HIGH COURT OF SINDH AT KARACHI
Criminal Jail Appeal No.289 of 2011
Appellant : Zulfiqar son of Hamzo
through Mr. Nasrullah Korai, Advocate.
Respondent : The State through Mr. Khadim Hussain
Koohari through Assistant Prosecutor General, Sindh.
None present for complainant
Date of hearing : 29.03.2019
Date of Judgment : 29.03.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Appellant Zulfiqar was tried by learned Ist Additional Sessions Judge, Thatta, in Sessions Case No.22 of 2007, arising out of Crime No.3 of 2007 registered at police station Jati for offence under Section 302, PPC and vide Judgment dated 18.05.2011, appellant was convicted under Section 302(b), PPC, and sentenced for life imprisonment and to pay a fine of Rs.100,000/-. It was further ordered that in case of recovery of the amount, the same will be paid to the legal heirs of the deceased Muhammad Achar as compensation and in case of default, it was also ordered that appellant will suffer R.I. for six months more. However, the benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
2. Briefly, the facts of the prosecution case are that complainant Muhammad Saleh son of Chhachhar by caste Samejo has lodged FIR at police station Jati that on 22.01.2007 at about 1700 hours, alleging therein that he is Zamindar and his maternal uncle Muhammad Achar son of Bheedino Samejo is notable person of his village. On 22.01.2007 he along with Mitho son of Aloo Samejo and Muhammad Moosa son of Meehro Jat were going for their work towards Malhia water course Mori and when they reached near the Mori, they saw that one Zulfiqar son of Hamzo Khor resident of Deh Ghanwara Taluka Jati was standing at there. In the meanwhile, at about 1515 hours his maternal uncle Muhammad Achar Samejo came on the motor cycle, when he reached near the bridge (Mori) he slowed the motor cycle upon which accused Zulfiqar Ali took out pistol from his fold and made three fire shots upon his maternal uncle Muhammad Achar. Thereafter, accused raised hakals and saying that no body came near to him, therefore, the complainant party standing at there due to fear. Thereafter, accused run away to eastern side. Thereafter, they went ad saw that his maternal uncle received one bullet injury on his chest, one bullet injury on abdomen and one bullet injury on forehead and he was died away. Hence, this FIR.
3. It appears from the record that charge was framed on 25.07.2007 at Ex.2 against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried vide his plea at Ex.3.
4. In order to prove the accusation against appellant, prosecution had examined the following witnesses:-
i. PW-1, complainant Muhammad Saleh at Ex.6, who produced FIR, receipt of delivery of dead body at Exs.6/A and 6/B respectively;
ii. PW-2, Muhammad Moosa at Ex.7;
iii. PW-3, Murad Ali (Tapedar) at Ex.8, who produced site plan sketch at Ex.8/A;
iv. PW-4, S.P.O Mir Mushtaque Talpur at Ex.9;
v. PW-5, Mitho at Ex.10;
vi. PW-6, Ishaque at Ex.11, who produced memo of dead body and place of incident, inquest report, lash chakas farm, memo of blood stained clothes, memo of arrest of accused and recovery of 30 bore pistol and two live bullets at Exs.11/A to 11/E respectively;
vii. PW-7, Inspector Muhammad Qassim at Ex.12, who produced letter for conducting of post mortem report, letter to Mukhtiarkar for preparing of sketch, attested photo copy of FIR, crime No.4 of 2007, under Section 13-D of Arms Ordinance, chemical report, ballistic report at Exs.12/A to 12/E respectively;
viii. PW-8, Dr. Akber Ali at Ex.13, who produced police letter for conducting of post mortem report, lash chakas farm, post mortem report at Exs.13/A to 13/C respectively;
These witnesses were cross examined by the Counsel for the appellant. Thereafter, leaned ADPP closed the prosecution side vide Statement at Ex.14.
6. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.15 in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and has been falsely implicated in the case, so also, on account of enmity of PW Moosa filed false case against him and got him confined in jail. He also contested against PW Moosa in election and they all are related inter-se, therefore, they falsely involved him. He further stated that he produced charge sheet of case under Section 13-D of Arms Ordinance, which clearly shows that he was arrested on 31.01.2007 and he has been implicated falsely in this case. All incriminating articles are foisted upon him and both cases have been lodged against him on account of enmity. However, appellant neither examined himself on Oath nor led any evidence in his defence.
7. Learned counsel for the appellant has contended that that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to convict the appellant are not supportable from evidence and documents on record. Per learned counsel, the prosecution having contradictory evidence to prove the guilt against the appellant, but trial Court without assigning any good reason convicted and sentenced the appellant under Section 302(b), PPC. Per learned Counsel, in the instant case, there are contradictory evidence brought on record to connect the present accused with the commission of alleged murder of deceased, and all the private witnesses are interested witnesses and no motive has been brought on record due to which the accused allegedly committed the murder of deceased, hence, the case of prosecution is not free from doubt and the benefit of doubt may be extended to the accused by acquit him from the charge. Lastly, he prayed that appeal may be allowed.
8. Conversely, learned Assistant Prosecutor General, Sindh while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, he prayed that the appeal may be dismissed as the appellant has committed serious and heinous offence.
9. I have carefully heard the learned counsel for the parties at a considerable length and scanned the entire evidence and documents available on record.
10.
In order to substantiate the case, prosecution has examined in all ten (10) witnesses. The allegation against the accused is that on 23.04.2004, the present appellant inside the house of complainant situated in Katchi Abadi, New Noorani Basti, Sector 48-D Korangi Karachi, has committed Qatl-e-Amd. The complainant, who was employed in NS Factory, when informed by his younger brother namely Miraj on factory’s phone, he immediately came to his house and ladies of mohallah informed him that his wife was taken to Korangi Hospital by his father and mother-in-laws in a serious condition and then he went to Korangi Hospital and found his wife dead with sign of torture in her neck, hand and on different parts of her body and his younger sister Nasreen (PW-3) informed him that her brother-in-law (present appellant) finding his sister-in-law Mst. Nadra alone in the house, entered there on the pretext of taking onion and killed her after committing rape with Mst. Nadra. Since the first eye witness of the case is Mst. Nasreen with whom the conversation of appellant was taken place just before the incident and her age has been shown as fourteen (14) years, so also, she is a star and natural witness of the case, as well as, she had seen the accused while entering in the house of deceased, who was also inside the house, therefore, in my opinion, her evidence is very material for just decision. Thus, it would be appropriate to reproduce the evidence of the said witness, which reads as under:-
“Examination-in-Chief:
On 23.04.2004, I went to my school namely Al-Tayyab School and was getting education in class one. It was Friday, thereafter, I took lunch with deceased Nadra and asked her to go out from the house for playing. In the street accused Shahid met me and asked me who are present at the house. I told him that only my Bhabi Nadra was present in the house. The accused replied me that he is going to taking onion from my house. The accused also asked me to go his house as there was milad shareef in his house. I went to house of accused. Thereafter, accused returned back to his house after an hour. The clothes of the deceased was dirty due to mud. The accused disclosed me that my Bhabi is sleeping. Soon after I reached to my house and found my Bhabi was found dead. Thereafter, accused disclosed from his house. Police recorded my statement 161 Cr.P.C. in the evening in 7:00 p.m. on the said day. The accused present in Court is same.
Cross Examination:
At present I am in class VI. I can read urdu. It is correct that whatever I have stated in my statement U/S 161 Cr.P.C. is correct. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C. that I have taken lunch with my Bhabi Nadra. It is correct that it is not mentioned U/S 161 Cr.P.C. that accused met me in street when I was playing. Voluntarily says that I have specifically disclosed those facts before police. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C. that accused Shahid sent me to his house for milad shareef. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C that when accused returned back to his house after one hour. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C that accused had asked me that Bhabi was sleeping in her house and you may not go to the house. It is incorrect that there was dispute between accused and my family due to transaction of money.”
From the perusal of above evidence, it appears that at the time of incident, PW-3 Mst. Nasreen was very much available at the time of incident and she had seen the accused while entering in the house of Mst. Nadra and when she came back, she came to know that her Bhabi was lying died. It appears from the record that Mst. Nasreen is a near relative of complainant. No enmity exits in between Mst. Nasreen and accused/appellant, therefore, her statement could not be said as false. However, I have also gone through the cross examination of Mst. Nasreen, but no question was put to her by the appellant’s Counsel that she is/was giving false evidence. This witness although put on lengthy cross examination, but she did not shatter from her evidence.
11. Now I come to the evidence of PW-8 Mst. Asma available on record at Ex.11 of the R&Ps. She in her examination-in-chief deposed that on the relevant date and time, she was standing near the house of Mst. Nadra (deceased) with her goat and had seen the appellant coming from the house of deceased in nervous condition and it has come on record that appellant restrained her not to go in the house of deceased as she was not available in the house, however, as per record, it reveals that immediately, said PW-8 Mst. Asma entered into the house in order to confirm her absence, as soon as, she entered into the house, she found deceased Nadra lying on the floor and one dupatta was in her neck and other dupatta was in her mouth. She tried to drop the water in her mouth, but it came out from her mouth and she was died. It also appears from the record that her statement under Section 164 Cr.P.C. was also recorded before the Magistrate in which she has reaffirmed the same facts. The accused was provided opportunity to cross examine the said witness under Section 164 Cr.P.C., but he did not avail the opportunity. This witness has also having no inimical terms with the appellant. She is also natural and star witness. Even then, this witness although put on lengthy cross examination, but she also did not shatter from her evidence.
12. Statement of Mr. Pervaiz Qadir Memon, the then Judicial Magistrate, before whom the statement of PW-8 Mst. Asma, was recorded at Ex.9, who deposed that statement of Mst. Asma was recorded before him.
13. I have also gone through the evidence of PW-5 Dr. Asia Rehman, Women Medico Legal Officer, available on record at Ex.7, who produced the medical reports at Exs.7-A to 7-C, with the able assistance of the parties’ Counsel and come to the conclusion that the cause of death was declared by the doctors as unnatural. However, learned Counsel for the appellant also not disputed this fact.
14. It also appears from the record that this unfortunate incident took place on 23.04.2004 at about 1300 hours, whereas, FIR was registered on same day at about 1800 hours without any inordinate delay. Appellant has been nominated in FIR with specific allegation that at the time of incident, the present appellant has committed the murder of Mst. Nadra after strangulation and the presence of appellant while entering in the house of Mst. Nadra and coming out were noted by PW-3 Mst. Nasreen and PW-8 Mst. Asma respectively, who in their respective evidence have clearly implicated the present appellant in the commission of offence. No ill will has been alleged against them by the appellant. These witnesses are natural witnesses though these witnesses have been cross examined at length, but they have not been shattered in evidence. It is argued by the Counsel for the appellant that PW-3 Mst. Nasreen, PW-8 Mst. Asma and complainant are near relatives to the deceased, therefore, their evidence in this matter could not be relied upon in this case to maintain the conviction. Reverting to the contention as raised by learned Counsel for the appellant, it is suffice to say that mere relationship of the witnesses with the deceased would not per se be good enough to label them with interestedness unless the parties have previous background of hostility, but in this respect, no convincing and concrete evidence is available on record that parties having inimical terms with each other in past.
15. As observed above, total ten (10) prosecution witnesses were examined by the trial Court, they have fully supported the prosecution case and statement of accused was also recorded under Section 342 Cr.P.C. in which he explained that on the day of incident, he was not available at Karachi and he had gone to Multan after quarreling with the complainant for the dispute of money with him. No cogent/documentary evidence is on record to show that some labour amount were outstanding against the complainant for the purpose of construction of house, therefore, this ground appears to be false and has been taken just to save his skin.
16. The appellant has also taken the plea of ‘ali bi’ and his false implication in his statement under Section 342, Cr.P.C. It is pertinent to mention here that this incident was took place on 23.04.2004 and the statement of accused/appellant was recorded on 15.01.2010, since then for about five and half (5½) years has been lapsed, but the appellant remained mum and never moved any application regarding his contention of plea of ‘ali bi’ before any forum. Burden to prove that the appellant was at Multan at the time of incident heavily lay upon the appellant to prove this fact, but as observed above, there is only oral assertion of the appellant that he was out of city at the relevant time, but he did not examine himself either on oath nor led any evidence in this regard. All ten (10) witnesses have been examined in this case, but this fact has not been confronted to them in evidence in this regard. Merely saying that he was out of city is not enough unless some cogent and concrete evidence is on record, which is lacking in this case, therefore, appellant has failed to prove the burden lay upon him to the effect that he was out of city.
17. In view of above, I have also considered the version of both the parties put forward by them through evidence and put the same in juxtaposition then I found that the version of the complainant seems to be more plausible and convincing while the version of the appellant/accused appears to be dubious and has also not been proved. The discrepancies highlighted by the learned Counsel for the appellant in the statement of prosecution witnesses are of minor in nature and are not so material to discard their testimony.
18. In view of the above facts and circumstances of the case, no illegality has been found/pointed out in the impugned judgment. Learned trial Court while passing the impugned judgment has appreciated all the facts involved in the case. I, therefore, under the facts and circumstances of the case, could not find any merit in this appeal, which is dismissed along with listed application.
19. This appeal was dismissed after hearing the learned Counsel for the parties on 27.03.2019 and these are the reasons thereof.
19. Consequently, I find that no exception can be taken to the finding of guilt recorded against the appellant by the learned trial Court. The conviction under Section 302, PPC is, therefore, maintained. The quantum of sentence awarded to the appellant by the learned Sessions Judge is also maintained with the addition that the appellant shall be given the benefit of section 382-B, F, Cr.P.C.
JUDGE
Faizan A. Rathore/PA*