IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. Jail Appeal No. S-238 of 2016
Appellants: Jinsar Ali Lashari
and others through Mr. Aamir Mustafa Kamario, Advocate.
The
State: Through
Syed Sardar Ali Shah, DPG
Date
of hearing: 18.04.2022.
Date
of decision: 18.04.2022.
J U D G M E N T
ZULFIQAR ALI SANGI, J:- Through this appeal, the appellants have challenged
the impugned Judgment dated 29.11.2016, passed by learned 1st
Additional Sessions Judge, Khairpur, in Sessions Case No.457/2013 re-“The State v. Jinsar Ali and others”, arising
out of Crime No.35/2013, registered at Police Station Sorah,
under Section 302, 114, 34 PPC, whereby the appellants were convicted for the offence u/s 302(b)
PPC r/w Section 114/34 PPC as Tazir and sentenced to suffer imprisonment for
life. All the accused are directed to pay compensation of Rs.100,000/- each to
the legal heirs of the deceased, and in case of default, they shall further
undergo SI for six months; however, the benefit of Section 382-B Cr.P.C was
extended to the accused persons.
2. The brief facts of the prosecution case are that
on 17.03.2013 at 1230 hours complainant Mir Muhammad Lashari lodged an FIR
stating therein that 10/12 days back his son Imtiaz Ali Lashari had exchanged
harsh words with Jinsar Ali Lashari over water rotation, on that he used to
issue threats to him for which his son had made the complaint and he had apprised
such facts to Nekmards of the locality. On the day of the report in the morning
time Complainant, his son Imtiaz Ali aged about 18/19 years and relative Ali
Gul were going to Misali Goth in connection with some
work on a motorcycle, his son was plying the motorcycle, at about 1100 hours
when they reached near the house of Kazim Dharejo where they saw accused Jinsar Ali armed with a gun,
Gulzar Ali with a pistol, Talib Ali with Pistol, who pointed their weapons and signalled them to stop, on which Imtiaz stopped motorcycle,
accused Gulzar Ali and Talib Ali pointed weapons, while accused Jinsar made his
son Imtiaz stand on Top/Path then on the instigation of accused Gulzar and
Talib to accused Jinsar that don’t spare Imtiaz as he had insulted him on the dispute
of water rotation on which accused
Jinsar Ali fired directly from his gun upon Imtiaz which hit him on his head
and another fire hit him on his chest, blood started oozing from his injuries
and he fell down on the ground and was struggling for his life. On cries
and fire reports PWs Mumtaz Ali and other persons came, noticing them all the
accused went away. The complainant saw
that Imtiaz had received injuries on his temple region and brain matter came
out and one injury was found on the chest and he died on spot, then leaving
the witnesses over a dead body, complainant appeared at PS and lodged FIR.
3. During
investigation ASI Ghulam Qasim
Shar arrested accused Jinsar Ali, Gulzar
Ali and Talib Ali Lashari from the top eastern side from Beerin-Wari-Pull at 1400 hours in presence of mashirs HC Barkat
Ali and PC Akhtiar Hussain and from accused Jisnar
Ali he recovered one DBBL Gun and three live cartridges, and from accused Gulzar Ali one Desi Pistol and
two live cartridges were recovered which were sealed on spot. Both the accused
failed to produce valid licenses of their respective weapons, while accused
Talib was empty-handed. The gun and pistol were sealed on spot in presence of
mashirs. After completion of the investigation, the challan was submitted
before the Court having jurisdiction.
4. After supplying
the necessary documents to the accused the charge was framed against them to
which they pleaded not guilty and claimed for trial.
5. During
trial Prosecution examined complainant Mir Mohammad at Ex.7, he produced FIR at
Ex.7/A, receipt of delivery of dead body at Ex.7/B. PW Ali Gul was examined at
Ex.8. PW Mumtaz Ali was examined at Ex.09. ASI Ghulam Qasim was examined at
Ex.10, Mashir Mohammad Salik
was examined at Ex.11, he produced memo wardat; memo of recovery of clothes,
inquest report of deceased at Ex.11/A to Ex.11/C. Tapedar Muhammad Khan was
examined at Ex.12, he produced a sketch of wardat at Ex.12/A. ASI Khalil Ahmed Soomro
was examined at Ex.13, he produced a letter to SSP Khairpur, a Letter to
Mukhtiarkar Nara, a permission letter, and a report from Chemical Examiner at
Ex.13/A to 13/D respectively. PC Mushtaque Ali was examined at Ex.14, he
produced an inquest report at Ex.14/A. Dr Ahmed Ali
Shar was examined at Ex.15, he has produced post mortem report of the deceased
at Ex.15/A, and a police letter at Ex.15/B. HC Barkat Ali was examined at
Ex.16, he produced mashirnama of arrest and recovery of the accused at Ex.16/A.
Thereafter, learned ADPP for State closed the side of prosecution vide his
statement at Ex.17.
6. The
statements of accused u/s 342 Cr.P.C were recorded at Ex.18 to 20, in which all
the accused have denied the allegations of prosecution levelled
against them. However neither they examined themselves on oath nor led any
evidence in their defence.
7. On
reassessment of evidence so also after hearing the parties, the trial Court has
passed the impugned judgment whereby the appellants were convicted and
sentenced as stated above, hence this appeal.
8. Learned counsel for the appellants
has contended that the prosecution has failed to prove its case beyond
reasonable doubt; that learned trial Court did not appreciate the important
aspect regarding the major contradictions of the prosecution case; besides
there are many lacunas and contradictions in the evidence of PWs; and the
witnesses are interested one, being relatives of Complainant; that there is
delay in lodging of FIR, which has not been properly explained by the
prosecution; that the complainant party admitted in their evidence that there
was dispute between the parties over water rotation; learned trial Court has
decided the case on the basis of allegation listed in the FIR without either
appreciating or considering the evidence or other material available on record;
that the impugned Judgment is against the law, facts, principles of natural
justice and equity; that learned trial court has erred in convicting the
appellants by not taking into consideration the entire material and thus the
impugned Judgment is liable to be set aside. He finally prayed that by
extending the benefit of the doubt, the appellants may be acquitted.
9. Learned DPG appearing for the
state has supported the impugned judgment and further contended that the
prosecution has proved its case against the appellants beyond any reasonable
shadow of a doubt by producing oral as well as documentary evidence; that the
learned trial court has rightly convicted the appellants and they do not
deserve any leniency; that there appears no illegality or irregularity in the
impugned judgment which is well reasoned and does not require any interference
of this court.
10. I have heard learned counsel for
the parties and have gone through the material available on record with their
able assistance.
11. The entire evidence produced
by the prosecution is scanned and I am of the view that the prosecution has successfully
proved the case against the appellant Jinsar Ali beyond the shadow of
reasonable doubt; however from the re-assessment of the evidence it appears
that the prosecution has failed to prove the case against appellants Gulzar Ali
and Talib Ali.
12. The incident took place on 17-03-2013 at 1100 hours and
the FIR was registered on the same day at 1230 hours though the distance in
between the place of vardat and the police station was about 35/36 KM. After registration
of the FIR, the police proceeded towards the place of the incident and
inspected the same including the dead body and recovered crime articles mentioned
in the mashirnama prepared at 1400 hours. The dead body was shifted to the hospital
where the post-mortem was conducted from 3.50 pm to 4.45 pm. All these facts excluded the possibility of consultation or
deliberation on the part of the prosecution. The Honourable Supreme Court in the
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.
13. The prosecution in order to prove its case
examined Complainant Mir Muhammad, who stated that on 17.03.2013 at 11:00 a.m.
he along with deceased Imtiaz and PW Ali Gul went towards the village Mesali from their village on a motorcycle. They found
accused Jinsar armed with a gun, accused Talib and Gulzar with pistols and on the
force of weapons, they stopped the motorcycle and then accused Jinsar made
straight fires on deceased Imtiaz, which hit him on the left side of his head
and his chest, resulting thereby, the complainant’s son Imtiaz Ali died on the
spot. PW Ali Gul also supported the version deposed by the complainant in the
same line. PW Mumtaz Ali was also examined, who deposed that he reached the
place of the incident after hearing fire shots where he saw accused Jinsar with
a gun while remaining accused with pistols. He also found the deceased Imtiaz
lying at the place of the incident. All the three witnesses were cross-examined
at length. No major contradictions were found in their evidence; however, some
minor contractions are available, which in my view are natural. The complainant
during cross-examination admitted the relation with one Ghulam Qadir Dharejo as
being his co-villager and denied the suggestion that in his instance this case
was registered against the accused persons. The complainant also denied the
suggestion that accused Gulzar and Jinsar were with the complainant party at
the time funeral ceremony. There is no denial of the natural death of the deceased.
The evidence recorded in the case
further indicates that all the prosecution witnesses have fully supported each
other on all material points and their evidence is further corroborated by the
medical evidence and recovery of the weapon used by the appellant Jinsar at the
time of the incident. Though the witnesses are close relatives of the complainant
and the deceased they have no strong motive
to falsely implicate an innocent person in a murder case while substituting the
actual culprit. The dispute shown by the complainant was a dispute on the rotation
of water and the same has not been denied by the accused persons nor do they
have any strong defence which may suggest that the appellant/accused has not murdered
decease Imtiaz. However, the evidence produced by the prosecution is reliable,
trustworthy and confidence-inspiring which is also supported by the medical
evidence and other circumstantial evidence including the recovery of the crime
weapon. The presence of witnesses at the time of the incident has been proved
by the prosecution beyond any shadow of the doubt. The mere fact that a witness
is closely related to the accused or deceased or he is not related to either
party, is not a sole criterion to judge his independence or to accept or reject
his testimony rather the true test is whether the evidence of a witness is
probable and consistent with the circumstances of the case or not. Reliance is
placed on the case of Lal Khan v. State (2006 SCMR 1846).
14. It
is observed that to believe or disbelieve a
witness all depends upon the intrinsic value of the statement made by him. Even
otherwise, there cannot be a universal principle that in every case an interested
witness shall be disbelieved or a disinterested witness shall be
believed. It all depends upon the rule of prudence and reasonableness to
hold that a particular witness was present at the scene of the crime and that
he is making a true statement. A person who is reported otherwise to be very
honest, above board and very respectable in society gives a statement which is
illogical and unbelievable, no prudent man despite his
nobility would accept such a statement. Reliance can be placed on the
case of Abid Ali & 2 others
v. The State (2011 SCMR 208). It is well settled by now that
merely on the ground of inter se relationship the statement of a witness cannot
be brushed aside. Even the ‘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 as has been held by the Honourable Supreme Court
of Pakistan in the cases of Zulfiqar
Ahmed & another v. The State (2011 SCMR 492) and Iqbal alias Bala
v. The State (1994 SCMR 01).
15. In
support of the ocular evidence the prosecution produced medical evidence and
examined Dr. Ahmed Ali, who conducted the postmortem of the deceased and during
postmortem had found the following injuries on the person of deceased:-
“1. One
fire arm injury on the right temporal region of head
measuring 1.cm in diameter x circular edges inverted in% bone deep
passing through and through at left temporal region of head measuring 5 cm
irregular in shape edges averted into bone deep and brain matter was out of
skull. (exit wound).
2. One
fire arm injury, near to the injury No.l on the right
temporal region measuring 1 cm in diameter circular edges inverted into bone
deep passing through and through from left temporal region of head from the
same exit wound of injury No.1.
3. Seven
lacerated type punctured wound (fire arm injuries) on the left anterolateral
aspect of chest close to each other each one measuring 1 cm in diameter edges
inverted circular in shape passing through and through right posterolateral side of chest measuring each 1.5 cm into
diameter edges averted”.
From the external
as well as an internal examination of the deceased Imtiaz Ali the doctor was of
the opinion that death occurred due to shock and hemorrhage which resulted from
firearm injuries collectively all the injuries were sufficient to cause death
in the ordinary course of nature. During the cross-examination, he stated that
the deceased sustained fire shots at a distance of more than 6 feet. The
distance between injuries No.1 and 2 would be about 1. cm.
The injury No.3 was sustained by the deceased in the shape of a group. The injury No.3 was through
and through and due to that injury lungs, pancreas, liver and heart was
ruptured. The doctor also on the suggestion
made on behalf of the accused stated that the injuries were on the
vital organs of the deceased therefore, death occurred instantaneously.
From the perusal of the medical evidence,
it established that the ocular evidence is in line with the medical evidence.
It may be the repetition but necessary to clear that the FIR of the present
incident was lodged promptly with no delay and there is no room for
consideration that the same was registered with consultation or deliberation. The
version given by the complainant in the FIR and at the time of recording his
evidence before the trial court is fully supported by the medical evidence.
16. After scanning the ocular evidence produced by the prosecution,
I have examined the evidence of PW Muhammad Salik produced
by the prosecution as a mashir, who deposed that in his presence the place of
incident was visited by the police where two empty cartridges and blood stained
earth was recovered and its memo was prepared. Mashirnama of inspection of the dead
body was also prepared in his presence. He stated during cross-examination that
the empties of cartridges were lying at a distance of 4/5 paces from the
deceased. His evidence has support from the evidence of a doctor who during
cross-examination has stated (while denying the suggestion made on behalf of
the accused) that “It is incorrect to
suggest that group injuries can be caused bellow the distance of 4/5 feet.”
The doctor also stated that the deceased sustained fire shots at the distance
of more than 6 feet. The prosecution also examined ASI Khalil Ahmed, who has
conducted the investigation and visited the place of Vardat, and, according to him, he saw firearm injuries on the
deceased at the front of his left chest, which was through and through and
other fire was at the right side of the head, which was through and through. He
had recovered two empties of cartridges from the place of incident and blood
stained earth also. He prepared memos and inquest reports and thereafter sent the
dead body to RHC Nara Gate for postmortem. 161 Cr.P.C statement of PW was
recorded and handed over the dead body to the complainant party after receipt. On
24.03.2013, ASI Ghulam Qasim
Shar handed over him wanted criminals namely Jinsar, Gulzar and Talib and also
handed over one DBBL gun allegedly recovered from accused Jinsar along with two
cartridges and a country-made pistol recovered from accused Gulzar along with
two live cartridges in sealed condition. Two separate FIRs under the arms act
were registered. The Mashir and investigation officer were cross-examined at
length, but the defence failed to bring any substantial material which favours
the accused.
17. In respect of the recovery of weapons used by the appellant
Jinsar at the time of committing murder, PW Barkat Ali the mashir of recovery stated
that on 24.03.2013, he along with ASI Ghulam Qasim Shar, on receiving spy information, had arrested the accused
Jinsar, Gulzar and Talib from the top of NARA Canal and recovered DBBL gun from
accused Jinsar along with one currency note of Rs.100/- including one country-made
pistol from accused Gulzar along with two live cartridges and from Talib
Hussain they recovered six currency notes of Rs.20/-. No substantial material
was brought on record by the defence counsel to disbelieve the recovery of the crime
weapon used in the commission of the offence by the appellant Jinsar Ali.
18.
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 the prosecution
is doubtful. It is settled by now that, wherein the evidence, the prosecution
established its case 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.”
19. Thus
based on the discussion made hereinabove and on the reassessment of the 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
Jinsar Ali by producing reliable,
trustworthy, and confidence-inspiring oral evidence as well as medical
evidence, recovery of crime weapon so also the documentary evidence in support
of the same. I, therefore, uphold all the sentences, fines, and penalties for
each offence awarded to the appellant Jinsar Ali in the impugned judgment
whilst dismissing his appeal.
20. Turning to the case of Appellants Gulzar and Talib, there is no evidence against them in respect of active participation
during the occurrence though it is alleged by the prosecution witnesses that
they were armed with pistols and were available at the time of the commission
of the offence but said pistols were not used by them. None of the prosecution
witnesses, during their evidence, has deposed a single word against the
appellants Gulzar and Talib in respect of sharing of their common intention
with the main accused Jinsar Ali. The mashirnama of inspection of the place of
incident is examined which reflects that only two empties of cartridges of 12
bore were recovered which were allegedly used by co-accused Jinsar Ali and no
empty of the pistol was recovered from the place of vardat. The PW Ali Gul only
stated that two accused facilitated accused Jinsar Ali however it is not clear
from his evidence as to what action they have done at the time of the incident
in respect of facilitation. PW Mumtaz Ali only stated that he saw the accused
persons while they were running. In the circumstance and the evidence as disused
above the presence of the accused Gulzar and Talib at the time of the incident
is highly doubtful. The Honourable Supreme Court of Pakistan in the case of Muhammad
Zafar and another v. Rustam Ali and others (2017 SCMR
1639), has observed as under:-
3. After
hearing learned counsel for the appellant, learned Additional Prosecutor
General for the State and perusal of the record, it has been observed by us
that respondents Nos.3 to 5 namely Muhammad Ali, Muhammad Siddique and Muhammad
Ashraf were rightly acquitted by the learned trial court. Along with
respondents Nos.3 to 5 their eight other co-accused were also acquitted and
their acquittal was not assailed any further by the complainant or by the
State. Consequently acquittal of respondents Nos.3 to 5 was not interfered by
the learned Division Bench of the Lahore High Court for valid reasons recorded
in the impugned judgment. Since no
active role except a proverbial lalkara was
attributed to Muhammad Yaqoob (respondent No.2),
therefore, he was also rightly acquitted by the learned appellate court.
With the assistance of learned counsel for the appellant and learned Additional
Prosecutor General Punjab for the State we have examined the record and the
reasons recorded by the learned appellate court for acquittal of respondent
No.2 and for not interfering with the acquittal of respondents Nos.3 to 5 are
borne out from the record. No misreading of evidence could be pointed out by
the learned counsel for the complainant/ appellant and learned Additional
Prosecutor General for the State, which would have resulted into grave
miscarriage of justice. The learned courts below have given valid and
convincing reasons for the acquittal of respondents Nos.2 to 5 which reasons
have not been found by us to be arbitrary, capricious or fanciful warranting
interference by this Court. Even otherwise this Court is always slow in
interfering in the acquittal of accused because it is well settled law that in
criminal trial every person is innocent unless proven guilty and upon acquittal
by a court of competent jurisdiction such presumption doubles. As a sequel of
the above discussion, this appeal is without any merit and the same is hereby
dismissed.
21. In view of such position, it is established that the
prosecution has failed to prove the case against Appellants Gulzar and Talib.
Resultantly, they are acquitted from the charges and were ordered to be
released if they are not required in any other custody case.
22. These are the reasons for the short-order dated 18.04.2022,
whereby the appeal of the appellant Jinsar Ali was dismissed; however the
appeal against appellants Gulzar Ali and Talib Ali was allowed and they were acquitted
of the charges and were ordered to be released forthwith if not required in any
other custody case.
JUDGE