IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No. S- 03 of 2016.
Appellant: Meero son of Majeed Jatoi, through Mr. Habibullah Ghouri, Advocate.
Respondent: The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Dates of hearing: 19-11-2020.
Date of the decision: 11-12-2020.
JUDGMENT
Zulfiqar Ali Sangi, J-. Through this criminal appeal, appellant Meero son of Majeed Jatoi has impugned the judgment dated 30.11.2015, passed by learned Additional Sessions Judge-II, Shikarpur, in Sessions Case No.411/2010, re; St. v. Khan Muhammad & others, arisen out of Crime No.28/2010 of P.S Gaheja (District Shikarpur), for offence under sections 302, 148, 149, 114, 337-H-2, 504 P.P.C., whereby the appellant was convicted and sentenced for offence under Section 302 (b) P.P.C. The appellant was sentenced to suffer R.I for life and to pay fine of Rs.50,000/- to the legal heirs of the deceased and in case of default in payment of finehe was directed to suffer S.I for six months more. The benefit of Section 382-B Cr.P.C was extended to the appellant.
2. The facts of the prosecution case are that, on 10.7.2010 complainant Mst. Rahiman lodged F.I.R with P.S Gaheja, stating therein that there is dispute between them and Hakeem and othersover landed property. On the day of incident, Hakeem and others committed murder of Ghulam Shabir; consequently such case was registered at P.S Gaheja, complainant and her relatives, namely, Mst. Wadan Khatoon and Mst. Qazbanoand Muhammad Siddique were went from their village to Madeji town for purchasing coffin and other articles for funeral and burial purpose of deceased Ghulam Shabir. They purchased the same and were coming back to their village by Wagon and at “Tour-Band” they alighted from then at about 07.00 p.m. they reached at Masti Minor Path near village Tour-band, they saw accused Hakeem, Meero, Insaf, Jumo, Usman alias Sheenh, Hidayatullah having Kalashnikovs, Khan Muhammad, Allah Wadhayoarmed with guns came from both sides of Yaseen Wah, out of them accused Allah Wadhayo and Khan Muhammad instigated other accused to commit murder of Muhammad Siddique, as he has come to their range. On their instigation, accused having Kalashnikovs fired straight shots at Muhammad Siddique who sustainedinjuriesand fell down while raising cries. The complainant party entreated the accused persons in the name of Almighty Allah, then all the accused while abusing and firing in air went away. The complainant party saw Muhammad Siddique, who was having injuries on different parts of his body and was dead. The complainant left witnesses over dead body of deceased and she went to police station where her FIR was registered.
3. After completing the investigation the investigation officer submitted the challan before the court having jurisdiction. Trial court framed the charge against the appellant to which he pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove the case against the appellant examined PW/ ASI Ghulam Rasoolwho produced F.I.R and memo of arrest. PW Sadaruddin was examined who produced photocopy of mashirnama of arrest of accused Meero. Complainant Mst. Rahiman was examined. PW Mst. Wadan was examined. PW Inspector Zahid Hussain was examined, who produced memo of place of vardat, recovery of blood stained earth and empties, memo of inspection of dead body, inquest report, Danishnama. Dr. Abdullah was examined who produced postmortem report. PW Shahnawaz was examined. Thereafter the side of prosecution was closed by the learned prosecutor for the state.
5. Trial court recorded statement of appellant under Section 342 Cr.P.C. in which appellant denied the prosecution allegations against him, he not examined himself on oath nor lead evidence in his defence.The trial Court after hearing the advocates of the parties passed the aboveimpugned judgment, whereby appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant criticized the impugned judgment and argued that, the prosecution witnesses are closely related inter-se, and no independent witness has been examined by the prosecution at trial. Learned counsel next contended that prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, therefore, their evidence is un-reliable and un-trustworthy. Per learned counsel, the motive for the alleged incident is not assigned to the appellant. Learned counsel further submitted that, there were general allegations of making fires upon deceased against six accused persons including appellant but no specific role was assigned to appellant; that there is no any recovery of alleged Kalashnikov from possession of appellant. Learned counsel further contended that, eyewitness of the alleged incident namely, Mst. Kazbano was not examined at trial, therefore presumption would be that she was not going to support the case of prosecution in view of Article 129 (g) of the Qanun-e-Shahadat, 1984. He further contended that ocular evidence does not support circumstantial evidence. Per learned counsel, the recovery of empties from place of incident could not be relied or said to be corroborative piece of evidence because there is no recovery of crime weapon from the appellant. Learned counsel lastly submitted that the prosecution failed to prove its case against the appellant beyond a shadow of reasonable doubt.Lastly, he prayed that the appellant may be acquitted by extending him the benefit of the doubt. In support of his contentions, learned counsel placed reliance upon case of Imtiaz alias Taj V. The State and others (2018 SCMR 344), Munir Ahmed and another V. The State and others (2019 SCMR 79), Muhammad Shah V. The State (2010 SCMR 1009) and Ishtiaq Masih V. The State (2010 SCMR 1039).
7. Learned D.P.G. controverted the arguments of learned appellant’s counsel and submitted that the prosecution case has rightly been believed by the learned trial Court and the appellant has rightly been awarded conviction. He supported the impugned judgment by arguing that, the motive of the incident was fully proved during trial through evidence of witnesses. He further added that, empties and blood stained earth were recovered from place of incident. He submitted that non-recovery of crime weapon is no ground to acquit the accused from the charge in view of strong ocular evidence. He lastly, contended that there are some minor contradictions in the evidence, but the same could not be made basis for acquittal of the accused in view of the fact, that the witnesses were examined with lapse of sufficient time; therefore, such minor contradictions would be natural and prayed that the appeal of the appellant may be dismissed.
8. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General and perused the record and have read the evidence of prosecution witnesses with their able assistance.
9. The evidence produced by the prosecution in the shape of ocular evidence and medical evidence coupled with documentary evidence, includes Postmortem report of the deceased, established beyond any shadow of reasonable doubt that on 10-07-2010 at about 07.00 pm at Masti minor near Tour-band, deceased received firearm injuries on his person and was died due to un-natural death at the spot. Prosecution in order to prove the death of deceased as un-natural examined Dr. Abdullah, who conducted postmortem of deceased Muhammad Siddique and found the following injuries:
1. One LTP wound measuring 5 cm x diameter circular in shape cavity deep, no burning and blackening, margins inverted present on middle 1/3rd of right side chest posteriorily through and through expelled out lower 1/3rd left side chest anteriorily.
2. One LTP wound measuring 2 cm x 1 cm gutter shape cavity deep, no burning and blackening, margins inverted present on upper 1/3rd right side chest posteriorily through and through expelled out middle 1/3rd left side chest anteriorily.
3. One LTP wound measuring 2 cm x diameter irregular in shape cavity deep, no burning and blackening margins inverted present on middle 1/3rd left lumber region posteriorily through and through expelled out mid of abdomen anteriorily.
4. One LTP wound measuring 2 cm x 1 cm gutter shape muscle deep, no burning and blackening, margins inverted present on upper 1/3rd left arm shoulder region laterally and bullet recovered subeataneous tissue of middle 1/3rd left arm laterally.
5. One lacerated wound measuring 2 cm x 3 cm muscle deep on mid of left cheek.
6. One LTP wound measuring 8 cm x 3 cm gutter shape muscle deep, no burning and blackening present on lower 1/3rd left thigh anteriorily through and through expelled out upper 1/3rd left thigh anteriorily.
7. One LTP wound measuring 2 cm x 1 cm gutter shape of no burning and blackening, margins evertedpresent on upper 1/3rd thigh muscle deep through and through expelled out.
8. One LTP wound measuring 2 cm x 1 cm gutter shaped probe deep, no burning and blackening present on lower 1/3rd left leg medially through and through expelled out laterally.
Doctor also deposed before the trial Court that walls, ribs and cartilages damaged, Pleurae damaged, Right lung and left lung damaged, Pericardium and heart damaged, Blood vessels damaged, Walls damaged at site of injury No.1. Diaphragm damaged at site of injury No.1. Stomach damaged, Pancreas damaged, Spleen damaged, Left kidney damaged, Muscles, Bones and joints damaged at injuries No.1 to 8. The doctor further deposed that from external as well as internal examination of deceased Muhammad Siddique Tart Jatoi, he was of the opinion that death had occurred due to injuries on vital parts of the body i.e. right and left lung, heart, left kidney which has caused severe external injuries caused by firearm. Injury No.5 is tramic in nature. Injuries No.1, 2 and 3 are sufficient to cause death in ordinary course of life. All injuries were ante-mortem in nature. Therefore the question before this court is to see who killed the deceased for which the prosecution witnesses gave their evidence as under:-
10. PW-2 (Complainant), Mst. Rahiman was examined by the prosecution. She deposed that on the day of incident she alongwith Muhammad Siddique, Mai Wadan and Mai Kazbano went to Madeji town for purchasing shroud/ winding sheet of deceased Ghulam Shabir, after purchasing they were returning to their village and when they reached Masti minor near Tour-band at 07.00 p.m. they saw Allah Wadhayo, Khan Muhammad, Meero (appellant), Hakeem, Insaf, Jumo, Usman alias Sheenh and Hidayatullah. Accused Allah Wadhayo and Khan were armed with guns and rest of the accused were armed with kalashnikovs, were standing there. She further deposed that accused Allah Wadhayo and Khan Muhammad instigated other accused that Muhammad Siddique has come to their range, therefore, commit his murder. On their instigation, accused Meero (appellant), Hakeem, Usman alias Sheenh, Hidayatullah, Jumo and Insaf fired upon Muhammad Siddique who was ahead of them and received injuries and after receiving injuries he fell down; then all the accused by making firing in the air went away. She further deposed that they found injuries on left side of knee, right thigh, chest, abdomen, back and on other parts of the body and died. She deposed that by leaving Mst. Kazbano and Mst. Wadan over the dead body of Muhammad Siddique, she went to Police-station Gaheja, where she lodged F.I.R and then police came to vardat, dispatched the dead-body and after postmortem returned dead-body for burial purpose. She further deposed that she showed place of incident to the police and police after inspection prepared such mashirnama. She was cross-examined at length, but I could not find any material contradiction, which create dent in the case of prosecution. However, during cross-examination on question from defence-counsel she replied that “First accused Meero fired upon deceased. Accused Meero alias Mir Muhammad is nephew of Hakeem.”
11. Prosecution examined Mst. Wadan(eye witness),she deposed that on the day of incident she alongwith Mai Rahiman, Muhammad Siddique and Mai Kazbano went to Madeji town to purchase shroud/ winding sheet of deceased Ghulam Shabir. After purchasing, when they were returning and reached at Masti minor near Tour-band at 07.00 p.m. they saw Hakeem, Meero (appellant), Insaf, Jumo, Hidoo alias Hidayatullah, Usman alias Sheenh, Khan Muhammad and Wadhayo were armed with kalashnikovs, out of them Khan Muhammad and Wadhayo were armed with guns, were standing there. She deposed that accused Allah Wadhayo and Khan Muhammad instigated other accused that Muhammad Siddique has come to their range, therefore, commit his murder. On their instigation accused Meero (appellant), Hakeem, Usman alias Sheenh, Hidayatullah, Jumo and Insaf fired upon Muhammad Siddique, who was ahead of them and received injuries; after receiving injuries fell down. She deposed that on their cries accused went away by making firing in the air, then they saw Muhammad Siddique having injuries on different parts of his body and was dead. She further deposed that Mai Rahiman left her and Mai Kazbano over dead body went to Police-station Gaheja, then the police came at place of incident, dispatched the dead body and after postmortem returned dead-body to them for burial purpose. She was also cross-examined at length. However, I, could not find any material contradiction, which create dent in the prosecution case. During cross-examination, the suggestion was made to this witness that the murder of deceased Muhammad Siddique was committed by some unknown accused, for which she replied in negative.
12. P.W ASI Ghulam Rasool was examined, who is author of the F.I.R and also arrested accused Khan Muhammad. He fully supported the prosecution case. Prosecution also examined PW ASI Sadaruddin, who arrested accused Meero (appellant) in presence of mashirs P.C Nazir and P.C Nadeem at District Jail Shikarpur and prepared such mashirnama.
13. The Investigation officer of the case Inspector Zahid Hussain was examined by the prosecution, who deposed that on 10.7.2010 he was posted as Inspector/ SIO Police-station Gaheja; he received copy of F.I.R bearing Crime No.28/2010 for offence under Sections 302, 148, 149, 114, 337- H (2), 504 P.P.C. from ASI Ghulam Rasool Hakro. He further deposed that Mst. Rahiman was available at Police-station, therefore, he on the same day inspected place of incident on her pointation, which was situated at path of Masti minor near village Tour. He collected blood stained earth and five empties of Kalashnikov and sealed the same and prepared such mashirnama in presence of mashirs Shah Nawaz and Ghulam Mustafa. He further deposed that he inspected dead body of Muhammad Siddique in presence of same mashirs and prepared such mashirnama. He further deposed that he prepared inquest report and Danistnama in presence of same mashir and thereafter dispatched dead-body for postmortem. He deposed that on 11.7.2010 he recorded statements under Section 161 Cr.P.C. of Mst. Kazbano and Mst. Wadan; he wrote letter to Mukhtiarkar to depute Tapedar to prepare sketch of place of incident and on 11.7.2010 ASI Ghulam Rasool produced accused Khan Muhammad alongwith mashirnama and Hulia form and handed over to him. He deposed that after completion of investigation, he submitted the challan against the accused persons. He was cross-examined and negated suggestions made from defence counsel that the empties were not secured from place of vardat and were foisted.
14. The prosecution examined Shah Nawaz (Mashir), who deposed that on 10.7.2010 at 2230 hours on information of complainant the police came and inspected dead-body of deceased Muhammad Siddique in his presence and in presence of co-mashir Ghulam Mustafa. Police also inspected place of incident in their presence and secured blood stained earth; sealed in cigarette pocket and seven empties of Kalashnikov; same were also sealed separately. The police prepared such mashirnamas in their presence. The police also inspected dead-body and prepared Danistnama. He was cross-examined but I could not find any substance which create dent in the prosecution case.
15. I have carefully examined statement of appellant recorded under Section 342 Cr.P.C, wherein he simply stated that allegations against him are false and fabricated; nothing has come on record against him; he is innocent and prayed for justice.
16. The evidence produced by the prosecution was reassessed and on reassessment of the entire evidence including the medical evidence the important part of which discussed above and after hearing learned advocate for the appellant and the DPG, I find that the prosecution has proved its case against the appellant for the offences charged beyond shadow of reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
17. FIR of the present case was registered promptly. Incident took place on 10-07-2010 at 07.00 pm, FIR was registered on the same day at 2130 hours and the postmortem of the deceased was conducted at 1215 am on 11-07-2010,which exclude the possibility of consultation or deliberation on the part of the prosecution. It is also established from the evidence of the witnesses that after the incident complainant immediately went to the police station by leaving other two ladies at the dead body, and after the FIR police along with the complainant came at the place of vardat wherefrom police referred the dead body to hospital for postmortem. The complainant being lady gave full particulars of the incident to the police.Honourable Supreme Court in case of FARMAN ALI and another V. The STATE and another (2020 S C M R 597), has held as under:-
4. We have heard the learned counsel for the petitioner Farman Ali in Criminal Petition No.29-P/2012, and also perused the whole record in Jail Petition No.76/2012, preferred by Amjad Ali co-convict of Farman Ali and observed that in this case the occurrence took place at about 5.15 p.m. The Police after coming to know about the occurrence arrived in the Emergency Department of the Hospital where Muhammad Askar Khan, Complainant/PW-1, reported the matter. The postmortem was conducted on the same day after about one hour of the occurrence. In the FIR, it is specifically mentioned that the petitioners Farman Ali and Amjad Ali along with Malik Alam (P.O.) fired at the deceased Muhammad Ajmal Khan. Due to their firing, the deceased received fire shots and succumbed to the injures. The names of the eye-witnesses have specifically been mentioned in the FIR. In this case, the matter was promptly reported to the police and the postmortem was also conducted promptly, which exclude the possibility of consultation or deliberation on the part of the prosecution.
18. Contentions raised by the learned counsel for the appellant that the witnesses are relative to deceased and are interested, therefore, their evidence cannot be relied upon has no force as although the witnesses are relative to the deceased but they specifically deposed that complainant and the witnesses along with deceasedwere went to purchase the kaffin for deceased Ghulam Shabir and after purchasing the same were returning to their home, and on the way this incident took place, complainant immediately approached the police station where her FIR was registered,she given full particulars of the incident in the FIR, thereafter, police proceeded towards the place of vardat and referred the dead body for postmortem, hence the presence of complainant and the eye witnesses at the place of incident fully established.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 well as 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."
In the case of Abid Ali & 2 others v. The State (2011SCMR 208), Hon’ble Supreme Court of Pakistan has held as under:-
21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crimeand that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.
In the case of Lal Khan v. State(2006SCMR 1846), Hon’bleSupreme Court has held as under:-
... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
In the case of Zulfiqar Ahmed & another V. State(2011SCMR 492), Hon’bleSupreme Court has held as under:-
...It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of ‘interested witness’ was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR-01) and it was held that ‘friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.
19. Contentions raised by the learned counsel for the appellant that there were general allegations against the appellant and other accused persons 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 the appellant along with other accused actively participated in the commission of offence and he fired from his weapon 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, Complainant clearly stated during her cross examination that “First accused Meero (appellant) fired upon deceased.” In case of Muhammad Riaz and another V. The State and another (2007 SCMR 1413),Hon’ble Supreme Court has 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.
20. Another contention of learned counsel for the appellant that crime weapon used by the appellant at the time of offence was not recovered from the appellant, therefore, the appellant cannot be connected with the murder of deceased, has no force in view of that, all the prosecution witnesses supported the case of prosecution by deposing that the appellant along with other co-accused directly fired from the KK which hit the deceased and theirdirect evidence is further corroborated by medical evidence as the doctor who examined the deceased had found 8 separate firearm injuries on the person of the deceased. It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to prosecution case. Reliance is placed on the case of SikanderTeghanialias Muhammad Bux Teghani V. The State(2016 Y L R 1098).
21. Learned counsel for the appellants pointed out some minor contradictions and discrepancies 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 the same 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.”
22. Thus based on the discussion made hereinabove and on the reassessment of entire evidence produced by the prosecution,I am of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellant by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as medical evidence, so also the documentary evidence in support of the same. I, therefore, uphold all the sentences, fines, and penalties for each offence in the judgment whilst dismissing the appeal.
JUDGE