2018 M L D 1354
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
GUL SHER KHAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s) 17 of 2017, decided on 25th January, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 396 & 34---Dacoity with murder, common intention---Appreciation of evidence ---
Benefit of doubt ---Prosecution case was that on fateful day, accused with his co- accused
persons armed with deadly weapons, tried to snatch the motorcycle of complainant, but on
resistance of nephew of complainant, accused made firing upon him, due to which he
received injuries and later on he succumbed to the injuries ---Ocular account of the occurrence
was furnished by two witnesses including complainant ---Complainant appeared as witness,
but he made dishonest improvement and contradictory statement regarding his fard -e-bayan --
-Said witness deposed that occurrence took place at 3.30 p.m. and they reached the Police
Station at 4.20 p.m. and after lodging FIR, they came along with police at the site at about
5.20 p.m.---Said version of complainant was negated by the Investigating Officer, who deposed that he reached at the place of occurrence at 3.30 p.m. ---Place of occurrence was at a
distance of 18/19 kilometers as narrated by the Investigating Officer, as such, the statement of complainant was contradictory and created doubts ---FIR did not contain any such time ---
Statement of eye -witness was also contradictory to complainant and other witness on material
counts ---Complainant being inhabitant of the area could identify the accused persons who
also belonged to the same vicinity, but the identification of the accused persons were made by eye-witness ---Said eye -witness accompanied the deceased in the house of complainant and
there was nothing on record that he had been visiting the village and had acquaintance with
the people of the area and could identify the real culprits with their names and parentage ---
Identification of the accused persons by the said eye -witness was highly d oubtful in
circumstances ---Accused did not make any attempt to harm the complainant and the eye -
witness ---When the complainant along with eye -witness was on the target of the accused
party, only deceased was hit and murdered, while the complainant or the w itnesses were let
free---Said factor did not appeal to the logic that by killing the deceased in presence of his
close relatives, accused would not attempt to kill the prosecution witnesses, leaving them for evidence to be hanged --- Contents of fard- e-baya n as well as the statements of both the
alleged eye -witnesses showed that three nominated accused persons along with three
unknown accused persons had participated in the crime ---Accused was arrested and subjected
to investigation, but the Investigating Of ficer failed to interrogate the accused to bring out the
names of said three unknown accused persons ---Said factor was suggestive of the fact that the
contents of fard- e-bayan were false---Even otherwise if the accused could have recorded his
disclosure me mo to effect the recovery of crime weapon, he could also have named the
remaining three accused persons, but that had not been done, which caused serious dent and damage to the case of prosecution ---Accused had not only been charged for committing the
murd er of deceased, but also for snatching motorcycle from the complainant ---During
investigation, the prosecution had failed to effect recovery of said motorcycle from accused--
-Record showed that several FIRs had been registered by both the parties against each other
and complainant while appearing as witness, could not rebut the existence of tribal enmity in-between the two tribes ---Sufficient doubts had been created in the case of prosecution, benefit
of which would resolve in favour of accused ---Appeal was allowed and accused was
acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.
(b) Penal Code (XLV of 1860) ---
----Ss. 396 & 34---Dacoity with murder, common intention---Recovery of weapon of offence
from accused ---Reliance ---Scope ---T.T. pistol was recovered on the disclosure of accused---
Recovery witness deposed in his cross -examination that T.T. pistol bore numbers on its
handle while it was having on its upper side ---Record further showed that neit her the said
numbers were deposed by the witnesses nor the same were mentioned in the recovery memo, which created doubts about the alleged recovery ---Recovered pistol along with empties and
other articles were sent to Ballistic Expert after the delay of o ne month and two days, which
was not explained by the prosecution---Even otherwise, the recovery of crime weapon was a corroborative piece of evidence and in absence of direct ocular evidence, mere recovery of crime weapon could not be based for conviction--- Investigating Officer had failed to
associate any private witness of the locality to witness the recovery and all the proceedings were carried out in a doubtful manner.
Ellahi Bakhsh Lehri for Appellant.
Jamil Akhtar Gajani for Additional P.G. for the State.
Date of hearing: 29th December, 2017
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Jail Appeal No.
(s) 17 of 2017 filed by the appellant Gul Sher Khan son of Qamar -ud-Din, through the
Superintendent Central Prison, Mach, agai nst the judgment dated 26th May 2017 (hereinafter
referred as, "the impugned judgment") passed by learned Additional Sessions Judge, Dera Allah Yar (hereinafter as, "the trial Court"), whereby the appellant was convicted under sections 396, 34, P.P.C. and sentenced to suffer ten (10) years' R.I. with fine of Rs.40,000/ -
(rupees forty thousand) and in default thereof the appellant shall further suffer six (06) months' S.I. with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 26th September, 2015, the complainant Ghulam
Muhammad son of Muhammad Ali, lodged FIR No.27 of 2015 at Police Station Shaheed Malik Muhammad Ali District Jaffarabad, under sections 396, 34, P.P.C., stating therein that he along with his family members is residing at Goth Abdul Shakoor Khosa and earns his
livelihoods by plying Tractor, while his nephew Rafiq Ahmed son of Abdul Jabbar alias Ghulam Hussain and Abdul Wahab son of Najam -ud-Din Khosa being resident of Goth
Moulvi Muhammad Sindh, have come to meet them on E id occasion. On the day of
occurrence at about 3.30 p.m. (evening) he along with his nephew Rafique Ahmed and relative Abdul Wahab were going towards Jhanda Talab Bazzar for purchasing household
articles, and when reached at Jhanda Talab road near Goth Reh matullah Khosa, saw that six
persons came out from the bushes armed with deadly weapons, wherein three persons were
identified by complainant, who were Gul Sher Khan son of Qamar Din, Shaban alias Shabo son of Juma, Manjhi son of Jalal, all by caste Bugti residents of Shahzain Camp, but three other persons could not be identified, however, they can be identified, if brought before. The accused persons tried to snatch the motorcycle of complainant, but on resistance of Rafique Ahmed accused made firing upon Rafiq Ahmed. due to which he received injuries and later on succumbed to the injuries. After committing crime, the accused persons fled away from the scene of occurrence.
3. In pursuance of above FIR, investigation was conducted by P.W.6 Javed Nawaz,
SI/IO , who during investigation, went to the place of incident; prepared site map; took into
possession the blood stained earth; secured four bullet empties; prepared inquest report of dead body; took into possession blood stained cloth of deceased; recorded the statements of
witnesses under section 161, Cr.P.C; arrested the appellant; prepared disclosure memo. of the
appellant; recovered pistol on his pointation; sent Murasila, for registration of FIR under
section 13- E Arms Ordinance; shifted the accused to judicial lock -up and submitted
incomplete challan before the Court.
4. On receipt of challan, the accused Shahan alias Shabo son of Juma and Manji son of
Jalal, were declared as proclaimed offenders and proceedings under sections 87 and 88,
Cr.P.C. were also initiated against them.
5. At trial the prosecution produced six witnesses. The appellant was examined under
section 342, Cr.P.C. The appellant neither recorded his statement on oath under section
340(2), Cr.P.C. nor produced any witness in his defence. O n conclusion of trial, the appellant
was convicted and sentenced as mentioned above. Whereafter the instant jail appeal has been filed through the Superintendent Central Prison, Mach.
6. Learned counsel for the pauper appellant stated that the impugned judgment is result
of misreading of the evidence available on record; that the disclosure of appellant recorded during investigation is inadmissible, but the trial Court has wrongly taken the same into consideration while awarding conviction to the appellant; that the prosecution evidence is full
of discrepancies, dishonest improvements and false accusation, but the same was wrongly made a basis for awarding conviction to the appellant; that the defence so taken and established by the appellant has fully been ignored; that the prosecution has miserably failed to prove the charge against the appellant.
7. Learned Additional P.G. counsel for complainant assisted by learned Deputy
Prosecutor General while supporting the conviction and sentence stated that sufficie nt
incriminating evidence is available on record to connect the appellant with the commission of
offence; that the appellant has been nominated in the FIR with the specific role of firing upon the deceased; that the evidence on record has rightly been appr eciated by the trial Court while
awarding conviction to the appellant; that the recovery of crime weapon was effected pursuant to disclosure recorded by the appellant, thus the same is admissible under Article 40 of Qanun- e-Shahadat Order, 1984.
8. Heard t he learned counsel for parties and perused the available record. The unnatural
death of deceased Rafiq Ahmed is not disputed rather the defence admitted the unnatural death of deceased, but pleaded false implication. PW -4 Dr. Shoukat Ali Khoso, Medical
Officer, D.H.Q. Hospital Dera Allah Yar, examined the deceased and confirmed that the
deceased had received bullet injuries on his person and further opined the cause of death due to excessive bleeding from vital vessels involvement of the vital organ for exa mple part of
liver, right lung due to fire arm. PW -4 issued death certificate Ex.P/4 -A, which confirms the
unnatural death of deceased.
9. The prosecution in order to prove the charge, has produced the evidence of six
witnesses. The complainant appeared as PW-1, but he made contradictory statement and
made dishonest improvement. In his fard -e-bayan Ex.P/1 -A. PW -1 mentioned that on the day
of occurrence he along with deceased Rafiq Ahmed and relative PW -2 Abdul Wahab were in
their way to their home after pur chasing household articles, when the appellant along with
absconding accused and three unknown accused intercepted their way and tried to snatch their motorcycle, but the deceased made resistance, due to which the appellant along with absconding accused made firing upon the deceased, who received bullet injuries, but it is
observed that he had made certain dishonest improvements and contradicted his fard- e-bayan
Ex.P/1 -A by deposing that his brother Abdul Majid and Muhammad Azeem was taken the
injured to hospital, Dera Allah Yar and thereafter to Civil Hospital Larkana, but such facts
are missing from his fard -e-bayan, he further deposed that the occurrence took place at 3.30
p.m. and they reached Thana at 4.20 p.m. and after lodging FIR they came along with police
at site at about 5.20 p.m., however, such deposition of PW was negated by the I.O. He deposed that he had reached at the place of occurrence at 3.30 p.m., while as per PW -1
occurrence took place at 3.30 p.m. and the place of occurrence is at a dist ance of 18/19 KMs
as narrated by the I.O., as such. the statement of PW -1 is contradictory and creates doubt,
whereas FIR does not contain any time. Statement of PW -2 Abdul Wahab is also
contradictory to PW - I and PW -6 , on material counts.
10. We at utmos t care and caution perused the statements of both the alleged eye -
witnesses, but we do not find ourselves agreeing to the statements of both the witnesses. Though, the PW -1 is the inhabitant of the area and he can identify the accused persons as the
accused were also belonged to the same vicinity, but the identification of the accused persons with their names and parentage by PW -2 is highly doubtful, as he is resident of Sindh and
only he had accompanied the deceased in the house of PW -1 and even there is n othing on
record that this witness had been visiting the said village and had become acquaintance with the people of the area and can identify the real culprits with their names and parentage, thus the identification of the accused persons by PW -2 is highl y doubtful.
11. PW-5 Muhammad Ali, Constable. is the witness of disclosure and recovery of T.T.
pistol on the pointation of appellant, he deposed that on 9th October 2015 the appellant made his disclosure before the I.O. and stated that he will recover the crime weapon from his
house, on such disclosure he was taken to his house at Shazain Camp, where he recovered the T.T. pistol from a Box ( ) of his house after opening the lock of Box. In cross -examination he
admitted that the T.T. pistol bearing No.31071958 on its handle while having No.M.20 on upper side. It is pertinent to mention here that neither the above number deposed by the PW nor the said number is mentioned in the memo. of recovery, which creates doubts whether the pistol produced before the Court bearing above numbers is the same, which was allegedly recovered on pointation of appellant. This fact remains unresolved, besides the alleged recovered pistol along with empties and other articles was sent to Ballistic Expert after delay of one month a nd two days and the delay so occasion w.e.f. 9th October 2015 to 11th
November, 2015 was not explained by the prosecution. Even otherwise the recovery of crime weapon is a corroboratory piece of evidence and in absence of direct ocular evidence mere
recove ry of crime weapon cannot be based for conviction, while the I.O. has failed to
associate any private witness of the locality to witness the recovery and all the proceedings
were carried out in a doubtful manner.
12. The presence of PW -1 at the place of occurrence and witnessing the crime is also
doubtful. Nothing has come on record that the accused had muffled faces rather according to PW-1 he identified the accused persons at the site and also he named them in the FIR,
meaning thereby that both the partie s knew them prior to the incident, thus under the
circumstances it is not acceptable to a prudent mind that the accused persons have committed the murder of the deceased knowingly that they were identified by the PW -1 and despite such
fact the accused did not make any attempt to harm the PW -1 and even to the PW -2, which is
an astonishing factor that the complainant along with PW -2 Abdul Wahab as well as the
deceased Rafiq Ahmed were on target of the accused party, but deceased was hit and murdered, while the complainant or the witnesses were let free. It does not appeal to the logic
that by killing a person in presence of their close relatives accused would not attempt to cause
any injury/kill the prosecution witnesses leaving them for evidence to be hanged. Reliance in
this regard is placed on the case of Muhammad Farooq v. State 2006 SCMR 1707. Reference
in this reuard is also made to the case of Dohlu v. State 2002 PCr.LJ 690.
13. Another important aspect of the case is that according to the contents of fard- e-bayan
Ex.P/1 -A as well as the statements of both the alleged eye -witnesses that not only the three
nominated accused persons had participated in the crime, but also three unknown accused
persons were also accompanying them at the time of occurrence. The appellant was arrested and subjected to investigation, but the Investigating Officer has failed to interrogate the appellant to such extent to bring before the names of said thr ee unknown accused persons,
which fact is suggestive of the fact that the contents of fard -e-bayan are false, otherwise if the
accused could have record his disclosure memo. as well as could effect the recovery of crime weapon, he could also have named the remaining three accused persons, but this has not been
done so, thus caused serious dent and damage to the case of prosecution. Hence, no implicit reliance could be placed upon the disclosure memo. or the recovers of crime weapon recovered pursuant to the said disclosure memo.
14. We have also noticed that the appellant has not only been charged for committing the
murder of deceased Rafiq Ahmed, but also the snatching of motorcycle from the complainant party, while during investigation the prosecution has failed to effect the recovery of said motorcycle from the possession or upon his pointation. Hence, another dent has been caused to the case of prosecution.
15. Perusal of impugned divulge the fact that the trial Court while delivering the
impugned judgment has altogether ignored and discarded from consideration the defence plea so taken by the appellant with regard to tribal enmity existing in between the two tribes and so far, several FIRs have also been registered by both the parties against each other and while appearing as PW -1 the complainant could not rebut the existence of tribal enmity existing in
between the two tribes.
16. In view of the ocular testimony of the related/interested prosecution witnesses,
contradictions and dishonest improvements in their testimony, lacking independent corroboration in material aspect, not supported by any circumstantial evidence and in view of the defence plea, the false implication of the appellant by the complainant party cannot be ruled out of consideration. The perusal of impugned judgment reveals that the same is
suffering from mis -appreciation of material available on record. Sufficient doubts have been
created in the case of the prosecution, but benefit of the same has not been extended to the
appellant by the trial Court.
For the above reasons the appeal is accepted, the impugned judgment dated 26th May,
2017 passed by learned Additional Sessions Judge, Dera Allah Yar to the extent of conviction and sentence of appellant Gul Sher Khan is set aside and while ex tending the benefit of
doubt, the pauper appellant, is acquitted of the charge under sections 396, 34, P.P.C. The appellant being in custody, is ordered to be released forthwith, if not required in any other case.
JK/10/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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