IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No. S-125 of 2010.
Appellant : Wahid Bux alias Waroo Marhato,
Through Mr.Habibullah Ghouri, Advocate.
State : Through Mr.Sharafuddin Kanhar, A.P.G.
Date of hearing : 07.05.2018.
Date of decision : 07.05.2018.
J U D G M E N T
Amjad Ali Sahito, J-. The instant appeal is directed against the impugned judgment dated 30.10.2010, passed by learned Sessions Judge, Jacobabad, in Sessions Case No.892/2008 St.Vs.Wahid Bux alias Waroo and others, for offence punishable u/s.302,324,337-F(iii),148,149 PPC vide Crime No.155/2008, registered with Police Station, Saddar Jacobabad, whereby the above named appellant was tried and convicted for offence punishable u/s.302 (b), 149 PPC and sentenced to suffer rigorous imprisonment for life and to pay compensation of Rs.100,000/- to legal heirs of deceased Chakar Khan, and in case of failure to make payment of compensation, to suffer S.I for six months more. However, the benefit of Section 382-B Cr.PC was also extended to him.
2. The case of prosecution according to FIR lodged by complainant Raja Bangulani on 23.11.2008 is that, a quarrel took place between complainant party and Noor Muhammad alias Noor Hassan Marhato, in which brothers of complainant namely Sijawal and Chakar Khan sustained injuries and inspite of that the accused party asked that Chakar is alive and he will not be spared. On the fateful day, when complainant, his brother Chakar Khan, his nephew Aijaz and his mother Mst.Bhaini alias Bhani were present in the house, where at about 0830 hours, accused Noor Hassan alias Noor Muhammad, Nadir, Wahid Bux alias Waro, Hyder, Shahoo alias Shah Murad, Taj Muhammad alias Tajo, Khan Muhammad alias Khano, Loung, Zafar Mir, and Nasrullah accompanying four unknown culprits came there, out of them accused Wahid Bux alias Waro, Loung, Nadir were armed with T.T pistols, while remaining had guns in their hands. On coming, accused Noor Hassan alias Noor Muhammad challenged complainant party and directly fired at complainant with intention to commit his murder, but he saved himself and complainant party ran towards northern direction in order to save their lives. When at about 09.30 a.m, they reached at land of Bashir Khan Jakhrani, where accused Taj Muhammad alias Tajo, Shahoo alias Shah Murad, Khan Muhammad alias Khano, Wahid Bux alias Waro, Hyder, Loung, Zaffar Mir, Qadir and Nasrullah with four unknown culprits came duly armed with weapons and out of them accused Tajoo alias Taj Muhammad directly fired at Chakar Khan with intention to commit his murder, which hit him at his right cheek, accused Wahid Bux alias Waro also fired at him which hit him on his forehead, accused Zaffar Mir straightly fired from his gun at Chakar Khan which hit him on his eye brow and jaw, who fell on the ground while raising cry, then accused Nadir fired from his pistol at him(complainant) which hit on his left leg. In the meantime, Mst.Bhaini mother of complainant entreated accused persons in the name of “Holy Quran” then accused Tajoo alias Taj Muhammad asked other accused to leave Raja(complainant), he will die himself due to injuries. Thereafter, the accused persons went away. The complainant party found Chakar Khan sustained injuries; bleeding and lying dead. The complainant was also bleeding. The complainant then leaving the witnesses over dead body 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 before the competent Court of law.
3. The learned trial Court framed the amended charge against accused Wahid Bux alias Waroo and Noor Hassan alias Noor Muhammad at Ex.7, to which they pleaded not guilty and claimed to be tried.
4. At trial, the prosecution examined medical officer Dr.Souz Ali at Exh.8, he produced provisional and final certificate in respect of injuries sustained by complainant Raja and postmortem report of the deceased at Exh.8/A to C respectively. Tapedar Kamil at Exh.9, he produced sketch of place of vardat at Exh.9/A. PC Muhammad Jam at Exh.10, he produced mashirnama of arrest of accused Noor Hassan alias Noor Muhammad at Exh.10/A. PC Ali Gohar at Exh.11. Complainant Raja at Exh.12, he produced FIR at Exh.12-A. Mst.Bhani at Exh.13. S.I.O Amanullah at Exh.14, he produced mashirnama of injuries sustained by complainant, mashirnama of place of incident, Danistnama, inquest report of dead body, mashirnama of arrest of accused Wahid Bux alias Waro at Exh.14/A to E respectively. SIP Manzoor Ahmed at Exh.15 and Mashir Aijaz at Exh.16. Thereafter, the prosecution closed its side vide statement Ex.17.
5. Then statements of both the accused were recorded u/s.342 Cr.PC at Exh.18 and 19 receptively, wherein 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 learned counsel for the parties and appraisal of the evidence, acquitted co-accused Noor Hassan alias Noor Muhammad by extending him benefit of doubt, while awarded conviction against the present appellant vide judgment dated 30.10.2010, as stated above, which the present appellant has impugned before this Court by way of filing instant appeal.
7. I have heard learned counsel for appellant, learned Addl.P.G for the State and with their assistance have minutely scanned the evidence brought on the record.
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 conflicted with ocular evidence; that on the same set of evidence co-accused Noor Hassan has been acquitted by the trial Court, and the benefit of the same evidence may also be extended to the appellant. Learned counsel further contended that there is no any recovery of any sort from the appellant to connect him with the commission of alleged offence. He further contended that there are material contradictions in the evidence of prosecution witnesses, which demolished the whole case 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 in prosecution of their common object committed murder of deceased Chakar Khan by causing him fire shot injuries; that no proof of any enmity was brought by the appellant which may justify their false implication in this case at the hands of the complainant party being interested witnesses; that although the ocular account is consistent with medical as well as circumstantial evidence. He further argued that no material contradictions and discrepancies were pointed by learned defense counsel to show his false implication in this case, in these circumstances, the learned trial Court has rightly appreciated the evidence for recording the conviction and sentence against the 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 analysis of the material brought on the record, it appears that the prosecution case mainly depends upon the ocular testimony in shape of statements of complainant Raja and eye-witnesses Aijaz and Mst.Bhani, which is supported by the medical evidence adduced by medical officer Dr.Souz Ali, 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. It is evident from the evidence of complainant Raja that on 23.11.2008 when he alongwith his brother Chakar Khan (deceased), nephew Aijaz and his mother Mst.Bhani were available in their house, at about 8.00 a.m, where accused Noor Hassan alias Noor Muhammad, Nadir, Wahid Bux alias Waro, Hyder, Shahoo alias Shah Murad, Taj Muhammad alias Tajoo, Khan Muhammad alias Khanoo, Loung, Zaffar, Nasrullah and four unknown persons came duly armed with deadly weapons, and out of them accused Noor Hassan alias Noor Muhammad fired at complainant but same did not hit to anybody and they in order to save their lives made their escape good from their house and when reached at lands of one Bashir Khan Jakhrani, they were confronted by the same accused persons and out of them accused Taj Muhammad alias Tajoo, Wahid Bux alias Waro(appellant), and Zaffar fired with their respective weapons upon Chakar Khan, resulting whereof he fell down and died on the spot and then accused Nadir fired at complainant Raja which it on his leg. PWs Aijaz and Mst.Bhani also gave similar version of the complainant and they both are unanimous on the point of causing death of to deceased Chakar Khan at hands of appellant Wahid Bux alias Waro and co-accused besides causing injury to the complainant. 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 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, all 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. 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 all of them and they remained consistent on all material points. 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 support the plea of the appellant that the testimonies of complainant and his witnesses 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” 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.Souz Ali, who examined complainant/injured Raja and found following injuries;
01. A lacerated punctured type of wound measuring 1 c.m in diameter situated on lateral aspect of left thigh with inverted margins and blackening and charring present(wound of entry).
02. A lacerated punctured type of wound measuring 1 c.m in diameter present on medial aspect of thigh with inverted margins blackening present(wound of entry).
On the same, he received the dead body of deceased Chakar Khan son of Haji Khan Bangulani through HC Ali Gohar for postmortem examination, which was identified by Aijaz and Ghulam Ali(younger brother and uncle of the deceased). On external examination he found the following injuries;-
01.A lacerated punctured type of wound measuring 01 c.m in diameter situated on right cheek with inverted margins blackening present(wound of entry).
02.A lacerated punctured type of wound measuring 03 c.m in diameter situated on right occipital region of skull with everted margins underline bone is fractured with oozing protruded-brain matter(wound of exit of injury No.1).
03.A lacerated punctured type of wound measuring 02 c.m in diameter present on left orbit, both eyes-lids margins are lacerated and inverted eye-globe is missing blackening present(wound of entry).
04.A lacerated punctured type of wound measuring 03 c.m in diameter situated left at temporal region near lateral end of left eye-brow with everted margins(wound of exit injury No.3).
05.A lacerated punctured type of wound measuring 01 c.m in diameter present between eye brows with inverted margins blackening present(wound of entry).
06.A lacerated punctured type of wound measuring 02 c.m in diameter present on left side of forehead with everted margins(wound of exit of injury No.5).
07.A lacerated punctured type of wound measuring 03 ½ c.m in diameter present on left of chin blackening present, margin inverted tongue was lacerated(wound of entry).
From the external as well as internal examination on the dead body of deceased Chakar Khan, the death of deceased occurred due to hemorrhage and shock. Injuries No.1 to 7 individually and collectively were sufficient to cause death in ordinary course of life. All the injuries were anti-mortem in nature and were caused by discharge from fire-arm. The probable time between injuries and death was instantaneously and between death and postmortem was 03 to 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-witnesses. 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. Reverting to the circumstantial account, the investigation officer during course of investigation secured one empty cartridge from the house of complainant, four empties of T.T pistols and six empties cartridges of 12 bore as well as blood stained earth from the place of incident. Thus, this piece of evidence substantiates the ocular testimony of complainant and his eye-witnesses.
16. Considering the above facts and circumstances, I have come to the conclusion that the prosecution has successfully established its case against the appellant through ocular account furnished by eye-witnesses namely complainant Raja and PWs Aijaz and Mst.Bhani which is corroborated by the medical evidence adduced by medical officer Dr.Souz Ali. 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 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.
17. These are the detailed reasons for the short order dated 07.05.2018, announced by me.
J U D G E
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