IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.S-28 of 2017
Appellant : Karim Bux son of Pehlwan Bhayo.
Respondent : The State.
Mr. Ahsan Ahmed Qureshi, advocate for the appellant.
Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing : 05-11-2020.
Date of Judgment : 26-11-2020.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Karim Bux son of Pehlwan Bhayo was tried by Mr. Nizakat Ali, learned IIIrd Additional Sessions Judge, Shikarpur in Session Case No.447/2015 re-State v. Karim Bux Bhayo, arising out of Crime No.67 of 2015, registered at Police Station Chak, District Shikarpur. On the conclusion of the trial, vide judgment dated 31.01.2017 the appellant was convicted under Section 302(c), PPC and sentenced to 25 years R.I. and to pay the fine of Rs.100,000/- (Rupees One Lac), to be paid to the legal heirs of the deceased. In case of failure thereof, he was directed to suffer S.I. for 05 years more. Appellant was extended benefit of Section 382-B, Cr.P.C.
2. Brief facts of the prosecution case, as mentioned by trial Court in the impugned judgment are as under:-
“I and my elder brother Hazoor Bux are residing in separate house and Hussain Bux alias Ubedullah, aged about 44 years, working in Income Tax Department Pakistan and accused Kareem Bux, who is also our brother, was residing with him. One day before happening of incident, he guided younger brother that do not waste your precious life and be good man, on that Kareem Bux annoyed and went for sleeping. Today i.e. 10.06.2015 my brother was ready to go on his duty, when he came out of his house, we i.e. I and our nephews Mehmood and Ali Khan both sons of Ghulam Nabi accompanied him/Hussain Bux, left the house for job, when we reached at katcha road near house of Ghous Bux Pahore at about 0830 hours, we saw Kareem Bux having Spade “Kodar”, hit the same to my brother Hussain Bux from right side of head and other on right ear. Blood was oozing from the injury, accused escaped in south, we tried to grasp him but failed. On the hue and cries of my injured brother we returned back to him and arranged vehicle to take him to the hospital. On the way he was died. We informed the police station and took the dead body of my brother to Govt. Hospital Chak, there we met a constable. After postmortem, police handed over dead body to us and after funerals of my brother I approached to the P.S Chak at about 2000 hours. I produce FIR No.67/2015, which is same and bears my thumb impression at Ex.4/A. On next morning, at about 0700 hours, I showed the place of incident to police officer. Police officer secured the blood stained earth from the place and he prepared such documents and secured the signatures of mashir. We had also produced the blood stained clothes to the police officer. On 14.6.2015 we were sitting at the hotel along with Mohammad Ali son of Hazoor Bux and Gul Mohammad son of Haji Chatal, at about 1230 hours police mobile came at the hotel and asked about me and I disclosed that I am Raja complainant against accused Karim Bux, police took all three us in police mobile by disclosing that they have spy information about the accused Karim Bux. Karim Bux was working at land of deceased and we pointed that said person is accused Karim Bux and on that they arrested him along with spade “Kodar”. Police had sealed the spade “kodar” at the spot and secured signatures of Mohammad Ali and Gul Mohammad. Accused present in Court is same and the property in sealed condition.”
3. After usual investigation, challan was submitted against the accused for offence under Section 302, PPC.
4. Trial Court framed charge against the accused at Ex.2. Accused pleaded ‘not guilty’ and claimed to be tried.
5. In order to substantiate the charge, prosecution examined 07 PWs, who produced relevant documents. Thereafter, prosecution side was closed. Trial Court recorded statement of accused under Section 342, Cr.P.C, in which he claimed false implication 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. Learned advocate for the appellant mainly contended that there was inordinate delay in FIR, for which no plausible explanation was furnished; that presence of the eye-witnesses with the deceased at the time of incident was doubtful; that appellant and deceased were brothers inter se so also the complainant, but eye-witnesses made no efforts to rescue the deceased. It is further submitted that ocular evidence was contradictory to the medical evidence; that according to doctor, deceased died instantaneously and eye-witnesses have deposed that deceased died on the way to hospital. Lastly, it is submitted that prosecution has failed to prove it’s case against the appellant and prayed for acquittal of the accused.
7. Mr. Ali Anwar Kandhro, learned Addl. P.G. argued that incident had occurred at 8.30 a.m. on 10.06.2015 and FIR was lodged on the same day at 8.00 p.m. after funeral ceremony of the deceased; that delay in lodging of the FIR has been fully explained; that complainant and appellant are the real brothers of the deceased. As regards to the contradictions in between the ocular and the medical evidence is concerned, it is submitted that ocular evidence was not contradictory to medical evidence, but in fact medical evidence has corroborated the ocular evidence. Lastly, it is submitted that prosecution had established the motive at trial, but trial Court had taken the lenient view and convicted and sentenced the appellant under Section 302(c), PPC. Learned Addl. P.G. prayed for dismissal of the appeal.
Medical Evidence
8. At the trial, prosecution examined PW-4 Dr. Khursheed Ahmed, who had conducted postmortem examination of deceased and stated that he had examined deceased Hussain Bux alias Ubedullah at about 10.00 a.m. on 10.06.2015 and found following injuries on his person:-
1. Incised wound 5 cm x 2 cm scalp deep bone fractured brain material visualized lying right temporal area of head.
2. Incised would 6 cm x 2 cm lying back of ear at temporal region of head scalp deep bone fractured at site of injuries cerebral membrain ruptured filled with blood and brain material.
9. Doctor opined that cause of death occurred due to shock and hemorrhage due to incised injury caused by sharp cutting weapon. Injuries were ante mortem in nature. Probable time between injury and death was instantaneous. Probable time between death and postmortem was about 03 hours. Doctor was cross-examined, but nothing favourable to the accused came on the record. Efficiency of the doctor has also not been questioned. Trial Court has held that deceased died in the result of injuries sustained by him as described by the medical officer. I am also of the opinion that finding recorded by doctor requires no interference by this Court.
Ocular Evidence
10. Complainant Raja (PW-1) deposed that deceased Hussain Bux alias Ubedullah, aged about 44 years, serving in Income Tax Department, was his elder brother. Accused Karim Bux is also his brother, so also eye-witness Hazoor Bux. One day before the incident, deceased Hussain Bux alias Ubedullah being elder brother of the appellant advised him, not to waste his precious time and start some work, to which appellant became annoyed and went to sleep. On the day of incident(10.06.2015), his brother (deceased) was going on his duty; at that time complainant came out of the house along with his nephews Mehmood and Ali Khan and accompanied deceased Hussain Bux from the house, when they reached at katcha road near the house of Ghous Bux Pahore, at 08½ hours, appellant Karim Bux armed with spade appeared and caused blow to Hussain Bux on right side of the head and on right ear. Bleeding started, accused succeeded in running away. Complainant and his nephews made arrangement of the vehicle and took injured brother to hospital but on the way he succumbed to the injuries. Complainant informed the police and took the dead body of his brother to the Government Hospital, Chak. After postmortem examination dead body was handed over to the complainant. After funeral ceremony of the brother, he went to the police station and lodged report and produced FIR at Ex.4/A.
11. Eye-witness Mehmood (PW-3) has deposed that complainant is his maternal uncle, so also deceased Hussain Bux, who was working in the Income Tax department of Pakistan. Accused Karim Bux is also his uncle. One day before this incident deceased being elder brother had advised appellant not to waste his precious time and start some work, to which appellant Karim Bux annoyed and went to sleep. On the day of incident deceased was ready to go on his duty. At that time complainant along with this witness left home. At 0830 hours when they reached near the house of Ghous Bux Pahore, the appellant appeared there armed with spade and hit the same to Hussain Bux on right side of the head and another blow on right side ear. Accused made his escape good, though efforts were made by him and other witnesses to capture him.
12. Gul Mohammad Bhayo (PW-2) has acted as mashir in this case and deposed that on 11.06.2015 police officer inspected place of wardat and collected blood-stained earth, sealed it and prepared such mashirnama. Investigation officer had also made him mashir of arrest of the accused and recovery of the spade from his possession. Co-mashir was Mohammad Ali. Police made him mashir of place of wardat, inquest report, mashir of the arrest of accused and recovery of spade.
13. Gulsher Ahmed SIO (PW-5) has deposed that on 10.06.2015 investigation of Crime No.67/2015 was handed over to him. He visited the place of wardat on 11.06.2015 on the pointation of the complainant, prepared such mashirnama in presence of the mashirs. On 14.6.2015 on spy information arrested the accused in presence of the mashirs and recovered spade from his possession, recorded 161, Cr.P.C statements of the P.Ws on 11.06.2015, sent blood-stained earth, clothes of the deceased and spade to the Chemical Examiner for the reports. On the conclusion of the investigation submitted challan against the accused.
14. Now I would consider, whether evidence of PW-1 complainant Raja, who is brother of the deceased and PW-3 Mehmood, the nephew 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 is that merely because witnesses or the eye-witnesses are relatives by itself is no ground to reject the evidence of such witnesses. These witnesses being brother and nephew normally would like to bring truth before the Court particularly where accused is also the brother of the complainant.
15. In this case, deceased was the brother of the complainant. Eye-witness, namely, Mehmood was also nephew of the deceased and mashir Gul Mohammad was also relative of the deceased. Incident had occurred near the house of Ghous Bux Pahore. It was daytime incident. Presence of the eye-witnesses at the place of incident at the relevant time has been fully established. Moreover, ocular evidence is corroborated by the medical evidence. As regards the contention that both the eye-witnesses were related 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. Reliance is placed upon the following cases :-
(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.
16. 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).
17. In the instant case, eye-witnesses complainant Raja and PW Mehmood were closely related to the deceased being brother and nephew respectively, but presence of these witnesses at the place of incident at the relevant time was natural, because deceased was going for his duty and eyewitnesses/brother and nephews of the deceased went out of the house to see him off. Complainant Raja has explained his presence with deceased in his evidence (Ex.4) as under:-
“Today i.e. 10.06.2015 my brother was ready to go on his duty, when he came out of his house, we i.e. I and our nephews Mehmood and Ali Khan both sons of Ghulam Nabi we were accompanied to him / Hussain Bux left the house for job, when we reached at Katcha road near house of Ghous Bux Pahore at about 0815 hours, we saw Kareem Bux having Spade “Kodar”, hit the same to my brother Hussain Bux from right side of head and other on right ear Blood was oozing from the injury, accused escaped in south we tried to grasp him but failed. On the hues and cries of my injured brother we returned back to him and arranged vehicle to take him to the hospital. On the way he was died.”
Another eyewitness, namely, Mehmood has also narrated the same story and clearly deposed that appellant committed murder of his elder brother in his presence. Trial Court has rightly believed their evidence. The contention, therefore, has no force.
18. As regards the formal registration of FIR is concerned, complainant has deposed that after incident he took his injured brother to the hospital, but information of the incident was given to the police within half an hour, as deposed by PW-7 ASI Taj Mohammad, author of FIR. Deceased died on the way to the hospital. After postmortem examination, he took the dead body of his brother to the home. After burial ceremonies he lodged FIR against his brother. Facts of this case are typical. Accused is the brother of the deceased, so also the complainant. No benefit was derived by the complainant from lodging the FIR with delay, therefore, delay in lodging of the FIR in this case would not be fatal to the case of prosecution. As regards to the contradictions between the medical and ocular evidence is concerned, doctor has deposed that time between injuries and death was instantaneous. Complainant and other eye-witness have also deposed that immediately after the incident injured was taken by them to the hospital, but he succumbed to the injuries on the way, therefore, it is clear that there was no contradiction between ocular and medical evidence. Motive as set up in the FIR was that deceased was the elder brother of appellant, who advised/counseled appellant, his younger brother, not to waste his precious time and start some work. The motive has been established at trial by the eye-witnesses of the incident. Spade recovered from the possession of the appellant was sent to the Chemical Examiner. Report was received in positive. It has also corroborated the case of prosecution. 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. Therefore, I have no reason to disbelieve the evidence of the complainant and his nephew given against appellant. Trial Court has rightly appreciated the evidence according to the settled principles of the law and finding recorded by the trial Court in this regard requires no interference. As regards to the sentence, which is awarded under Section 302(c) instead of 302(b), PPC, I am of the opinion that trial Court has taken very lenient view. Coming back to the merits of the case, it was a broad daylight murder committed by younger brother of elder brother on counseling/advice to the appellant to do some work, but appellant responded in a cruel manner, which too on next day, meaning thereby it was not the case of sudden provocation rather a preplanned and premeditated murder of elder brother. Appellant had caused two blows with spade to deceased at his vital parts of body. In my considered view, no mitigating circumstances sine qua non for lesser punishment were available. While dealing with quantum of sentence, approach of the Court should always be dynamic, but in the present case State/complainant has not filed revision for enhancement of the sentence. Thus, I am not inclined to interfere with the sentence awarded to the appellant by the trial Court. Learned trial Court has passed well-reasoned and speaking judgment, which does not suffer from any illegality or irregularity or misreading and non-reading of evidence, as such impugned judgment passed by the trial Court is not open to any exception, hence, it is maintained. Consequently, appeal filed by appellant is hereby dismissed.
JUDGE
Qazi Tahir PA/*