IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No.S-145 of 2010
Present:
Mr.Justice Amjad Ali Sahito
Appellant : Ghulam Ali @ Papu s/o Hussain Bux Kalhoro
Through Mr.Naushad Ali Taggar, Advocate.
State : Through Mr. Sharafuddin Kanhar,
Additional Prosecutor General.
Date of hearing : 02.04.2018.
Date of Judgment : 02.04.2018.
J U D G M E N T
AMJAD ALI SAHITO, J.– Appellant Ghulam Ali @ Papu son of Hussain Bux Kalhoro was tried by learned 1st Additional Sessions Judge, Larkana, in Sessions Case No.112/2007, for an offence under Section 302,114 PPC, registered at Police Station, Market. Through judgment dated 01.12.2010, the appellant was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000/-, and in default of payment of fine, it was further ordered that the appellant will suffer R.I. for 02 years more. However, the benefit of Section 382-B Cr.PC was also extended to the appellant.
2. The brief facts leading to disposal of the instant appeal are that on 06.03.2007, at about 1200 hours, complainant Zia-ur-Rehman lodged FIR with P.S Market, stating therein that his father Ghulam Nabi Abbasi was posted as ASI at Police Station, Darri, and on that day he alongwith his father after attending the Honourable High Court at Larkana were returning back where on the way he received mobile phone call from maternal uncle Ghulam Rasool that his uncle Wali Muhammad has come to their house with some work. Thereafter, he disclosed such facts to his father, who asked him to proceed for home and they reached at their home where he saw maternal uncle Ghulam Rasool sitting with uncle Wali Muhammad on a cot in the courtyard and his father was chitchatting with them. In the meantime, at about 11.30 hours, his maternal uncle Ghulam Ali alias Papu son of Hussain Bux Kalhoro armed with gun, Sajid Ali Kalhoro armed with pistol and one unknown culprit duly armed with gun, who all overpowered upon the complainant party and asked Ghulam Nabi that he would not be spared today as he has arrested their criminal friends. On instigation of accused Sajid Ali Kalhoro, accused Ghulam Ali alias Papu made straight fire at Ghulam Nabi, which hit on left side of his face and he fell down, while the remaining accused went outside the house after making aerial firing. The complainant party then saw Ghulam Nabi having fire arm injury on left side of his face who died within their sight. Leaving the above named witnesses over the dead body of deceased, the complainant then came at police station and lodged the FIR of the incident.
3. During course of investigation, the police inspected the place of incident and secured blood stained earth including one empty cartridge from there under mashirnama and also prepared inquest report. Thereafter, accused Sajid Ali was arrested by police. On 21.03.2007, accused Ghulam Ali alias Papu and Hakim Ali were arrested by the police and on the same day during course of interrogation from accused Ghulam Ali alias Papu, the crime weapon viz. SBBL gun was secured on his lead under a mashirnama. Thereafter, on 22.03.2007, accused Ghulam Ali alias Papu was produced before the Court of Civil Judge & J.M-II, Larkana, where his confessional statement was recorded and he was sent to the judicial custody. After completion of usual formalities, the report u/s.173 Cr.PC was submitted by the police against accused Ghulam Ali alias Papu and by placing the names of co-accused Sajid Ali and Hakim Ali in column No.2 before the concerned Magistrate. The case was then sent up for the trial, where accused Sajid Ali was joined on application of complainant filed in terms of Section 193 Cr.PC.
4. On 17.01.2009, the charge Exh.3 was framed under Section 302,114, PPC against accused Ghulam Ali alias Papu and Sajid Ali, by the learned trial Court, to which accused pleaded not guilty and claimed to be tried.
5.
At
the trial, in order to establish accusation against the
accused, the prosecution examined following witnesses:-
(i) PW-01 complainant Zia-ur-Rehman Kalhoro at Ex.06, he produced FIR at Ex.06/A.
(ii) PW-02 Shafiq Rehman at Exh.07, he produced mashirnama of injuries and mashirnama of place of incident at Exh.07/A & 07/B respectively.
(iii) PW-03 PC Imdad Ali Dayo at Exh.08, he produced mashirnama of arrest of accused Ghulam Ali alias Papu and Hakim Ali at Exh.08/A.
(iv) PW-04 PC Madad Ali Solangi at Exh.09.
(v) PW-05 Ghulam Rasool at Exh.10.
(vi) PW-06 SIP/SIP Aslam Parvez Abro at Exh.11, he produced mashirnama of place of incident, mashirnama of arrest of accused Ghulam Ali alias Papu and Hakim Ali, mashirnama of arrest of accused Sajid Ali and mashirnama of recovery of gun at Exh.11/A to 11/D respectively.
(vii) PW-07 Tapedar Rustam Ali at Exh.14, he produced sketch of vardat at Exh.14/A.
(viii) PW-08 ASI Mumtaz Ali at Exh.15.
(ix) PW-09 Dr.Muhammad Saleem Shaikh at Exh.17, he produced postmortem report of deceased Ghulam Nabi at Exh.17/A.
(x) PW-10 Iqbal Ahmed Maitlo, Civil Judge & Judicial Magistrate at Exh.19, he produced confessional statement of accused Ghulam Ali alias Papu at Exh.19/A.
(xi) PW-11 Muhammad Salleh Kalhoro at Exh.20.
These witnesses were cross examined by the counsel for appellants. Thereafter, learned DDPP for the State closed the prosecution side vide Statement at Ex.21.
6. The statements of the accused were recorded under Section 342 Cr.PC at Exh.22 and Exh.23 respectively, in which they denied the prosecution allegations and stated that they are innocent. Appellant/accused Ghulam Ali alias Papu further stated that one Mukhtiar brother of complainant had committed murder of his sister, in that case he was complainant and was falsely implicated in this case. The accused lastly prayed for justice. However, they neither recorded their statement on oath u/s.340 (2) Cr.PC, nor produced any witness in their defense.
7. The learned Trial Court, after hearing the counsel for the parties and evaluation of the evidence, acquitted accused Sajid Ali by extending him benefit of doubt while convicted and sentenced appellant Ghulam Ali alias Papu as stated above, hence the instant appeal has been preferred by the appellant against the impugned judgment.
8. Mr.Noushad Ali Taggar, learned counsel for the appellant has inter-alia, contended that the appellant is innocent and has falsely been implicated in this case due to enmity by leaving the real culprits of the crime; that the motive shown in the FIR is that deceased Ghulam Nabi arrested criminal friends of the appellant but no name of said criminal was disclosed by the complainant to justify the cause of murder of deceased Ghulam Nabi; that there is conflict between the medical and ocular account; that the recovery of crime weapon viz. gun alongwith one empty cartridge secured from vardat were sent to the laboratory for its report but the chemical examiner’s report reveals that the five live cartridges also received by the laboratory have been foisted against the appellant; that one of the eye-witness namely Wali Muhammad was not examined by the prosecution before learned trial Court. He lastly argued that the prosecution has failed to prove the case against the appellant; thus, according to him under the above mentioned facts and circumstances, the appellant is entitled for his acquittal.
9. Conversely, Mr. Sharafuddin Kanhar, learned Additional Prosecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant beyond any shadow of doubt. He has further argued that the name of the present appellant transpires in the FIR with specific role of causing murder of deceased Ghulam Nabi, which has been admitted by appellant/accused Ghulam Ali alias Papu in his confessional statement recorded before the learned Magistrate; that the ocular account is consistent with medical evidence, as the appellant has fired at the deceased from close distance; that the learned trial Court did not award death sentence to the appellant on the ground that the motive remained mystery but after appreciating the evidence awarded imprisonment for life. He further contended that the learned trial Court has rightly convicted and sentenced the appellant in accordance with law and lastly prayed for dismissal of the instant appeal.
10. I have heard learned counsel for the parties at length and have gone through the evidence with their assistance.
11. On analysis of the evidence brought on the record, I find that the prosecution case rests upon two pieces of evidence viz. ocular testimony supported by the medical evidence as well as recovery. In the instant matter, both the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear cut manners. Both of them have also explained the mode and manner of taking place the occurrence qua the culpability of the appellant Ghulam Ali alias Papu. Although, they were cross examined by the defense at length, wherein the learned counsel for the defense asked multiple questions to shatter their confidence and so also presence at the scene of occurrence but could not extract anything from them and they remained consistent on all material points. The parties are known to each other, so there was no chance of mistaken identity of the appellant. I would not hesitate that where the witnesses fall within category of natural witnesses and detail the manner of incident in a confidence inspiring manner then only escape available with the appellant is to establish satisfactorily that witnesses, in fact, are not the witnesses of truth but ‘interested’ one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. The reliance can safely be placed upon the case of Lal Khan v. State(2006 SCMR 1846) wherein the Hon’ble Supreme Court of Pakistan has held at Rel. P-1854 that:
... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
In another case of Farooq Khan v. The State(2008 SCMR-917), wherein the Hon’ble Supreme Court of Pakistan as held that;
11. PW.8 complainant is real brother of the deceased who is a natural witness but not an interested witness. An interested witness is one, who has motive, falsely implicates an accused or has previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not “sufficient’ to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State PLD 1962 SC 269 and Sheruddin v. Allhaj Rakhio 1989 SCMR 1461.
In another case of Zulfiqar Ahmed & another v. Stat 2011 SCMR 492, wherein the Hon’ble Supreme Court of Pakistan has held that:-
...It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of ‘interested witness’ was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that ‘friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.
12. In the present case, the complainant is nephew while other eye-witness is brother of the appellant. Besides this, deceased Ghulam Nabi was brother-in-law(sister’s husband) of appellant, hence it does not appear to be believable that both the witnesses agreed in substitution of real culprits with the appellant, when undeniably the time of incident is broad day-light and these witnesses are falling within category of natural witnesses. Thus, mere relationship of these eye-witnesses with the deceased alone would not support the plea of the appellant that their testimonies are not worth believing. In matters of capital punishments, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record that there had been such a dispute/enmity which could be believed to have motivated the ‘natural witnesses’ involving the innocent at the cost of leaving the ‘real culprits’. I would add that where the natural witnesses are in blood-relations then normally the possibility of substitution becomes rare. In the instant matter, the reference may be made to the case of Zahoor Ahmed v. The State(2007 SCMR-1519) wherein the Hon’ble Supreme Court of Pakistan has held that:-
6. ... The petitioner is a maternal-cousin of the
deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.
13. Here, nothing has been brought on record by the defense while availing the opportunity of cross-examination, which could make it believable that there had been deep rooted enmity existed between the parties to involve the appellant in this case falsely. The motive behind the occurrence as reflected in the FIR was that “as to why Ghulam Nabi(deceased) had arrested the criminal friends of the appellant”, while in the confessional statement of the appellant recorded before the learned Magistrate, the motive of murder was shown by him that he(appellant) was complainant in a case in which his sister was murdered by declaring her as “Kari” as the deceased was not taking Faisla from the other side, therefore, the quarrel took place and the appellant murdered Ghulam Nabi(deceased). Thus, the motive for commission of the said murder remained in mystery, wherein an innocent person was done to death. The minor discrepancies in statements of both the eye-witnesses are not enough to destroy the case because discrepancies always come and same can well be ignored. Reference is made to the case of Zulfiquar Ahmed & Ors (2011 SCMR-492). It is not the discrepancy or discrepancies which could be pressed for an acquittal but the defense has to bring on record the contradictions which too should be of a nature to cut at root of the prosecution towards their presence and manner of incident. Reference is made to the case of Ravi Kapur v. State of Rajhistan (2013 SCMR-480) wherein the Hon’ble Supreme Court of Pakistan has held that:-
.. It is a settled principle that the variations in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely are to be ignored by the court...
It is also a settled principle that statements of the witnesses have to be read as a whole and the court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party. The contradictions have to be material and substantial so as to adversely affect the case of the prosecution. Reference in this regard can be made to ....
14. Moreover, the evidence of complainant Zia-ur-Rehman (PW-01) and eye-witness Ghulam Rasool (PW-05) is quite reliable and trustworthy for the reason that the manner and detail of the incident as narrated by both of them is natural and confidence inspiring and their status to be natural witnesses was never shattered by defense successfully. The direct evidence also finds corroboration from the medical evidence as regard cause of death and timing of incident. It is evident from the evidence of medical officer Dr.Muhammad Saleem (PW-09), who conducted postmortem examination on the dead body of deceased Ghulam Nabi that deceased Ghulam Nabi had received injury No.1-A lacerated punctured type wounds eight in numbers (entry wounds) and injury No.1-B lacerated punctured type wound two in numbers(exit wounds), which individually were sufficient to cause death in ordinary course of life. All these injuries were anti-mortem in nature, which were caused by discharge from fire arm. The probable time between injury and death was instantaneous. In his cross examination, he admitted that the shot in his opinion was fired from 01 or 02 meter as gun powder was present around the wound and these all were pallet injuries. Thus, this also strengthened the direct evidence.
15. Per learned counsel that the chemical examiner’s report shows that the five live cartridges received by the laboratory have been foisted against the appellant carries no weight, as bare reading of chemical examiner’s report reveals that five live cartridges of 12 bore were sent to the office of chemical examiner only for the test purpose in order to ascertain that whether the empty cartridge recovered from the place of incident was fired from the said gun or not, and for this reason, the said five live cartridges being sent to the laboratory cannot be said to be foisted against the appellant. Furthermore, the chemical report indicates that empty secured from the place of incident was the same which was fired from the crime weapon viz.gun, and it is confirmed from the record that appellant Ghulam Ali alias Papu was tried and convicted by the Court of Family Judge & Judicial Magistrate Larkana under section 13 (d) Arms Ordinance, vide Crime No.65/2007 of P.S Market. Thus, this piece of evidence also supports the ocular testimony of complainant and his witness.
16. As far as, the plea of non-examination of one of the eye-witness namely Wali Muhammad Kalhoro is concerned, it is apparent from the statement filed by learned state counsel at Exh.12 wherein he had given-up the said eye-witness on application of the complainant at Exh.13, in which the complainant had stated that said witness is brother of deceased ASI Ghulam Nabi and his mental condition is not good, hence is unable to adduce the evidence. So far confessional statement of the accused is concerned, I do not agreed with the observation made by learned trial Court while recording impugned judgment that “the confessional statement also remained un-rebutted and unchallenged and appears to have been made by accused voluntarily without any coercion or force. The Magistrate was cross examined by learned defense counsel for accused Ghulam Ali alias Papu but he failed to shatter him on any material point. So also other PWs were also cross examined but learned defense counsel was not able to shatter them on any material point”. It is well settled principle of law that a piece of evidence not put to an accused while examining him under section 342 Cr.PC, cannot be used against him. In the present case, this piece of evidence was not put to the appellant by learned trial Court while recording his statement under section 342 Cr.PC, for seeking his explanation on this point, hence such piece of evidence cannot be used against him.
17. Reverting to the case in hand, the place of incident is situated inside the house of the complainant and the occurrence had actually taken place in broad daylight, whereas the FIR in respect of the same incident nominating the appellant with specific role of committing murder of deceased Ghulam Nabi was lodged without any delay. The ocular account of the incident in question was furnished before the learned trial Court by two eye-witnesses namely complainant Zia-ur-Rehman (PW-01) and eye-witness Ghulam Rasool(PW-05) who are son and brother-in-law of the deceased and one of the eye witness namely Ghulam Rasool is real brother of the appellant, who resided with the deceased in same house. The said eye witnesses were inmates of the house wherein the occurrence had taken place and thus were nothing but natural witnesses, in such situation, the mistaken identity does not arise in the present case. The consistent ocular account furnished by the above mentioned eye witnesses is confirmed by the medical evidence coupled with circumstantial evidence, leading to an unnatural death of deceased Ghulam Nabi at the hands of appellant Ghulam Ali alias Papu. The reliance in this context is placed upon case of Qurban Hussain vs. the State(2017 SCMR-880), wherein the Hon’ble Supreme Court of Pakistan has held that;
3. …The said eye-witness had made straight forward statement before the trial Court which had inspired confidence not only of the trial Court but also of the High Court. The ocular account furnished by the said eye witness had found full support from the medical evidence. After assessing and evaluating the evidence in some detail both the courts below had concurred in their conclusion that the prosecution had succeeded in establishing the appellant’s guilt to the hilt and upon our own independent reappraisal of the evidence, we have not been able to take a view of the matter different from that concurrently taken by the courts below.
18. In view of the facts and circumstances discussed above, I am of the humble view that the prosecution has successfully proved its case against the appellant through ocular testimony corroborated by the medical evidence coupled with circumstantial evidence, which does not call for any interference by this Court. Thus, the conviction and sentence awarded to the appellant by learned trial Court is hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed accordingly.
19. These are the detail reasons of short order dated 02.04.2018, announced by me.
J U D G E
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