IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl.Jail Appeal No. S- 08 of 2012.
Appellant : Ali Gul son of Nabi Bux Jafferi
Through Mr.Faiz Muhammad Larik, Advocate
State : Through Mr.Sharafuddin Kanhar, A.P.G
Date of hearing : 14.05.2018.
Date of decision : 14.05.2018.
J U D G M E N T
Amjad Ali Sahito, J-. The instant appeal is directed against the impugned judgment dated 03.01.2012, passed by learned 3rd Additional Sessions Judge, Shikarpur, in Sessions Case No.190/2010, St.Vs.Ali Gul and others, for offence punishable u/s.302, 337-H(ii), 148, 149 PPC arising out of Crime No.64/2009, registered at Police Station, Sultan-Kot, whereby the above named appellant was tried and convicted for offence punishable u/s.302 (c) PPC and awarded sentence of 25 years with fine of Rs.100,000/- as provided under section 544-A Cr.PC to be paid to the legal heirs of deceased Muhammad Jaffar, and in case of failure to make payment of fine, to suffer R.I for six months more. However, the benefit of Section 382-B Cr.PC was also extended to him.
2. The brief facts of the prosecution case as per FIR are that, on 20.12.2009, at about 0900 hours, complainant Ali Muhammad lodged report with Police Station Sultan-Kot, in which mentioned that he alongwith his brother Muhammad Jaffer aged 36/37 years used to cultivate the land of Syed Bhooral Shah and they after harvesting the paddy crop stored at one place and was trashing. As usual, his brother Muhammad Jaffer, paternal cousin Allahdad and cousin Dildar were sleeping at said paddy “Dera” of Syed Bhooral Shah for look-after purpose, where at about 0700 hours, they were looking-after the said Dera, in the meantime, they saw accused Ali Gul, Muhammad Murad, Dil Murad Jafferi and two unknown culprits with open faces who if seen again will be identified, who all were armed with guns. On coming, accused Ali Gul Jafferi asked that Muhammad Jaffer had quarreled with him over matter of putting the grain in his “Dera”, therefore, he will not be spared. Saying so, accused Ali Gul directly fired at his brother Muhammad Jaffer, which hit him and he fell on the paddy husk while raising cry. The complainant party then raised cries of “murder-murder”, whereupon all the accused went away after making aerial firing. The complainant party then saw Muhammad Jaffer having fire-arm injury on his face crossed through and through, bleeding and he was lying dead. Leaving the witnesses over his dead body, the complainant went to police-station and lodged the FIR against the accused to the above effect. On completion of usual investigation, the police submitted report u/s.173 Cr.PC against the accused before the competent Court of law.
3. On 19th March, 2010, the charge was framed against appellant and co-accused Dil Murad, Muhammad Murad and Bilawal at Exh.04, to which they pleaded not guilty and claimed trial.
4. At trial, the prosecution examined Investigating Officer/ASI Ishtiaq Ahmed Pathan at Exh.09, he produced mashirnama of vardat and recovery of empties as well as blood-stained paddy husk(Palal) at Exh.09-A; Danishnama at Exh.09-B, inquest report at Exh.09-C, mashirnama of arrest and recovery of gun and cartridges from accused Ali Gul and Dil Murad at Exh.09-D, mashirnama of arrest of Muhammad Murad and Bilawal at Exh.09-E, chemical report at Exh.9-F. Complainant Ali Muhammad at Exh.10, he produced FIR at Exh.10-A, receipt of delivery of dead-body at Exh.10-B. PW Dildar Lodro at Exh.11. Medical Officer Dr.Tarique at Exh.13, he produced postmortem report of deceased at Exh.13-A. ASI Muhammad Afzal at Exh.14. PW Allah Bux Lodro at Exh.15. PW Mr.Gurmukh-das (Judicial Magistrate) at Exh.18, he produced memo of identification parade of accused at Exh.18-A. Thereafter, the prosecution closed its side vide statement Exh.19.
5. Then statements of the present appellant and co-accused were recorded under section 342 Cr.PC at Exh.20 to 22 respectively, in which they denied the prosecution allegations leveled against them by pleading their innocence. However, they neither examined themselves on oath in terms of Section 340(2) Cr.PC, nor led any evidence in their defence.
6. The learned trial Court after hearing the arguments of learned counsel for the parties and appraisal of the evidence, convicted the present appellant as stated above, while co-accused Bilawal and Muhammad were also convicted for offence punishable u/s.337-H(ii) PPC and sentenced to suffer R.I for two months with fine of Rs.10,000/-. The sentence awarded to the present appellant has been impugned by him before this Court by way of filing instant jail appeal.
7. I have heard learned counsel for appellant and learned A.P.G. and with their assistance have minutely scanned the evidence.
8. Learned counsel for the appellant argued that the impugned judgment is against the law and facts of the case; that the present appellant is innocent and has falsely been implicated in this case due to enmity; that all the witnesses cited in the case being closely related inter-se are chance witnesses; that the medical evidence is in conflict with the ocular account; that on the same set of evidence two of the co-accused have been awarded lesser punishment, and the benefit of the same evidence may also be extended to the present appellant. Learned counsel further contended that there are material contradictions in the evidence of prosecution witnesses, which demolished the whole case of prosecution and thus lastly prayed for acquittal of the present appellant.
9. While rebutting the above contentions, the learned A.P.G for the State argued that the appellant is named in the FIR, who alongwith co-accused committed murder of deceased Muhammad Jaffer by causing him fire shot injuries; that no proof of any enmity was brought by the appellant which may justify his false implication in this case at the hands of the complainant party being interested witnesses; that the ocular account is consistent with medical as well as circumstantial evidence. He further argued that no material contradiction and discrepancy was pointed by learned defense counsel to show his false implication in this case, in these circumstances, the learned trial Court was right to record conviction and sentence against the present appellant in accordance with law and thus lastly prayed for dismissal of the instant appeal.
10. I have heard learned counsel for the parties and perused the record.
11. On careful perusal of the material brought on the record, it appears that the prosecution case solely depends upon the ocular testimony adduced in shape of statements of complainant Ali Muhammad and eye-witness Dildar, which is corroborated by the medical evidence produced by medical officer Dr.Tariq, coupled with circumstantial evidence. There can be no denial to legally established principle of law that it is always the direct evidence which is the material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as ‘not proved’ but where the direct evidence remains in the field with test of its being natural & confidence inspiring then requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. The reliance can safely be placed upon the case of Muhammad Ehsan vs. the State (2006 SCMR-1857), wherein the Hon’ble Supreme Court of Pakistan has held that;-
“5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence”.
12. The perusal of evidence of complainant Ali Muhammad reveals that on 20.12.2009, at about 0700 hours, this unfortunate incident took place which was witnessed by PWs Dildar and Allahdad, wherein the present appellant alongwith co-accused Muhammad Murad, Dilmurad and two unknown culprits, duly armed with deadly weapons, committed murder of Muhammad Jaffer by causing him fire shot injuries on his face, and then fled away making aerial firing. The complainant leaving the above named witnesses over the dead body of deceased Muhammad Jaffer went to police station for lodging the FIR at about 0900 hours. The version of the complainant was supported by ASI/I.O Ishtiaq Ahmed Pathan, who after receipt of the FIR, visited the place of incident on his pointation, inspected the dead body of deceased having fire-arm injuries on his face and also secured blood stained paddy husk(Palal) as well as empties from there under a mashirnama, he also prepared Danistnama and inquest report. Thus, the prosecution in order to strengthen version of the complainant as well as I.O examined eye-witness Dildar, who also supported their version by deposing on the same line. Although, they were cross examined by the defense at length, wherein the multiple questions were asked to shatter their confidence and so also presence at the scene of occurrence but could not extract anything from their mouth and they remained consistent on all material points. These witnesses legally cannot be termed to be “chance witnesses” rather would fall within category of “natural witnesses”. I would not hesitate that the evidence of “natural witnesses” carries worth and ‘their presence at spot in support of their claim to have witnessed the incident’ is not disputed. Needless to mention here that in absence of direct evidence such a witness would never qualify the requirement, necessary for a direct evidence as required by Article-71 of Qanun-e-Shahadat Order, 1984. There had never been a serious challenge to such claim of these witnesses, hence the status of these witnesses to be natural witnesses was established. Here, I would add that I am conscious that status of one being natural witness would never necessarily stamp him to be the witness of truth but would always be subject to test of reasonableness which too within satisfaction of the Court. For this, the witnesses have given the details of incident in a manner which is believable to a prudent mind. Reliance is placed on the case of Abid Ali & 2 others v. The State 2011 SCMR 208, wherein the Hon’ble Supreme Court of Pakistan has held that:-
21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.
13. 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. The parties are known to each other as is evident from their evidence, 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 to the accused/appellant is that to satisfactorily establish 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. No substance has been brought on record by the appellant to justify his false implication in this case at the hands of complainant party on account of previous enmity. In this context, the reliance can safely be placed on the case of Lal Khan v. State 2006 SCMR 1846 wherein at Rel. P-1854 it is held as :
... 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 it is observed as:
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. State 2011 SCMR 492, it is held as:-
...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-01) 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.
Thus, mere relationship of these eye-witnesses with the deceased alone would not be enough to discard the testimony of complainant and his witness. 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” in involving the innocent at the cost of escape of “real culprits”. I would mention here that where the natural witnesses are in blood-relations then normally the possibility of substitution becomes rare. Thus, no material has been brought on record by the appellant to show that the deep rooted enmity existed earlier between the parties, which could have been reason for false involvement of the appellant in this case. Reference may be made to the case of Zahoor Ahmed v. The State 2007 SCMR 1519, wherein it is observed as:-
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.
14. The direct evidence also finds corroboration from the medical evidence with regard to cause of death and time of the incident. It is established from the evidence of medical officer Dr.Tariq, who received the dead body of deceased Muhammad Jaffer for postmortem examination, which was identified by Ali Muhammad and Muhammad Alam and he started postmortem at 11.20 a.m and completed it at 12.40 p.m(noon) on 20.12.2009. On external examination he found the following injuries;-
01. Four LTP wounds of entry each measuring 0.75 c.m in diameter with inverted margins circular in shape parallel to each other P/Face (entry wounds).
From the external as well as internal examination on the dead body of deceased Muhammad Jaffer, he opined that the death of deceased occurred due to shock and hemorrhage as result of injuries over face(hard palate) Zygomite bone by discharge from fire arm(gun-shot), which were sufficient to cause death in ordinary course of life and were anti-mortem in nature and instantaneously. The duration between death and postmortem was 04 hours, which suffice to say that the cause of death of deceased was unnatural and thus, this also corroborate the ocular testimony furnished by the complainant and his eye-witness. The reliance is placed upon case of Zahoor Ahmed Vs. the State(2017 SCMR-1662), wherein the Hon’ble Supreme Court of Pakistan has held that;-
“4. The ocular account in this case consists of Muhammad Khan complainant (PW-06) and Shahbaz (PW-07). They gave the specific reasons of their presence at the place of occurrence as, according to them, they alongwith the deceased were proceeding to harvest the sugarcane crop. Although they are related to the deceased but they have no previous enmity or ill-will against the appellant and they cannot be termed as interested witnesses in the absence of any previous enmity. They remained consistent on each and every material point. The minor discrepancies pointed out by the learned counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both parties knew each other so there was no mistaken identity and in absence of any previous enmity there could be no substitution by letting off the real culprit specially when the appellant alone was responsible for the murder of the deceased. The evidence of two eye witnesses was consistent, truthful and confidence inspiring. The medical evidence fully supports the ocular account so far the injuries received by the deceased, time which lapse between the injury and death and between death and postmortem. Both the Courts below have rightly convicted the appellant under section 302(b), PPC.
15. Turning to the case in hand, the present FIR was lodged promptly by the complainant and postmortem examination on the dead body of deceased was also conducted with no lapse of time. The investigation officer during course of investigation secured crime weapon viz. gun from the present appellant and also recovered six empty cartridges of 12 bore and blood stained paddy husk(Palal), from the place of incident. The blood stained paddy husk on being sent to the chemical laboratory was opined to be stained with human blood. Hence, the above piece of evidence substantiates the ocular testimony of complainant and his eye-witness.
16. The upshot of above discussion is that the prosecution has successfully established its case against the appellant through ocular account furnished by eye-witnesses namely complainant Ali Muhammad and PW Dildar, which is corroborated by the medical evidence adduced by medical officer Dr.Tariq coupled with circumstantial evidence. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in my humble view is based on appreciation of the evidence and the same does not call for any interference by this Court. Thus, the conviction awarded to the present appellant by learned trial Court is hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed accordingly.
17. These are the detailed reasons for the short order dated 14.05.2018, announced by me.
J U D G E
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