IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Jail Appeal No. D- 47 of 2011
Present:
Mr.
Justice Muhammad Iqbal Mahar
&
Mr.
Justice Amjad Ali Sahito
Appellant : Ghulam Sarwar S/o Allah Wadhayo Maitlo
Through Mr. Mehfooz
Ahmed Awan, Advocate
State : Through Mr. Zulfiqar
Ali Jatoi, Addl: P.G
Date of hearing : 30.08.2018.
Date of decision : 30.08.2018.
J U D G M E
N T
Amjad
Ali Sahito, J-. The instant
appeal is directed against the impugned judgment dated 23.04.2011 passed by
learned 2nd Additional Sessions Judge Sukkur,
in Sessions Case No.73/2005, St.Vs. Ghulam Sarwar Maitlo,
for offence punishable u/s.302 PPC arising
out of Crime No.54/2004, registered at Police Station, Baiji
Sharif, whereby the above-named appellant
was tried and convicted for offence
punishable u/s.302 (b) PPC and awarded death sentence
to him as Ta’zir and to with fine of Rs.50,000/- (fifty
thousand) as provided under section 544-A Cr.P C to
be paid to the legal heirs of deceased Ram Piyari
alias Premi, and in case of failure to make payment
of fine, to suffer simple imprisonment for three months more.
2. The brief
facts of the prosecution case as per FIR are that, on 28.12.2004, at about 1430
hours, complainant Karam Dass
S/o Naniko lodged a report
with Police Station Baiji Sharif, in which mentioned
that deceased Mst. Ram Piyari
alias Prami W/o Arjan Das
Bagri aged about 30 years was his daughter. He along with his daughter Ram Piyari alias Premi, son Mohan and
brother-in-law Vakeel altogether went to Village Kot Bulla on donkey-cart for some work, when at about 9:30 a.m they reached at Baiji Chowk where they were confronted by accused Ghulam Sarwar Maitlo
having pistol, the accused hurled abuses to deceased Ram Piyari
alias Premi that as to how she has left him and said
that today she would not be spared, saying so, accused made direct fire of
pistol upon her, which hit on her left side abdomen, she fell down on the road,
thereafter accused Ghulam Sarwar escaped
away. The complainant immediately shifted her to Police Station and after
getting a letter she was brought at PanoAkil Hospital, she was referred to Sukkur,
but on the way she succumbed to the injuries, hence such FIR was lodged. On
completion of the usual investigation,
the police submitted report u/s.173 Cr.PC against the
accused before the competent Court of law.
3. On 31st
October 2005, the charge was framed against the appellant
at Exh.02, to which he pleaded not guilty and claimed trial.
4. At trial, the prosecution examined P.W-1/complainant
Karam Das at Exh.04, he produced FIR at Exh.04-A; P.W-2/WMO
Dr. Rozina Abro at Exh.05,
she produced Lash Chakas form at Ex.05-A
and post-mortem report at Ex.05-B, P.W-3 Mohan Das at Ex.08, he produced his
164, Cr.P.C statement at Ex.08-A; P.W-4 Vakeel at Ex.09, he produced his 164, Cr.P.C
statement at Ex.09-A; P.W-5 ASI Roshan
Ali at Ex.10, he produced mashirnama of
arrest, body search and recovery of T.T.Pistol and
bullets at Ex.10-A; P.W-6 ASI Zamir
Hussain at Ex.11; P.W-7 Gulro
at Ex.12, he produced mashirnama of receiving the clothes of deceased
at Ex.12/A, Danistanama at Ex.12-B, mashirnama of inspecting the place of vardhat and recovery of fired empties of 30 bores and blood stained
earth at Ex.12/C; P.W-8 Ashfaque Ahmed at Ex.14.
Thereafter, the prosecution closed its side and gave up the evidence of
remaining witnesses vide statement at Exh.15.
5. The
statement of the present appellant was recorded under section 342 Cr.PC at Exh.16, in
which he denied the prosecution allegations leveled against him by pleading his
innocence. However, he examined himself on oath in terms of Section 340(2) Cr.P.C.
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. The sentence awarded to the present appellant has been impugned by him
before this Court by way of filing instant jail appeal.
7. Prior to this, vide judgment dated 15.10.2009
learned 2nd Additional Sessions Judge Sukkur
convicted and sentenced the appellant for offence
under Section 302(b) PPC to death as Ta’zir and also
directed him to pay compensation of Rs.50000/- to the heirs of the deceased,
the said judgment was impugned before this Court by way of filing Cr. Jail
Appeal No. 158/2009, after hearing the parties the conviction and sentence was set aside and case was remanded with direction
to the learned trial Court to afford an opportunity to the appellant to defend
himself in the trial Court, if the appellant is unable to engage a senior
counsel, the learned trial Court appoint a senior counsel as an advocate for
pauper accused on the State expenses in compliance of the Court order a senior
counsel was appointed to proceed the case of the appellant and finally he was
convicted and sentenced as stated above.
8. We have heard learned counsel for
appellant and learned Additional P.G and with their
assistance have minutely scanned the evidence.
9. 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 P.W-2 Dr. Rozina in her chief has deposed that on 28.12.2000 she
received the dead body of Mst. Ram Piyari alias Premi for postmortem
from SHO Baiji Sharif,
whereas incident taken place on 28.12.2004. Learned counsel further contended
that there are material contradictions in the evidence of prosecution
witnesses, which demolished the whole case of the prosecution and thus lastly prayed for the acquittal of the present appellant. He has relied upon the case of Ghulam Abbas v. The State(2002
P Cr. L J 1240); case of Pervaiz Masih
v. The State (2005 P Cr. L J 1232); case
of Muhammad Yakoob
v. The State (2005 Y L R 3147); case
of Muhammad SharifanBibi
v. Muhammad Yasin and others (2012 S C M R 82)
10. While rebutting the above contentions, the learned Addl: P.G for the State argued
that the appellant is named in the FIR that he has committed murder of deceased
Ram Piyari alias Premi by
causing her fire shot injury; that no proof of enmity was brought by the
appellant which may justify his false implication in this case by the
complainant party being interested witnesses; that the ocular account is
consistent with medical as well as circumstantial evidence; that due to typing
mistake date of receiving dead body for post mortem is written as 28.12.2004.
He further argued that no material contradiction and discrepancy is pointed out
by the learned defence counsel to show
his false implication in this case, in these circumstances, the learned trial
Court has rightly awarded the conviction and sentence to the present appellant
in accordance with law and thus lastly prayed for dismissal of the instant
appeal.
11. We have heard the learned counsel for the parties and have gone
through the evidence with their assistance.
It is borne out from the record that the appellant Ghulam Sarwar has committed murder of Mst.
Ram Piyari alias Premi only
on the pretext that she refused for friendship with the appellant,
this is also motive of this case. In order to prove the murder of Mst. Ram Piyari alias Premi at the hands of appellant Ghulam Sarwar, the prosecution examined PW-1 Karam
Das, who in his evidence has deposed that deceased Ram Piyari
alias Premi was his daughter and married with Arshad Bagri having four children. They used to cultivate
vegetable and the appellant used to come for getting vegetables. Accused Ghulam Sarwar used to tease our women,
whereupon they along with their family members and daughters shifted to village
Peer Hassan where the appellant/accused also did not refrain from his such act of teasing the girls at village Peer Hassan. On
an eventful day the PW-1 Karam Das along with his son PW-3 Mohan Das, PW-4 Vakeel Ahmed and daughter Ram Piyari
alias Premi was
going to Bulla Kot to visit relatives on donkey-cart,
when they reached at Baiji Chowk
PanoAkil about 9:30 a.m,
where accused Ghulam Sarwar came across
and asked Ram Piyari that she had refused for
friendship with him and would not spare her, on that Mst.
Ram Piyari alias Premi
harshly replied the appellant Ghulam Sarwar, whereupon accused fired a shot
from a T.T.Pistol which hit at the abdomen of Mst. Ram Piyari resultantly she
failed down and thereafter accused ranaway, she was
brought at P.S after taking a letter for
treatment at Taluka Hospital PanoAkil,
where she was provided first aid and was referred to Sukkur
for better treatment but she died on the
way. In cross-examination, he admitted that the accused
had fired upon his daughter from a distance of about two paces. He further
admitted that when he brought his daughter only lady doctor was there in Taluka Hospital PanoAkil.
However, he denied the suggestion that he was not present at the place of
incident. The version of the complainant was supported by the PW-3 Mohan Das
and PW-4 Vakeel, both of them admitted that in their
presence the appellant came there and fired upon deceased Mst.
Ram Piyari alias Premi,
further they admitted that after getting first aid at Taluka
Hospital Pano Akil, Mst.
Ram Piyari was shifted to Civil Hospital Sukkur but she died on the way. Prosecution also examined PW-6 ASI Zamir Hussain, who has arrested
the appellant along with T.T.Pistol and three live
bullets and lastly examined PW-8 Ashfaque Ahmed
Investigation Officer, who inspected and prepared Danistnama
also inspected place of incident and
secured empty bullets and bloodstained
earth under the mashirnama. All the witnesses were cross-examined by the defence counsel at length, wherein multiple questions were asked to shatter their confidence and also presence at the scene of occurrence but could
not extract anything from their mouth and they remained consistent on material
points.
12. These
witnesses legally cannot be termed to be chance witnesses rather would fall
within category of natural witnesses. We would not hesitate that the evidence of
“natural witnesses” carries
worth and their
presence at a 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, we would add that we are
conscious that status of one being a natural witness would never necessarily
stamp him to be the witness of truth but
would always be subject to the test of
reasonableness which too within satisfaction of the Court. For this, the
witnesses have given the details of the 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 2011SCMR 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, 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
and this is a day time incident, so there was no chance of mistaken identity of
the appellant. We would not hesitate that where the witnesses fall within the category of natural witnesses and detail the manner of the 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 the 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. AllhajRakhio
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, the mere relationship of these eye-witnesses with the deceased alone is not enough to discard the testimony of
complainant and his witnesses. 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”. We 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 the reason for false involvement
of the appellant in this case, particularly when it is a case of single
accused. 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 and weapon used in commission of
offence. It is established from the evidence of Women Medical Officer
Dr. Rozina Abro, who
received the dead body of deceased Mst. Ram Piyari alias Premi for
postmortem examination, which was identified by Mohan and Sobho
and she started postmortem at 3:30 p.m and completed
it at 4:30 p.m on same day i.e. 28.12.2004. On
external examination she found the following injuries;-
01. Lacerated
punctured would 01. c.m in diameter margin inverted
present on left iliac region, anteriorly (would of entry)
02. Lacerated
punctured would measuring 2. Cm. in
diameter margin everted, wound present anteriorly
back of abdomen. Lower part left side (would of exit).
From
the external as well as an internal
examination on the dead body of deceased Mst. Ram Piyari alias Premi, she opined
that the death of deceased occurred due to shock and hemorrhage as result of injuries No.1 & 2 which were sufficient to cause death in the normal course of life. Kind of weapon was a firearm. The duration between death and
post-mortem was 05 hours, which suffice
to say that the cause of death of deceased was unnatural and thus, this also
corroborates the ocular testimony furnished by the complainant and his
eye-witness. The contention raised by larned counsel
for date of receiving dead body viz. 28.12.2000 by WMO
Dr. Rozina is concerned, the learned Addl: PG rightly pointed out that it is a tying mistake,
otherwise Dr. Rozina has produced postmortem report
at Ex.5-B of deceased Mst. Ram Piyari
alias Premi which shows the date and hour of
receiving the dead body of Mst. Ram Piyari alias Premi is 10:00 a.m dated 28.12.2004 and on same day she started postmortem
of deceased. Furthermore, no such suggestion was given to WMO
that she received dead body on 28.12.2000, hence the
contention raised by learned counsel for the appellant has no force. In cross-examination, she confirmed the version of
the complainant Karam Das PW-1 that “ I had
seen deceased Mst. Ram Piyari
alias Premi in injured condition and I had referred
her for Civil Hospital Sukkur, thereafter again the
dead body was brought before me”. 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. The minor discrepancies in
statements of all the witnesses are not enough to demolish the case of
prosecution because these discrepancies always occurred on account of lapse of
time which can be ignored. It is not a discrepancy or discrepancies which could
be pressed for an acquittal but the defence 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. It is
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 must be material and substantial so as to
adversely affect the case of prosecution.
16. Turning
to the case in hand, the motive setup in this case, which stood established,
the 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 the course of investigation secured crime weapon
viz. T.T Pistol from the present appellant and also recovered empty bullet and blood
stained earth from the place of incident supported by medical evidence. Hence, the above piece of evidence
substantiates the ocular testimony of complainant and his eye-witness. The
appellant in his statement recorded under Section 342 Cr.P.C
merely denied having participated in the occurrence.
17. As to sentence a
lenient view cannot be taken as the circumstances of this case indicate that
the act of the appellant was gruesome and merciless. The deceased Ram Piyari alias Premi was a young
woman aged about 30 years having four children was deprived of her life only on
the ground that she refused for friendship with appellant Ghulam
Sarwar.
18. The upshot of above discussion is that
the prosecution has successfully established its case against the appellant
through ocular account furnished by eye-witnesses, which is corroborated by
the medical evidence 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 our 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, death penalty is confirmed. Death Reference is answered
in the AFFIRMATIVE.
19. These are the
detailed reasons for the short order dated 30.08.2018,
announced by us.
J
U D G E
J U D G E
ARBROHI