IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-16 of 2013
Appellant : Niaz Ali s/o Muhammad Mithal Jamali
Through Mr. Akbar Ali Dahar, Advocate
Complainant : Tarique Hussain Jamali through
Mr.A.B.Francis, Advocate
State : Through Mr.Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 08.11.2018
Date of decision : 16.11.2018
J U D G M E N T
IRSHAD ALI SHAH, J-. The appellant by way of instant criminal appeal has impugned judgment dated 08.01.2013, passed by learned 1st Additional Sessions Judge, Jacobabad, whereby the appellant for an offence punishable u/s 302 (b) PPC has been convicted and sentenced to undergo imprisonment for life as “Tazir” with fine of rupees Two Lacs payable to legal heirs of the deceased Mumtaz Ali Jamali, as compensation u/s 544-A Cr.PC, and in case of his default to make payment of fine, to undergo R.I for six months, with benefit of Section 382-B Cr.PC.
2. The narration of the incident is well disclosed in FIR of the present case lodged with P.S Garhi Khairo, Jacobabad, by complainant Tarique Hussain Jamali, which reads as under;
“Complaint is that, there arose exchange of harsh words between my father Mumtaz Ali and accused Niaz Ali Jamali. Today, me, my father Mumtaz Ali s/o Samandar Khan aged about 60/61 years, cousins Barkat Ali, Muhammad Bachal and Gul Muhammad s/o Habibullah Khan Jamali had came from our village to our otaq at Garhi Khairo Town. I, my cousins Barkat Ali and Gul Muhammad were sitting at courtyard of our otaq, while my father Mumtaz Ali was sitting in a room. There at about 01.45 P.M, came accused Niaz Ali s/o Mithal, by caste Jamali, r/o village Jhangi Dost Balochistan. He soon after his arrival went inside of the room of my father. There he by raising “hakal” took out T.T pistol from fold of his shalwar and then fired at my father Mumtaz Ali with intention to commit his murder. Those fires hit to my father on his flank and he fell down on the cot. We gave “hakals” to the accused. In the meanwhile, accused Niaz Ali Jamali caused spade blows to my father on his head, which was lying there. On our “hakals”, there came my uncle Mehrullah with his licensed weapon. Accused Niaz noticing arrival of Mehrullah with his weapon, fired upon us with intention to commit our murder. We saved ourselves by falling on the ground. My uncle Mehrullah then made aerial firing in self defence. Then accused Niaz Ali closed the door of the room from inside and sat there. We did not go near to the accused due to fear. Now, I have come at Police Station to lodge report of the incident by disclosing that, accused Niaz Ali Jamali on account of exchange of harsh words fired with his T.T pistol at my father Mumtaz Ali Jamali and have also caused him spade blows with intention to commit his murder. Accused has also fired upon us. We have managed to save those fires. My uncle Mehrullah has made fires in self defence and one fire has hit to accused”.
3. On coming to know of the incident, SIP Gul Muhammad Mahar, SHO P.S Garhi Khairo, went at place of the incident, apprehended the appellant, secured from him T.T pistol and bullets and after usual investigation the appellant was challaned before the Court of law to face trial for the above said offence.
4. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW SHO/SIP Gul Muhammad Mahar at Exh.05, produced through him FIR of the present case, memo of arrest of accused/appellant Niaz Ali and recovery of T.T pistol from him, PW SIO/ASI Muzafar Ali Shaikh at Exh.06, produced through him memo of the place of incident, memo of inspection of dead body of the deceased, memo of recovery of blood stained earth and spade, Danistnama, PW PC/Mashir Abdul Razzaque at Exh.08, PW Tapedar Bakhsh Ali at Exh.10, PW Medical officer Dr.Imdad Hussain Chana at Exh.11, produced through him postmortem report on the dead body of the deceased and medical certificate in respect of injuries sustained by the accused/appellant, complainant Tarique Hussain Jamali at Exh.12, PW/Eye-witness Barkat Ali at Exh.13, PW//Eye-witness Gul Muhammad at Exh.14, PW Mashir Shoukat Ali Jamali at Exh.15 and then closed the side.
5. The appellant in his statement recorded u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that the attack was made at the otaq of complainant party by their rivals, in which he sustained injuries while Wadero Mumtaz Ali Khan died. For the pistol and bullets he stated that those have been foisted upon him. He did not examine anyone in his defense or himself on oath in disproof of the prosecution’s allegation.
6. On evaluation of evidence, the learned trial Court has convicted and sentenced the appellant, as detailed above, by way of impugned judgment.
7. It is contended by learned counsel of the appellant that the charge framed against the appellant is defective one, it is not containing the manner in which deceased Mumtaz Ali Jamali was done to death, the evidence which the prosecution has produced is not transpiring confidence, as it has come from the mouth of interested persons, the sketch of vardat is not containing the names of the complainant and his witnesses, PW Mehrullah who allegedly fired and injured the appellant at the time of incident has not been examined by the prosecution, there is no disclosure of dispatch of the property to the chemical examiner or ballistic expert, the property has not been produced at the trial by the prosecution, the motive of the incident is very weak and the appellant has been substituted with real culprit of the incident by the complainant party, without lawful justification. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon cases of Qadeer Ahmad vs. Ghulam Murtaza and another (1997 SCMR-365) 2). Mst.Sughra Begum and another vs. Qaiser Pervez and others (2015 SCMR-1142), 3). Muhammad Ashraf vs. Javed and another (2012 MLD-1448) and 4). Mst.Aajzan Bibi vs. The State and another (2017 PCr.LJ-1483).
8. It is contended by learned A.P.G and learned counsel for the complainant that no finding of the Court could be reversed on account of error or omission in charge or other proceedings, the complainant and his witnesses being natural witnesses have rightly been believed by learned trial Court, the property has been destroyed by heavy flood of year 2010, as such it could not be produced before learned trial Court by the prosecution, it was natural act and there was no need for the complainant party to have substituted the appellant with the real culprit of the incident. By contending so, they sought for dismissal of instant criminal appeal. In support of their contentions, they relied upon cases of Arbab vs. The State (2014 YLR-575) and 2). Abdul Khalique vs. The State (2015 YLR-1015), 3). Qurban Hussain vs. The State (2017 SCMR-880) and 4). Khizar Hayat vs. The State (2014 SCMR-1554).
9. I have considered the above arguments and perused the record.
10. The unnatural death of deceased Mumtaz Ali Jamali is proved of un-rebutted evidence of Medical Officer Dr.Imdad Hussain Channa. Now is to be examined the liability of the appellant towards the alleged incident. It was inter-alia stated by complainant Tarique Hussain and PWs Barkat Ali and Gul Muhammad that on 19.07.2007, they were available at courtyard of their otaq at Garhi Khairo, while deceased Mumtaz Ali was sitting in a room, there at about 01.45 P.M came accused Niaz Ali, he took out T.T pistol from fold of his shalwar and fired twice at deceased Mumtaz Ali, but two which hit him at his abdomen, who by sustaining those fires fell down on the cot. On that, they raised cries. The accused then closed the room from inside and then caused spade blows to deceased Mumtaz Ali. In the meanwhile, on hearing of fire shot reports, there came Mehrullah with rifle, he in self defence made fires, accused Niaz Ali then fired at them (complainant and his witnesses), those fires they managed to save by falling on the ground. One of the fire made by Mehrullah hit to accused Niaz Ali. The incident was reported to the police. The police came at the place of incident, arrested accused Niaz Ali, secured from him pistol, bullets and empties from the place of incident. During course of cross examination, it was stated by the complainant that the motive behind the incident was exchange of harsh words between uncle of the accused and deceased Mumtaz Ali. In that context, it was contended by learned counsel for the appellant that the motive is weak, as it is other than the one disclosed in the FIR. The complainant and his witnesses have stood to their version, on all material points with regard to death of deceased Mumtaz Ali at the hands of appellant, despite lengthy cross examination. Their evidence could not be disbelieved only for the reason that they are related inter-se. They are appearing to be natural witnesses to the incident. If the complainant and his witnesses would not have been natural witnesses to the incident then they would not have reported the incident to police within shortage possible time spreading over only 45 minutes. The evidence of the complainant and his witnesses also finds support from the evidence of SHO/SIP Gul Muhammad, as per him, he on coming to know of the incident, went at the place of incident, it was otaq of complainant party, found the appellant lying hidden in a room, who then surrendered and was apprehended in injured condition and from him was secured T.T pistol with bullets under separate memo, prepared at the spot in presence of PW/mashir PC Abdul Razzaq. No doubt, the sketch of vardat, prepared by Tapedar Bakhsh Ali is not containing the names of the complainant and his witnesses but it hardly could be treated to be fatal to the case of prosecution for the reason that it was prepared by Tapedar Bakhsh Ali after three years of the incident. It however, confirms the occurrence of the incident. No doubt, Mehrullah who allegedly fired and injured the appellant at the time of incident has not been examined by the prosecution but there could be made no denial to the fact that his non-examination could hardly renders the case of prosecution to be doubtful one. It is the quality of the evidence, which has to prevail and not the quantity.
11. In case of Allah Bux Vs. Shammi and others (PLD 1980 SC-225), it has been held by the Honourable Court that;
“Conviction, even in murder cases, held, can be based on testimony of a single witness if Court satisfied as to witness being reliable-Emphasis, held further, laid on quality of evidence and not on its quantity”.
12. If for the sake of arguments, it is believed that the motive of the incident is very weak or it has not been proved by the prosecution as per narration made in the FIR, even then it may not be a reason to make a conclusion that, the prosecution has failed to prove its case against the appellant beyond shadow of doubt in case like the present one, wherein the appellant himself has admitted to be available at the venue of occurrence.
13. In case of Zulfiqar Ali vs. the State (2008 SCMR-796), it has been held by the Honourable Supreme Court of Pakistan that;
“Inadequacy of weakness of the alleged motive or failure to prove the motive is immaterial if accused is found guilty of causing the murder of the deceased and he does not deserve any leniency”.
14. No doubt, there is no disclosure of causing of spade blows to deceased Mumtaz Ali by the appellant in the charge, which is framed against him by learned trial Court, but such omission is not enough to reverse the finding, as is mandated by Section 537 Cr.PC, which reads as under;
“[S.537. Subject to the provisions hereinbefore contained, no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account;
(a) Of any error, omission or irregularity in the complaint, report by police-officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) Of any error, omission or irregularity in the mode of trial, including any misjoinder of charges unless such error omission or irregularity has in fact occasioned a failure of justice.
15. Omission to disclose the manner of death (Qatl-e-Amd) of deceased Mumtaz Ali in “charge” apparently has not occasioned in failure of justice, which may call for reversal of finding of conviction against the appellant.
16. The substitution of an innocent person with real culprit is a rare phenomenon. In that situation, the appellant could not absolve him of the liability of the incident by taking a plea that the pistol has been foisted upon him by the police and deceased was done to death by his rivals particularly, when the appellant has not been able to disclose the names of those rivals anywhere.
17. Non-production of the case property at trial may not be treated to be fatal, as the same as per proceedings of learned trial Court was destroyed by heavy flood of year 2010. It being natural act was beyond the control of human being.
18. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Qadeer Ahmad (supra), the acquittal of the accused was recorded mainly for the reason that the presence of eye-witnesses was not proved beyond reasonable doubt. In the instant matter, the presence of the complainant and eye-witnesses at the place of occurrence has been proved beyond reasonable doubt. In case of Mst.Sughra Begum (supra), the main reason for acquittal of the accused was that it was an un-witnessed incident. In the instant matter, the incident is witnessed. In case of Muhammad Ashraf (supra), the main reason for acquittal of the accused was that the injured witness was not examined by the prosecution. In the instant matter, there is no injured witness who could have been examined by the prosecution. In case of Mst.Aajzan Bibi (supra), it has been held that the single circumstance which creates doubt regarding prosecution case is enough to give benefit of such doubt to accused. In the instant case, no circumstance is available which may justify creating doubt about the case of prosecution to make the appellant entitle to such doubt.
19. In view of the facts and reasons discussed above, it could be concluded safely that the conviction and sentence recorded against the appellant by learned trial Court by way of impugned judgment are not calling for any interference by this Court by way of instant appeal, it is dismissed accordingly.
JUDGE
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