IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Criminal Jail Appeal No. S- 02 of 2014.
Appellant: Abdul Waheed son of Abdul Khalique, through Mr. Tahir Abbas Shah, Advocate.
Respondent: The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Dates of hearing: 01.02.2021.
Date of the decision: 08.02.2021.
JUDGMENT
Zulfiqar Ali Sangi, J-. Through this criminal jail appeal, appellant Abdul Waheed son of Abdul Khalique Larik has impugned the judgment dated 21.12.2013, passed by learned Additional Sessions Judge, Ratodero (District Larkana), in Sessions Case No.545/2010, re; St. v.Abdul Waheed & others, arising out of Crime No.241/2010 of P.S Ratodero; whereby the appellant was convicted for offence under Sections 302 (b) P.P.C. The appellant was sentenced to suffer R.I for life as “Tazir” and to pay compensation of Rs.300,000/- to legal heirs of deceased Qabool Muhammad. However, the appellant was extended benefit of Section 382-B Cr.P.C.
2. The facts of the prosecution case are that, on 21.9.2010 complainant Abdul Hameed Larik ldoged F.I.R with P.S Ratodero, stating therein that he and his cousin Qabool Muhammad Larik and his brothers Asif and Javed used to reside together in the same house. That, on 20.9.2010 in the night time after taking dinner they went to sleep in the courtyard of their house on separate costs, as such on 21.9.2010 at about 0200 hours, they woke up on barking of dogs and saw in the light of bulbs and identified accused Abdul Waheed (appellant) armed with gun, Qamber having pistol accompanying one unidentified accused armed with pistol. On their seeing accused Abdul Waheed raised “hakal” to complainant’s cousin Qabool Muhammad and fired upon him which hit him and he while raising cry fell down, then remaining accused made aerial firing in order to crate harassment. The complainant party raised cries as “murder-murder”, then all the accused went out of the house and fled away. The complainant saw Qabool Muhammad who was having firearm injury on his abdomen which was crossed through and through and he was lying dead. The complainant then brought dead body of deceased to Taluka Hospital Ratodero and leaving it there under guard of above named witnesses the complainant went to police-station and lodged report to the above effect. The complainant further added in F.I.R that accused Abdul Waheed and deceased Qabool Muhammad had exchanged harsh words with each other on domestic affairs and due to that accused Abdul Waheed has committed murder of Qabool Muhammad.
3. On completion of usual investigation, the investigating officer submitted charge sheet against appellant Abdul Waheed, Qamber Ali and Mst. Azizanand completing the legal formalities the trial court framed charge against them at Ex.07, to which they pleaded not guilty and claimed their trial.
4. The prosecution in order to prove its case produced as many as ninewitnesses who exhibited various documents in support of the prosecution case where after the prosecution closed its side. The appellant/accused recorded his statement under Section 342 Cr.P.C. Learned DDPP filed application under section 540 Cr.P.C for calling witness who was the author of the FIR which was allowed and his evidence was recorded again side of prosecution was closed and again statement under section 342 Cr.P.C of the appellant was recorded who claimed his false implication on the basis of some enmity. The appellant not examined himself under oath nor lead evidence in his defence.
5. Thereafter the trial Court, after hearing the parties and on assessment of the evidence, convicted and sentenced the appellant and acquitted co-accused Qamber Ali S/o Abdul Khalique through the impugned judgment dated 21.12.2013, against which the appellant has filed instant appeal.
6. The prosecution in order to prove the case examined PW-1/ Complainant Abdul Hameed was examined at Ex.12; he produced F.I.R and his further statement at Ex.12-A and Ex.12-B. PW-2 Asif Ali was examined at Ex.13. PW-3 Javed Ahmed was examined at Ex.14. PW-4 Dr. Amanullah was examined at Ex.15; he produced lash-chakas-form and postmortem report at Ex.15-A and Ex.15-B. The learned Prosecutor gave-up evidence of PWs Oshaque and Juman vide his statement at Ex.16. Meantime, accused Mst. Azizan absconded away and after completing legal formalities she was declared as proclaimed offender. Thereafter, PW-5/ Mashir Khadim Hussain was examined at Ex.19; he produced mashirnama of inspection of dead-body, danishtnama, mashirnamas of place of incident, arrest of accused Abdul Waheed, arrest of Mst. Azizan and recovery of SBBL gun at Ex.19-A to Ex.19-F respectively. PW-6 S.IO Muhammad Sulleman Pathan was examined at Ex.20; he produced attested copy of entry No.12 and photocopy of letter in respect of ballistic expert, chemical report at Ex.20-A to Ex.20-D respectively. PW-7 Tapedar Amanullah was examined at Ex.21; he produced sketch of vardat at Ex.21-A. PW-8 PC Barkat Ali was examined at Ex.22; he produced Receipt at Ex.22-A, ASI Mughul Khan PW-9 was examined at Ex.27.
7. 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. Learned counsel further submitted that, the weapon was foisted upon appellant and there was delay of nine days in sending the empty and the gun for FSL; that blood stain earth and clothes of deceased were also sent with delay; that the electric bulbs were not recovered by the investigation officer of the case. Learned counsel further added that on same set of evidence the co-accused Qamber Ali was acquitted of the charge by learned trial Court. Learned counsel lastly, submitted that, it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused and prayed that the appellant be acquitted by extending him the benefit of the doubt.
8. 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 further added that eyewitnesses have fully supported the case of prosecution and appellant has been assigned direct role of making fire upon deceased from gun and the same was recovered from him during investigation; that ocular evidence gets supported by medical evidence and that no major contradictions appeared in the statements of the eyewitnesses. Lastly, he prayed that the appeal of the appellant may be dismissed.
9. I have heard the learned counsel for the appellant, who have read the evidence of prosecution witnesses. Learned Deputy Prosecutor General and perused the record with their able assistance.
10. On reassessment of the evidence produced by the prosecution I am of the view that the prosecution has proved its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence, oral/direct evidence as well as medical evidence including the positive FSL and other circumstantial/corroborative evidence.
11. The incident took place on 21-09-2010 at 2. 00 am at night time and the FIR was registered on the same day at 0730 hours, the delay if any has been explained by the complainant as at the first instance he arranged for the vehicle and took the dead body towards the hospital, leaving the other witnesses complainant went to police station where his FIR was registered. In these circumstance the delay if any is not fatal to the prosecution case.
12. Complainant Abdul Hameed PW-1 who is the eye witness of the incident examined by the prosecution who deposed that on 21-09-2010 he alongwith other eye witnesses named in the FIR and inmates of the house was sleeping in the house and at about 2: 00 a.mwalkup on the barking of the dog and saw and identified accused Abdul Waheed (appellant) armed with gun, accused Kamber Ali armed with pistol and one unidentified armed with pistol entered in their house and accused Mst. Azizan was also with them on her instigation accused Abdul Waheed (appellant) fired upon the deceased Qabool Muhammad from his gun which hit him on his belly who after receiving the firearm injury fallen down and was expired at spot. He further deposed that other accused also by firing in the air escaped away from the scene of the incident. He took the dead body to hospital leaving witnesses upon dead body went to police station and lodged the FIR, investigation officer came at hospital and inspected the dead body prepared mashirnamas, place of vardat was visited by the investigation officer on his pointation wherefrom he recovered blood stain earth and one empty cartage and sealed the same at spot. This witness was cross examined by the defence counsel at some length but nothing favourable to the appellant was come on record.
13. Asif Ali PW-2 and Javed Ahmed PW-3 (eye witnesses) of the incident were also examined by the prosecution, they fully supported the version deposed by the complainant in all respects including the identity of the appellant at the time of incident, role assigned against the appellant, recovery of blood stained earth and the empty of cartridge from the place of incident by the investigation officer. Both the witnesses were cross examined at length but their evidence was not shattered by the defence counsel during their cross examination. During cross examination the defence of accused Abdul Waheed (appellant) and accused Kamber (acquitted accused) was that land of accused was occupied by the complainant party and PW Asif was on illegal relation with Mst.Azizan (wife of the deceased) thereforehe (Asif) had committed the murder of the deceased to save his skin. The accused Mst. Azizan (during trial abscond away) took defence that complainant demanded hand of daughterof deceased Qabool Muhammad for his son and on refusal he (Abdul Hameed) committed the murder of the deceased. Both the accused taken different plea about the murder of the deceased Qabool Muhammad.
14. Evidence of all the above three eye witnesses was further corroborated by the doctor Amanullah Junejo PW- 4(MLO) who deposed that on 21-09-2010 he was posted as Medical Officer at Taluka Hospital Ratodero, he received dead body of deceased Qabbol Muhammad through P.C Barkat Ali for post mortem which he conducted. Doctor found the following injuries on the person of the deceased as per his post mortem:-
(a) One lacerated punctured wound 2.5 c.m x 02 c.m x going deep and left hypo-chodrium margin inserted blackening and cheering +ve wound of entry.
(b) Eight lacerated punctured wound each measuring 0.75 cm in diameter x going deep on back of left side chest with everted margin wound of exit of injury No.1.
Note. A pallet recovered from dead body of deceased Qabool Muhammad S/o Sain Dino Larik sealed in a bottle send to concerned S.I.O police station Ratodero for further requirement and necessary action.
Doctor further deposed that after the postmortem he was of the opinion that death of deceased occurred due to hemorrhage and shock, injury No. 1 is sufficient to cause death in ordinary course of life.
15. Khadim Hussain PW-5 (Mashir) was also examined by the prosecution in support the recoveries who deposed that in his presence investigation officer inspected the dead body of the deceased and prepared mashirnamas including the Danistnama and in his presence recovery of blood stain earth and the empty cartridge was effected from the place of vardat. He further deposed that on 22-09-2010 investigation officer arrested the accused Abdul Waheed (appellant) and papered such mashirnama, who on 26-09-2010 produced the SBBL gun from palal of open plot which was also sealed by I.Oat spot and papered mashirnama, accused disclosed to the investigation officer that he used the same gun for committing the murder of deceased.This witness was cross examined but I could not find any substance favourable to the appellant.
16. To strengthen the case, prosecution examined Amanullah the Tapedar as PW-7 who produced the sketch of place of vardat prepared by him on the pointation of the complainant, P.C Barkat Ali as PW- 8 corpse bearer who after the postmortem handed over the dead body to the complainant party and took receipt from them which he produced in the evidence. Prosecution also examined ASI Mughul Khan as PW-9 who was author of the FIR, all these witnesses were cross examined by the defence counsel but no major contradiction is pointed out in their evidence.
17. Prosecution examined SIP Muhammad Sulleman PW- 6 (Investigation Officer)of the case who deposed that on 21-09-2010 he was posted as SIO at PS Ratodero and received FIR of the present case for investigation, he went to Taluka Hospital Ratodero where he inspected the dead body of deceased Qabool Muhammad in presence of the mashirs and prepared such mashirnama so also Danistnama. He handed over the dead body to PC Barkat Ali for further formalities and then came at police station. He visited the place of vardat at 11 am in presence of same mashirs on the pointation of complainant wherefrom he collected blood stained earth and one empty of 12 bore cartridge which he sealed at spot and prepared such mashirnama. He recorded statements under section 161 Cr.P.C of the eye witnesses. He further deposed that on 22-09-2010 (next day of the incident)he arrested the accused Abdul Waheed (appellant) in presence of the said mashirs and during interrogation on 26-09-2010 accused (appellant) voluntary ready to produce the gun which he used in the commission of offence and police proceeded for recovery. Accused on reaching took out one SBBL gunfrom palal available in open plot in presence of the mashirs which was sealed by him at spot and prepared such mashirnama.He further deposed that he sent the empty cartridge recovered from the place of incident and the gun produced by the appellant for FSL which he received positive FSL report and he also sent blood stained earth and the clothes of deceased for chemical examination and he also received such report inpositive. This witness was cross examined at length but nothing favourable to accused is pointed out by the defence counsel. No enmity or ill-will suggested against this witness who was important witness of the prosecution and is independent witness.
18. Learned counsel for the appellant mainly contended that the witnesses are near relatives to the deceased and are interested therefore their evidence cannot be relied upon, based on the particular facts and the circumstances of the case, these contentions 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 complainantas well as each and every event of the occurrence. Boththe parties are known to each other and are residing in the same vicinity as is evident from their evidence, so there was no chance of mistaken identity of the appellant. It is also evident from the record that all the eye witnesses are residing in the same house therefore they are natural witnesses and detailed the incident in a confidence-inspiringmanner.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.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.
It is settled by now that mere relationship of eye-witnesses with the deceased alone is not enough to discard the testimony of the eye witnesses of the incident. 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”.
19. In the evidence of the witnesses some minor contradictions were noted which in my 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.”
20. I 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 empty of 12 bore cartridge from the scene of offence with positive FSL.
21. Thus based on the particular facts and circumstances of the case as has been discussed above it is established that the prosecution has successfully proved its case against the appellant by producing ocular eye-witnesses evidence, 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 in the impugned judgment, which in my 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 appellant by the learned trial Court is hereby maintained and the instant appeal merits no consideration, which is dismissed.
22. The above appeal is disposed of in the above terms.
JUDGE