IN THE HIGH COURT OF SINDH CIRCUIT COURT,
LARKANA.
Cr. Jail Appeal No. S- 110 of 2009
Present:
Mr. Justice Salahuddin Panhwar.
Inayatullah Mugheri. ………..Appellant.
Versus
The State. …….Respondent.
Mr. Nisar Ahmed G. Abro, Advocate for appellant.
Shahzado Saleem, A.P.G.
Date of hearing: 09.9.2015.
Date of Judgment 09.9.2015.
J U D G M E N T.
SALAHUDDIN PANHWAR, J.:- Through instant appeal, the appellant has assailed judgment dated 18th November, 2009, passed by Additional Sessions Judge, Shahdadkot in Sessions Case No.312/2005 “Re-S/v Inayatullah Mugheri, emanating from FIR No.21/2002 of PS Qubo Saeed Khan of District Kamber-Shahdadkot.
2. Precisely the relevant facts are that complainant Niaz Hussain lodged report with PS Qubo Saeed Khan, stating therein that about four years back one Punhal Mugheri was murdered by Himath Mugheri and such case was registered and pending before the Court of law. Thereafter, Naimatullah used to say that they would take revenge of that murder from complainant party. On the day of incident at evening time complainant, his brother Saddar, maternal uncle Haji Nizamuddin had gone to village of Sultan on donkey cart. After completing their work complainant, his brother Saddar, maternal uncle Haji Nizam and brother-in-law Sultan were returning on the same donkey cart and at 9.00 p.m. they reached on a Katcha road near village Ismail Magsi, where they saw Hadi Bux, Naimatullah, Manan armed with hatchets and Inayatullah armed with dagger were standing there. On reaching near to them, accused Naimatullah hurled hakal to Saddar and said that his cousin had committed murder of his father; therefore, they would not spare him. Thereafter, Saddar alighted from donkey cart and tried to escape, but accused Naimatullah caused hatchet blow to him, therefore, he fell down after raising cry. Then other accused also caused hatchet blows to him and Inayatullah caused knife blow to him. In presence of complainant party, Saddar succumbed to his injuries. Thereafter, accused fled away towards eastern side alongwith their weapons. After leaving the P.Ws over dead body complainant went to police station and lodged report to the above effect.
3. After framing of charge accused Naimatullah and Abdul Hameed escaped away hence they were declared proclaimed offenders.
4. To prove its case, the prosecution examined PW-1 Niaz Hussain at Ex.4; he produced attested photocopy of FIR at Ex.4-A; PW-2 Nizamuddin at Ex.5; PW-3 Sultan Ahmed at Ex.6; PW-4 Mashir Muhammad Maroof at Ex.7 who produced attested carbon copies of Mashirnamas of production of torch, place of incident, inquest report, arrest, recovery of weapons and property report at Ex.7-A to 7-F respectively. PW-5 Muhammad Sharif at Ex.8 who produced chemical report at Ex.8-A; PW-6 Dr. Mushtaq Ahmed at Ex.9 who produced attested photocopy of postmortem report at Ex.9-A; PW-7 Inspector Tahir Hussain at Ex.10 and PW-8 Tapedar Ashique Hussain at Ex.11. Thereafter, side of prosecution was closed vide statement at Ex.12.
5. The statement of accused Inayatullah was recorded under Section 342 Cr.P.C at Ex.13 wherein he denied the allegations, leveled against him, and claimed to be innocent. However, he neither examined himself on Oath nor examined any witness in defence.
6. Learned counsel for the appellant, inter alia, contended that appellant is in custody since 14 years, hence he may be acquitted by reducing his sentence as already undergone. He further contended that material contradictions were found but such contradictions were not considered by the trial Judge; appellant is innocent and has been implicated in this case falsely; prosecution has failed to substantiate charge; it is settled principle of law that benefit of single doubt created in prosecution story shall be extended in favour of the accused.
7. Learned A.P.G, contends that instant case is based on ocular, medical and circumstantial evidence. All are in conformity; defence counsel failed to cause any dent in prosecution case, hence instant appeal is liable to be dismissed.
8. Heard parties and perused the record coupled with impugned judgment.
9. Since no conviction can sustain where the ocular account fails, therefore, it is the direct evidence which always matter. The status of corroborative piece (s) is to see whether ocular account (direct evidence) legally & logically fits or otherwise. In the instant matter all three eye-witnesses of the incident remained strongly stuck to the effect that injury on neck of the deceased was caused by the present appellant with dagger. A reference to relevant portion(s) from examination-in-chief of these witnesses, being relevant is:
Complainant Niaz Hussain.
‘Accused Inayatullah cut neck of Saddar with his ‘Churro’ (dagger).
PW-2 Nizamuddin
Then accused Inayatullah cut neck of deceased Saddar with Churro (dagger).
PW-3 Sultan Ahmed
‘Accused Inayatullah cut neck of deceased with Churro (dagger)’
Such claim was not introduced at the time of the trial but from very beginning i.e. lodgment of FIR the prosecution has attributed such injury (cutting of neck of the deceased) to present appellant which too with dagger (Churro). To dislodge such direct evidence the defence was prima facie required to bring doubts about presence of these witnesses at relevant time; identification of accused by witnesses couple with a motive/ consideration to justify plea of his false involvement.
10. Though the time of incident was night time but it was claim of the prosecution that at such time torch was on and all accused persons, including appellant, were properly identified. Since, admittedly parties have been known to each other and even remained on dispute with each other. The source of such identification i.e. torch was also produced by the prosecution hence prosecution prima facie established identification of the accused persons, including the appellant. Be as it may, the perusal of the record shows that defence did come forward with different defence pleas but at no material times the defence came with a plea of incorrect identification (misidentification). In the case of Muhammad Ahmed (Mahmood Ahmed) v. State (2010 SCMR 660), it was observed that:
‘They had both received injuries…. All the convicts-appellants were residents of the same village where the said two witnesses resided. The two parties stood locked up in criminal litigation and it would thus be undeniable that these two witnesses knew the convicts like the back of their hands.’
11. The witnesses were subjected to lengthy cross examination but at no times succeeded in dislodging the presence of the witnesses at relevant time. The witnesses did say that due to fear they could not step forward to rescue the deceased. Such plea appears to be reasonable when the accused persons were armed with weapons and had shown their intention by cutting the neck of deceased. Even otherwise, mere silence of the witnesses during an incident is never sufficient to disbelieve their presence which otherwise is established. Further, the complainant happened to be real brother of the deceased therefore, it cannot be swallowed easily that he would choose to substitute an innocent person for fatal injury resulting into death of his blood-relation. Such is a rare phenomenon. Reference, if any, can well be made to the case, reported as 2010 SCMR 1772.
12. The plea of contradiction(s) also appears to be not substantial because despite lengthy cross examination the defence could not succeed in causing dent towards facts:
· presence of witnesses at relevant time;
· the straight forward and unanimous statement of witnesses to the effect that it was appellant who cut neck of deceased with dagger ‘Churro’;
· identification of appellant, an already known person under torch light;
Thus, other minor contradictions will not be any help for the defence to claim an acquittal because the law is clear that minor contradictions or improvements in statement of witnesses are to be over-looked because same shall not qualify the term ‘material contradictions’. The reference, if any, can well be made to the case, reported as 2010 SCMR 1791.
13. Though, it is now well established principle of law that if the direct evidence appears to be confidence inspiring and natural then the conviction can well maintain even without corroborative evidence. However, in the instant case the direct evidence finds complete support from the corroborative evidences. It is surfaced that medical officer at Rural Health Centre Qubo Saeed Khan conducted postmortem of deceased Saddar. On external examination he found two incised wounds; on internal examination he found that horns of hyoid bone on both sides, carotid artery on right side were cut and opined that death had occurred cutting of carotid artery with a sharp cutting weapon. Such medical officer was not cross examined. Thus, it is manifest that ocular account is in conformity with medical evidence and medical evidence fully corroborates the direct evidence with regard to weapon and manner of fatal injury to deceased which the purpose and object of ‘medical evidence’ is. A reference to the case of Khalid v State (2012 SCMR 327), being relevant is made hereunder :
‘9. As for as the medical evidence is concerned, it is only a supportive piece of evidence and can only be considered with reference to the attribution of injuries made by the eye-witnesses…..
14. Further, recovery of dagger was effected from present appellant Inayatullah. Prosecution examined PW/Mashir Muhammad Maroof; during interrogation crime weapon was produced by the appellant. Worth to add here that information, received from the accused, in the police custody of the police officer, if leads to discovery of some articles can well be proved and taken into consideration, as is provided by Article 40 of the Qanun-e-Shahadat Order, 1984. In the instant case, it is a matter of record that there had been information, given by appellant during police custody; which led to discovery of the crime weapon from water course of Ali Khokhar. These facts have been proved by prosecution by leading the evidence of the mashir of recovery and that of Investigating Officer SIP Muhammad Sharif, therefore, this circumstantial evidence also corroborated the direct evidence against the present appellant, therefore, learned trial court judge rightly considered the same.
15. The above discussions make it prima facie clear that the defence has not been able to establish any patent illegality in the impugned judgment nor succeeded in establishing that it (judgment) was result of non-reading or mis-reading of evidence. In absence thereof, the conviction, so awarded by the trial court, needs no interference which otherwise is self speaking.
16. With regard to reduction of sentence, it is worth to add here that special circumstances are required and some criterion if provided under subsections (a), (b) and (c) of Section 302 PPC, normally if offence is proved accused is to be awarded death penalty under section 302(a), (b) PPC whereas for reduction from provided sentence sufficient reasons are required, as is the demand of Section 367(5) of the Code which reads as:
‘(5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed.’
From above, it is clear that even the Court passes other or alternative sentence then has to give reasons thereof. I would take the advantage of the case of Sabeeha v. Ibrar (2012 SCMR 74) wherein held that:
‘8. Having heard learned counsel…. We are of the view that the sentences provided under section 302(b) PPC under which the respondents and others were convicted, are “death’ or ‘life imprisonment’. However, the law mandates that if the case stands proved against an accused and the Court is not persuaded to award him the former sentence and proceeds to aware the latter sentence, it has to give reasons.’
The learned trial Court rightly while considering the age of the appellant not awarded the normal sentence of ‘death’ as per guidance, provided by Honourable Supreme Court of Pakistan in the case of Zeeshan Afzal v. State (2013 SCMR 1602) wherein it was held:
’14. … it has already been held by this Court that if an accused is less than 18 years of age the sentence of death is converted into imprisonment for life.’
17. Thus, plea of reduction carries no weight at all. Accordingly, instant appeal was dismissed by short Order dated 09.9.l2015. These are the detailed reasons.
JUDGE