IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No.S-30 of 2019

Appellant : Duro alias Dur Mohammad Tart Jatoi.

Respondent : The State.

Mr. Ghulam Mustafa R. Junejo, advocate for the appellant.

Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Dates of hearing : 03-12-2020.

Date of Judgment : 17-12-2020.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- Duro alias Dur Mohammad son of Nawab, by caste Tart Jatroi, was tried by Mr. Tahir Hussain Abro, 1^st Additional Sessions Judge/Model Criminal Trial Court, Shikarpur, for committing Qatl-i-Amd of Nizamuddin alias Kandero by means of firearm, in Sessions Case No.204/2009 re-State v. Duro alias Dur Mohammad, arising out of Crime No.09 of 2008, registered at Police Station Gaheja, District Shikarpur. At the conclusion of the trial, he was found guilty of the offence charged with and vide judgment dated 08.04.2019, he was convicted under Section 302(b), PPC and sentenced to imprisonment for life as Ta’zir. Appellant was directed to pay compensation of Rs.100,000/- (Rupees One Lac), to be paid to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C or in case of default to suffer S.I. for 04 months more. Appellant was extended benefit of Section 382-B, Cr.P.C.

2. Brief facts of the prosecution case as narrated in para-4 in the impugned judgment read as under:-

“According to the case of prosecution, on 24.03.2008 complainant Allah Wadhayo, his son Nizamuddin alias Kandero, wife Mst.Safooran Khatoon and daughter Hooran Khatoon, were working in the fields. The cattle of accused Ganhwar Jatoi was grazing in the field of complainant party, the complainant and his son Nizamuddin alias Kandero driven out the cattle. At about 6.30 p.m., accused persons, namely, 1) Ganhwar, empty handed, 2) Duro, 3) Sarwar, duly armed with guns, 4) Jabbar, 5) Rahamuddin, duly armed with guns, 6) Heero, 7) Mir Gul, duly armed with Kalashnikovs, 8) Kazim, 9) Muhbat, duly armed with Kalashnikovs, all by caste Jatoi, resident of Village Manik Ji Wandh, Taluka Garhi Yasin, came there and asked the complainant party as to why they had driven out their cattle, hence they would not be spared. Saying so, accused Ganhwar instigated the rest of the accused, on which accused Duro made straight fire shot from his gun upon Nizamuddin alias Kandero, the son of complainant, with intention to commit his Qatl-i-Amd, who died on the spot. Remaining accused made fire shots in air. Complainant tried to take the dead body of his son, but the accused persons restrained him from going near it and threatened that he would also be killed. The complainant then went to his village and due to odd hours of night he remained in his village. In the morning, complainant, his wife Mst. Safooran and daughter Hooran went to the place of incident to take the dead body of deceased Nizamuddin alias Kandero, brought the same at police station, where complainant lodged FIR.

3. FIR was lodged by the complainant Allah Wadhayo at P.S Gaheja on 25.03.2008, at 1410 hours, which was recorded vide Crime No.09/2008, under Sections 302, 114, 148, 149, 337-H(2), PPC. SIP Sultan Ahmed received the copy of the FIR for conducting the investigation. I.O. inspected the dead body of Nizamuddin at P.S Gaheja in presence of mashirs HC Pervaiz Ahmed and PC Habibullah, prepared inquest report in presence of the mashirs, referred the dead body to the hospital for conducting the postmortem examination and report. I.O. inspected the place of wardhat on the pointation of the complainant in presence of mashirs Mst. Peerani and Mst. Shahero. Place of occurrence was situated in the lands of complainant in Deh Mohammad Waris Kehar. I.O. secured blood-stained earth and one empty cartridge in presence of the mashirs and prepared such mashirnama. On 05.4.2008 I.O. recorded 161, Cr.P.C statements of Mst. Hooran and Mst. Hazooran. On the conclusion of the investigation, challan was submitted against the appellant/accused and remaining accused were shown as absconders. Case proceeded against them under Section 512, Cr.P.C. Absconding accused were declared as proclaimed offenders.

4. Trial Court framed charge against accused Duro alias Dur Mohammad at Ex.6. Accused pleaded ‘not guilty’ and claimed to be tried.

5. At the trial, prosecution examined ASI Ghulam Rasool Hakro (PW-1), complainant Allah Wadhayo (PW-2), Dr. Sham Lal (PW-3), SIP Ghulam Abbas (PW-4), SIO Sultan Ahmed (PW-5), HC Parvez Ahmed (PW-6) and Mst. Safooran (PW-7). Remaining P.Ws were given up by DPP, the incharge of prosecution case and prosecution side was closed at Ex.20.

6. Trial Court recorded statement of accused Duro alias Dur Mohammad under Section 342, Cr.P.C at Ex.21, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead any evidence in his defence and declined to give statement on oath in disproof of prosecution allegations. On the assessment of evidence available on record, learned trial Court found appellant guilty for offence under Section 302(b), PPC and convicted him accordingly. Hence, this appeal is filed.

7. Mr. Ghulam Mustafa R. Junejo, learned advocate for the appellant, mainly contended that there was inordinate delay in lodging of the FIR, for which no plausible explanation was furnished; that both eye-witnesses i.e. complainant Allah Wadhayo and his wife Mst. Safooran are the parents of the deceased and interested; that presence of the eye-witnesses at the relevant time was doubtful. It is further submitted that prosecution has failed to establish the motive at trial; that there are material contradictions in the evidence of the prosecution witnesses; that prosecution has failed to prove it’s case against the appellant and prayed for acquittal of the appellant.

8. Mr. Ali Anwar Kandhro, learned Addl. P.G. argued that it is true that there is delay of about 20 hours in lodging of the FIR, but said delay has been explained by the complainant in his evidence before the trial Court. As regards to the other contention of the defence Counsel that eye-witnesses are parents of the deceased and no independent person of the locality was examined, it is submitted that mere relationship between the witnesses and the deceased is not enough to discard their evidence unless witnesses have the motive to falsely implicate the accused. As regards to the contention of the defence Counsel that there are material contradictions in the evidence of the prosecution witnesses, learned Additional P.G. submits that no material contradiction has been pointed out by the defence and minor contradictions would not be sufficient to discard ocular evidence, which is in line with medical evidence. Learned Addl. P.G. lastly, submitted that accused was absconder for more than one year and he had failed to explain it. He prayed for dismissal of the appeal.

9. I have carefully heard the arguments of the learned Counsel for the parties and scanned the prosecution evidence minutely.

10. As regards to the unnatural death of deceased Nizamuddin alias Kandero, aged about 40 years, is concerned, prosecution has examined Dr. Sham Lal (PW-3). Doctor deposed that on 25.03.2008, he received dead body of deceased Nizamuddin alias Kandero at Taluka Hospital, Madeji referred to him by SHO P.S Gaheja for conducting the postmortem examination and report. Dead body was identified by his parents. He started postmortem examination at 4.00 p.m. and finished at 6.00 p.m. on the same day. On the external examination of the dead body, Doctor found following injuries on his person:-

1. (a) One LTP wound measuring about 1.0 cm in diameter, circular in shape, margins are inverted, burning and blackening present over the mid chest at strium (entry).

(b) One LTP wound measuring about 2.0 x 1.0 cm x gutter shaped, margins are everted, no burning and blackening, present at the left scapular region (exit).

On the internal examination of deceased, Doctor found Walls, ribs and cartilages, pleurae, larynx, trachea, left lung, pericardium and heart, blood vessels, mouth, pharyax, and muscles, bones and joints damaged at the site of injury, while other organs of deceased were found healthy.

From the external as well as internal examination of the dead body of deceased, Doctor was of the opinion that death had occurred due to firearm injury at vital organs i.e. heart, lung and bleeding. Injury No.1 was found sufficient for causing the death. Probable time between injury and death was about 02 to 10 minutes, while the probable time between death and postmortem within 23 hours. Doctor was cross-examined by the defence Counsel. Doctor replied that deceased received firearm injury in the standing position and injury was caused by discharge from firearm by means of the pellets.

11. Learned advocate for the appellant did not dispute unnatural death of deceased by means of the firearm injury, hence I have no hesitation to hold that finding recorded by the trial Court regarding unnatural death of deceased requires no interference.

12. Now the crucial issue arises that who had committed Qatl-i-Amd of deceased? Trial Court has held that appellant committed murder of the deceased by means of firearm. In the light of the arguments of learned Counsel for the parties once again I have decided to examine the prosecution evidence deeply.

13. Complainant Allah Wadhayo (PW-2) has deposed that about 2½ years back present incident took place in his agricultural land, where cattle of the accused party trespassed for grazing and the son of the complainant Nizamuddin was driving out said cattle to the Government ‘Dhak’; in the meanwhile, accused appeared. Accused Sarwar instigated accused Duru alias Dur Mohammad not to spare the son of the complainant; thereafter, present appellant Duru fired from gun upon his son Nizam, which hit him and he fell down on ground. It was about 6.00 p.m. Co-accused Rahamuddin, Sarwar, Jabbar, Qadoo, Hero and Ganhwar were also standing there, they did not cause any injury to the deceased. Complainant raised cries and accused went away. Then, he went to the police station. Complainant was cross-examined by the defence Counsel, in which he admitted that PW Safooran is his wife, PW Hooran is his daughter and she has expired. Complainant has denied the suggestion that he was deposing falsely against the accused for taking the old revenge.

14. Mst. Safooran (PW-7), who was the eye-witness of the incident and mother of deceased, has deposed that on the day of incident she was working in the lands along with complainant Allah Wadhayo, son Nizamuddin and daughter Mst. Hooran Khatoon. Cattle of accused party trespassed their land. Mst. Safooran deposed that her son Nizamuddin removed cattle from the land, to which accused Dur Mohammad, Jabbar, Saroo, Ganhwar, Mehar, Rahamdin, Mir Gul, Muhabat, and Hero became annoyed; they were armed with shotguns and Kalashnikovs. It was sunset time. Accused Dur Mohammad fired from his shotgun at her son Nizamuddin, which hit him and he fell down. Due to odd hours of the night they could not go to the police station for lodging report. On the next morning FIR was lodged. Mother of the deceased was cross-examined. She has replied that houses of accused persons are situated on the Eastern side of the land. However, she has denied the suggestion for deposing falsely against the accused at the instance of her husband.

15. Investigation of this case was carried out by SIO Sultan Ahmed. He had inspected place of wardhat, collected one empty cartridge, recorded 161, Cr.P.C statements of the PWs; thereafter, said SIO was transferred. Record reflects that challan was submitted, in which appellant was shown as absconder. After pretty long time, he was arrested and faced the trial.

16. It is true that there is delay of about 20 hours in lodging of the FIR; however, explanation in this regard has been furnished by the mother of the deceased that due to odd hours of the night she could not go with her husband to the police station for lodging the report. Both eye-witnesses are old parents of the deceased. Certainly, they would be under the shock. Thus, delay caused in the lodging of the FIR would not be fatal to the case of prosecution. Even otherwise, delay in lodging the FIR under Section 154, Cr.P.C is never considered sufficient to disbelieve the prosecution case. Delay in lodging of the FIR only puts the Court on notice to undertake close scrutiny of evidence available on record to avoid falsely involvement of the accused. If evidence recorded in Court appears to be trustworthy and convincing, then delay in lodging of the FIR can be ignored, keeping in view the peculiar circumstances of each case. Learned Addl. P.G. has rightly relied upon the case of Muhammad Mushtaq v. The State (PLJ 2001 SC 76). In the present case, both eye-witnesses are parents of the deceased. Evidence of the eye-witnesses appears to be trustworthy and confidence-inspiring. There is nothing on record that eye-witnesses had any motive to falsely implicate the appellant in this case. Mother of the deceased has clearly deposed that only appellant fired upon the deceased. Complainant has also assigned role of firing to the appellant. Medical evidence fully corroborated the ocular evidence. At the cost of repetition, it is mentioned that complainant Allah Wadhayo and Mst. Safooran are parents of the deceased, but this relationship by itself is not sufficient to discard their evidence. In the present case, deceased was murdered, as he was taking the cattle of the accused to the cattle-pond, therefore, eye-witnesses had no enmity whatsoever with appellant to falsely implicate him. It has come on record that incident took place in the lands of the complainant and houses of the accused are situated adjacent to the lands of the complainant. Therefore, the presence of the eye-witnesses at the time of incident in the lands cannot be doubted. Statement of the accused was recorded under Section 342, Cr.P.C., in which he has raised plea that PWs have deposed against him falsely, but this plea is not sufficient to disbelieve such strong prosecution evidence. On the other hand, eye-witnesses, who were the parents of deceased, were put to lengthy and taxing cross-examination, but they stood the test on all material and relevant aspects and defence could not break their testimony. No doubt, abscondence of accused after commission of the offence by itself is not sufficient to prove his guilt, but in the present case, appellant absconded away for about one year and his absconsion was unexplained. The same can be taken as a corroborative piece of evidence. Motive as set up in F.I.R has also not been seriously challenged in cross examination by the defence counsel.

17. At the cost of repetition, it is mentioned that in this case direct evidence of the parents of the deceased is credible, truthful and trustworthy and is sufficient to establish the charge, corroboration from any other source is not required. Rule of corroboration in the criminal administration of justice is not a mandatory rule to be observed in each case, rather it being a rule abundant caution is applied to satisfy the mind and ensure the truthfulness of the direct evidence, as held in the case of Abdul Rashid alias Sheda Mota and another v. The State (2003 SCMR 799).

18. Having found that guilt of accused/appellant was substantially and materially brought home by prosecution at trial through reliable and trustworthy evidence, the appellant was, therefore, rightly convicted by the trial Court. His conviction and sentence are, therefore, maintained. Appeal is dismissed. However, appellant shall be entitled to the benefit of Section 382-B, Cr.P.C.

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).

“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.”

In the case of Khair Muhammad & another v. The State (2007 SCMR 158), the Hon’ble Supreme Court has observed as under:-