[Sindh (Hyderabad Bench)]
Before Muhammad Iqbal Kalhoro, J
SHAFQUAT HUSSAIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. S-154 of 2015, decided on 5th December, 2022.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Record showed that complainant, in the FIR, had stated that on instigation of a co-accused, appellant/accused and another co-accused (already acquitted) had made straight fires upon them from their respective Kalashnikovs and one bullet fired by appellant had hit his brother (deceased) on his chest, whereas in his evidence he had not taken name of said co-accused (who instigated) for making firing upon deceased and had stated that it was appellant who made a direct fire from his Kalashnikov upon deceased with intention to commit his murder---Further, in the FIR the complainant had stated that as soon as they reached the spot they saw the accused standing duly armed with weapons, while in his evidence, he had stated that accused had come to spot riding on two motorcycles; his assertion had been contradicted by another prosecution witness (an eye-witness), who had stated that the accused came in front of them by foot---Said prosecution witness had stated that on instigation of co-accused all accused started firing on them and then appellant also started doing so and his fire hit the deceased on his chest which was different to what complainant had said, in his cross-examination---Complainant stated that accused were standing at a distance of 15 meters (almost 45 feet) from them and conjointly fired at complainant party, members of which, from narration in FIR, appeared to be standing together in close proximity, but strangely, it was only the deceased who received a single bullet injury, and none of the prosecution witnesses sustained a scratch from alleged heavy firing made by accused---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Factum of heavy firing was actuated from memo of place of incident which showed that six empties of rifle 7.62 and three misfired bullets of same weapon were recovered from place of incident, besides blood stained earth---Both pieces of evidence were collected and duly sealed but, strangely, none of them was sent for FSL report in investigation, and instead, the exhibited FSL Report showed that blood stained earth and clothes of deceased were received by chemical examiner through a letter after more than one and half years of incident/occurrence---Such long delay, since had not been explained, was fatal to the prosecution insofar as connectivity of such pieces of evidence qua guilt of the appellant was concerned---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Complainant and one of the prosecution witnesses both had stated in their evidence that all the accused armed with different weapons had fired upon them, but from place of incident, empties and missed bullets of only 7.62 mm rifle were recovered and not a single empty of a bullet fired from pistol or repeater was found---It was beyond belief that why the accused targeted deceased only and spared complainant and others present on the spot, although it had been asserted that they had an issue with entire complainant party and not with deceased only---Targeting the deceased only and leaving others unscathed so that they could testify against them in the Court of law did not appeal to common sense---Similarly, when all the accused fired, or at least two of them, as was stated in FIR, it would not be humanly possible to distinguish and/or perceive which accused's bullet had hit the deceased, therefore, assertion of the complainant and prosecution witness that it was a bullet fired by appellant which had hit the deceased was not without question either---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148, 149 & 114---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Complainant and one prosecution witness (an eye-witness) both had stated that at the time of incident, another cousin was also present with them, but said cousin filed an application in Trial Court stating that he had not seen the incident, which was taken on record and the Trial Court had mentioned about it in the impugned judgment, thereafter, the Counsel also filed a statement giving up said prosecution witness---Illustrations (g) to Art. 129 of the Qanun-e-Shahadat, 1984, in such a case would be attracted that the said witness, if had been examined, would not have supported the prosecution case; his filing application and non-examination had, to a certain extent, dealt a severe blow to presence of witnesses at the spot, which if seen with the other/some discrepancies of the evidence would lead one to get suspicious about presence of witnesses on the spot and the manner in which incident had been described by them to have happened---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.
(e) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Medico-Legal Officer (Doctor) in cross-examination had opined that the fire to the deceased was made from a distance of 05 to 20 feet, which did not align with the distance between the accused and complainant party described by a prosecution witness in his cross-examination---Doctor had further suggested that probability of the deceased having sustained 5 injuries in sleeping position could not be ruled out, which did not fit in with description described by the witnesses in this regard---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.
(f) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence--- Long abscondence of appellant could not be considered to be sufficient proof of his being guilty, nor had the same even been considered by the Trial Court---Regarding his absconsion, no question had been put to the appellant in his statement under S. 342, Criminal Procedure Code, 1898---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.
(g) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148, 149 & 114---Qatl-i-amd, attempt to commit qatl-i-amd, common object, rioting armed with deadly weapon, unlawful assembly and abettor present when offence committed---Appreciation of evidence---Investigation appeared to be faulty as neither the items recovered from place of incident plus clothes of victim were sent for lab report within time nor a Tapedar was deputed to prepare sketch of place of incident to point out exact location of the deceased with regard to presence of accused and witnesses---Prosecution, because of existence of doubt, had not succeeded in proving the case against the appellant---Appeal filed by the accused was allowed, in circumstances.
(h) Criminal trial---
----Benefit of doubt---Principle---It is not necessary that there may be multiple circumstances creating doubt over veracity of the case---If there is a single circumstance creating a reasonable doubt, benefit of same has to be extended to the accused as a right.
Altaf Shahid Abro for Appellant.
Mufeed Ahmed Narejo for the Complainant.
Nazar Muhammad Memon, Additional Prosecutor General, Sindh for the State.
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