IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
CriminalJail Appeal No. S-26 of 2019
Appellants Sadar @ Sadaruddin S/o Nourez Khan Lolai and Wazir S/o Hakim Lolai, Through Mr. Habibullah G. Ghouri, advocate
Complainant: Muhammad Amin Lolai,
Through Mr. Abdul Hameed Mangi, advocate,
The State: Through Mr. Muhammad Noonari,
D.P.G for the State.
Date of hearing: 15-10-2020&29-10-2020
Date of Decision: 27-11-2020.
J U D G M E N T
Zulfiqar Ali Sangi, J.Through instant criminal jail appeal, the appellants Sadar @ Sadaruddin son of Nourez Khan Lolai and Wazir s/o Hakim Lolai, impugned the judgment dated 09.04.2019, passed by the learned I-Additional Sessions Judge/MCTC, Shikarpur in Sessions Case No. 897/2009, culminated from Crime No. 118/2009 of P.S. Dakhan, for the offence under Sections 302,337-H(2), 114 r/w Section 149 P.P.C, whereby the trial court has convicted the appellants/accused Sadar @ Sadaruddin and Wazir for the offenceunder section 302 (b) PPC as Tazir and sentenced them to imprisonment for life for the commission of murder of the deceased Sadoro Lolai. Both the accused were also directed to pay fine amount of Rs.200,000/- (In words two lacs only) each, as compensation to be paid to the legal heirs of the deceased in terms of Section 544-A Cr.P.C. In case of default of payment of fine as compensation, the accused shall suffer further S.I for six months more. The accused were also extended benefit under section 382-B Cr.P.C. The trial court acquitted the accused Nourez Khan and Muhammad Hassan while extending them benefit of doubt. The case against the remaining absconding accused was kept on dormant file till their arrest.
2. Brief facts of the prosecution case are that the complainant Muhammad Amin Lolai lodged his F.I.R at P.S. Dakhan on 28.11.2009, stating therein that on the same date, he along with his brother Abdul Majeed, maternal uncles Ghulam Muhammad and Sadoro, aged about 55/60 years had gone to their land. At about 09.00 A.M, the accused everyone Sharif @ Tiki (2) Wazir both by sons Aqil, (3) Sadar @ Sadaruddin son of Nourez, all three duly armed with Kalashnikovs, (4) Muhammad Hassan son of Saindad, (5) Nourez son of MullanSoomar, both duly armed with guns, (6) MullanSoomar son of Pandhi having “lathi” all by caste Lolai resident of village Bado, came there. Out of them the accused MullanSoomarLolai instigated the rest of the accused not to spare and to commit their Qatl-e-Amd. On such instigation, the accused who were armed with Kalashnikov, made straight fire shots upon the maternal uncle of complainant, namely, Sadoro with intention to commit his Qatl-e-Amd, which hit him and he fallen down on the ground. The rest of the accused made fire shots in air in order to create harassment to the complainant party, then the complainant party gave the sakes of Almighty Allah,on which the accused made fire shots in the air and run away towards their village. Thereafter, the complainant party found that Sadoro Lolai had received fire shot injuries on different parts of his body, blood was oozing from his injuries and succumbed to his injuries within the sight of the complainant party. The accused also taken away the licensed rifle of the deceased so also his mobile Nokia Company 1110. The complainant arranged the conveyance with the help of his witnesses and brought the dead body of his maternal uncle Sadoro at police station and lodged the FIR to that affect.
3. After completion of investigation, the challan was submitted before the competent court. Formal charge was framed against the accused at Ex:14, to which they pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, examined PW-1 Dr. Anil Kumar at Ex.12, he produced original post mortem report at Ex.12/A and Ex., PW-2; complainant Muhammad Amin at Ex. 19, he produced FIR at Ex. 19/A, PW-3 eye witness Abdul Majeed at Ex. 20, he produced original receipt of receiving dead body of deceased at Ex.20/A; The learned DDPP for the State gave-up PW Ghulam Muhammad vide his statement at Ex. 21; PW-4 Mashir Muhammad Usman was examined at Ex. 22, he produced mashirnamas of inspection dead body of deceased, mashirnama visiting the place of incident, danishnama at Ex. 22/A to 22/C; PW-5 Tapedar of the beat Anwar Ali at Ex. 23, he produced original sketch of the place of incident at Ex.23/A; PW-6 PC Muhammad Mithal at Ex.24, and lastly PW-7 IO/SIP Umed Ali Shah was examined as PW-7 at Ex.25, he produced chemical examiner report at Ex. 25/A. Thereafter, learned DDPP representing the State closed side of evidence vide his statement at Ex.26.
5. Trial Court recorded statements of accused under section 342 Cr.P.C, wherein they denied the prosecution allegations, claimed their false implication in the case. However, they did not examine themselves but led the evidence of defence witnesses (1) Ashique Ali (2) Habibullah (3) Bashir Ahmed and (4) Rehmatullah. Thereafter, learned counsel for the accused closed side vide statement at Ex. 35.
6. After assessment of the evidence, learned trial court has passed the above impugned judgment and convicted the appellants/accused as stated above. Being aggrieved by the said judgment, the appellants above named have preferred the instant criminal jail appeal.
7. Learned counsel for the appellants submits that motive is not setup by the prosecution; that eye witness Ghulam Muhammad was not examined; that no specific role has been assigned against any of the accused; that co-accused, namely, Muhammad Hassan and Nourez Khan, who were armed with guns were acquitted by the trial court and no acquittal appeal has been filed by the complainant; that the complainant and P.Ws are close relatives to each other; that no independent witness was cited in the case; that driver of datsun on which the deceased was taken to the hospital was also not examined; that the mashirs of the case are also relatives of the complainant; that crime weapon was not recovered from the appellants; that ocular evidence is contradictory with medical evidence, as according to the prosecution case, the appellants fired upon the deceased with rifles, whereas doctor during cross-examination stated that injuries were of pallets; that there are major contradictions in the evidence of prosecution witnesses; that prosecution has failed to prove its case beyond reasonable doubt. Learned counsel has lastly prayed that appeal of the appellants may be allowed and they may be acquitted after giving them the benefit of the doubt. He has relied upon the cases of MUNIR AHMED Vs. The STATE (2019 SCMR 79), MUHAMMAD Shah Vs. THE STATE (2010 SCMR 1009), ISHTIAQ MASHI Vs. The State (2010 SCMR 1039) and 2019 SCMR 129.
8. Learned D.P.G. has submitted that the prosecution has proved its case beyond shadow of reasonable doubt; that the contradictions pointed out by the learned defence counsel are of minor; that relationship of the witnesses is no ground to discard the evidence; that absence of motive is no ground to acquit the appellants; that D.Ws gave contradictory statements. He lastly submits that appeal filed by the appellants may be dismissed.
9. Learned advocate for the complainant submits that eye witnesses are natural witnesses; F.I.R was promptly lodged, wherein names of the appellants were mentioned with specific role; that ocular evidence is supported by medical evidence; all the prosecution witnessessupported the case of the prosecution; that minor contradictions can be exonerated which are not sufficient to hold that the case is doubtful; that the appellants were absconders and were subsequently arrested; that non recovery of crime weapons is no ground to acquit the appellant in presence of strong ocular evidence;He further submits that blood and crime empties were secured by investigation officer from the place of vardat. He has lastly prayed that appeal of the appellants may be dismissed
10. I have heard learned counsel for the respective parties and have gone through the material available on the record with their able assistance and considered the relevant law so also that cited at the bar.
The main witnesses gave their evidence as under:-
11. P.W Muhammad Amin, (complainant) was examined by the prosecution, who deposed that on 28.11.2009, he along with his brother Abdul Majeed, maternal uncles Ghulam Muhammad and Sadoro Khan were proceeded from their house in the morning towards their lands for working purpose, when they reached at about 09-00 a.m. they saw accused Sharif @ Tikki, Wazir both sons of Aqil, both armed with K.Ks, Sadar @ Sadaruddinson of Nourez armed with K.K, Muhammad Hassan son of Saindad, Nourez s/o Mullan Soomar, both armed with shot guns, MullanSoomar s/o Bandi Khan armed with lathi, came at their lands. He further deposed that accused MullanSoomarinstigated other accused who were armed with K.Ks that Sadaro and others are in their range and directed them for causing their murders. On such the accused persons who armed with K.Ks made direct fires upon deceased Sadoro, which hit him and he fell down. He deposed that accused Muhammad Hassan and Nourez made firing in air in order to harass them and while making firing in the air accused escaped their good. The deceased was found by them as dead. They took the dead body towards Police Station. He further deposed that accused persons took away one unlicensed rifle and mobile phone of deceased Sadoro. He has further deposed that he shown the place of incident to the police, wherefrom the police collected the blood stained earth and empties of bullet and cartridges. This witness was cross examined at length but I do not find any substance which create dent in the prosecution case, however, during cross-examination on reply to the question of defence counsel, the complainant stated that “It is incorrect to suggest that I cannot say whose fire shot hit to the deceased. Fire shot of accused Sadaruddin hit to deceased on his chest. Fire shot of accused hit to deceased on head and fire shot of accused Sharif hit to deceased on chest of deceased.” During cross-examination the complainant also admitted that he had not mentioned motive in the F.I.R and this witness also denied the suggestion of the defence counsel that the deceased was killed by other persons who were inimical to him and he also admitted during cross-examination that day of incident was Eid-ul-Uzha.
12. P.W Abdul Majeed (eye witness) was examined by the prosecution, who deposed that incident took place on 28.11.2009, on the day of incident he along with his brother Muhammad Amin, maternal uncles Ghulam Muhammad and Sadoro were present at their lands. At about 09-00 a.m., the accused persons, namely, Sharif @ Tikki, Wazir, Sadar, Muhammad Hassan, Nourez, MullanSoomar came at their lands. The accused Sharif, Wazir and Sadar were armed with K.K while accused Muhammad Hassan and Nourez were armed with shot guns and MullanSoomar was armed with lathi. He deposed that accused MullanSoomarinstigated other accused persons that complainant party is in their range and they may cause their murder. He further deposed that accused Sharif @ Tikki, Wazir and Saddar made direct fire shots from their K.K with intention to cause murder of his maternal uncle Sadoro, which hit him and he fell down by making cries. Accused Nourez and Muhammad Hassan made firing upon them in order to harass them. He deposed that accused persons took away the licensed rifle and mobile phone of deceased Sadoro and made their escape good. He deposed that the dead body was shifted to Police Station on Datsun and his brother Muhammad Amin lodged such report. This witness was cross examined at some length but I do not find anysubstance favourable to the accused. During cross-examination this witness stated that “there was no dispute or enmity in between we and accused persons prior to this incident.” He also admitted that day of incident was Eid-ul-Azha.
13. P.W Muhammad Usman (Mashir) was examined by the prosecution, who deposed that on 28.11.2019 at about 10-30 a.m, dead body of deceased Sadoro was examined by Investigating Officer Umeed Ali in his presence and in presence of co-mashir Sajid Ali and the dead body was lying in the Datsun. At that time there was Gunshot injuries on the chest of dead body through and through and blood was oozing. Mashirnama was prepared by I.O at spot. He further submits that on the same day at about 04-00 p.m, police inspected the place of incident in his presence and in presence of co-mashir Sajid and I.O collected the blood stained earth, five empties of bullets of K.K and six empties of cartridges of gun and they also noticed foot prints marks of six culprits at the place of incident. I.O prepared mashirnama and I.O also prepared the Danishnama of dead body in his presence. This mashir was cross examined at length but nothing favourable to the appellants brought on record by the learned defence counsel.
14. P.W Anwar Ali the Tapedar of beat was examined, who produced sketch of place of vardat. PW P.C Muhammad Mithal was examined, who handed over the dead body of deceased to the legal heirs of deceased after conducting post mortem. He also handed over the blood stained clothes to the Investigating Officer under proper receipt.
15. Prosecution examined SIPUmeed Ali Shah, (Investigating Officer), who deposed that on 28.11.2009, he was posted at S.I.P/S.I.O at P.S. Dakhan, he received papers of Crime No.118/2009 for investigation, he inspected the dead body of deceased Sadoro which was shown to him by the complainant at about 10-30 a.m in presence of mashirs Muhammad Usman and Sajid Lolai and prepared such memo. He also prepared danishnama of dead body and lash chakas form. He deposed that he sent the dead body of deceased Sadoro to M.O R.H.C Garhi Yasin for post mortem through P.C Muhammad Mithal Khakhrani and on the same day he recorded the statements U/S 161 Cr.P.C of P.W Abdul Majeed and Ghulam Muhammad, who supported the contents of F.I.R thereafter P.C Muhammad Mithal appeared before him and produced blood stained clothes of deceased. He further deposed that on the same day, he inspected the place of incident and same was shown by the complainant in presence of mashirs, wherefrom he collected the blood stained earth, five empties of bullets of K.K and six empties of cartridges of 12 bore white in color, sealed the same at the spot and prepared such mashirnama in presence of mashirs. He deposed that he send the blood stained earth to Chemical Laboratory Rohri for examination. He wrote the latter to the Mukhtiarkar (Revenue) Garhi Yasin regarding preparation of map of vardat. He deposed that he made efforts to arrest the accused persons but could not succeeded, therefore, after obtaining all the reports and post mortem he submitted charge sheet by showing the accused as absconders. I.O was cross examined but I could not found and substance favourable to the appellants.
16. Doctor Anil Kumar was examined by the prosecution who deposed that on 28-11-2009 he was posted as Medical Officer at RHC GariYasin, he received dead body of deceased Sadoro aged about 55/60 years through PC Muhammad Mithal for post mortem which he conducted and opined that death has occurred due to damage of vital organ I.e brain, right side lung resulting into shock and hemorrhage caused by discharge from fire arm. The doctor found the following injuries on the person of deceased:-
1. One LTP wound measuring 0.5 cm in diameter deep cavity on right side of chest above the nipple inverted margins (wound of entry).
2. One LTP wound measuring 2 cm in diameter on back of right side of chest everted margins (wound of exit).
3. Two LTP wound measuring 0.5 cm in diameter deep cavity below the nipple of right side of chest inverted margins (wound of entry).
4. Two LTP wound measuring 1 cm in diameter on back side of right side chest everted margins (wound of exit).
5. One LTP wound measuring 0.5 cm in diameter on left side of temporal region of head inverted margins (wound of entry).
6. One LTP wound measuring 3 cm in diameter on right side of head of temporal region of head everted margins (wound of exit).
17. On reassessment of the entire evidence produced by the prosecution the important part of which discussed above and after hearing learned advocate for both the parties, I find that the prosecution has proved its case against the appellants for the offences charged beyond shadow of reasonable doubt.
18. In our accusatorial system, there is a presumption of innocence in favour of the accused that the offence has not been committed by him and the presumption continues to be operative until the prosecution is able to prove its case through reliable, trustworthy and confidence inspiring evidence beyond a reasonable doubt. The life and liberty of the individual would be in jeopardy if the rule was otherwise. The principle is sometimes expressed by saying that to be on the safer side, the acquittal of ten guilty persons is to be preferred to the conviction of a single innocent person. A very high standard of proof is, therefore, required to establish the culpability of an accused person. Proof beyond reasonable doubt does not, however, imply that the prosecution must eliminate even fanciful doubts regarding the criminality of the accused person.
19. It is a well-settled principle of law that a criminal case is to be decided based on the totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had been expressed by the Honourable Supreme Court of Pakistan in the case of State v. Rab Nawaz and another (PLD 1974 SC 87) wherein Honourable Supreme Court has observed that a criminal case is to be decided based on the totality of circumstances and not based on a single element.
20. Contentions raised by the learned counsel for the appellants that the witnesses are relative andinterested, therefore, their evidence cannot be relied upon has no force as although the witnesses are relative to the complainant but they have no enmity with the appellants to involve them in murder case. PW Abdul Majeed during cross examination in a reply to question of defence counsel clearly stated that "there was no dispute or enmity in between we and accused persons prior to this incident."However the evidence produced by the prosecution is reliable, trustworthy and confidence inspiring which was supported by the medical evidence as discussed above. In the case of NASIR IQBAL @ NASRA and another V. The STATE (2016 S C M R 2152) Honourable Supreme Court has held as under:-
"In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as wellas the recoveries of crime weapon and the motive has fully been proved as such in our view no interference is required in conviction of the appellants."
21. Contentions raised by the learned counsel for the appellants that there were general allegation against the appellants of firing upon the deceased and it has not been established beyond doubt as to by whose fire shot the deceased had been killed has too no force as all the witnesses deposed that these appellants along with other accused actively participated in the commission of offence and fired from their weapons upon the deceased which hit to deceased and the evidence of witnesses was corroborated by medical evidence including the recovery of crime empties from the place of vardat, in similar circumstance where trial court awarded life imprisonment to the accused and the High court enhanced the sentence by allowing revision application filed by the complainant and awarded death sentence, However,Honourable Supreme Court set-aside the view taken by the High Court and restored the conviction awarded by the trial court in case of Muhammad Riaz and another V. The State and another (2007 SCMR 1413), it was held as under:-
6. A glance at the particulars of injuries would clearly show that these injuries were caused from some distance. In the ordinary course of events, it would thus, be difficult to ascertain as to which of the injuries was caused by which of the appellants. Even one of the injuries could have been caused by the fire attributed to co-accused Abdul Khaliq who stands acquitted at the trial and is, no longer available before this Court in the present appeal and petition for leave to appeal. The Medical Officer has pointed out that both injuries were sufficient to cause death in the ordinary course of nature, It would thus, mean that both the injuries were individually and collectively sufficient in the ordinary course' of nature to cause the death of the deceased. During the course of cross-examination, Medico-Legal Expert did not deny the possibility that both the injuries on the person of the deceased could be the result of a single fire. Since it is very difficult and not easily ascertainable as to which of the accused out of three assailants was responsible for causing these injuries, discretion in the matter of sentence exercised by the trial Court in our considered view does not suffer from perversity or any arbitrariness.
22. Learned counsel for the appellants pointed some contradiction in the evidence which in my view are not sufficient to hold that the case of prosecution as doubtful. It is settled by now that, where in the evidence, prosecution established its case beyond a reasonable doubt then if there may some minor contradictions which always are available in each and every case as no one can give evidence like photograph such may be ignored, as has been held by Honourable Supreme Court in case of Zakir Khan V. The State {1995 SCMR 1793}, relevant paragraph is reproduced as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
23. Defence evidence produced by the appellants during the trial also carefully examined, the defence witnesses gave their contradictory evidence. DW No.1 Ashique Ali deposed that on 28-11-2009 at about 9.00 am they were performing EidNamaz along with accused persons and other villagers and they heard fire shots reports during performing EidNamaz. DW No.2 Habibullah deposed that on 28-11-2009 he along with accused persons and other villagers were waiting for EidNamaz meanwhile they heard fire shot reports. DW No.3 Bashir Ahmed deposed that on 28-11-2009 at 9.00 am he along with accused persons and other villagers were performing EidNamaz, after performing EidNamaz they came to know that some unknown persons caused murder of Sadoro Lolai. DW No.4 Rehmatullah deposed that on 28-11-2009 he along with accused and other villagers were performing EidNamazduring performing EidNamaz they heard fire shot reports and after performing EidNamaz they went outside of EidGah where some persons meet with them they asked them that Sadoro Lolai has been murdered by unknown persons. They also given contradictory evidence about the place where they performed EidNamaz, DW Habibullah deposed that they were performing EidNamaz in the Masjid, DW Rehmatullah deposed that they performed EidNamaz in EidGah. During cross examination all the DWs admitted that they had not informed the police about these facts during the investigation. Investigation Officer had also not examined them during the investigation. All the DWs gave above contradictory evidence and were not examined during the investigation therefore their evidence cannot be relied upon.
24. Thus, based on the particulars facts and circumstances of this case keeping in view the brutality of the crime where one innocent person was murdered on the day of EID UL UZHA, the complete lack of mitigating circumstances and in fact the presence of aggravating circumstances as mentioned above whereby the deceased received 6 separate firearm injuries and the need to discourage such kind of offences so I am of the view that a deterrent sentence is the appropriate one. Reliance is placed on the case of Dadullah V. State {2015 SCMR 856}. The trial Court has taken very lenient view, since the complainant/state has not filed Revision for enhancement of sentence, as such I am not touching question of sentence more. I therefore uphold all the sentences for each offence in the impugned judgment to the appellants whilst dismissing their appeal.
25. The above jail appeal is disposed of in the above terms.
JUDGE