IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No.S-16 of 2019

Appellant : Ali Jan son of Ghulam Nabi Mahessar.

Respondent : The State.

Mr. Faiz Mohammad Larik, advocate for the appellant.

Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Dates of hearing : 06-11-2020 & 23.11.2020.

Date of Judgment : 26-11-2020.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- Appellant Ali Jan son of Ghulam Nabi Mahesor was tried by Mr. Abdul Latif Golo, learned Additional Sessions Judge, Shahdadkot, in Sessions Case No.297/2006 re-State v. Ali Jan Mahesor, arising out of Crime No.52 of 2006, registered at Police Station Sijawal, District Kamber-Shahdadkot. On the conclusion of the trial, vide judgment dated 14.12.2011, the appellant was convicted under Section 302(b), PPC and sentenced to imprisonment for life as Ta’zir and was directed to pay Rs.100,000/- (Rupees One Lac) as compensation to be paid to the legal heirs of the deceased, in terms of Section 544-A, Cr.P.C. In case of failure thereof, he was ordered to suffer R.I. for 06 months more. Appellant was extended benefit of Section 382-B, Cr.P.C.

2. Brief facts of the prosecution case as disclosed in FIR are that on 01.10.2006 complainant Mukhtiar Ali along with PWs Noor Mohammad, Allah Wadhayo and deceased Sajjid Ali were present near the shop of Ali Akbar Mahesor, at about 5.00 p.m. accused persons, namely, Ali Jan, Khadim Hussain, both armed with pistols and Ghulam Nabi empty handed, appeared there. Of them, it is alleged that accused Ghulam Nabi instigated co-accused Ali Jan and Khadim Hussain, to kill deceased Sajjid Ali, while declaring him to be his “Karo”. At such instigation, it is alleged that accused Ali Jan and Khadim Hussain fired from their pistols at Sajjid Ali, which hit him and he fell down on the ground. On the cries of complainant party and the gun shot reports, villagers were attracted, to the place of incident. Thereafter, the accused persons ran away. Eye-witnesses took the injured to hospital at Larkana for immediate treatment, but he succumbed to injuries at the hospital. The dead body of deceased Sajjid Ali was then brought by PWs at Mirokhan hospital for postmortem. Complainant left the P.Ws over the dead body, went to police station and lodged FIR against the accused. It was recorded on same day at 2100 hours vide Crime No.52/2006, under Sections 302, 114, 34, PPC at P.S Sijawal.

3. After usual investigation, challan was submitted against the accused Ali Jan for offence under Section 302, PPC. Co-accused were shown as absconders. Case proceeded against them u/s 512, Cr.P.C.

4. Trial Court framed charge against the accused Ali Jan at Ex.3. Accused pleaded ‘not guilty’ and claimed to be tried.

5. In order to substantiate the charge, prosecution examined complainant Mukhtiar Ali at Ex.4, who produced copy of FIR at Ex.4/A; PW Noor Mohammad at Ex.5; PW Allah Wadhayo at Ex.6; PW Ghulam Shabir at Ex.7, who produced mashirnamas; PW SIP Safdar Ali at Ex.8; Dr. Abdul Sattar at Ex.9, who produced postmortem report of deceased at Ex.9/B; PW PC Abdul Fattah at Ex.10 and PW tapedar Liaquat Ali at Ex.11, who produced sketch at Ex.11/A. Thereafter, prosecution side was closed.

6. Trial Court recorded statement of accused Ali Jan under Section 342, Cr.P.C, in which he claimed false implication in this case and denied the prosecution allegations. Accused did not lead any evidence in defence and declined to give statement on oath in disproof of prosecution allegations. Trial Court after hearing the learned Counsel for the parties and on the assessment of the prosecution evidence, convicted and sentenced the appellant, as stated above. Hence, this appeal is filed.

6. Mr. Faiz Mohammad Larik, advocate for the appellant mainly contended that presence of the eye-witnesses at the time of incident was doubtful; that eye-witnesses were closely related to deceased, but eye-witnesses made no efforts to rescue the deceased; that Ali Akbar shopkeeper was not examined by prosecution. It is further submitted that motive as set up by the prosecution in the FIR has not been established at trial. Lastly, it is submitted that prosecution has failed to prove it’s case against the appellant and prayed for acquittal of the appellant.

7. Mr. Ali Anwar Kandhro, learned Addl. P.G. argued that incident had occurred at 5.00 p.m. on 01.10.2006 and FIR was lodged on the same day, at 9.00 pm; that complainant and appellant are the relatives of the deceased. It is submitted that normally PWs closely related to deceased like to bring the truth before the Court. It is submitted that Ali Akbar shopkeeper had not witnessed the incident, that is why he was not examined by investigation officer during investigation. It is argued that prosecution had established the motive at trial, but trial Court had taken the lenient view and convicted and sentenced the appellant to imprisonment for life. Lastly, it is argued that appellant was fugitive from law for pretty long time, he failed to explain it. Learned Addl. P.G. prayed for dismissal of the appeal.

8. In order to prove unnatural death of deceased, prosecution examined PW-6 Dr. Abdul Sattar Gopang, who had conducted postmortem examination of deceased. Doctor deposed that he had conducted postmortem examination of deceased Sajjid Ali Mahesor on 01.10.2006 and found following injuries on his person:-

1. One lacerated wound 1 x 1 cm bone deep at left elbow joint (Laterally).

2. One lacerated wound 2 x 1 cm bone deep at medial side and lower part of left upper arm (medially) (wound of exit).

3. One lacerated punctured wound 1 x 1 cm x chest cavity deep at left side of the back (over scapular region) wound of entry.

4. One lacerated punctured wound 3 x 1 cm x chest cavity deep lower 1/3 of left chest (anteriorly) (wound of exit).

5. One lacerated punctured wound 1 x 1 cm bone deep at upper part of right upper arm (laterally) (wound of entry).

6. One lacerated punctured wound 1½ x 1 cm x bone deep at mid of right upper arm (medially) (wound of exit).

7. One lacerated punctured wound 1 x 1 cm muscle deep at upper 1/3 of left thigh (wound of entry).

8. One lacerated punctured wound 1½ x 1 cm x muscle deep at mid of left thigh (medially) (wound of exit).

9. Doctor opined that cause of death was shock and hemorrhage as a result of discharge from firearm. The injuries No.3 and 4 individually and all other injuries collectively were sufficient to cause death in ordinary course of nature. Injuries were homicidal and anti-mortem in nature. Probable time between injuries and death was instantaneous. Probable time between death and postmortem elapsed was within 10 hours. Doctor produced attested copy of postmortem report at Ex.9/B, while stating that original postmortem report was burnt by mob due to assassination of Mohtarma Benazir Bhutto’s incident. Doctor was cross-examined, but nothing favourable to the accused came on the record. Efficiency and integrity of the doctor have also not been questioned. Trial Court has rightly held that deceased died in the result of firearm injuries sustained by him as described by the medical officer. I am also of the opinion that finding recorded by trial Court requires no interference by this Court.

10. Complainant Mukhtiar Ali (PW-1) deposed that deceased Sajjid was son of his cousin. PW Noor Mohammad is related to him; PW Allah Wadhayo is his cousin. On the day of incident, (01.10.2006) he along with PWs Noor Mohammad, Allah Wadhayo and deceased Sajjid were standing near the shop of Akbar situated in Village Bakhar Mahessar. At 5.00 p.m. accused Ali Jan armed with pistol, absconding accused Khadim armed with pistol and Ghulam Nabi empty handed, appeared there. Accused Ghulam Nabi instigated co-accused to commit murder of Sajjid as he was “Karo”. PW-1 further deposed that at his instigation, accused Ali Jan and Khadim fired from their pistols at Sajjid, which hit him on upper side of left arm, right side of arm, right thigh and back and, he fell down. They raised cries, which attracted co-villagers and the accused persons ran away to their houses. Thereafter, complainant party saw that Sajjid was lying seriously injured, they shifted him to CMCH, Larkana, but Doctors declared that he was dead. Then, dead body was brought at Taluka Hospital, Mirokhan. The complainant went to P.S Sijawal, where he lodged FIR against the accused persons and produced it at Ex.4/A.

11. Eye-witness Noor Mohammad Mahesor (PW-2) has deposed that deceased Sajjid was his relative. Complainant Mukhtiar Ali is also his relative PW Allah Wadhayo is son of his maternal uncle. This PW/ eye-witness deposed that on 01.10.2006, he along with complainant Mukhtiar Ali, PW Allah Wadhayo and deceased Sajjid were standing in front of shop of Akbar, situated in Village Bakhar Mahesor. At about 5.00 p.m. accused Ali Jan armed with pistol, Khadim armed with pistol and Ghulam Nabi empty handed, appeared there. He further deposed that accused Ghulam Nabi instigated co-accused to commit murder of Sajjid, as he was “Karo”. On his instigation, he deposed that accused Ali Jan and Khadim fired from their pistols at Sajjid, which hit on his arms, thigh and back, he fell down. They raised cries, on which, accused persons ran away to their houses. They, immediately took injured Sajjid to CMCH Larkana, but doctor declared that he had already expired. Thereafter, dead body was shifted to Taluka Hospital Mirokhan. Complainant left him and PW Allah Wadhayo over the dead body, went to P.S and lodged FIR against the accused persons.

12. Eye-witness Allah Wadhayo (PW-3) deposed that deceased Sajjid was son of his cousin. Complainant Mukhtiar Ali is his cousin and PW Noor Mohammad is his relative. On the day of incident (01.10.2006), he along with complainant, PW Noor Mohammad and deceased Sajjid were standing in front of shop of Ali Akbar, situated in village Bakhar Mahesor, when at about 5.00 p.m. accused Ali Jan armed with pistol, Khadim armed with pistol and Ghulam Nabi empty handed, appeared there, out of whom, accused Ghulam Nabi instigated co-accused to commit murder of Sajjid, as he was “Karo”. At his instigation, he deposed that accused Ali Jan and Khadim fired from their pistols at Sajjid, which hit on his right, left arm, back and left thigh, he fell down by raising cry. They also raised cries, on which accused persons ran away towards their houses. Thereafter, PWs immediately shifted injured Sajjid to CMCH, Larkana, but doctor declared Sajjid as dead. Then, they took dead body to Taluka Hospital, Mirokhan. Complaint went to PS and lodged FIR against the accused.

13. Ghulam Shabir Mahesor (PW-4) has acted as mashir in this case and deposed that on 01.10.2006 police inspected the dead body of deceased Sajjid Ali lying in Taluka Hospital, Mirokhan. Police noted four firearm injuries on the body of deceased Sajjid Ali. Police prepared mashirnama of inspection of dead body in his presence and co-mashir was Gulzar Ali. He produced said mashirnama at Ex.7/A. He further stated that police prepared inquest report of deceased in his presence and produced copy of inquest report at Ex.7/B. Police visited the place of vardhat on the pointation of complainant and secured blood-stained earth and five empties of 30-bore pistol, prepared such mashirnama, he acted as mashir and co-mashir was Gulzar Ali. He produced such mashirnama at Ex.7/C.

14. SIP Safdar Ali Brohi (PW-5) has deposed that on 01.10.2006 he received a copy of FIR bearing Crime No.52/2006 for investigation from ASI Ghulam Abbas Chandio. He left P.S for Taluka Hospital along with complainant, found the dead body of deceased Sajjid Ali lying at Taluka Hospital, Mirokhan, he inspected it in presence of mashirs Ghulam Shabir and Gulzar Ali. SIP noted down four firearm injuries, on the body of deceased Sajjid Ali and prepared such mashirnama. He also prepared inquest report of deceased Sajjid Ali in presence of same mashirs and then referred dead body through PC Abdul Fatah for postmortem examination and report. He then visited place of vardhat on the pointation of complainant, secured blood stained earth and five empties of 30-bore from place of vardhat, prepared mashirnama of place of vardhat in presence of same mashirs. On 02.10.2006, he recorded 161, Cr.P.C. statements of P.Ws Allah Wadhayo and Noor Mohammad. After completing usual investigation submitted challan against all the accused under Section 512, Cr.P.C. Investigation officer has deposed that appellant was subsequently arrested.

15. Prosecution witnesses were cross-examined at length, but no major contradiction or inherent defect in their evidence came on record to discredit them. Mere suggestion that eye-witnesses were closely related to the deceased would not be sufficient to discard their testimony.

16. Now I would consider, whether evidence of complainant Mukhtiar Ali(PW-1), Noor Mohammad(PW-2) and Allah Wadhayo(PW-3), who are relatives of the deceased, who had witnessed the incident, is to discredited on the ground that they are closely related to the deceased. The law is settled that merely because witnesses or the eye-witnesses are relatives by itself is no ground to reject the evidence of such witnesses. Witnesses being relatives normally would like to bring truth before the Court. In this case, incident had occurred in front of the shop of Ali Akbar, situated in Village Bakhar Mahesor. It was daytime incident. Presence of the eye-witnesses at the place of incident at the relevant time has been fully established, for the reasons that houses of eye-witnesses are situated around the place of incident. Non-examination of Ali Akbar shopkeeper would not be fatal to the case of prosecution, because he was sitting in his shop, no eye-witness has deposed that Ali Akbar had witnessed the incident. Ocular evidence is corroborated by the medical evidence. As regards the contention that all the three eye-witnesses were related to deceased and thus, interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise, appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an “interested witness”. In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. In the case of Khair Muhammad & another v. The State (2007 SCMR 158), the Hon’ble Supreme Court has observed as under:-

“6. Learned counsel for the petitioners, except the minor discrepancies, and contradictions, has not been able to point out any material defect or lacuna in the evidence suggesting even a slight doubt regarding the correctness of the prosecution case. The complainant party and the petitioners are closely related inter se and the occurrence took place at the time when the inmates of the house were watching TV therefore, there was no question of mistaken identity. The petitioners armed with T.T. pistols suddenly entering into the house opened firing as a result of which Mst. Hanifan Bibi and her husband Subhan were hit and died at the spot. There was no serious enmity between the parties and the eye-witnesses have consistently supported prosecution case without any material contradiction or discrepancy and their testimony was also supported by the medical evidence as well as attending circumstances on each material point. Learned counsel for the petitioners has not been able to satisfy us that either the witnesses were not present at the spot or assailants were not identifiable, and petitioners were substituted for unknown culprits. The contention of the learned counsel that witnesses being closely related to the deceased, were interested and not reliable, was without any substance as mere relationship is not sufficient to hold a witness interested or discard his evidence and in the present case, the accused were also closely related to the witnesses therefore, there would be no chance of false implication or substitution. The conflicting opinion of learned Judges in the High Court regarding the admissibility and reliability of the evidence of recovery which has only corroborative value could not affect the credibility of the ocular account and we having perused the record with the assistance of learned counsel for the parties, have not been able to find out any legal or factual infirmity in the ocular account furnished by the most natural witnesses and their testimony duly supported by the medical evidence, would alone be sufficient to establish charge against the petitioners beyond reasonable doubt. The exclusion of recovery of T.T. pistol from consideration would have neither any material effect on the culpability of the petitioners nor the evidentiary value of direct evidence of unimpeachable character, would be reduced and consequently, we need not to go into the question regarding the admissibility or reliability of the evidence of recovery of weapon of offence.”

17. In the instant case, eye-witnesses complainant Mukhtiar Ali, PWs Noor Mohammad and Allah Wadhayo are closely related to the deceased, but presence of these witnesses at the place of incident at the relevant time was natural for the reasons that houses of eye-witnesses are situated adjacent to place of incident, as it was daytime incident. Complainant Mukhtiar Ali (PW-1) in cross-examination has replied that incident occurred at the distance of 40 paces from his house. At that time, he went to the shop of Akbar. Noor Mohammad (PW-2/eye-witness) has also replied in cross-examination that at the time of incident, he was standing in front of the shop of Akbar and his house is situated at the distance of 10/15 paces away from the place of occurrence. The house of the complainant is also situated adjacent to his house and house of accused Ali Jan is also situated at the distance of 40/50 paces from place of occurrence. Allah Wadhayo (PW-3/eye-witness) has also deposed that his house is situated at the distance of 30 paces from the shop of Akbar and house of accused Ali Jan is situated at the distance of 30 paces. At 4.30 p.m., he had gone to the shop of Akbar, where present incident took place. Ghulam Shabir (PW-4) acted as mashir of place of wardhat and deposed that incident occurred in front of shop of Ali Akbar. Liaquat Ali (PW-8) had prepared the sketch of the place of wardhat and deposed that incident occurred in common street. Thus, trial Court has rightly believed prosecution evidence. As regards the delay in lodging of the FIR is concerned, complainant has deposed that after incident, he took injured Sajjid to CMC Hospital, Larkana, where doctors declared him dead. After that, he brought the dead body at Taluka Hospital, Mirokhan for postmortem and left PWs over the dead body. Thereafter, he went to police station and lodged FIR. Moreover, no benefit was derived by the complainant from lodging the FIR with delay of 04 hours. In above stated circumstances, delay in lodging of the FIR has been fully explained. Motive as set up in the FIR was that accused persons declared deceased as “Karo”. The motive has been established at trial by the eye-witnesses of the incident. Crime empties viz., 05 empties of 30-bore were recovered from the place of incident. It has also corroborated the case of prosecution. It is also the matter of record that appellant absconded away after the commission of offence and challan was submitted under Section 512, Cr.P.C. Learned advocate for the appellant could not point out motive or enmity on the part of the eye-witnesses for false implication of the appellant in this case. During trial, three PWs had appeared as eye-witnesses. They remained firm on all major particulars of the case i.e. date, time and place of occurrence and despite lengthy cross-examination their credibility could not be shaken. The P.Ws had no enmity with the appellant, to falsely implicate him in the case. The incident had taken place at 5.00 p.m. whereas the FIR was registered on the same day at 9.00 p.m., wherein the appellant was specifically nominated with a specific role. Learned advocate for the appellant has not been able to satisfy me that either the eye-witnesses were not present at the spot or appellant was not identifiable. Eye-witnesses have consistently supported the prosecution case without any material contradiction and their testimony was also supported by medical evidence. Therefore, I have no reason to disbelieve the evidence of the complainant and other eye-witnesses given against appellant. Trial Court has rightly appreciated the evidence according to the settled principles of the law and finding recorded by the learned trial Court in this regard requires no interference.

18. in the view of above, the impugned judgment dated 14.12.2011 does not call for interference, hence the same is maintained and the appeal is dismissed with slight modification in case of default in payment of compensation, appellant shall suffer S.I. for 06 months instead of R.I. for 06 months.

JUDGE

Qazi Tahir PA/*

(i) Sheraz Tufail v. The State 2007 SCMR 518, (ii) Khair Muhammad and another v. State 2007 SCMR 158, (iii) Amal Sherin and another v. State through A.-G. N.-W.F.P. PLD 2004 SC 371, (iv) Dost and others v. The State 2002 SCMR 1578, (v) Mulla Riaz Ahmad v. The State 2002 SCMR 626, (vi) Feroze Khan v. The State 2002 SCMR 99, (vii) Farmanullah v. Qadeem Khan and another 2001 SCMR 1473, (viii) Muhammad Amin v. The State 2000 SCMR 1784, (ix) Saeed Akhtar and others v. The State 2000 SCMR 383, (x) Mir Hassan and others v. State and others 1999 SCMR 1418, (xi)Sharafat Ali v. The State, 1999 SCMR 329, (xii) Sardar Khan and others v. State 1998 SCMR 1823, (xiii) Wahid Bukhsh and others v. The State 1997 SCMR 1424, (xiv) Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639, (xv) State of Rajastan v. Hanaman AIR 2001 SC 282 and (xvi) State of Punjab v. Wassan Singh and others AIR 1981 SC 697.

Evidence of an interested witness even, cannot be outrightly discarded unless it is proved that the witness had involved the accused for some ulterior motive and in case of interested witness, only as a rule of prudence and not as a rule of law, the Courts have emphasized that testimony of the witness may be evaluated with more than ordinary care and corroboration may be sought from the evidence. Reference in this context can be made to the case reported as Abdul Majeed v. The State (2001 SCMR 90).