IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Criminal Appeal No. S- 37 of 2014.
Appellants: 1. Ashique Ali Panhwar.
2. Nisar Ahmed Panhwar.
3. Momin Panhwar through Mr. Asif Ali Abdul Razzak Soomro, Advocate.
Complainant: Waheed Ali, through M/s Abdul Razzak Jamali and Irfan Hyder Jamali, Advocates.
Respondent: The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Dates of hearing: 15.02.2021.
Date of the decision: 26.02.2021.
JUDGMENT
Zulfiqar Ali Sangi, J-. Through this criminalappeal, appellants Ashique Ali, 2. Nisar Ahmed and 3. Momin, all sons of Imam Bux Panhwar have impugned the judgment dated 12.12.2014, passed by learned Additional Sessions Judge-II, Jacobabad, in Sessions Case No.352/2013, re; St. v. Ashique Ali & others, arisingout of Crime No. 54/2013 of P.S Jacobabad City (District Jacobabad); whereby the appellants were convicted and sentenced to imprisonment for life as “Tazir”, besides fine of Rs.200,000/- each, payable to legal heirs of deceased Karim Bux as compensation and in case of default of payment of fine to suffer S.I for six months more. However, the appellants have been extended benefit of Section 382-B Cr.P.C.
2. The case of prosecution is that, on 21.4.2013 complainant Waheed Ali Korar lodged report with P.S Jacobabad City, stating therein that about five months before lodging the F.I.R, the complainant party sold out their house and accused Ashique Ali had taken a loan of Rs.200,000/- and one motorcycle from his father. Then, the complainant party had purchased another house and his father demanded his amount from Ashique Ali to which he had issued threats that if he will demanded the amount from him, he will declare him “Karo” and will commit his murder. On 21.4.2013 complainant and his relatives Imamuddin and Tarif alongwith Karim Bux the father of complainant were coming from bungalow of Syed Abdullah Shah towards their house at ADC Colony Jacobabad and when at about 08.15 hours they reached at Quetta road near Lucky Medical Store, meanwhile accused Ashique Ali, Nisar Ahmed and Momin and co-accused Naimatullah came there and on seeing the complainant party they took out T.T pistols from their trousers and gave “hakal” that Karim Bux was their “Karo”. The complainant party being empty handed out of fear of life remained silent and all the accused persons with an intention to commit murder straightly fired at Karim Bux which hit him at his chest, stomach and he fell down by raising cries and then all the accused persons decamped from the place of vardat alongwith their respective weapons towards southern side. The complainant saw that Karim Bux sustained firearm injuries at his right and left side of the chest; he was bleeding and died at the spot. The complainant party arranged for the conveyance and taken dead-body to civil hospital Jacobabad and then complainant went to police-station where he lodged F.I.R to the above effect.
3. After the usual investigation, the investigation officer submitted charge sheet against accused persons. After completing legal formalities the charge was framed against the appellants at Ex.04, to which they pleaded not guilty and claimed their trial.
4. The prosecution in order to prove its case produced as many as seven witnesses who produced numerous documents and other items to prove the case. PW-1 Dr. Sadique Ali was examined at Ex.7, he produced copy of lash chakas form at Ex.7-A and postmortem report at Ex.7-B. PW-2 Tapedar Kamil Lashari was examined at Ex.8, he produced sketch at Ex.8-A. PW-3 complainant Waheed Ali was examined at Ex.9, he produced copy of F.I.R at Ex.9-A. PW-4 eyewitness Imamuddin was examined at Ex.10. PW-5 Muhammad Essa (mashir) was examined at Ex.12; he produced Danishnama at Ex.12-A, memo of inspection of dead-body at Ex.12-B, memo of place of incident at Ex.12-C and memo of blood stained clothes of deceased at Ex.12-D. PW-6 SIP Aijaz Ali (investigation officer) was examined at Ex.13; he produced attested copy of departure entry at Ex.13-A, attested photostatecopy of arrival entry at Ex.13-B, memo of arrest and recovery at Ex.13-C, copy of chemical examiner’s report at Ex.13-D, copy of Forensic Science Laboratory report at Ex.13-E and copy of list of legal heirs of deceased at Ex.13-F. Lastly, prosecution examined PW-7 P.C Muhammad Nawaz, who is corpse bearer; he produced the receipt of handing over the dead-body of deceased to his legal heirs. Thereafter, the learned prosecutor closed side prosecution side vide statement at Ex.15.
5. Learned trial court then recorded the statements of appellants under Section 342 Cr.P.C. at Ex.16 to Ex.18, respectively wherein they denied all the prosecution allegations against them. They not examined themselves on oath nor lead any evidence in their defence. After hearing the partiesand on assessment of the evidence produced by the prosecution learned trial court passed the impugned judgment whereby convicting and sentencing appellants, as stated above.
6. Learned counsel for the appellants criticized the impugned judgment and argued that, the prosecution witnesses are closely related inter-se and are interested; that the 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; that there is no recovery of any incriminating article from two appellants, namely, Nisar Ahmed and Momin; however a pistol was foisted upon appellant Ashique Ali and in such case of Arms Act the appellant Ashique Ali was acquitted by the concerned Court; that PW Tarif Ali was not examined by the prosecution, therefore, presumption would be that this witness was not going to support the case of prosecution; that ocular version was belied by the medical evidence. He lastly, submits that the prosecution has not proved the case against the appellants beyond a reasonable doubt therefore by extending them the benefit of the doubt they may be acquitted.In support of his contentions, learned counsel relied upon the cases of Zarshad v. Bahadur Khan and others (1972 SCMR 644), Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812), Imran Ashraf and 7ohters v. The State (2001 SCMR 424), Ishtiaq Masih v. The State (2010 SCMR 1039), Irshad Ahmed v. The State (2011 SCMR 1190), Mst. Rukhsana Begum and others v. Sajad and others (2017 SCMR 596), Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1155), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), Lal Khan v. The State (2006 SCMR 1846), Sher Khan and 2 others v. The State (2008 YLR 2334), ZahirYousaf and others v. The State and another (2017 SCMR 2002), Haleem and others v. The State (2017 SCVMR 709), Muhammad Akram v. The State (2009 SCMR 230), Tariq Pervez v. The State (1995 SCMR 1345), Hashim Qasim and another v. The State (2017 SCMR 986), Mst. Nazia Anwar v. The State and others (2018 SCMR 911), Faryad Ali v. The State (2008 SCMR 1086), The State v. Tariq Mahmood (1987 P.Cr.L.J 2173), Ayub Masih v. The State (PLD Supreme Court 1048) and Abdul Rehman v. The State and others (2016 P.Cr.L.J 101).
7. Learned D.P.G for the statesupported the impugned judgment and submitted that the prosecution case has rightly been believed by the learned trial Court and the appellants have rightly been awarded conviction; that appellants have been nominated in F.I.R with active role of making fires upon the deceased resulting his death; that the complainant as well as eye witnesses have fully implicated the appellants in the case on all material points; that there is also recovery of crime empties from place of incident as well as crime weapon i.e. pistol from appellant Ashique Ali; that the motive for the committing the murder was proved by the prosecution during trial by producing reliable, trustworthy and confidence inspiring evidence.
8. Learned Advocate for complainant by adopting arguments advanced by learned D.P.G. also opposed this appeal and prayed for its rejection. He however placed reliance upon case of Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152), and Wilayat Ali v. The State and another (2004 SCMR 477).
9. I have heard learned counsel for the appellants, learned Deputy Prosecutor General for the state as well as learned Advocate for complainant; perused the record and the relevant law including thatcited at the bar with their able assistance.
10. On reassessment of the entire 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, ocular as well as medical evidence including the circumstantial and other supportive evidence.
The main prosecution witnesses gave their evidence as under:-
11. To prove un-natural death of the deceased Karim Bux the prosecution examined Dr. Sadique Ali PW-1 who conducted postmortem of deceased Karim Bux has deposed that on 21.4.2013 he received dead body of deceased Karim Bux for postmortem and report through P.C Muhammad Nawaz of P.S City Jacobabad and on his external examination he found following injuries on person of deceased.
(1) Lacerated punctured type of wound about 1 cm x diameter at the upper area of left chest (wound of entry).
(2) Lacerated punctured type of wound about 1 and ½ cm in diameter at the back of the left side of chest (wound of exit of injury No.1).
(3) Lacerated punctured type of wound about 1 cm in diameter at the right upper side of chest (wound of entry).
(4) Lacerated punctured type of wound about a and a/1 cm in diameter at the mid of the right scapular region (wound of exit injury No.3).
(5) Lacerated punctured type of wound about 1 cm in diameter at right side of injury No.3 (wound of entry).
(6) Lacerated punctured type of wound about 1 and ½ cm at the middle of the back of the chest (wound of exit of injury No.5).
(7) Lacerated punctured type of wound about 1 cm in diameter at the epigastric area 9wound of entry).
(8) Lacerated punctured type of wound about 1 and ½ cm at the lumber vertebral area (wound of exit injury No.7).
The medical officer further deposed that on internal examination he found following damages.
Thorax. Walls, ribs, pleurae, right left lung were lacerated and punctured at the sight of injuries.
Abdomen. Walls, peritoneum, stomach were lacerated and punctured, stomach was contained semi-digested food.
The MLO further deposed that from external as well as internal examination of deceased he was of the opinion that the death had occurred due to shock and hemorrhage and all the injuries were sufficient to cause death in normal course of life and the injuries were caused by firearm.
12. As regards to confirm the place of vardat and to prove it to be the same as alleged in the FIR, the prosecution examined Tapedar Kamil Lashari as PW-2, who had prepared the sketch of place of incident who produced such sketch on record.
13. Complainant Waheed Ali (eyewitness),PW-3 was examined by the prosecution who deposed that the incident took place on 21.4.2013 and prior to the incident his father extended loan amount to accused Ashique as well as one motorcycle and he used to demand back his loan money from accused Ashique who used to refuse to return loan amount and issued threats. On the fateful day complainant alongwith Imamuddin, Tarif and his father Karim Bux were coming from the house of one Abdullah Shah to their house at ADC Colony Jacobabad, when at about 08.30 p.m. they reached near Lucky Medical Store on Quetta-Road they saw accused Ashique, Naimatullah, Nisar and Momin came there; they took out pistols and pointed upon his father and fired at his father, which hit him. The accused persons declared his father as “Karo”. He further deposed that all the accused persons then went away and he found that his father received three firearm injuries on his chest and one firearm injury on his abdomen, he was bleeding and died. The complainant stated during cross-examination that the accused Ashique is not his relative but he is his nebrourer and the same has not been challenged by accused which speaks that the appellant was known to the complainant party previously therefore there is no mistaken in identity of the appellants at the time of offence. This witness was cross examined at length but defence not shattered his evidence.
14. The prosecution examined eye witnessImamuddin as PW-4 who deposed that incident took place on 21.4.2013, prior to incident there was some dispute over money between deceased Karim Bux and accused persons and on fateful day he alongwith Waheed Ali, Karim Bux and Tarif Ali were coming from house of one Abdullah Shah to house of deceased Karim Bux and at about 08.00 or 08.30 p.m. when they reached near Lucky Medical Store on Quetta-Road, they saw accused Ashique, Naimatullah, Nisar Ahmed and Momin came there, all were armed with T.T pistols, they raised hakal to Karim Bux and asked him that he is “Karo” and all the four accused fired from their pistols at Karim Bux, which hit him and he fell down on the ground. Then all the accused persons fled away. This witness give true picture of the incident as narrated by the complainant. He was cross examined but nothing favourable to appellant was brought on record by the defence counsel.
15. Muhammad Essa PW-5 (mashir) was also examined who deposed that on 21.4.2013 police inspected dead body of deceased Karim Bux in his presence and in presence of co-mashir Muhammad Nawaz and prepared Danishnama and memo of inspection of dead body. He further deposed that police also inspected place of incident in their presence which was shown to police by complainant Waheed Ali, wherefrom the police collected four empty shells and also seen blood stains on road; such mashirnama was also prepared in their presence on the same day complainant handed over last worn clothes of deceased Karim Bux to police in his presence under mashirnama. During cross examination he negated the suggestions of defence counsel that in his presence no empties were recovered nor the police inspected the place of vardat.
16. SIP Aijaz Ali PW-6 who is the author of F.I.R as well as Investigation officer was examined and he deposed that on 21.4.2013 complainant Waheed Ali came at police station and narrated facts of a cognizable offence, as such he recorded his statement in 154 Cr.P.C book and after lodgment of F.I.R he went to civil Hospital Jacobabad, where he saw dead body of deceased Karim Bux and prepared lash chakas form in presence of mashirs Muhammad Nawaz and Muhammad Essa. He deposed that he also prepared Danishnama and memo of inspection of dead body of deceased in presence of same mashirs. He further deposed that on spy information he went to Bus stop Jacobabad, wherefrom he arrested accused Ashique and recovered one T.T pistol bearing No. 3648 from his possession with two live bullets to which appellant Ashique stated to be his license pistol. He deposed that he smell the barrel of the pistol and found that it was containing the smell of sulpher. Pistol was sealed by him at the spot and he prepared mashirnama in presence of the mashirs. He further deposed that he visited place of incident on pointation of complainant in presence of same mashirs and secured four empty of 30-bore from place of incident. He sent blood stained clothes of deceased as well as pistol for chemical examination and he received the report. He also sent pistol for FSL and received the report in positive. Investigation officer was cross-examined by the defence counsel. The recovery of pistol and the smell from barrel was not challenged or denied by the appellant.
17. P.C Muhammad Nawaz PW-7 (corpse bearer and mashir) was examined he deposed that on 21.4.2013 he was posted at P.S City Jacobabad and on same day he left police station with SIP Aijaz Ahmed and PC Murad Ali and came to civil hospital Jacobabad, where they found dead body of Karim Bux and after conducting of postmortem upon dead body it was handed over to complainant by him under receipt. He further deposed that, he went to police station and handed over last worn blood stained clothes of deceased to SIP Aijaz Ahmed and on the same day SIP Aijaz Ahmed received spy information and ultimately arrested accused Ashique from bus stand Jacobabad and a T.T pistol was recovered from him I.O prepared such mashirnama at spot. He also confirms the evidence of investigation officer that at the time of recovery of pistol there was smell of sulpher from its barrel. During the cross examination it was suggested from this witness that appellant Ashique was arrested from his house and the recovery was foisted against him.
18. I have carefully examined statements of the appellantsrecorded under Section 342 Cr.P.C, wherein they simply stated that allegations against them are false and fabricated; nothing has come on record against them; they are innocent and prayed for justice. However the appellant Ashique Ali in reply of Q. No. 4 admitted that pistol was recovered from him along with magazine but the same is his license pistol.
19. The evidence produced by the prosecution was reassessed and on reassessment of the entire evidence including the medical evidence the important part of which discussed above and after hearing learned advocate for the appellants and the DPG and learned advocate for the complainant, I find that the prosecution has proved its case against the appellants for the offences charged beyond shadow of reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
20. FIR of the present case was registered promptly. Incident took place on 21-04-2013 at 08.15 pm, FIR was registered on the same day at 2030 hours and the postmortem of the deceased was conducted at 9-30 pm, which exclude the possibility of consultation or deliberation on the part of the prosecution. It is also established from the evidence of the witnesses that after the incident complainant immediately went to the police station by leaving other witnesses at the dead body, and after the FIR police along with the complainant came at the place of vardat wherefrom police referred the dead body to hospital for postmortem. The complainant gave full particulars of the incident to the police. Honourable Supreme Court in case of FARMAN ALI and another V. The STATE and another (2020 S C M R 597), has held as under:-
4. We have heard the learned counsel for the petitioner Farman Ali in Criminal Petition No.29-P/2012, and also perused the whole record in Jail Petition No.76/2012, preferred by Amjad Ali co-convict of Farman Ali and observed that in this case the occurrence took place at about 5.15 p.m. The Police after coming to know about the occurrence arrived in the Emergency Department of the Hospital where Muhammad Askar Khan, Complainant/PW-1, reported the matter. The postmortem was conducted on the same day after about one hour of the occurrence. In the FIR, it is specifically mentioned that the petitioners Farman Ali and Amjad Ali along with Malik Alam (P.O.) fired at the deceased Muhammad Ajmal Khan. Due to their firing, the deceased received fire shots and succumbed to the injures. The names of the eye-witnesses have specifically been mentioned in the FIR. In this case, the matter was promptly reported to the police and the postmortem was also conducted promptly, which exclude the possibility of consultation or deliberation on the part of the prosecution.
21. Learned counsel for the appellantsfocused his arguments that the witnesses are relative to deceased and are interested, therefore, their evidence cannot be relied upon has no force as although the witnesses are relative to the deceased but they specifically deposed that complainant and the witnesses along with deceased were coming from the house of one Abdullah Shah and when they reached near Lucky medical store at Quetta road this incident took place, complainant immediately approached the police station within 15 minutes where his FIR was registered, he given full particulars of the incident in the FIR, thereafter, police proceeded towards the place of vardat and referred the dead body for postmortem, hence the presence of complainant and the eye witnesses at the place of incident fully established. In the case of NASIR IQBAL @ NASRA and another V. The STATE (2016 S C M R 2152) Honourable Supreme Court has held as under:-
"In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as well as the recoveries of crime weapon and the motive has fully been proved as such in our view no interference is required in conviction of the appellants."
In the case of Abid Ali & 2 others v. The State (2011SCMR 208), Hon’ble Supreme Court of Pakistan has held as under:-
21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crimeand that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.
In the case of Zulfiqar Ahmed & another V. State(2011SCMR 492), Hon’ble 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.
22. Contentions raised by the learned counsel for the appellants that there were general allegations against the appellants of firing upon the deceased and it has not been established beyond doubt as to by whose fire shot the deceased had been killed therefore the appellants are liable to be acquitted has too no force as all the witnesses deposed that all the appellants actively participated in the commission of offence and they fired from their weapon upon the deceased which hit the deceased and the evidence of witnesses was corroborated by medical evidence including the recovery of crime empties from place of vardat and pistol from the appellant Ashique after few hours of the incident with positive FSL.In case of Muhammad Riaz and another V. The State and another (2007 SCMR 1413),Hon’ble Supreme Court has held as under:-
6. A glance at the particulars of injuries would clearly show that these injuries were caused from some distance. In the ordinary course of events, it would thus, be difficult to ascertain as to which of the injuries was caused by which of the appellants. Even one of the injuries could have been caused by the fire attributed to co-accused Abdul Khaliq who stands acquitted at the trial and is, no longer available before this Court in the present appeal and petition for leave to appeal. The Medical Officer has pointed out that both injuries were sufficient to cause death in the ordinary course of nature, It would thus, mean that both the injuries were individually and collectively sufficient in the ordinary course' of nature to cause the death of the deceased. During the course of cross-examination, Medico-Legal Expert did not deny the possibility that both the injuries on the person of the deceased could be the result of a single fire. Since it is very difficult and not easily ascertainable as to which of the accused out of three assailants was responsible for causing these injuries, discretion in the matter of sentence exercised by the trial Court in our considered view does not suffer from perversity or any arbitrariness.
23. Another contention of learned counsel for the appellantsNisar Ahmed and Mominthat crime weapons used by the appellants at the time of offence were not recovered from them, therefore, the appellants cannot be connected with the murder of deceased, has no force in view of that, all the prosecution witnesses supported the case of prosecution by deposing that the appellants directly fired from their pistols which hit the deceased and their direct evidence is further corroborated by medical evidence as the doctor who examined the deceased had found 4 separate firearm injuries on the person of the deceased with entry and exit wounds. It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon is not fatal to prosecution case. Reliance is placed on the case of SikanderTeghanialias Muhammad Bux Teghani V. The State(2016 Y L R 1098).
24. Learned counsel for the appellants not pointed out any contradiction in the evidence of prosecution witnesses. Even in the cases where some minor contradictions may available which are not sufficient to create any serious doubt the same can be ignored which always are available in each and every case, 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.”
25. Thus based on the discussion made hereinabove and on the reassessment of entire evidence produced by the prosecution, I am of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellants by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as medical evidence, so also the documentary evidence in support of the same. I, therefore, uphold all the sentences, fines, and penalties for each offence in the judgment whilst dismissing the appeal of the appellants.
JUDGE