IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No.S-49 of 2017

Appellant : Suhail Ahmed s/o Noor Muhammad Ghunio,

Through Mr.Javed Ahmed Soomro, Advocate

Complainant : Mst. Ayesha w/o late Khadim Hussain Ghunio

In person

The State : Through Mr.Muhammad Noonari, D.P.G

Date of hearing : 20.08.2020

Date of decision : 27.08.2020

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant by means of instant appeal has impugned judgment dated 20.05.2017, rendered by learned 1^st Additional Sessions Judge, Jacobabad, whereby he has been convicted and sentenced as under;

“I convict and sentence accused Suhail Ahmed son of Noor Muhammad Ghunio to suffer imprisonment for life and pay compensation of Rs.5,00,000.00 to the legal heirs of deceased Naseer Ahmed. In case of default the accused shall further undergo five years S.I more. The accused is extended benefit of section 382-B Cr.PC.”

2. Facts in brief necessary for disposal of instant appeal are that the appellant with absconding accused Noor Muhammad, in furtherance of their common intention, in order to satisfy his matrimonial dispute with complainant party, fired and killed Naseer Ahmed and then went away by making fire at complainant Mst.Ayesha with intention to commit her murder, for that he was booked and reported upon.

3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW-01 Tapedar Kamil Khan, he produced sketch of vardat, PW-02 Mashir/LPC Ghulam Yasin, he produced memo of arrest, recovery of pistol and roznamcha entries, PW-03 Corpse bearer PC Roshan Ali, PW-04 Complainant Mst.Ayesha, she produced FIR of the present case, PW-05 Imamuddin, PW-06 Nizakat Ali, PW-07 Mashir Khair Muhammad, he produced “Danistnama”, memo of place of incident and examination of dead body, PW-08 Medical officer Dr.Mukhtiar Ahmed Dayo, he produced postmortem report on dead body of the deceased and lash Chakas form, PW-09 SIO/SIP Sadoro Khan Lashari, he produced roznamcha entries and then prosecution close its side.

4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence. His specific plea in his defence was to the following effect;

“There was dispute between deceased and his brother on the payment of money on which deceased was murdered. My mother-in-law has registered false FIR to save her son. My wife also got Khulla from me. I am innocent. I pray for justice.”

5. The appellant did not examine anyone in his defense, however, examined himself on oath. His evidence on oath was to the following effect;

“I am accused in this case. The complainant was my mother-in-law. On 15.09.2011, I was present in my house, it was at about 10.00 a.m my wife namely Sajida and mother-in-law came in my house and gave oath of Holy Quran. They requested me that I should admit the murder of her son Naseer Ahmed and thereafter she will file no objection for the grant of bail. On such assurance, I gave consent and confessed murder of deceased Naseer Ahmed. Thereafter, police arrested me and challaned in this case. Now my wife had obtained Khulla and mother-in-law has deposed against me. I am innocent and pray for justice”.

6. On evaluation of evidence, so produced by the prosecution, the learned trial Court convicted and sentenced the appellant, by way of impugned judgment.

7. It is contended by learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the complainant in order to satisfy her matrimonial dispute with him; the complainant and his witnesses are unnatural witnesses to the incident, they have deposed falsely against the appellant being related inter-se; the pistol has been foisted upon the appellant; the sketch of vardat does not take mention of availability of the complainant and his witnesses at the place of incident; no fire shot hit to the complainant and PW Imamuddin came at the place of the incident when the incident was over. By contending so, he sought for acquittal of the appellant. In support of his contentions, he has relied upon cases of Haroon Rasheed vs. The State and another (2018 PCr.LJ-1117), 2). Muhammad Mansha Vs. The State (2018 SCMR-772), 3). Imtiaz alias Taj Vs. The State and others (2018 SCMR-344), 4). Hayatullah Vs. The State (2018 SCMR-2092) and 5). Muhammad Imran Vs. The State (2020 SCMR-857).

8. Learned D.P.G for the State who is assisted by the complainant sought for dismissal of the instant appeal by contending that the appellant has committed the murder of innocent person only to satisfy his grudge with complainant party over matrimonial affair.

9. I have considered the above arguments and perused the record.

10. Complainant Mst.Ayesha in her evidence before learned trial Court has inter-alia stated that the appellant was married with her daughter Mst.Sajida, she was maltreated and driven out by him from his house therefore she was residing with her. On the date of incident, when she (complainant), deceased, PWs Imamuddin and Nizakat Ali were available at their house, there at about 07.15 a.m, came the appellant and absconding accused Noor Muhammad, they exchanged harsh words with us, they were prevented from doing so, by Naseer Ahmed, on that they took out pistols from their folds. The appellant then fired at Naseer Ahmed, who by sustaining that fire shot fell down, while absconding accused Noor Muhammad fired at her (complainant), such fire she managed to escape by falling on the ground. Naseer Ahmed died on his way to Hospital and she then reported the incident to police. PWs Imamuddin and Nizakat Ali have supported the complainant in her version on all material points. No doubt, PW Imamuddin on asking has stated that he reached at house of the complainant at the time when Naseer Ahmed was already found dead but this appears to be an innocent reply on his part. If for the sake of arguments, it is believed that PW Imamuddin had not witnessed the incident, even then the evidence which is furnished by the complainant and PW Nizakat Ali is enough to involve the appellant in commission of the incident. The complainant and her witnesses could not be disbelieved only for the reason that they are related inter-se and there is no independent witness to the incident. It was none of the job of a stranger to have gone inside the house of the complainant only to witness the incident. Sustaining of no fire shot injury by the complainant is not enough to doubt that she was not witness of the incident.

11. In case of Ali Bux and others vs. The State (2018 SCMR-354), wherein it has been held by the Hon’ble Apex Court that;

“3. The occurrence in this case had taken place in broad daylight and at a place where at the same could have been seen by many persons available around the place of occurrence. An information about the said occurrence had been provided to the police on telephone within fifteen minutes of the occurrence. In the FIR lodged in respect of the incident in question the present appellants had been nominated and specific roles had been attributed to them therein. The ocular account of the incident had been furnished before the trial Court by three eye-witnesses namely Ali Akbar complainant (PW-01) Ghulam Shabir, (PW-02) and Bilawal (PW-03) who had made consistent statements and had pointed their accusing fingers towards the present appellants as the main perpetrators of the murder in issue. The said eye-witnesses had no reason to falsely implicate the appellants in a case of this nature and the medical evidence had provided sufficient support to the ocular account furnished by them.”

12. On arrest, from the appellant as per SIO/SIP Sadoro Khan Lashari has been secured incriminating pistol and same has been found to be similar with the empties secured from the place of incident, such recovery of pistol from the appellant could not be doubted under any pretext.

13. The sketch of vardat it is true is not disclosing the place where the complainant and his witnesses were found available at he place of incident but it appears to be an omission on the part of Tapedar Kamil Khan, for such omission the availability of the complainant and his witnesses at the place of incident could not be doubted. There is no denial to the fact that happening of the incident at particular place is not disputed, rather it finds corroboration from such document too. The sketch of vardat is never claimed to have been prepared at time of incident. It is always prepared at later stage and would never be determinative to decide the presence of the complainant and his witnesses at the place of incident or otherwise.

14. The appellant has failed to establish any prima facie mis-reading or non-reading of evidence on record or failure on part of the learned trial Court in following the settled principle of law of appreciation of evidence. Thus, the learned trial Court has rightly found the appellant to be guilty of the offence. Indeed, the appellant has been dealt with leniently by awarding lesser punishment by learned trial Court.

15. In case of Muhammad Mansha Vs. The State (2016 SCMR-958), it has been held by the Honourable Apex Court that;

“8.The case in hand is the one in which the appellant was named in the promptly lodged FIR with a specific role, which role is established on record. The occurrence was of a day time and the appellant was known to the PWs, who have identified him to be the person who has committed cold-blooded murder of Haji Liaquat Ali, deceased, and there seems to be no reason as to why the appellant should not undergo the maximum punishment provided for the offence.”

16. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Haroon Rasheed (supra), the main reason for acquittal of the accused was that the solitary evidence of the complainant was not found supported through any independent source. In the instant case, the evidence of the complainant is supported by PW Nizakat Ali and it lends support in shape of recovery of incriminating pistol from the appellant. In case of Muhammad Mansha (supra), the main reason for acquittal of the accused was dishonest improvement in evidence on the part of witnesses. In the instant case, no dishonest improvements in evidence on the part of complainant and his witnesses is found evident. In case of Imtiaz alias Taj (supra), it was held by Honourable Apex Court that when evidence of eye witnesses has been disbelieved against some accused, then same witness could not be believed against co-accused unless such witness received independent corroboration qua- co-accused. In the instant case, no issue of believing or disbelieving the evidence in parts is involved. In case of Hayatullah (supra), the main reason for acquittal of the accused was that his conviction was based on his confession before the police and it was found to be inadmissible in evidence. In the instant case, the direct evidence is available against the appellant. In case of Muhammad Imran (supra), it was held that single circumstances deducible from the record intriguing upon the integrity of prosecution case was to be extended to the accused without reservation. In the instant case, no circumstances intriguing upon the integrity of prosecution case is available, benefit whereof may be extended to the accused. Indeed, as said above, the case of prosecution takes support from the statement of accused which he has made on oath.

17. In view of the facts and reasons discussed above, it is concluded that the conviction and sentence awarded to the appellant by learned trial Court are not calling for interference by this Court by way of instant appeal. It is dismissed accordingly.

J U D G E