IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No. D- 48 of 2018.
Criminal confirmation No. D- 06 of 2018.
Present:
Mr. Justice Mohammad Karim Khan Agha.
Mr. Justice Zulfiqar Ali Sangi.
Appellant: Jhangal son of Ghulam Muhammad Dahani, through Mr. Safdar Ali Ghouri, Advocate.
Complainant: Faiz Muhammad Dahani, through Mr. Fayaz Hussain Jatoi Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Dates of hearing: 13.01.2021.
Date of the decision: 27.01.2021.
JUDGMENT
ZULFIQAR ALI SANGI, J-. Through this criminal Jail appeal, the appellant Jhangal son of Ghulam Muhammad Dahani has impugned the judgment dated 11.07.2018, passed by learned Additional Sessions Judge-I, Shahdadkot, in Sessions case No. 291/2012, re; State. v. Jhangal, arising out of Crime No.07/2012 of P.S Sijawal registered under Sections 302, 148 & 149 P.P.C; whereby the appellant was convicted and sentenced for offence under Section 302 (b) P.P.C and was sentenced to death on two counts (one for each deceased); subject to the confirmation of this court he was also directed to pay compensation to the tune of Rs.200,000/-, to the legal heirs/ walis of the deceased Imamuddin and Ghulam Ali, failing which to undergo S.I for six month on each count. Whereas, learned trial Court has made the above captioned Reference for confirmation of death-sentence.
2. The facts of the prosecution case are that, on 03.03.2012 complainant Faiz Muhammad Dahani registered F.I.R with Police-station Sijawal stating therein that: -
“Complaint is that, sister of my nephew’s Imamuddin namely Mst. Suhni is given to Jhangal Dahani resident of originally Lal Shah, presently resident of own houses near village Ghous Bux Umrani Taluka Sijawal Junejo and his sister namely Mst. Habiban is given to Imamuddin. About one month prior Jhangal brought his sister. On 28.2.2012, I alongwith my son Ghulam Ali aged about 22 years (unmarried), nephew Imamuddin son of Nooruddin aged about 27 years, nephew Ghulam Mustafa son of Abdul Khalil and cousin Nooruddin son of Abdul Bari came from Jamshoro at the house of Jhangal at morning time. We all were sitting in courtyard of house of Jhangal and we said to Jhangal to give his sister to Imamuddin for accompanying us, there had become exchange of harsh words, then Jhangal went out of house and we were available at home; at about 02.00 p.m., we saw namely Jhangal, 2. Israr, 3. Mumtaz, 4. Haji all four sons of Ghulam Muhammad, 5. Barkat son of Israr, 6. Ghulam Hyder son of Ghazi Khan with pistol all by caste Dahani, originally resident of Lal Shah Taluka Garhi Khairo, at present resident of own houses near village Ghous Bux Umrani Taluka Sijawal came, while coming accused Jhangal gave hakal and by abusing said that who you are to let his sister by saying so, he fired from his pistol straight upon my nephew Imamuddin with intention to kill, accused Jhangal made direct fire with pistol at my son Ghulam Ali with intention to kill, then all of accused made straight fires with their respective pistols upon Imamuddin, due to firearm hits Imamuddin and Ghulam Ali raised cries and fallen down, we raised cries of “murder-murder” on our cries we saw three unidentified persons with open faces armed with guns went towards north alongwith above named six accused persons. thereafter, we saw to my son Ghulam Ali, he had sustained one firearm hit on right side of head exit from back side and one firearm hit on left arm muscle through and through passed, he was unconscious. We saw to Imamuddin, he had received firearm hit on left side of neck exit from cheek, one firearm hit on left shoulder through and through passed, one firearm hit on left side of abdomen exit from right side, one firearm hit on left hip through passed, one firearm hit on buttock through and through passed, one fire on left leg knee through and through, passed, bleeding and he was unconscious. Thereafter, we shifted both injured to government hospital Mirokhan for treatment and such information was given to Police, then we saw my son Ghulam Ali succumbed the injuries in hospital and nephew Imamuddin was referred to government hospital Larkana. After postmortem of my son Ghulam Ali police handed over to us for burying and went to Jamshoro. On 28.12.2012 my nephew also expired in hospital, we informed to police. After postmortem of dead body was handed over to us, we shifted dead body of my nephew at Jamshoro. After burying, now I am here and lodging F.I.R that accused Jhangal over the matter of non giving of sister accompanied with other accused persons with common intention duly armed with weapons and created unlawful assembly, have committed murder of my son Ghulam Ali and nephew Imamuddin. The unidentified persons would be identified if seen again. I am complainant, my investigation may be held.”
3. On completion of the investigation, the investigating officer submitted the charge sheet showing present appellant under custody, while rest of the accused were shown as absconders. Thereafter charge against the appellant was framed at Ex.9, to which he pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case produced as many as nine witnesses including PW-1 Dr. Abdul Sattar at Ex.10; he produced postmortem reports of deceased Ghulam Ali and Imamuddin at Ex.10-A and Ex.10-B respectively. PW-2 complainant Faiz Muhammad was examined at Ex.11; he produced F.I.R at Ex.11-A. PW-3 P.C Abdul Sattar was examined at Ex.12; he produced lash-chakas-form at Ex.12-A and Receipt of handing over dead-body of Ghulam Ali to complainant at Ex.12-B. PW-4 Nooruddin was examined at Ex.13. PW-5 Ghulam Mustafa was examined at Ex14; PW-6 Saeed Khan was examined as Ex. 15, he produced mashirnama of inspection of dead-body of deceased Ghulam Ali at Ex.15-A, Danistnama of dead-body of deceased Ghulam Ali at Ex.15-B; mashirnama of inspection of injuries sustained by Imamuddin at Ex.15-C; mashirnama of place of incident at Ex.15-D; mashirnama of inspection of dead-body of deceased Imamuddin at Ex.15-E; Danistnama of dead-body of deceased Imamuddin at Ex.15-F; mashirnama of search conducted in house of accused Jhangal at Ex.15-G; mashirnama of arrest of accused Jhangal at Ex.15-H. PW-7 Tapedar Liaquat Ali was examined at Ex.16; he produced sketch of place of incident at Ex.16-A. PW-8 ASI Akhtiar Hussain was examined at Ex.17; he produced daily-diary entry No.11 dated 28.2.2012, letter addressed to MLO for treatment of Imamuddin, daily-diary entries, receipts regarding handing over dead-body of deceased Imamuddin to P.C Abdul Razzak and to Nooruddin and mashirnama of recovery of unlicensed pistol from accused Jhangal and Reports of Chemical Examiner and Ballistic Expert at Ex.17-C to Ex.17-L respectively. PW-9 P.C Abdul Razzak was examined at Ex.18. Lastly, the prosecution closed its side vide Ex.19.
5. Initially statement of appellant was recorded under Section 342 Cr.P.C. at Ex.20, in which he denied the prosecution allegations against him and also denied to examine himself on oath and to lead evidence in his defence. The learned trial Court after hearing learned counsel for the parties convicted the appellant vide judgment dated: 20.09.2017, whereby appellant was sentenced to death on two counts for committing offence under Section 302 (b) P.P.C; he was also directed to pay compensation to the tune of Rs.200,000/- to legal heirs of each deceased. The appellant filed appeal against said conviction before this Court vide Crl. Jail Appeal No. D- 49/2017 and a Criminal Reference No. D- 08/2017 was also filed by learned trial Court for confirmation of death-sentence and this Court remanded the case to learned trial Court for recording statement of appellant in terms of Section 342 Cr.P.C and deciding the case afresh. However, after remand of the case, the learned trial Court recorded statement of appellant under Section 342 Cr.P.C at Ex.24, in which appellant opted to record his statement in terms of subsection (2) of Section 340, which was recorded by learned trial Court at Ex.25. The counsel for appellant vide his statement at Ex.26 closed defence side. It appears that, when case was fixed for final arguments before learned trial Court, the counsel for appellant moved application for re-opening the defence side for evidence and recording further statement of accused on oath. Notice of such application was given to learned Prosecutor, who extended no objection, as such the application was allowed by learned trial Court and further statement of appellant was recorded at Ex.26 and ultimately counsel for appellant closed defence side vide his statement at Ex.27.
6. Thereafter, learned trial court after hearing the parties passed the impugned judgment dated 11.7.2018, whereby appellant was convicted and sentenced as stated above, which has been impugned before this court by way of filing instant appeal. The trial court had also moved reference for confirmation of death sentence handed down to the appellant.
7. Learned counsel for the appellant argued that the prosecution witnesses are closely related inter-se and no independent witness has been examined by the prosecution at the trial and as such the P.W’s cannot be safely relied upon. Learned counsel next contended that prosecution witnesses have made contradictions, improvements and omissions in their evidence on very material points, therefore, their evidence is un-reliable and un-trustworthy. Learned counsel further submitted that, the F.I.R was registered with delay of three days and no plausible explanation was furnished by the prosecution for such inordinate delay. He further contended that the prosecution witnesses have contradicted the contents of F.I.R with regard to role ascribed to the accused. Per learned counsel the recovery of pistol from possession of appellant was allegedly made after five days of his arrest; so also the empties were sent for FSL with delay, therefore, these incriminating pieces of evidence could not be used as corroboratory piece of evidence. Learned counsel lastly submitted that, case of prosecution is full of doubts and it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused. In support of his contentions learned counsel for the appellant relied upon the cases of Muhammad Irshad v. Allah Ditta and others (2017 SCMR 142), Muhammad Asif v. The State (2017 SCMR 486), Usman alias Kaloo v. The State (2017 SCMR 622), Khuda-e-Bad alias Pehlwan v. The State (2017 SCMR 701), Haleem and others v. The State (2017 SCMR 709), Nasrullah alias Nasro v. The State (2017 SCMR 724), Muhammad Akram v. The State (2009 SCMR 230), and Qaisar and 2 others v. The State (2017 P.Cr.L.J 327).
8. Learned Addl. P.G. assisted by the advocate for the complainant 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. They next contended that it was broad day light incident in which two innocent young person lost their lives at the hands of appellant; that the motive was proved by the prosecution during trial; that ocular version is fully supported by the medical evidence; that there is recovery of pistol from possession of appellant, so also empties of 30-bore were also recovered from place of incident and chemical report and FSL reports are in positive and that the plea of alibi was not taken by the appellant at any time during investigation or trial, but for first time this plea was taken by the appellant in his statement under Section 342 Cr.P.C. Lastly was argued by learned Addl. P.G that prosecution succeeded in proving its case and prayed for dismissal of the appeal. He relied upon the cases of Farooq Khan v. The State (2008 SCMR 917), Zahid Iqbal v. The State (2017 SCMR 1543) and Aijaz Nawaz alias Baba v. The State (2019 P.Cr.L.J 1775).
9. We have heard the arguments of learned counsel for the parties and have perused the material available on record and the evidence read out before us so also the relevant case law including that cited at the bar.
The evidence produced by the prosecution is discussed as under:-
10. The prosecution examined Dr. Abdul Sattar as PW-1 who deposed that on 28.2.2012 he was posted as Senior Medical Officer at Taluka Hospital Mirokhan and on same date Sijawal Police sent him the dead-body of deceased Ghulam Ali son of Faiz Muhammad Dahani through P.C Abdul Sattar for conducting postmortem examination and report, on external examination he found the following injuries on his person:
1. One lacerated punctured wound 1 ½ cm x 1 cm x bone deep at right partial bone of the skull (wound of entry).
2. One lacerated punctured wound 3 cm x 1 ½ cm x bone deep on occipital bone of the skull (wound of exit).
3. One lacerated punctured wound 3 cm x 1 ½ cm x 1 cm bone deep at upper part of left upper arm anteriorly (wound of entry).
4. One lacerated punctured wound 2 ½ cm x bone deep at upper part of left upper arm, posteriorly (wound of exit).
The medical officer further deposed that on internal examination he found that right partial bone and occipital bone fractured, membranes ruptured, right and left lung collapsed, pericardium and heart collapsed. The doctor has further deposed that from external as well as internal examination of deceased Ghulam Ali, he is of the opinion that the death had occurred due to shock and hemorrhage as a result of above said injuries; particularly injuries No.1 and 2; all the injuries were homicidal and ante mortem in nature caused by discharge from firearm and probable time between injuries and death was instantaneously and probable time between death and postmortem was within five hours. He issued such postmortem report and produced at Ex.10-A.
The medical officer has further deposed that on 29.2.2012 Sijawal Police sent him dead body of deceased Imamuddin son of Nooruddin Dahani through P.C Abdul Razzaq for postmortem examination and report and on external examination the doctor found the following injuries on his person:
1. One lacerated punctured wound 1 ½ cm x 1 cm x bone deep at left side of the neck (wound of entry).
2. One lacerated punctured wound 2 cm x 1 cm x muscle deep on right cheek (wound of exit).
3. One lacerated punctured wound 1 cm x 1 ½ cm x muscle deep on left shoulder (anteriorly) wound of entry.
4. One lacerated punctured wound 2 cm x 2 cm x muscle deep at left shoulder posteriorly (wound of exit).
5. One lacerated punctured wound 1 ½ cm x 1 cm x abdominal cavity deep at left side of abdomen (wound of entry).
6. One lacerated punctured wound 2 cm x 2 cm x abdominal cavity deep at right side of abdomen (wound of exit).
7. One lacerated punctured wound 1 cm x 1 cm x muscle deep at lateral side of left buttock (wound of entry).
8. One lacerated punctured wound 1 ½ cm x 1 cm at muscle of left buttock (wound of exit).
9. One lacerated punctured wound 1 cm x 1 cm x muscle deep on left buttock (wound of entry).
10. One lacerated punctured wound 1 ½ cm x 1 cm at muscle deep at medial side left buttock (wound of exit).
11. One lacerated punctured wound 3 cm x 2 cm x muscle deep, at lower part of left lower leg (wound of entry and exit).
The medical officer further deposed that on internal examination he found that right and left lungs collapsed, pericardium and heart collapsed; abdomen walls and peritoneum ruptured, left mandible fractured. The doctor has further deposed that from external as well as internal examination of deceased Imamuddin he is of the opinion that death had occurred due to shock and hemorrhage as a result of above mentioned injuries; all injuries were homicidal and anti-mortem in nature and probable time between injuries and death was within 15 hours while probable time between death and postmortem was within five hours. This witness was cross examined but nothing favourable to the appellant came on the record.
11. Complainant/Eye witness Faiz Muhammad was examined as PW-2 he deposed during trial that deceased Ghulam Ali was his son and deceased Imamuddin was his nephew; deceased Imamuddin was married with sister of Jhangal and sister of deceased Imamuddin was married with accused Jhangal; prior to incident accused had brought his sister Mst. Habiban, who was wife of deceased Imamuddin, at his house for meeting purpose and refused them to take back Mst. Habiban to their house. He further deposed that on 28.2.2012, they again approached accused alongwith his son Ghulam Ali, his brother-in-law Nooruddin and nephew Imamuddin and Cousin Ghulam Mustafa for taking back Mst. Habiban to their house and during their talks with accused, the accused became annoyed and extended harsh words to them and went outside of the house. It was about 2.00 p.m. when they were still in the house of accused Jhangal when accused Jhangal reentered in the house alongwith nine other persons out of them they identified six persons, namely, Jhangal, Israr, Mumtaz, Haji Khan, Barkat and Ghulam Hyder, all were armed with pistols, while remaining accused were armed with guns; accused Jhangal abused them by extending threats, thereafter, he made straight fires upon his son namely, Ghulam Ali, which hit him on his head through and through, on left side of arm muscle, who raised cries and fell down. Thereafter, all the accused alongwith accused Jhangal made fires upon deceased Imamuddin, who sustained about six firearm injuries on his person at different parts of the body, who by raising cry fell down. Thereafter, accused escaped.They found that Ghulam Ali had expired on the spot and his nephew Imamuddin was in injured condition; the injured as well as deceased were shifted to Taluka Hospital Mirokhan and the doctor at Mirokhan hospital advised them to shift injured to Larkana for treatment, thereafter they took the injured to hospital at Larkana, who on 29.2.2012 succumbed to his injuries during treatment at hospital. Police had come to them at Mirokhan Hospital, thereafter they were busy in the funeral of deceased and on 03.3.2012 lodged the F.I.R against above named accused. He produced F.I.R at Ex.11-A. He further deposed that on his pointation the police visited the place of vardat on 28.2.2012, where police completed the formalities. Complainant was cross examined by the defence counsel and during cross examination no material contradictions were brought on record.
12. P.C Abdul Sattar was examined as PW-3. He deposed that on 28.2.2012 he was posted as Constable at Police-station Sijawal and on same date he was handed over dead body of deceased Ghulam Ali by ASI Akhtiar Hussain Shaikh to deliver the same to Medical Officer for postmortem; he delivered dead body to medical officer in same condition and after conducting postmortem examination he returned dead body and ultimately he handed over the same to father of deceased, namely, Faiz Muhammad against a receipt which he produced at Ex.12-B. He was cross examined but his evidence was not shaken.
13. Prosecution also examined Nooruddin (Eye witness) as PW-4. He deposed that incident took place on 28.2.2012 at 2.00 p.m. at that time PW Ghulam Mustafa, complainant Faiz Muhammad, deceased Ghulam Ali and deceased Imamuddin were available at the house of accused Jhangal to get back the wife of deceased Imamuddin to their house, to which accused Jhangal was annoyed and went outside of the house, who after two hours at 2.00 p.m. returned back to house, there were three unidentified accused who were armed with guns, as well as six other accused who were armed with pistols, who were identified as Jhangal, Israr, Mumtaz, Haji, Barkat son of Israr, Ghulam Hyder son of Ghazi Khan. Accused Jhangal gave hakal to them and extended threats and made straight fire upon Ghulam Ali, thereafter again Jhangal alongwith accused Israr, Mumtaz, Haji, Barkat, Ghulam Hyder fired upon Imamuddin while remaining three unidentified accused controlled them by force of their weapons. Thereafter both the deceased sustaining firearm injuries fell down raising cries and all the accused escaped from the place of vardat. He further deposed that they found that deceased Ghulam Ali sustained two firearm injury from right side of his head and second on his left arm; deceased Imamuddin sustained six firearm injuries on various parts of his body. While leaving them at place of vardat the complainant went to the Police-station for informing about the incident and brought police with him back to the place of vardat and at that time they shifted the injured Ghulam Ali to Mirokhan hospital, however at Mirokhan hospital he expired. Whereas injured Imamuddin expired on the next day of incident at Larkana during his treatment then the complainant on 03.3.2012 lodged the F.I.R about the incident at P.S Sijawal. This witness was cross examined at length during cross examination it is admitted on behalf of the appellant that both the deceased were murdered in the village of the appellant but defence was that they were murdered by the co-villagers.
14. Ghulam Mustafa (Eye witness) was examined as PW-5 who deposed that incident took place on 28.2.2012 at 2.00 p.m. at which time he, alongwith Faiz Muhammad, Nooruddin and Imamuddin were available at the house of Jhangal (appellant), on that day they arrived at the house of accused Jhangal to get back his sister, who was married with deceased Imamuddin and firstly accused Jhangal agreed to let his sister Mst. Habiban go with them and asked them to remain in his house and after some time he got annoyed with them and went outside of the house whereafter he returned back alongwith eight other accused persons, who all were identified as Jhangal, Israr, Mumtaz, Haji, Ghulam Hyder and Barkat; they were armed with pistol, while remaining three accused were armed with guns who could not be identified and on coming in the house accused Jhangal made hakal upon them and made straight fire upon deceased Ghulam Ali and remaining accused fired upon Imamuddin; both Imamuddin and Ghulam Ali sustained firearm injuries and fell down, thereafter accused escaped from the spot; they remained with the injured and complainant went to police-station for informing the police who he brought back with him. Thereafter with the help of police the injured were taken to hospital where injured Ghulam Ali expired near the Mirokhan hospital, whereas injured Imamuddin was shifted to Larkana, where he expired on next day of incident during treatment. On 03.3.2012 complainant lodged the F.I.R. This witness was cross examined and during cross examination it was suggested on behalf of the appellant that the complainant party tried to commit murder of Mst. Habiban and with that intention they came in the village of the appellant. We found no material contradiction in the evidence of this eye witness.
15. Saeed Khan (Mashir) was examined as PW-6 who deposed that on 28.2.2012 he was available at Taluka Hospital Mirokhan alongwith co-mashir Lakhmir. ASI Akhtiar Hussain inspected the injuries of dead-body of deceased Ghulam Ali in their presence and prepared such mashirnama with their signatures. The I.O prepared Lash Chakas Form, so also inspected injuries of deceased Imamuddin and prepared such mashirnama. He further deposed that I.O visited the place of vardat in their presence and secured two empties from the point, where deceased Ghulam Ali was lying and six empties were secured from the point where deceased Imamuddin was lying; the I.O also secured blood stained earth and empties and prepared such mashirnama of place of vardat; the secured property was sealed on the spot. He further deposed that on 29.2.2012 injured Imamuddin expired and it was about 7.00 a.m., when I.O prepared the mashirnama of inspecting dead-body of deceased Imamuddin and Danistnama. He further deposed that on 06.3.2012 he alongwith co-mashir was standing at Bhand Chowk, where complainant Faiz Muhammad informed them regarding presence of accused Jhangal near the Ghous Umrani curve, thereafter they alongwith I.O Akhtiar Hussain arrested accused Jhangal and prepared such mashirnama. This witness was cross examined but nothing favourable to the appellant was brought on record by the defence counsel. Tapedar Liaquat Ali was examined as PW-7 who had prepared the sketch of place of incident which was exhibited.
16. SIP/ Investigation Officer of the case Akhtiar Hussain was examined as PW-8 at Ex.17, who deposed that, on 28.2.2012 he was posted as ASI at P.S Sijawal and on that day complainant Faiz Muhammad appeared at police-station and disclosed that his son, namely, Ghulam Ali and nephew Imamuddin have sustained injuries at the hands of accused Jhangal Dahani and others, therefore, both the injured Ghulam Ali and Imamuddin were shifted to Taluka Hospital Mirokhan, where Ghulam Ali had expired. He prepared such mashirnama in presence of mashirs, namely, Saeed Khan and Lakhmir Dahani. He deposed that, he also prepared Danistnama, mashirnama of injuries of injured Imamuddin in presence of same mashirs. He further deposed that on same date he alongwith complainant and mashirs visited place of vardat, which is situated inside the house of accused Jhangal Dahani and secured blood stained earth of deceased as well as injured and nine empties of 30-bore and prepared such mashirnama. He further deposed that on 29.2.2012 at 6.00 a.m. Nooruddin appeared at Police-station and disclosed that his injured son namely, Imamuddin had expired and his dead-body is said to be lying at Taluka Hospital Mirokhan, as such under entry No.34 they left police-station and proceeded towards Taluka Hospital, inspected the injuries, which were six in number and prepared such mashirnama and danishtnama. That on 03.3.2012 complainant appeared at police-station and disclosed a cognizable offence regarding murder of his son, namely, Ghulam Ali and nephew Imamuddin, his F.I.R was lodged. He further deposed that statement under Section 161 Cr.P.C of PW Ghulam Mustafa was recorded by him. That on 04.3.2012 he also recorded statement under Section 161 Cr.P.C of P.W Nooruddin. That on 06.3.2012 complainant through his mobile phone informed them that nominated accused Jhangal is available at Umrani curve, as such he alongwith complainant and mashirs proceeded towards pointed place and on reaching Umrani curve the complainant identified the accused and accused Jhangal was arrested and such mashirnama was prepared. He further deposed that on 08.3.2012 he recorded statement of independent witnesses under Section 162 Cr.P.C and on the basis of their statements name of accused Ghulam Hyder was kept in column No.2 of challan-sheet and on 11.3.2012 at 12.00 noon during interrogation accused voluntarily agreed to produce the crime weapon thereafter, he alongwith other police staff proceeded towards the pointed place, which is situated outside house of accused and from there under the heap of paddy straw he took out one pistol; the recovered pistol was examined and two live bullets were recovered from its magazine and accused disclosed that it is same pistol which was used by him in the commission of offence. He further deposed that recovered pistol alongwith bullets were sealed on the spot and separate case under Section 13 E.A.O was registered against accused on behalf of the State. During cross examination no material contradictions come on record which favoured the appellant.
17. P.C Abdul Razzak was examined as PW-9 who deposed that on 29.2.2012 he was posted at P.S Sijawal and on same day he was handed over dead body of deceased Imamuddin at Taluka Hospital Mirokhan by I.O Akhtiar Hussain at 7.00 a.m. which was handed over to medical officer at 8.00 a.m. for the purpose of postmortem and after postmortem at 9.30 a.m. the dead-body of deceased was handed over to him by doctor and thereafter it was handed over to the legal heirs of deceased, namely, Nooruddin and he obtained such receipt from him. He further deposed that clothes of deceased handed over to the I.O and his statement under Section 161 Cr.P.C was recorded by the I.O and on 11.3.2012 accused Jhangal was interrogated by I.O in his presence; the custody of accused was brought out from lock up and accused Jhangal during interrogation agreed to produce crime weapon viz. pistol which was used by him in offence, for that accused disclosed that he had concealed the weapon behind his house under the heap of paddy straw, as such he alongwith ASI Akhtiar Hussain and P.C Abdul Sattar alongwith accused proceeded towards pointed place and from there accused produced pistol. He further deposed that I.O examined the pistol, which was empty and such mashirnama of recovery was prepared by the I.O. The recovered weapon was sealed on spot. He was also cross examined but nothing favourable to the appellant was brought on record by the defence counsel.
18. All the three eye witnesses had categorically deposed that it was the appellant who fired from his pistol upon both the deceased and one of them died on the same day and the other died on the next day of the incident. The ocular account furnished by these three eye witnesses is corroborated by the medical evidence to which prosecution examined MLO who conducted postmortem of both the deceased. The place of incident is inside of the house of the appellant where from investigation officer recovered blood stained earth and the empties of 30 bore pistol. The evidence of the PW Tapedar confirmed the same position that it was the house of appellant where the instant incident took place.
19. Appellant was arrested on 06-03-2012 after four days of the incident and on 11-03-2012 during the interrogation he was ready to produce the pistol used in the commission of offence. Investigation officer took him along with other police staff to the place where he concealed the pistol and only the appellant was in knowledge about the same place where he concealed the weapon of crime which was situated outside the house of appellant and was under the heap of paddy straw and voluntarily took out the pistol and handed over to the police and the same was sealed at the spot. Investigation officer sent the pistol and the empties recovered from the place of incident for FSL, FSL report is in positive and the same was exhibited in the evidence.
20. During the cross examination of the witnesses the defence was taken on behalf of the appellant that both the deceased were murdered in the cross firing of the co-villagers, however, in the cross examination Investigation officer stated that he had not recorded the statements of the any third person from the locality of the accused about the incident as there was only the house of the accused in the village. This fact has also been admitted by the PW Liaqat Ali the Tapedar during his cross examination and he stated that the place of vardat is surrounded with the agricultural lands and agricultural lands are at the distance of 10 paces around the place of vardat. All these aspects and the defence taken by on behalf of the appellant proved that the appellant was present at the time of murders and the murders were committed at the place which the prosecution witnesses deposed in their evidence and the defence case is not believable.
21. The motive setup by the prosecution has been proved, all the witnesses including the deceased are not the resident of the place where the instant incident took place and eye witnesses deposed that there was a dispute on matrimonial affairs. They on the day of incident along with the deceased came at the house of the appellant to take the wife of the deceased Imamuddin namely Mst Habiban who is the sister of the appellant when some quarrel broke out on which the appellant became angry and went outside of his house and brought other co-accused with him and also a pistol for committing the murder of the complainant party. The motive has not been denied by the appellant however it was alleged on behalf of the appellant that the complainant party including the deceased came there for murdering Mst. Habiban and during cross firing of the co-villagers they were murdered for which appellant had not produced any evidence in his defence to prove the suggestion and which defence we have already found not to be believable based on the particular facts and circumstances of the case.
22. Contentions raised by the learned counsel for the appellant that the witnesses are near relatives to the deceased and are interested therefore their evidence cannot be relied upon has no force as in the instant matter, the eye-witnesses have sufficiently explained the date, time and place of occurrence which was the house of the appellant as well as each and every event of the occurrence. Both the parties are known to each other as is evident from their evidence and this is a day time incident, so there was no chance of mistaken identity of the appellant. We would not hesitate that where the witnesses fall within the category of natural witnesses and detail the manner of the incident in a confidence-inspiring manner then only escape available to the accused/appellant is that to satisfactorily establish that witnesses are not the witnesses of truth but “interested” one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. No substance has been brought on record by the appellant to justify his false implication in this case at the hands of the complainant party on account of any previous enmity. However the prosecution had proved that the appellant had a motive to commit the murders of the complainant party as they came to him for taking his sister being the wife of the deceased Imamuddin. In the case of Zulfiqar Ahmed & another v. State (2011 SCMR 492), the Supreme 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.
Thus, the mere relationship of these eye-witnesses with the deceased alone is not enough to discard the testimony of the complainant and his witnesses. In the matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the “natural witnesses” in involving the innocent at the cost of the escape of “real culprits”.
23. Learned counsel for the appellant had pointed out some minor contradictions in the evidence which in our view are not sufficient to discard the evidence of the eye witnesses who fully supported the case of the prosecution on every aspect. It is settled by now that where in the evidence prosecution established its case beyond 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, Reliance is placed on the case of Zakir Khan V. The State (1995 SCMR 1793), wherein the Supreme Court has held 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.”
24. We have carefully scanned the entire evidence produced by the prosecution and found that the prosecution proved its case against the appellant beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence in the shape of oral evidence as well as medical evidence coupled with other corroborating evidence so also the recovery of crime weapon and the empties of 30 bore pistol from the scene of offence with positive FSL.
25. As to sentence a lenient view cannot be taken as the circumstances of this case indicate that the act of the appellant was gruesome and merciless. Further the particular facts and circumstances of this case keeping in view the brutality of the crime, where two innocent persons were murdered in the house of the appellant, the complete lack of mitigating circumstances and the presence of aggravating circumstances as mentioned above whereby the deceased Ghulam Ali received 04 separate firearm injuries whereas the deceased Imamuddin received 11 separate firearm injuries and the need to discourage such kind of offences, we are of the view that a deterrent sentence is the appropriate one. Reliance is placed on the case of Dadullah V. State (2015 SCMR 856).
26. Thus based on the particular facts and the circumstances of the case it is established that the prosecution has successfully proved its case against the appellant through ocular eye-witnesses, which is corroborated by the medical evidence and other supportive and circumstantial evidence. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in our humble view is based on a correct appreciation of the evidence and the same does not call for any interference by this Court. In view thereof the conviction and sentence awarded to the present appellant by learned trial Court is hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed and the death penalty on two count is confirmed. Death Reference sent by the trial court is answered in the AFFIRMATIVE.
27. The appeal and the confirmation reference are disposed of in the above terms.
JUDGE
JUDGE