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 witnessescarries 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 butinterestedone. 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 witnessesin 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