and Khoobo and Muhib All were armed with guns. They aimed their weapons and gave Hakal to Bilawal Khan that he was supporting their opponents Yousif Bangulani and others, therefore, would be killed today. Saying so, accused Abdul Rehman fired from rifle which hit his father, accused Abdul Raheem straightly fired from his rifle which also hit him, accused Gaman also straightly fired from his rifle which also hit him and he fell down raising cry while accused Khoobo and Muhib Ali made aerial firing with guns just to keep them away and due to fear the complainant party remained silent. Thereafter, all the accused decamped away towards West raising slogans. Due to their firing, the father of the complainant sustained bullet injuries on left side flank, leg, left side of back, left knee, right thigh and right side buttock, through and through, and died at spot due to such injuries. Due to non-availability of transport, the complainant party stayed at the scene of offence, informed the Nekmards and then brought the dead body to Police Station Thul, where complainant lodged FIR.
4. ASI Liaquat Ali Lashari, Incharge Police Station Thul, recorded the FIR in 154, Cr.P.C. Book vide Crime No.93 of 2005 and handed over the case papers to SIO Bashir Ahmed for investigation purposes, who inspected the dead body of deceased Bilawal Khan in presence of mashirs Ghulam Hussain and Adam Khan and referred the dead body for post mortem through PC Qaloo Khan. The further investigation was carried out by SIO Sikandar Ali, who inspected the place of incident on next day i.e. 19.10.2005 at 7.00 am in presence of mashirs Ghulam Hussain and Ahmed Khan, secured blood stained earth, six empties of 7.62 bore, three empties of rifle and four empties of 12 bore gun and sealed the same at spot. He recorded the statements of witnesses Abdul Razak and Abdul Nabi and arrested accused Gaman and Muhib Ali on 25.10.2005 and got recovered crime weapon on the pointation of accused Gaman on 28.10.2005 for which a separate case under section 13(e) Arms Ordinance was also registered against him on behalf of the State. After completing codal formalities, he submitted challan before the Court of competent jurisdiction under the above referred sections, whereby the appellants were sent up to face the trial.
5. A formal charge in respect of offences punishable under sections 302, 337-H(2), 148 and 149, P.P.C. was framed at Ex.3, to which the appellants pleaded not guilty and claimed trial.
6. To prove its case, the prosecution has examined as many as ten witnesses namely, complainant Ghulam Rasool at Ex.4, Dr. Asadullah at Ex.5, PC Qaloo Khan at Ex.6, SHO Liaquat Ali at Ex.7, Abdul Razak at Ex.8, Hafiz Abdul Nabi at Ex.9, Ghulam Hussain at Ex.10, ASI Bashir Ahmed at Ex.11, SIP Sikandar Ali at. Ex.12, PC Qaloo Khan at Ex.15, Tapedar Ali Asghar at Ex.16 and then closed its side of evidence vide statement Ex.17.
7. In their statements recorded under section 342, Cr.P.C. at Ex.18 to Ex.20, the appellants have controverted the allegations levelled against them by the prosecution and also professed their innocence. The appellants opted not to make statements on oath under section 340(2), Cr.P.C. and did not produce any witness in their defence.
8. Upon completion of the trial, the learned trial Court found the case against the appellants to have been proved beyond shadow of any reasonable doubt and, thus, convicted and sentenced them as mentioned and detailed above. Hence, the above said appeal and revision before this Court.
9. Learned trial Court in the impugned judgment has discussed the evidence in detail, hence there is no need to repeat the same here so as to avoid duplication and unnecessary repetition.
10. It is contended on behalf of the appellants that they have been roped in this case by the complainant after joining hands with the local police whereas they have no nexus with the occurrence at all. No independent witness has been produced by the prosecution in support of its case and the witnesses who have been examined are related, interested and inimical to the appellants as such no reliance can be given to their testimony. The ocular account has been furnished by related, interested and chance witnesses who while appearing before the learned trial Court failed to prove their presence at the scene of offence at relevant time. The medical evidence is meager enough to explain the real cause of death. The alleged recoveries are also useless to connect the appellants with the commission of alleged offence. The prosecution has failed to produce any independent witness to prove that the deceased has been done to death by the appellants. The material available on record does not justify the convictions and sentences awarded to the appellants and the same is not sustainable in the eyes of the law. The statements of the prosecution witnesses are full of discrepancies and contradictions made therein are fatal to the prosecution's case. Admittedly, the appellants have not been apprehended at spot nor any incriminating evidence has been brought on record so as to establish their guilt. The FIR has been lodged with due deliberations and consultations and the motive set-therein has not been proved through cogent and reliable evidence. The learned counsel while summing up his submissions has emphasized that the impugned judgment is the result of misreading and non-reading of evidence and without application of a judicial mind, hence the convictions and sentences awarded to the appellants, based on such findings, are not sustainable in law and liable to be set-aside and the appellants deserve acquittal. In support of his submissions, he has place reliance on the cases of Muhammad Ashraf v. The State (2012 SCMR 419), Muhammad Rafique v. The State (2014 SCMR 1698) and Imtiaz alias Taj v. The State and others (2018 SCMR 344).
11. On the other hand, the learned Deputy Prosecutor General, assisted by the learned counsel for the complainant, contends that the FIR has been lodged with sufficient promptitude wherein the appellants have duly been nominated. The occurrence has been witnessed by two eye-witnesses who while appearing before the learned trial Court remained consistent on each and every material point. They were subjected to lengthy cross-examination but nothing adverse to the prosecution story has been extracted which can provide any help to the appellants. The medical evidence in this case is in line with the ocular account which fully corroborates the story of the FIR. The role of the appellants is borne out from the postmortem examination report of the deceased. The recoveries have also been proved through reliable evidence adduced by the recovery witnesses. The appellants have brutally murdered the deceased by making straight firing on him. The plea taken by the defence has no nexus with the occurrence hence it does not carry weight vis-a-vis providing help to the defence. The prosecution has successfully proved its case against the appellants beyond shadow of any reasonable doubt, thus, the appeal filed by the appellants be dismissed and their convictions and sentences recorded by the learned trial Court may be maintained. The learned counsel for the complainant further adds that the sentences awarded to the appellants should be enhanced from life imprisonment to death in view of the particular facts and circumstances of the present case.
12. We have heard the learned counsel for the parties at length, given our anxious consideration to their submissions and have also scanned the record carefully with their able assistance.
13. Admittedly, complainant, eye-witnesses and mashirs are related inter-se and they are interested, inimical and set-up witnesses. It is well settled law that evidence of interested witnesses cannot be discarded merely on the ground of relationship inter se but propriety of safe administration of justice demands that their evidence must be scrutinized with care and caution. In the present case complainant is son of deceased Bilawal Khan, while P.W. Abdul Razzak is uncle of complainant and P.W. Hafiz Abdul Nabi is his cousin. There is delay of three and half hours in lodgment of FIR, whereas the distance between the place of incident and police station is ten kilometers. Complainant has furnished reason that delay in registration of FIR was non availability of conveyance and narrating the facts to nekmards. It shows that complainant has admitted this fact that before registration of FIR he has made consultation with their nekmards and it cannot be ruled out that FIR has been lodged by complainant after due deliberation and consultation. It is also pertinent to mention here that the crime in this case has shown to be reported within three and a half hours yet the fact remains that postmortem examination on the dead body was conducted with a delay of more than twelve hours which fact shows that the occurrence has not taken place at the time mentioned in the FIR because while appearing as PW.2 Dr. Asadullah has categorically stated in his examination-in-chief that duration of death and post-mortem examination was 13 to 14 hours. All this shows that the FIR was not registered in this case at the time mentioned therein but the same has been registered after due deliberations and consultations and this fact has been admitted by the complainant in his cross-examination. Reliance may well be made to the case of Irshad Ahmed v. The State (2011 SCMR 1190) wherein it has been held as under:-
"We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted."
14. There is no denial of the fact that the FIR has been lodged after three and a half hour of the incident without furnishing any plausible explanation. The Hon'ble apex Court, in absence of any plausible explanation, has always considered the delay in lodging of FIR to be fatal and casts a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by Hon'ble apex Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused. Reliance in this behalf may be made to the case of Zeeshan alias Shani v. The State (2012 SCMR 428) wherein it has been held that delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful. In the case in hand, the delay is even more fatal when the police station, besides being connected with the scene of occurrence, was admittedly at a distance of ten kilometers from the place of incident more particularly when the complainant himself stated in FIR that he first rushed to police station directly from the place of incident.
15. To prove the ocular account besides complainant Ghulam Rasool (PW.1), the prosecution has kept in its fold two eye-witnesses, namely, Abdul Razak (PW.5) and Hafiz Abdul Nabi (PW.6). Before analyzing their evidence it is pertinent to mention here that the case of the prosecution against the appellants is that they committed murder of deceased within sight of complainant and two eye-witnesses, who at the relevant point of time were accompanied with deceased. The question arises why they were let off unhurt by the accused party particularly when none of them could escape alive and the accused party was well within knowledge that they would become witness against them in time to come. Such a behavior of accused party does not appeal to a prudent mind that when they could easily wipe out the entire evidence against them why they have not done so. Reliance may well be made to the case of Mst. Rukhsana Begum and others v Sajjad and others reported as 2017 SCMR 596, wherein it has been held that:-
"Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provisions of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition".
16. There is abnormal behavior on the part of complainant and eye-witnesses. Admittedly, complainant is son of deceased Bilawal Khan while PW Abdul Razak is uncle of complainant and PW Hafiz Abdul Nabi is his cousin and in their presence accused party killed deceased Bilawal Khan. No doubt both parties are known to each other and accused party was shown armed with weapons but none from the eye-witnesses made any attempt to save the deceased; even complainant being son of deceased neither attempted nor tried to save his father or to catch hold any of the accused particularly when they were at a distance of few paces from him. Such a conduct of complainant and blood relation eye-witnesses does not appeal to a prudent mind while in their presence the accused party challenged the deceased and started firing on him and despite their presence none of them resisted or tried their level best to save the deceased from the accused party, but no such action/reaction has arisen from the circumstances of the case to believe their statements as such the conduct of complainant and eye-witnesses is itself creating doubt in the case of prosecution. It does not appeal to the logic that by killing a person in presence of his son and close relatives, they did not attempt to save the deceased from the accused. This position caused a big dent to the prosecution case and also question marked the presence of complainant and eye-witnesses at the scene of offence. Reliance may well be made to the case of Sardar Ali v. Hameedullah and others reported as 2019 PCr.LJ 186, wherein it has been held as under:-
"The conduct of the complainant is also worth of to be looked into as it is story of the prosecution that the deceased Ahmad Khan was done to death through fire shots by the accused, yet at the relevant time no signs of resistance have been shown by the complainant in order to at least save his father from the grasp of assailants, rather he became a mere spectator, so, such kind of attitude of the complainant being sole eye-witness and real son of the deceased is beyond understanding of natural human conduct".
Likewise, in the case of Zafar v. The State and others reported as 2018 SCMR 326, wherein it has been held as under:-
"The conduct of the witnesses of ocular account also deserves some attention. According to complainant, he along with Umer Daraz and Riaz (given up PW) witnessed the whole occurrence when their father was being murdered. It is against the normal human conduct that the complainant, Umer Daraz and Riaz (PW since given up) did not make even an abortive attempt to catch hold of the appellant and his co-accused particularly when the complainant himself has stated in the FIR and before the learned trial Court that when they raised alarm, the accused fled away. Had they been present at the relevant time, they would not have waited for the murder of their deceased father and would have raised alarm the moment they saw the appellant and his co-accused standing near the cot of their father".
17. It is case of prosecution that deceased Bilawal was going ahead about 33/34 feet from the complainant party at the time of incident and accused party emerged from "Wahi"/watercourse and this aspect is denied by P.W Ali Asghar, who was Tapedar of the beat and he prepared site sketch on the pointation of P.W. Bagh Ali Lashari. According to the sketch no any "Wahi"/watercourse was in existence at the scene of offence. It is case of prosecution story that deceased was going alone ahead from the complainant party at the distance of 33/34 feet, which is very difficult to believe for a prudent mind when complainant party after condolence they left jointly to their village, then why deceased was going alone ahead from them.
18. It is also significant to note here that the place of occurrence was a thickly populated area and according to the complainant soon after the incident many people had gathered and he informed the incident to nekmards but intriguingly no independent person has been produced by the prosecution to provide an independent support to the evidence of interested witnesses. All the witnesses produced by the prosecution are interested, related and chance witnesses who could not prove the story mentioned in the FIR by the complainant. All this shows that the case of the prosecution has been presented by related, interested and chance witnesses who all remained unable to bring the guilt of the appellants home rather they miserably failed to justify truthfulness of their depositions before the learned trial court.
19. Now adverting to the recovery of crime weapon on the pointation of appellant Gaman is concerned, suffice it to say that the same has been recovered on 28.10.2005 i.e. after ten days of the occurrence. As per prosecution case itself, appellant Gaman was arrested on 25.10.2005 and during interrogation he agreed to recover the crime weapon and led the police party to the pointed place and got recovered a rifle from heap of papal near his house, which is situated in a populated area. Surprising to note that both the mashirs of recovery memo are police officials and despite of prior information about the recovery of crime weapon, the recovery officer has not associated any independent person either from the way leading to the pointed place or from the place of recovery to act as mashir, without assigning valid reasons. Even otherwise the record does not reveal that as to whether any effort was made to persuade any person from the locality or for that matter the public was asked to act as witness. This fact, thus, rendered the entire recovery extremely doubtful. Even otherwise, it is settled by now that the recovery of weapon and empties etc. are always considered to be corroborative piece of evidence and such kind of evidence by itself is not sufficient to bring home the charges against the accused more particularly when the same admittedly have not been sent to ballistic expert for examination to ascertain as to whether the empties were same fired from the same rifle and the use of alleged recovered rifle in the commission of offence.
20. We have noticed material contradictions and discrepancies in the statements of witnesses, which have not only demolished the entire case of the prosecution but also shattered the entire fabric of the testimony of prosecution witnesses as unsafe to rely upon. Complainant Ghulam Rasool {PW.1 Ex.4} in his evidence has stated accused Abdul Rehman was armed with K.K. while accused Abdul Raheem and Gaman were carrying rifles and accused Muhib and Khoobo were armed with shot gun and they fired at deceased from a distance of 73-74 feet and they were at a distance of about 33-34 feet from the deceased. On the other hand, eye-witness Abdul Razzak {PW.5 Ex.8} has stated the accused were at a distance of 40-41 feet from the deceased while eye-witness Hafiz Abdul Nabi has stated that accused fired at deceased from a distance of 41 feet and they were 32-33 feet away from the deceased. Complainant in his cross-examination has stated that accused Abdul Rehman, Gaman and Abdul Raheem fired single shot whereas. On the other hand, eye-witness Hafiz Abdul Nabi has stated in his cross-examination that accused armed with Kalashnikov fired single shot while accused armed with rifles made repeated shots whereas eye-witness Abdul Razzak has stated that accused armed with Kalashnikov repeated 3-4 shots. Complainant has deposed that deceased had sustained injuries at left side of his abdomen, left side thigh, two injuries on his back, one on knee of left leg, right side of buttock and right side of hip. On the other hand, the eye-witnesses have given different version with regard to injuries sustained by the deceased. According to PW Abdul Razzak the deceased had sustained injuries at left side of his abdomen, thigh of left leg, left side back, left side of knee, right thigh and right side of buttock whereas according to PW Hafiz Abdul Nabi the injuries were at left side of abdomen, thigh of left leg, left side of back, right side of thigh, right side of buttock and left knee of the deceased. Besides, the injuries ascribed to the deceased by PW Dr. Asadullah are six in number showing through passed exit except injury No.5 on interior part of right leg thigh through passed from right side. According to Doctor all the injuries were caused by same bore of weapon, which negate the case of the prosecution as according to the prosecution the injuries were caused by Kalashnikov and rifle. In view of this background of the matter, the ocular account is not in line with the medical evidence. At this juncture, it is very difficult to us to give due weight to the prosecution evidence, which is not free from doubt.
21. A strong motive has been alleged against the accused. It is disclosed in the FIR that since deceased used to ask Motio Bangulani to sit with Yousif Bangulani and arrived at a settlement, therefore, Motio Bangulani become annoyed and used to extend threats the he would be done to death and finally committed murder of deceased with the help of his companions. The motive attributed to the accused is not only weak and feeble but also not satisfactorily established. Even otherwise the motive alone is not sufficient to lay foundation for conviction of an accused person facing charges of capital punishment.
22. In a criminal case, the evidence produced by the prosecution should be so strong or solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand and if the chain is not complete or any doubt which occurred in the prosecution's case that is sufficient to demolish the structure of evidence the benefit thereof must go to the accused especially when the same has been built up on the basis of feeble or shaky evidence. The Hon'ble apex Court has settled the principle in a case of Tariq Pervez v. The State (1995 SCMR 1345); on the point of benefit of doubt, which is reproduced as under:-
"The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving benefit of doubt to an accused, 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 accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right".
23. It is also by now well settled that the accused must always be presumed to be innocent and the onus of proving the offence is on the prosecution. All that may be necessary for the accused is to offer some explanation of the prosecution evidence against him and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed. Rule of Islamic Jurisprudence has been laid down in the judgment rendered by the Hon'ble Supreme Court of Pakistan in Ayub Masih's case (PLD 2002 SC 1048), wherein the apex Court ruled that:-
"It is also firmly settled that if there is an element of doubt as to the guilt of the accused, the benefit of the doubt must be extended to him. The doubt, of course, must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in "The State v Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Laws and is enforced rigorously in view of the saying of Holy Prophet (P.B.U.H) that the mistake of Qazi (Judge) in releasing a criminal, is better than his mistake in punishing an innocent".
24. The final and eventual outcome of the entire discussion is that the prosecution has failed to discharge its onus of proving the guilt of the appellants beyond shadow of reasonable doubt. Therefore, while extending the benefit of doubt in favour of the appellants, we hereby set aside the convictions and sentences recorded by the learned trial Court by impugned judgment dated 05.12.2012 and acquit the appellants of the charge. They shall be released forthwith if not required to be detained in connection with any other case.
25. In sequel to our discussions, made herein above, the Criminal Revision No. D-07 of 2013, filed by the complainant seeking enhancement of sentence of the appellants, is dismissed.
JK/G-23/Sindh Bail granted.