IN THE HIGH COURT OF SINDH,BENCH AT SUKKUR

 

Criminal Jail Appeal No. S-57 of 2020

 

 

Appellant:                                Ghulam Sarwar Ghangro, through

                                                Mr. Rukhsar Ahmed Junejo, Advocate

 

Complainant:                           Sher Muhammad in person

 

 

The State:                                Through Mr. Shafi Muhammad Mahar,

                                                Deputy Prosecutor General

 

Date of hearing:                       13.12.2021.

Date of Judgment:                   04.03.2022.         

 

 

J U D G M E N T

ZULFIQAR ALI SANGI, J:-       Through this appeal, appellant Ghulam Sarwar son of Ali Hassan Ghangro, has challenged the Judgment dated 20.09.2019, passed by learned Additional Sessions Judge-III/MCTC-II, Sukkur, in Sessions Case No.248/2012 re-“The State v. Ghulam Sarwar”, arising out of Crime No.31/2005, registered at Police Station Bagerji, under Section 302 337-H(ii), 504 & 34 PPC, whereby the appellant was convicted for the offence u/s 302(b) PPC as Tazir and sentenced to imprisonment for life and to pay compensation of Rs.300,000/- to be paid to the legal heirs of deceased Abdul Waheed as provided u/s 544-A, Cr.P.C, in default thereof the accused shall suffer S.I for six months more, however benefit of section 382-B, Cr.P.C was extended to him.

2.                Succinctly the facts of the prosecution case are that complainant Sher Muhammad lodged FIR on 16.10.2005 alleging therein that on 15.10.2005 accused Saeed Ahmed and Ghulam Sarwar took him and his sons Abdul Waheed and Abdul Aziz to Bagerji forest for purchasing buffalo and making them seated under a hovel went saying that they are taking the buffalo. After a while they came back having Kalashnikovs along with two unknown persons armed with guns. Accused Ghulam Sarwar asked the complainant party to remain mum and unknown persons pointed their weapons at them wile accused Saeed Ahmed took complainant’s son Abdul Waheed a few ahead and accused Ghulam Sarwar saying that he had insulted him fired upon Abdul Waheed with his Kalashnikov which hit him and he died. Thereafter complainant with the help of his son Azizullah brought the dead body of  Abdul Waheed at Government Hospital Bagerji and leaving there Azizullah over the dead body, the complainant went to Police Station and lodged such FIR.

3.                Police after conducting investigation had submitted challan showing present accused as absconder while co-accused Saeed in custody, who had already been convicted by the trial court. Subsequently present appellant was arrested and after completing all the legal formalities the charge was framed against the present accused/appellant to which he pleaded not guilty and claimed trial.

4.                The prosecution in order to prove its’ case has examined P.W-1complainant Sher Muhammad at Ex.5, PW-2 Azizullah at Exh.6, PW-3 Rafique Ahmed at Exh.7, PW-4 SHO Muhammad Hashim at Exh.8, PW-5 Dr. Mushtaque Ahmed at Exh.9 and PW-6 Tapedar Manzoor Ahmed at Exh.10. The relevant documents had already been produced by the complainant and witnesses during trial against co-accused Saeed and the same were verified by the complainant and witnesses in the trial of present appellant/ accused.

5.                Statements of accused/appellant u/s 342 Cr.P.C was recorded at Exh.12,in which he has denied the allegations of the prosecution and claimed his innocence. However, neither he led evidence in his defence nor examined himself on oath u/s 340(2) Cr.P.C. After recording evidence and hearing the parties, learned trial court convicted the accused as stated above, hence the instant appeal.

6.                Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt; that the ocular evidence is inconsistent with the medical as well as circumstantial evidence; that neither any empty was recovered from the place of vardat nor the crime weapon has been recovered; that there is no report of chemical examiner regarding blood stained earth or blood stained clothes of the deceased; that there are major contradictions in the evidence of prosecution witnesses; that the PWs and mashirs are close relatives of the complainant; that the impugned Judgment is against the law, facts, principles of natural justice and equity; that learned trial court has erred in convicting the appellant by not taking into consideration the entire material, thus the impugned Judgment is liable to be set-aside; he finally prayed that the appeal may be allowed and the appellant be acquitted by extending benefit of doubt to him.

7.                Learned D.P.G. appearing for the state has supported the impugned judgment and further contended that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court.

8.                I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.

9.                The prosecution in order to prove the death of deceased Abdul Waheed as unnatural has examined PW-5 Dr. Mushtaque Ahmed who deposed that on 16.10.2005, he was posted as Medical Officer at Government Hospital Bagerji. On the same day at about 1.00 am PC Abdul Hakeem Mahar of P.S Bagerji brought dead body of Abdul Waheed son of Sher Muhammad Kumbhar for post mortem examination and report. He started postmortem examination at about 1.30 am and completed the same at 3.00 am. On external examination of the dead body he found the following injuries on the person of deceased Abdul Waheed.

                                    1.         A punctured type of wound measuring 1.0 x 1.0 cm on the back side of chest in its middle just side of chest in its middle just side of vertebral column at 9th vertebrae. No blacking, burning or tattooing seen.

                                    2.         A punctured type of wound on interior side of chest on its left side measuring 2.5 x 2.5 cm just 5 cm below the clavicle.

                 The Doctor further deposed that on internal examination of the dead body of deceased Abdul Waheed he found free  blood seen in the thorax cavity, right lung congested but left lung damaged, superior and inferior venacave damaged, greater Aorta damaged and upper border of heard damaged. Pericardium damaged. All other organs of the body were normal and healthy.

                 From external as well as internal examination of the dead body of deceased Abdul Waheed, he was of the opinion that the death of deceased has occurred due to injuries on vital organ of the body which were caused by fire arm. This witness was cross-examined by the defence counsel but nothing favourable to appellant is found hence the prosecution has proved its case in respect of the unnatural death of deceased Abdul Waheed.

10.              After the prosecution has proved death of the deceased Abdul Waheed as unnatural then the question before this court is that who committed the murder of deceased to which prosecution examined PW-1 Sher Muhammad who deposed that this incident took place on 15.10.2005. It was about 8.00/9.00 a.m, he was present at his house at village Shah Ladhani, Deh Babar Loi. His sons Abdul Waheed and Azizullah were also present. Accused Ghulam Sarwar son of Ali Hassan Ghanghro and Saeed Ahmed son of Naseer Ahmed came there they are residing near his house in village Shah Ladhani, they came at his house and called them, they informed them that they should accompany them for purchasing a buffalo, as they wanted to purchase buffalo. He alongwith his son Abdul Waheed and Abdul Aziz accompanied the accused persons on 15.10.2005, the accused persons led them towards forest area and they sit there under the Chapra and after some time accused persons went by informing them that they are going to bring a buffalo but after some time both the accused armed with KK returned back alongwith two more accused persons but had not brought the buffalo. They informed them that they have cheated them bringing there in the forest area as they wanted to kill his son Abdul Waheed. The unknown persons stand guard upon them whereas accused Saeed caught hold his son Abdul Wahced and accused Sarwar caused fire arm injuries to his son Abdul Waheed and Saeed Ahmed also robbed Rs. 25,000/- from Abdul Waheed. Thereafter all the accused persons ran away. They found that his son was expired away due to fire arm injuries. They brought the dead body on a donkey cart to PS Bagerji on 16.10.2005 where he lodged the report at PS Bagerji. This witness was cross-examined and during cross-examination it was also suggested that the death of deceased was occurred on 15-10-2005 at 7: 00 am and he was unaware of the incident which suggestion he denied. I have carefully scanned the cross-examination but found nothing favourable to appellant.

11.              The prosecution also examined PW-2 Azizullah who deposed that complainant is his father. Abdul Waheed was his brother. Accused Saeed Ahmed and Ghulam Sarwar Ghanghro are residing near their house in village Shah Ladhani, they came at their house and called them, they informed them that they should accompany  with them for purchasing a buffalo as  they wanted to purchase a buffalo they accompanied the accused persons on 15.10.2005. The accused persons led them towards forest area and they sit there under a Chapra and after some time accused persons went by informing them that they are going to bring a buffalo, but after some time both the accused armed with KK returned back alongwith two more accused persons and had not brought the buffalo. They informed them that they cheated them for bringing here in the forest area, as they wanted to kill his brother Abdul Waheed. The unknown persons stand guard upon them whereas accused Saeed caught hold his brother Abdul Waheed and accused Sarwar caused fire arm injuries to his brother Abdul Waheed and Saeed Ahmed also robbed Rs. 25,000/- from Abdul Waheed. Thereafter all the accused persons ran away. They found that his brother was expired away due to fire arm injuries. Then they brought the dead body on a donkey cart to PS Bagerji, on 16.10.2005 and his father lodged such report.

12.              Thereafter the prosecution examined mashir of the case as PW-3 namely Rafique Ahmed who deposed that complainant is his father, whereas Abdul Waheed was his brother. On 16.10.2005 Police prepared Danishnama of the dead body of his brother Abdul Waheed in his presence and in presence of co-mashir Inayat Hussain. Police secured blood stained clothes of his brother Abdul Waheed and prepared such mashirnama. The clothes were secured on 16.10.2005. Police also inspected the dead body of his brother Abdul Waheed and prepared such mashirnama. Police also visited the place of wardat on 16.10.2005 at about 7.30 in his presence and in presence of co-mashir Inayat Hussain and prepared such mashirnama. This witness was cross-examined by the defence counsel but could not succeed in creating material dent in his evidence. The prosecution also examined Tapedar of the beat namely Manzoor Ahmed as PW-4 to confirm the place of wardat to be the same as deposed by the eye-witnesses who was not cross-examined by the defence counsel therefore his evidence went unchallenged.

13.              Thereafter the prosecution examined investigation officer of the case namely Muhammad Hashim as PW-4 who deposed that on 16.10.2005 he was 1/C Investigation PS Bagerii. On the same date he received copy FIR bearing Crime No.31/2005 for investigation. He went to the place of wardat and prepared Danishnama of deceased Abdul Waheed. He secured the clothes of the deceased under mashirnama. On 16.10.2005 he inspected the dead body of deceased Abdul Waheed in presence of same mashirs and prepared mashirnama. On 16.10.2005 he visited the place of wardat in presence of mashirs and prepared such mashirnama. He also secured blood stained mud from the place of wardat and recorded the statements u/s 161 Cr.P.C of concerned witnesses.

14.              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 appellant, complainant who was present in person and the DPG, I find that the prosecution has proved its case against the appellant for the offences charged beyond any shadow of reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.

15.            Contentions raised by the learned counsel for the appellant that the witnesses are relatives of deceased and are interested, therefore, their evidence cannot be relied upon has also no force as although the witnesses are relatives of the deceased but they specifically deposed against the appellant. During cross-examination it was also brought on record that the appellant is also residing near to the house of complainant party and the same has not been denied by the appellant. The presence of complainant and the eyewitness at the place of wardat is also established from their evidence. There is no dent in the prosecution evidence which suggests that the appellant was falsely involved in the commission of offence. 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."

16.              In the case of Zulfiqar Ahmed & another V. State(2011SCMR 492), Honourable 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.

 

17.            The contention of learned counsel for the appellant that the crime weapon allegedly used by the appellant Ghulam Sarwar at the time of offence was not recovered from him, therefore, the appellant cannot be connected with the murder of deceased, has no force in view of the fact that, all the prosecution witnesses supported the case of prosecution by deposing that the appellant Ghulam Sarwar had directly fired from the KK which hit the deceased Abdul Waheed and their direct evidence is further corroborated by medical evidence as the doctor who examined the deceased had found firearm injuries on his person. It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to prosecution case. Reliance is placed on the case of Sikander Teghani alias Muhammad Bux Teghani v.  The State (2016 Y L R 1098). Further in case of Bashir Ahmed Leghari v. The State (2020 SCMR 595), the Honourable Supreme court has held as under:-

“3.    We have gone through the grounds taken by the convict in his petition and also the record with the assistance of the learned Law Officer to find that he absconded soon after the occurrence and remained away from law for a considerable span of time. In this backdrop, prosecution's failure to recover the weapon, statedly used in the occurrence, fades into insignificance; he is certainly not expected to keep the gun for such a long period of time with him as a souvenir of his crime;”

18.              The contention of the advocate for the appellant that empties were not recovered from the place of wardat which may connect the appellant with the commission of this offence has too no force as no weapon was recovered from the appellant because appellant Ghulam Sarwar remained absconder therefore there was no chance that said empties ought to be sent for FSL for matching with the weapon. In the present case the occurrence has taken place in the broad daylight and there is no chance of any misidentification. All these factors when evaluated conjointly it is abundantly clear that the prosecution has succeeded to establish the case without any reasonable doubt. The Honourable Supreme Court in case of Muhammad Afzal v. The State (2020 SCMR 597) has also not allowed the appeal of convict on the basis of non-recovery of crime weapon and in absence of report of Forensic Science Agency by holding that the benefit of the same has already been extended to the accused and sentence of death was converted into imprisonment for life being alternative sentence.

19.            Learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence which in my view are not sufficient to hold that the case of prosecution is doubtful. It is settled by now that, where in the evidence, prosecution established its case against the accused beyond a reasonable doubt then if there may some minor contradictions which always are available in each and every case the same 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.”

 

 

20.              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 appellant 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 the offence in the judgment dated 20.09.2019, passed by learned Additional Sessions Judge-III/MCTC-II, Sukkur, in Session Case No. 248 of 2012 arising out of FIR No. 31 of 2005 registered at police station Bagerji for offences under section 302, 337-Hii, 504 and 34 PPC, whilst dismissing the appeal of the appellant Ghulam Sarwar Ghangro.

 

                                                                             JUDGE