IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
CriminalJail Appeal No. S-30 of 2014
Appellant: Ghulam Abbas Magsi,
Through Mr. Habibullah G. Ghouri Advocate
Complainant: Ali Hassan Magsi (called absent)
The State: Through Mr. Muhammad Noonari,
D.P.G for the State.
Date of hearing: 12-02-2021
Date of Judgment: 19-02-2021
J U D G M E N T
Zulfiqar Ali Sangi, J. Through instant criminal jail appeal, the appellant Ghulam Abbas Magsi has assailed the judgment dated 18.09.2014, passed by the learned Additional Sessions Judge, Shahdadkot in Sessions Case No.226/2011, re: State V/s Ghulam Abbas, culminated from Crime No. 26/2005 of P.S. Mirokhan, for the offence under Sections 302,324,148,149 P.P.C, whereby the trial court has convicted the appellant for the offence U/S 302(b) P.P.C and sentenced him to suffer imprisonment for life as Tazir for committing murder of deceased Niazal and also directed to pay Rs.200,000/- as compensation to the legal heirs of deceased Niazal as provided by Section 544-A Cr.P.C, which shall be recoverable as land revenue arrears and in default of payment or recovery accused shall undergo simple imprisonment for 6 months more.Accused was convicted and sentenced U/S 337-A(i) P.P.C to undergo R.I for two years as Tazir and to pay Daman at the tune of Rs.10,000/- to complainant Ali Hassan, accused was also convicted and sentenced U/S 337-F(iii) P.P.C to undergo R.I for three years as Tazir and to pay Daman at the tune of Rs.10,000/- to complainant Ali Hassan;accused was also convicted and sentenced U/S 337-F(i) P.P.C to undergo R.I for one year as Tazir and to pay Daman at the tune of Rs.10,000/- to complainant Ali Hassan;accused Ghulam Abbas was also convicted and sentence U/S 336 P.P.C to undergo R.I for ten years as Tazir and to pay Arsh to the tune of Rs.180104.5 payable to Ghulam Nabi; accused Ghulam Abbas was further convicted U/S 324 P.P.C and sentenced for five years R.I and fine of Rs.10,000/-, in case of non-payment of fine, he shall undergo R.I for three months; accused was also convicted U/S 148 P.P.C to suffer three years R.I. The sentences of imprisonment were directed to run concurrently. The benefit of Section 382-B Cr.P.C was extended to the appellant.
2. Brief facts of the prosecution case as per FIRlodged by complainant Ali Hassan Magsi, are that on 21.06.2005 at about 07-00 a.m at the land of complainant near village Chakar Sultan situated in deh Chakar Sultan, he along with absconding accused Mehrab, Hakim Ali, Shabbir and Nadir Ali, committed the murder of deceased Zulfiqar, Niazal, Ghulam Hussain, Imdad Ali and Panjoo Khan and also caused fire arm injuries to complainant Ali Hassan. P.Ws Ghulam Nabi, Mst. Motan, Mst. Sughran and Mst. Sakina. Thereafter the complainant lodged the above F.I.R.
3. After completion of investigation, the challan was submitted before the competent court of law U/S 512 Cr.P.C against the accused persons, as all the accused were shown absconders in the challan sheet. The necessary formalities against the absconding accused were completed and finally they were declared as proclaimed offenders and the case was kept on dormant file. On 16.08.2011, the subsequent report of absconding accused Ghulam Abbas was received by the trial court from the court of Sessions Judge, Kambar-Shahdadkot @ Kambar. After completing the legal formalities charge was framed against the appellant/accused, to which he pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, examined complainant Ali Hassan at Ex.03 he produced FIR at Ex.03/A, further statement at Ex.3/B, injured PW/Ghulam Mustafa at Ex.04, injured PW Ghulam Nabi at Ex.05, PW Dr. Abdul Sattar at Ex.06, who at the time of his evidence u/s 512 had already produced necessary documents including the postmortem reports of the deceased persons and MLC of the injured persons, Mashir/Mohammad Yakoob at Ex.11, who had confirmed preparing of memos, PW S.H.O Fida Hussain Gopang at Ex.12, PW Ghulam Shabir at Ex.13. PW/Bahawal Haque at Ex.14, PW/Tapedar Qurban Ali at Ex.15, who produce copy of sketeh at Ex.15/A PW/SIO Mumtaz Ali Janwari at Ex.16, who produced attested copy of entry No.04 at Ex.16/A and report of chemical analysis at Ex. l6/B, thereafter leaned DDA for the state closed the prosecution side of evidence vide statement at Ex.17.
5. Trial Court recorded statement of accused under section 342 Cr.P.C, wherein hedenied the prosecution allegations levelled against him.He has neither examine himself on oath as required under section 340(2)Cr.P.C nor led any evidence in his defence,
6. After assessment of evidence, learned trial court has passed the above impugned judgment and convicted the appellant/accused as above. Being aggrieved by the said judgment, the appellant has preferred the instant criminal jail appeal.
7. It is observed that on 17.02.2020, 27.02.2020, 16.03.2020, 12.10.2020 and 12.02.2021, advocate for the complainant was called absent. This criminal jail appeal pertains to the year 2014, however, the case pertains to the year 2005 and the appellant is behind the bars since his arrest, therefore, this appeal cannot be kept pending for indefinite period only to wait for the complainant.
8. Learned counsel for the appellant has contended that the appellant is innocent and falsely been implicated in this case; that there is matrimonial dispute between both the parties; complainant and P.Ws are related to accused as well as to deceased; that no independent P.W cited or examined by the prosecution; that the crime weapons was not recovered from the appellant; that there are contradictions in the statements of P.Ws; that the prosecution has failed to establish the motive; that I.O has not associated any independent mashir; that according to I.O lash chakas form was prepared in the otaq and it is not disclosed that how dead bodies were brought at otaq; that the complainant party themselves had committed the murder of five persons to usurp the property of accused. Lastly he prayed that appellant may be acquitted from the charge by extending him the benefit of the doubt. In support of his contentions he has relied upon the cases of Noor Muhammad V. The State (2010 SCMR 97), Ishtiaq Mashi V. The State (2010 SCMR 1039), Muhammad Javed V. The State (2016 SCMR 2021), Muhammad Ameer V.Riyat Khan (2016 SCMR 1233), Abdul Jabbar and another V. The State (2019 SCMR 129), Munir Ahmed and another V. The State and others(2019 SCMR 79), Muhammad Arif V. The State (2019 SCMR 631) and Imtiaz alias Taj V. The State and others(2018 SCMR 344).
9. Learned Deputy Prosecutor General has supported the impugned judgment and further submitted that ocular evidence furnished by the eye witnesses is supported by medical evidence; that contradictions are minor in nature ; that in this case 5 innocent persons were killed; that relationship of P.Ws not to be considered as they are natural witnesses; that all other accused are still absconders. He has prayed for dismissal of the instant criminal jail appeal.
10. I have heard the learned counsel for the appellant, learned D.P.G. and have gone through the material available on the record with their able assistance.
The main witnesses gave their evidence as under:-
11. Complainant Ali Hassan Magsi PW-1 (Injuredeyewitness) deposed that on the fateful day, he, his father Niazal, Ghulam Hussain, Imdad, Zulfiqar, Ghulam Nabi, Panjo and Ghulam Mustafa went to their land situated near village Chakar Sultan; they were working there and at 7.00 a.m. accused Ghulam Abbas armed with repeater, Mehrab, Hakim, Shabir armed with DBBL guns came there; out of them accused Mehrab said to Niazal that he had not allowed to excavate the Wahi from their land, therefore, they would not spare them, saying so, accused Ghulam Abbas fired from his repeater at Niazal, who fell down after raising cries. He further deposed that, then accused Mehrab fired from his DBBL gun at Ghulam Hussain which hit him and he fell down; accused Hakim fired at Panjo which hit him and he fell down after raising cries. Then accused Shabir fired from his gun at Zulfiqar which also hit him and he fell down; accused Nadir fired from his gun at Imdad which hit him and two unidentified accused fired at him and PW Ghulam Nabi which hit on his head and left arm and PW Ghulam Nabi also sustained injuries on his right arm. He further deposed that on fire shots co-villagers attracted there and accused ran away; the co-villagers shifted complainant and PW Ghulam Nabi to hospital leaving P.Ws over dead bodies as all the other five injured succumbed to injuries and after getting treatment from hospital, he lodged F.I.R against accused above named. He further deposed that police visited place of vardat on his pointation and secured blood stained earth of all five deceased; they also secured empties from place of vardat and after receipt of dead bodies he went to his house, where he saw that his mother Mst. Motan, sister Sughran and Mst. Sakina were lying in injured condition and on enquiry all three injured disclosed that all above accused also came at their house after committing above murders and started looting, therefore, they resisted as such they were caused injuries. He further deposed that he shifted injured persons to police station, where his further statement was recorded. This witness was cross-examined at length but his evidence was not shattered by defence. However on the suggestion of defence he stated during cross-examination that “Accused Ghulam Abbass fired upon deceased my father Niazal at the distance of 10/15 paces. Accused Ghulam Abbass fired five shots. The fire arm injuries were sustained at my deceased father at his chest, below right leg and left leg. After receiving the fire arm injuries deceased expired then and there.”
12. Ghulam Mustafa PW-2 (eyewitness) deposed that on the fateful day, he, complainant Ali Hassan, Niazal, Ghulam Hussain, Imdad, Zulfiqar, Ghulam nabi and Panjo went to their land situated near village Chakar Sultan and were working there and at 7.00 a.m. accused Ghulam Abbas armed with repeater, Mehrab, Hakim armed with DBBL guns, Shabir and Nadir armed with SBBL guns came there; out of them accused Mehrab said to Niazal that he had not allowed to excavate the Wahi from their land, therefore, they would not spare them and saying so accused Ghulam Abbas fired his repeater at Niazal, who fell down after raising cry; then accused Mehrab fired from his DBBL gun at Ghulam Hussain, accused Hakim fired at Panjo, accused Shabir fired at Zulfiqar, accused Nadir fired at Imdad who on receipt of fire shots fell down. He further deposed that two unidentified accused fired at complainant and PW Ghulam Nabi which hit on his head and left arm and PW Ghulam Nabi sustained injuries on his right arm on the fire shots co-villagers were attracted and the accused ran away. The co-villagers shifted Ali Hassan and PW Ghulam Nabi to hospital after leaving him over dead bodies, as all the other five injured succumbed to injuries. He further deposed that, when they came to their house in village Chakar Sultan, they saw that Mst. Motan, Mst. Sughran and Mst. Sakina were lying in injured condition and on enquiry they disclosed that all above named accused also came at their house after committing murders and started looting, therefore, they resisted, hence they caused injuries to them. This witness was cross-examined at length but nothing favourable to appellant was brought on record by the defence counsel.
13. Ghulam Nabi PW-3 (Injured eyewitness) deposed that on the day of incident, he and deceased Ghulam Mustafa, his father Ghulam Hussain, deceased Niazal, deceased Panjo, deceased Zulfiqar and Imdad were available at their lands, where PW Ghulam Mustafa and complainant Ali Hassan were also available and it was about 7.00 a.m. when they all were working at lands, where accused Abbas armed with repeater gun, Mehrab armed with DBBL gun, Hakim with DBBL gun, Ghulam Shabir with SBBL gun and two unidentified accused who had SBBL guns came at their hands and out of them accused Ghulam Abbas asked them as to why they are working at land despite objection raised by him and all the accused asked that they would not spare them. He further deposed that accused Ghulam Abbas made direct shots with his repeater gun at Niazal which hit him and he fell down; accused Mehoob made fire shots from his DBBL gun at Ghulam Hussain; accused Hakim made fire shots at Panjo; accused Ghulam Shabir made fire shots with his gun at Zulfiqar; accused Nadir made fire shots with his gun at Imdad, which hit them and they fell down by raising cries. He further deposed that unidentified accused caused firearm injuries to him as well as to complainant Ali Hassan; he received firearm injuries on his hand/ arm and whereas Ali Hassan on his head and left arm. He further deposed that on fire shot reports co-villagers reached at place of vardat and removed him as well as complainant for first aid treatment while remaining all who received firearm injuries died then and there at the spot. This witness was cross-examined but defence counsel not shattered his evidence. However during cross-examination he deposed that “Accused Ghulam Abbass is my cousin in relation. Prior to incident we had no enmity with the accused Ghulam Abbass. Accused had fired upon the deceased Niazal at the distance of 10/15 paces.”
14. Mumtaz Ali PW-5 (Eyewitness) deposed that on fateful day he went to house of his relative Niazal situated in village Chakar Sultan and at about 07.30 a.m. accused Ghulam Abbas armed with repeater, Mehrab armed with DBBL gun, Hakim armed with DBBL gun, Shabir armed with SBBL gun came there and all of them disclosed that they had already committed murder of deceased Niazal, Ghulam Hussain, Panjo, Zulfiqar and Imdad. He further deposed that accused also disclosed that they had caused injuries to complainant Ali Hassan and PW Ghulam Nabi and all the accused started looting, therefore, Mst. Sughran and Sakina resisted but accused fired at them, therefore, they become injured and accused forcibly taken away a motorcycle CD-70, rifle, gold ornaments and cash from the house of Niazal and after one hour of incident the complainant and PWs returned back and enquired from him regarding incident. He was also cross-examined by the defence counsel but nothing favourable to accused brought on record.
15. Mst. SughranPW-6 (Injured Eye Witness) deposed that on the fateful day Panjal, Niazal, Ghulam Hussain, Ali Hassan, Zulfiqar, Imdad, Ghulam Mustafa and Ghulam Nabi went to the land at early morning which is situated near their house in village Chakar Sultan. She further deposed that she, Mst. Motan, Mst. Sakina, Mumtaz and Mst. Hasina were present at their house and at 7.30 they heard fire shots and after 10/15 minutes accused Mehrab, Ghulam Abbas, Hakim, Nadir, Shabir and two unidentified accused having guns entered into their house and all accused started looting from their house; they resisted, therefore, accused fired at them and during firing she sustained two fires on her right leg and PW Mst. Motan sustained firearm injury on her right arm; they raised cries which attracted co-villagers and accused persons fled away after taking motorcycle alongwith rifle, gold ornaments and cash of Rs.50000/- and ultimately she and PW Motan were shifted to hospital by PW Mumtaz, where they remained as indoor patient. She was cross-examined but nothing favourable to accused brought on record by the defence counsel.
16. Mst. Motan PW-7(Injured Eye witness) deposed that on fateful day Panjal, Niazal, Ghulam Hussain, Ali Hassan, Zulfiqar, Imdad, Ghulam Mustafa and Ghulam Nabi went to the land at early morning. She further deposed that, she, Mst. Sughran, Mst. Sakina, Mumtaz and Mst. Hasina were present at their house and at 7.30 a.m. they heard fire shorts and after 10/15 minutes accused Mehrab, Ghulam Abbas, Hakim, Nadir, Shabir and two unidentified accused having guns entered into their house and all accused started looting from their house; they resisted, therefore the accused fired at them; during firing she sustained firearm injury on her right arm. PW Mst. Sughran sustained firearm injury on her right thigh; they raised cries which attracted co-villagers, thereafter accused fled away after taking motorcycle, rifle, gold ornaments and cash. She further deposed that they were shifted to hospital where they remained as indoor patient. She was also cross-examined but her evidence was not shattered by the defence counsel.
17. Medical Officer Dr. Abdul Sattar Gopang PW-4 who conducted postmortem of deceased Imdad Ali, Ghulam Hussain, Panjo, Zulfiqar and Niazal was examined at Ex.6; he testified the injuries on the person of deceased (as mentioned in the F.I.R) and also opined that deceased persons died un-natural death due to receipt of firearm injuries. The medical officer further deposed that he also examined injured Ghulam Nabi and Ali Hassan and issued such medical certificates and placed the same on record during trial. He fully corroborates the ocular evidence furnished by the eye witness in respect of unnatural death of the deceased persons.
18. Muhammad Yaqoob PW-8 (mashir) deposed that on 21.6.2005 police saw injures of injured/ complainant Ali Hassan at Police station in his presence and co-mashir was Shabir Ahmed. He further deposed that police visited place of vardat situated near village Chakar Sultan in the land of complainant party and inspected five dead bodies in his presence and prepared such mashirnama and inquest reports. He further deposed that police also saw place of vardat, secured blood stained earth of all five deceased, ten empties of cartridges of 12-bore and prepared such mashirnama. He further deposed that on same day police saw injuries of injured Ghulam Nabi at Taluka Hospital Mirokhan and prepared such memo in his presence. On 22.6.2005 police saw injuries of injured Mst. Motan at hospital under mashirnama and police also saw injured of Mst. Sughran and prepared such mashirnama in his presence. He also cross the test of cross-examination.
19. Inspector Fida Hussain PW-9(author of FIR) was examined who deposed that on 21.6.2005 injured complainant Ali Hassan and PW Ghulam Nabi appeared at police station. The complainant informed regarding cognizable offence, as such F.I.R was registered by him as Crime No.26/2005.ASI Ghulam Shabir KalhoroPW-10 deposed that he made imaginary arrest of accused on 03.8.2011 from Nara Jail Hyderabad in presence of Mashirs H.C Faiz Muhammad Pirzado and thereafter custody of accused Ghulam Abbas was brought at police station Mirokhan.PC Bahawal Haq PW-11deposed that on 21.6.2005 he alongwith Inspector Mumtaz Janveri and other staff proceeded towards place of vardat where they found dead bodies of five deceased which were handed over to him by Inspector Mumtaz Ali Janveri for postmortem, as such dead bodies were shifted to hospital and after postmortem same were handed over to me by doctor and ultimately he handed over dead bodies to Ghulam Mustafa under receipt.Tapedar Qurban Ali PW-12was examined at Ex.15, he produced sketch of place of incident.
20. Investigation Officer of the case ASI Mumtaz Ali JanveriPW-13was examined by the prosecution who deposed that on 21.6.2005 Inspector Fida Hussain Gopang handed over him copy of F.I.R, medical letter in presence of complainant for investigation of this case. He further deposed that he examined injuries of complainant, who was accompanying with persons, namely, Muhammad Yakoob and Bashir Ahmed; he prepared such mashirnama in presence of these persons/ mashirs. Thereafter, he visited place of vardat and prepared such mashirnama. He further deposed that he inspected the dead bodies through complainant the identification of dead bodies was made who disclosed the names of five deceased as Zulfiqar Ali, Niazal, Imdad, Ghulam Hussain and Panjo Khan in presence of same mashirs he prepared Danistnamas, Lash Chakas Forms, mashirnama of inspection dead bodies and inspection injuries of complainant. He further deposed that dead bodies were handed over to P.C Bahawal Haq for postmortem. He further deposed that he alongwith complainant and mashirs came to place of vardat on same date, there complainant disclosed the location of dead bodies at place of vardat, from there he collected blood stained earth separately in respect of five deceased and also secured ten red color empty cartridges of 12-bore and prepared such mashirnama. He further deposed that he also examined injuries of injured Ghulam Nabi who was admitted at Taluka Hospital Mirokhan and prepared such mashirnama. This witness further deposed that he recorded statements of witnesses under Section 161 Cr.P.C. He further deposed that he also recorded further statement of complainant on 22.6.2005. This witness was also cross-examined by the defence counsel but nothing favourable to accused brought on record.
21. On reassessment of the entire evidence produced by the prosecution the important part of which discussed above and after hearing learned advocate for both the parties, I find that the prosecution has proved its case against the appellant for the offences charged beyond shadow of reasonable doubt.
22. It is a well-settled principle of law that a criminal case is to be decided based on the totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had been expressed by the Honourable Supreme Court of Pakistan in the case of State v. Rab Nawaz and another (PLD 1974 SC 87) wherein Honourable Supreme Court has observed that a criminal case is to be decided based on the totality of circumstances and not based on a single element.
23. Contentions raised by the learned counsel for the appellant that the witnesses are relative and interested, therefore, their evidence cannot be relied upon has no force as although the witnesses are relative to the complainant but they have no enmity with the appellant to involve them in heinous offence where five innocent persons lost their lives. PW Ghulam Nabi the injured during cross examination in a reply to question of defence counsel clearly stated that “Accused Ghulam Abbass is my cousin in relation. Prior to incident we had no enmity with the accused Ghulam Abbass.” However the evidence produced by the prosecution is reliable, trustworthy and confidence inspiring which was supported by the medical evidence as discussed above. In the case of NASIR IQBAL @ NASRA and another V. The STATE (2016 S C M R 2152) Honourable Supreme Court has held as under:-
"In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as 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."
24. Contention of learned counsel for the appellant that crime weapon used by the appellant at the time of offence was not recovered, therefore, the appellant cannot be connected with the alleged murders of the deceased, has no force in view of the fact that all the prosecution witnesses supported the case of prosecution including the injured witnesses by deposing that the appellant along with other co-accused directly fired from the repeater which hit the deceased Niazal whereas four other persons were also killed by the other accused persons and also the witnesses received firearm injuries and their direct evidence is further corroborated by medical evidence the same is further corroborated by the recovery of the empties of 12 bore cartages from the place of vardat. It is settled by now that where charge is proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon is not fatal to the prosecution case. Reliance is placed on the case of SikanderTeghani alias Muhammad Bux Teghani V. The State (2016 Y L R 1098).
25. Learned counsel for the appellant pointed out some contradictions in the evidence which in my view are not sufficient to hold that the case of prosecution as doubtful. It is settled by now that, where in the evidence, prosecution established its case beyond a reasonable doubt then if there may some minor contradictions which always are available in each and every case as no one can give evidence like photograph such may be ignored, as has been held by Honourable Supreme Court in case of Zakir Khan V. The State {1995 SCMR 1793}, relevant paragraph is reproduced as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
26. Thus, based on the particulars facts and circumstances of this case keeping in view the brutality of the crime where five innocent personswere murdered and other witnesses received firearm injuries including the ladies the complete lack of mitigating circumstances and in fact the presence of aggravating circumstances as mentioned above and need to discourage such kind of offences so I am of the view that a deterrent sentence is the appropriate one. Reliance is placed on the case of Dadullah V. State {2015 SCMR 856}. The trial Court had already taken very lenient view while awarding the conviction to the appellant and the complainant/state has not filed Revision for enhancement of the sentence, as such I am not touching question of sentence more. I therefore uphold all the sentences for each offence in the impugned judgment to the appellant whilst dismissing his appeal.
27. The above jail appeal is disposed of in the above terms.
JUDGE