IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Jail Appeal No. D- 32 of 2018.

Crl. Confirmation Case No. D- 03 of 2018.

Present:

Mr. Justice Mohammad Karim Khan Agha.

Mr. Justice Zulfiqar Ali Sangi.

Appellant: Lal Muhammad son of Imam Bux Brohi, through Mr. Athar Abbas Solangi, Advocate

Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Dates of hearing: 04.03.2021.

Date of the decision: 17.03.2021.

JUDGMENT

Zulfiqar Ali Sangi, J: Through Crl. Appeal No. D- 32/2018 appellant Lal Muhammad Brohi has impugned the judgment dated 15.5.2018 passed by learned Additional Sessions Judge-I, Shahdadkot, in Sessions case No.205/2014, re; State v. Lal Muhammad, arising out of crime No.07/2014 of P.S B-Section Shahdadkot, whereby he has been convicted under Section 302 (b) P.P.C and sentenced to death twice (one on each count) for committing Qatl-e-Amd of Mst. Amina and minor baby girl Aisha his sentence was subject to the confirmation by this court. The appellant was also directed to pay compensation to the tune of Rs.200,000/- to legal heirs/ walis of each deceased and failing which shall suffer S.I for six months on each count. Whereas Crl. Confirmation Case No. D- 03 of 2018 has been made by the learned trial Court for confirmation of death-sentence.

2. The case of prosecution is that, on 03.3.2014 complainant Faiz Muhammad lodged F.I.R with Police-station B-Section Shahdadkot, stating therein that his daughter Mst. Amina was married to Lal Muhammad (appellant) and out of such wedlock the couple had two sons, namely, Akhtar Ali aged six years and Javed Ali aged four years and they have one baby girl Aisha aged two years. On 29.3.2014, the complainant alongwith his nephew Abdul Haq and brohter-in-law Muhammad Ibrahim paid visit to the house of Mst. Amina, where Lal Muhammad asked them to stay for night, as such the complainant party stayed in the house of Lal Muhammad and after taking night meals they went to sleep. However, at about 4.00 a.m. on 30.3.2014, the complainant and others woke up on hearing cries and in the bulb light they saw that Lal Muhammad (appellant) was having dagger-shape knife was riding over Mst. Amina and was plying the same on her throat, while baby Aisha was lying nearby. On seeing the complainant and witnesses, accused Lal Muhammad disclosed that his wife had illicit relations with Muhammad Noor and his daughter baby Aisha was illegitimate child, therefore, he has committed their murder. Thereafter, the accused decamped away. The complainant and other witnesses found that the throats of Mst. Amina and baby Aisha had been slit, blood was oozing and both had expired. The complainant party then shifted dead bodies to hospital and ultimately lodged the F.I.R.

3. After the investigation was completed the investigation officer submitted the report under section 173 Cr.P.C before the concerned court and after the completing legal formalities including the supplying of necessary documents charge was framed against the appellant at Ex.2 to which he pleaded not guilty and claimed his trial.

4. The prosecution in order to prove its case produced as many as eight witnesses who produced relevant documents and numerous items during their depositions. PW-1 WMO Shakuntla was examined at Ex.3; she produced Lash Chakas form and postmortem reports of both deceased. PW-2 P.C Abid Hussain was examined at Ex.4; he produced receipt of handing over corpses of deceased to complainant. PW-3 Complainant Faiz Muhammad was examined at Ex.5; he produced F.I.R at Ex.5-A. PW-4 Muhammad Ibrahim was examined at Ex.6 and PW-5 Abdul Haq at Ex.7. PW-6 Hussain Ali was examined at Ex.8; he produced danishtnama, mashirnama of inspection of dead bodies of both deceased, mashirnama of inspection of place of incident and securing blood stained earth and mashirnama of arrest of accused and recovery of dagger shape knife. PW-7 SIP Shahnawaz was examined at Ex.9; he produced various daily diary entries and chemical examiner’s report. PW-8 Ghulam Yaseen (Tapedar) was examined at Ex.10; he produced sketch of place of incident. Lastly, the prosecution closed its side vide Ex.11.

5. The trial court recorded statement of appellant under Section 342 Cr.P.C. at Ex.12, wherein he denied the prosecution allegations against him and also declined to examine himself on oath and to lead evidence in his defence. The learned trial Court on conclusion of the trial and on assessment of the evidence produced by the prosecution passed the impugned judgment convicting and sentencing the appellant, as stated above.

6. Learned counsel for the appellant has assailed 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, as such their presence at spot is doubtful, therefore, their evidence is un-reliable and un-trustworthy. Learned counsel further contended that the witnesses examined by the prosecution are chance witnesses. He further contended that house of complainant is located at only 20 paces from the house of accused, therefore, question of staying of complainant and witnesses in the house of appellant does not arise and their version is unbelievable. Learned counsel further contended that it is also unbelievable that, why the appellant chosen the same date and time of murdering deceased, on which date the complainant party came to him and stayed in his house. Learned counsel further contended that, presence of the witnesses on spot at relevant time is doubtful, because if they had been present on the spot, they must had tried to rescue the victims, but none of them have taken any effort to rescue the deceased. Learned counsel lastly submitted that, case of prosecution is full of doubts and it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused; he however submitted that in case the Court is not convinced from the arguments advanced on behalf of appellant, at-least death sentence may be converted into life keeping in view evidence available on record.

7. Learned Addl. 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 convicted. He next contended that complainant party or police had no enmity to falsely implicate the accused in this case. Per learned counsel, relationship of witnesses with complainant or deceased cannot render their evidence unreliable, unless it is established that they have any motive to implicate accused falsely in the case. He further contended that contradictions or improvements made by witnesses, if any, were minor in nature and would have no adverse effect. Learned D.P.G. placed his reliance upon case of Talib Hussain and others v. The State (1995 SCMR 1776), Zakir Khan and others v. The State (1995 SCMR 1793) and Muhammad Ishaque v. The State (2018 LR 786),

8. We have heard the learned counsel for the appellant, learned Deputy Prosecutor General and perused the record and have read the evidence of prosecution witnesses with their able assistance.

9. We have gone through the evidence of prosecution witnesses very carefully. Case of prosecution is based on the oral/direct evidence, medical evidence and recoveries including the other circumstantial evidence as discussed below.

Oral/Direct Evidence.

10. There were three eye witnesses of the prosecution who saw the appellant while committing the murders of both the deceased and were the chance witnesses, there evidence is supported by the medical evidence and the recovery of the crime weapon from the appellant, the recovery of blood stained earth from the place of vardat including the postmortem reports.

11. The prosecution examined Complainant Faiz Muhammad (eyewitness) as PW-3 who deposed that deceased Bibi Amina was his daughter and wedded with accused Lal Muhammad and she was having three children. He further deposed that on 29.3.2014 he alongwith Muhammad Ibrahim and Abdul Haq was staying in the house of accused Lal Muhammad and on 30.3.2014 at 4.00 a.m. they woke up on hearing cries of Mst. Amina and rushed towards her room, where they saw that accused Lal Muhammad was having dagger and sitting upon Mst. Amina and he cut her throat by disclosing that she is “Kari” with Noor Muhammad and baby Aisha was illegitimate child. He further deposed that accused Lal Muhammad also cut throat of baby Aisha and ran away.

12. Prosecution examined Muhammad Ibrahim (eyewitness) as PW-4 who while supporting the version of complainant deposed that on 29.3.2014 he alongwith complainant Faiz Muhammad and Abdul Haq paid visit to the house of accused and stayed there for night and on 30.3.2014 at 4.00 a.m. they woke up on cries of Mst. Amina and rushed towards her room, where they saw that accused was armed with dagger, sitting upon Mst. Amina and committed her murder and of baby Aisha by slitting their throats. He further deposed that accused disclosed that Mst. Amina was “Kari” and baby Aisha was illegitimate child.

13. Abdul Haq (eyewitness) PW-5 was examined by the prosecution who narrated the incident in the same line, as has been deposed by complainant Faiz Muhammad and PW Muhammad Ibrahim.

14. All the above eye witnesses during their cross examination also on one line on all aspects which includes their arrival at the house of appellant, stay on the request of appellant, taking meals in the house of appellant and what they eat in the dinner in the house of appellant all these things they disclosed by supporting each other, no contradiction is pointed out in their evidence by defence counsel. There was no suggestion as to why and on what basis/enmity the appellant was implicated. The appellant and the eye witnesses are closely related to each other and they saw the appellant while committing the murders of his wife and the daughter from a close distance of about 8 to 10 feet, therefore there is no question of any mistaken identity especially as a light bulb was on by which the eye witnesses could see the appellant and the eye witnesses knew the appellant. The incident took place in the room of the appellant and during the cross examination it was even not suggested that the appellant was not present at his house at the time of incident. Only defence of the appellant was that the murders were committed by some unknown accused persons having no independent support. Thus based on the above reasons the oral/ direct evidence is available against the appellant and the same is reliable, trustworthy and confidence inspiring which we believe and rely upon.

Medical evidence.

15. In support of the above oral/direct evidence the prosecution examined PW-2 Constable Abid Hussain who deposed that on 30.3.2014 he handed over dead bodies of deceased Mst. Bibi Amina and Baby Ayesha to Medical officer for postmortem and after postmortem he delivered the dead bodies to legal heirs of deceased under Receipt.

16. WMO Dr. Shakuntla was examined by the prosecution she deposed that on 30.3.2014 she being Women Medico Legal Officer posted at Taluka Hospital, Shahdadkot received dead bodies of Mst. Bibi Amina and Baby Aisha for postmortem and on external examination of Mst. Bibi Amina she found incised wound of 5 inch x 2 cm on the front of neck while during internal examination she found that carotid arteries, muscles of neck, esophagus were ruptured and trachea was fractured. The WMO opined that death of deceased Mst. Bibi Amina was result of shock and hemorrhage and injury sustained by her was sufficient to cause death in ordinary course of nature and it was caused by sharp cutting weapon. The WMO further deposed that on same day she also conducted postmortem of Baby Aisha and on external examination she found incised wound of three inch x 2 cm on front of neck and abrasion 1 cm in diameter on forehead and on internal examination of Baby Aisha it was found that carotid arteries, muscles of neck, esophagus were ruptured and trachea was fractured. She opined that death of Baby Aisha had occurred due to shock and hemorrhage and injury sustained by her was sufficient to cause death in ordinary course of nature and it was caused by sharp cutting substance.

Recoveries.

17. To prove the recoveries prosecution examined Hussain Ali PW-6 who acted as mashir in the case who deposed that on 30-03-2014 police visited taluka hospital Shahdadkot and on the pointation of complainant inspected the dead bodies, prepared mashirnama of inspection of the dead bodies and the injuries including the Danishnama, thereafter police came at place of vardat secured the blood stained soil in respect of both the deceased and sealed the same separately. He further deposed that on the same day at 5.00 pm police arrested the accused at the curve of Umar Shah and on body search one dagger was recovered and all these mashirnamas were prepared by police in his presence and co-mashir was Mehboob Ali. He was cross examined at length but nothing favourable to the appellant was brought on record by the defence counsel.

18. The evidence of PW- 6 was also supported by the SIP Shah Nawaz PW-7 who is author of the F.I.R, so also investigation officer. He deposed that on 30.3.2014 he inspected dead bodies of deceased Mst. Amina and Baby Aisha and prepared danistnamas in presence of mashirs. He further deposed that on pointation of complainant he inspected the place of incident and secured blood stained earth and sealed the same under the mashirnama with signatures of mashirs and on the same day viz on 30.3.2014 he arrested accused/appellant from Umar Shah Peer alongwith dagger used in the commission of offence and sealed the same on spot and prepared such mashirnama in presence of same mashirs. He further deposed that he also recorded statements of witnesses in terms of Section 161 Cr.P.C. He is a police officer and was also cross examined at length but no enmity or ill-will was suggested against him for falsely implicating the appellant in the offence which is a heinous offence providing capital punishment and in the said incident two innocent persons including a baby girl lost their lives. Both the deceased are also blood relations with the appellant; one was his wife and the other was his daughter. PW-8 Ghulam Yaseen (Tapedar) was examined at Ex.10, who had prepared the sketch of place of incident and has produced such sketch on record which shows from where the blood stained earth was taken by the investigation officer.

19. We have carefully considered the entire evidence produced by the prosecution. All the three eye witnesses supported the prosecution case and their testimony was unchallenged. No enmity or ill-will was suggested against any of the witnesses. The Appellant has not even been able to prove that at the relevant time (time of the incident) he was not available in his house. The appellant did not even come forward as a witness despite his wife and his daughter being brutally murdered in his own house and instead remained mum. Even after his arrest the appellant did not make any allegation of being falsely implicated in the case.

20. The appellant, only at the time of recording his statement under section 342 Cr.P.C took the simple plea that allegation against him was false and he was not available at the time of incident and the dagger was foisted against him. The said defence at the belated stage we find is not helpful to the appellant as during the evidence of all the eye witnesses he had not taken the same defence nor he produced any defence evidence in this respect.

21. Admittedly the witnesses appeared to be interested as they all seem to be related to each other in one way or the other however no evidence has come on record that there was any open enmity or animus between the PW’s and the appellant, however, it has come on record that all the three eye witnesses were also relatives of the appellant and as such since in our view all the evidence of the interested witnesses seems to be reliable and corroborated by other independent evidence and as such we do not consider that the aspect of interested witnesses is relevant based on the particular facts and circumstances of this case and the evidence on record. Reliance is placed on the cases Khizar Hayat V The State (2011 SCMR 429) and Faisal Mehmood V. The State (2010 SCMR 1025).

22. Learned counsel for the appellant pointed out some minor contradictions in the evidence of witnesses which in our view are not sufficient to hold that the entire case of the prosecution is doubtful. It is now an established principal of law that where in the evidence prosecution established its case beyond reasonable doubt then if there may be some minor contradiction, 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}.

23. Thus, based on the particulars facts and circumstances of this case keeping in view the brutality of the crime where two innocent persons (wife and baby daughter of the appellant) were murdered by the appellant while cutting their throats with a dagger which at the time of his arrest was recovered from him and the entire episode was witnessed by three eye witnesses, the complete lack of mitigating circumstances and in fact the presence of aggravating circumstances as mentioned above we are of the view that a deterrent sentence is the appropriate one. Reliance is placed on the case of Dadullah V. State {2015 SCMR 856}. We therefore uphold all the convictions and sentences for each offence in the impugned judgment and confirm the death sentence handed down to the appellant whilst dismissing his appeal.

24. The confirmation reference made by the trial court is answered in the affirmative and the same is disposed of with the appeal in the above terms.

JUDGE