IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

 

Criminal Jail Appeal No.S-241 of 2016

 

Appellant:                     Ghulam Akbar son of Ghulam Asghar by caste Rind. (Confined in Central Prison Khairpur).

 

Through Mr. Muhammad Farooq Khan, Advocate.

 

Complainant:                Sajjad Hussain son of Abdul Rehman bycaste Rind.

                                      Through Mr. Nisar Ahmed Bhanbhro, advocate.

 

The State:                      Mr. Khalil Ahmed Maitlo, Deputy Prosecutor General

 

Date of hearing:          28-03-2022

Date of judgment:            -04-2022.

J U D G M E N T

Amjad Ali Sahito, J.- By filing the instant Crl. Jail Appeal, through Senior Superintendent Central Prison Khairpur, appellant Ghulam Akbar Rind has impugned the judgment dated 08-12-2016 passed by learned IInd Additional Sessions Judge Khairpur, in Sessions Case No. 997/2011 (Re. The State Vs. Ghulam Akbar Rind), offence u/s 302 PPC, Crime No. 219/2011 registered at Police Station Mirwah, whereby he has been convicted under section 265H(ii) Cr.P.C and sentenced to suffer imprisonment for life and to pay fine of Rs. 100,000/- as compensation to the legal heirs of the deceased Athar Hussain. In case of failure, the accused/appellant shall further undergo S.I for six months more with benefit of section 382-B Cr.P.C.

2.      Brief facts of the case are that on 09-08-2011 complainant Sajjad Hussain lodged the FIR alleging therein that on the said date at evening time, he and Athar Hussain were available near Girls Middle School Usmanabad, where Athar Hussain was talking with someone on mobile phone. Meanwhile Akhtar and Saleem also came there and they were chitchatting with each other. At about 6-30 pm accused Ghulam Akbar Rind armed with TT pistol came there and made direct fire of pistol upon Athar Hussain with intention to commit his murder, which hit him and he fell down. Then accused fled away from the spot. Thereafter complainant party took the injured Athar Hussain towards RHC Mirwah for treatment, where he succumbed to the injuries. Ultimately complainant appeared at Police Station and lodged the above said FIR against the accused.

3.      After completing of the investigation, Investigating Officer submitted the challan u/s 173 Cr.P.C before the Court having jurisdiction by showing accused Athar Hussain in custody. The R & Ps received by the Court of learned IInd Additional Sessions Judge Khairpur by way of transfer for its disposal according to law. After supplying the case papers, the charge against accused Ghulam Akbar was framed at Ex. 3, to which he pleaded not guilty and claimed to be tried vide his plea recorded at Ex. 4. In order to prove the guilt against the accused, the prosecution has examined PW/1 complainant Sajjad Hussain at Ex. 6, who produced the Police letter at Ex.6/A and FIR at Ex. 6/B. PW/2 Akhtar Hussain at Ex. 7, PW/3 medical officer Dr. Ansar Ali Gopang at Ex. 8, who produced the police letter at Ex. 8/A and post mortem report at Ex. 8/B, PW/4 PC Dilbar Hussain at Ex. 9, PW/5 Tapedar Asif Ali at Ex. 10, who produced sketch/report at Ex. 10/A. Learned ADPP for the State given up PWs Saleem Raza and mashir Fida Hussain on application of complainant vide his statement Ex.11. PW/6 Imtiaz Ali at Ex. 12, who produced inquest report t Ex. 12/A, memo of injures at Ex. 12/B, memo of recovery of empties and blood stained earth at Ex. 12/C and memo of last worn clothes at Ex. 12/D, PW/7 ASI Imam Bux at Ex. 13, he produced departure entry No. 18 at Ex. 13/A, PW/8 SIP/SIO Qalandar Bux at Ex. 14, who produced letters written to SSP and Mukhtiarkar at Ex. 14/A & B, departure entry at Ex. 14/C, memo of arrest and recovery at Ex. 14/D, arrival entry at Ex. 14/E and report of chemical examiner at Ex. 14/F. Thereafter learned ADPP for the State closed the side of prosecution vide statement as Ex. 15.

4.      The accused in his statement under section 342 Cr.P.C, at Exh.17, denied the allegations leveled against him by the prosecution and further stated that he is innocent and has falsely been implicated by the complainant in this case. The accused examined himself on oath being DW/1 at Ex. 19 and produced certified true copy of Judgment passed in 13 (d) Arms Ordinance case at Ex. 19/A. In his defense, accused has examined DW/2 Raham Ali at Ex. 20 and DW/3 Zaheer Hussain at Ex. 21 and closed the side vide his statement at Ex. 22.

5.      The learned Trial Court, after hearing learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellant/accused as stated above by extending him the benefit of section 382-B Cr.P.C vide judgment dated 08-12-2016. The conviction and sentence recorded by the learned trial Court are impugned by the appellant before this Court by way of filing instant Crl. Jail Appeal.

6.      Learned advocate for the appellant/accused argued that appellant/accused is innocent and falsely been implicated in this case by the complainant with malafide intention and ulterior motive; that there is inordinate delay of about one day in lodging the FIR and such delay has not been explained, which shows that the FIR has been lodged after consultation and deliberation; that medical evidence is not supported with ocular evidence regarding the seat of injury; that the case of prosecution is highly doubtful and it is well settled law that benefit of doubt is already extended to the accused; that all the witnesses are close relatives of complainant, they are highly interested witnesses and their evidence is not reliable and trustworthy in absence of independent corroboration; that appellant has nothing to do with the alleged offence, but the story set up in the FIR is false, concocted and flimsy one; that there are so many contradictions and improvement in the evidence of complainant and eye witnesses, but learned trial Court has not given weight to it; that trial Court has miserably failed to appreciate and assess the evidence which has been given by the prosecution against the appellant; that prosecution has miserably failed to bring the charge against the appellant and the impugned judgment is not based on the correct appraisal of the evidence and it is based on presumptions and assumptions, hence he pray that appellant is liable for his acquittal. He placed his reliance on the cases of Liaquat Ali Vs. The State (2008 SCMR 95), Abdul Majeed Vs. Mulazim Hussain and others (PLD 2007 Supreme Court 637), Sher Ghazi Vs. The State (2007 P.Cr.L.J 354), Pervaiz Khan and another Vs. The State (2022 SCMR 393), Muhammad Idrees and another Vs. The State and others (2021 SCMR 612), Qamar Sultan Vs. The State (2021 YLR 1870), Mst. Fareeda and another Vs. The State (2021 YLR 1828), Zulfiqar Ali Vs. The State (2021 SCMR 1373), Muhammad Asif Vs. The State (2017 SCMR 486), Bad Shah Jamil Vs. Muhammad Janbaz Khan (2021 YLR1745), Muhammad Akram and others Vs. The State (2005 YLR 1240) [Lahore] and Muhammad Akram Vs. The State (2009 SCMR 230).

 7.     Learned DPG for the State assisted by the learned counsel for the complainant argued that appellant is named in the FIR with specific role; that complainant Sajjad Hussain and PW Akhtar Hussain are the eyewitnesses of the incident, who have fully supported the case of the prosecution; that the medical evidence was in consistency with the version of the complainant and P.Ws, which was corroborated by the recovery of one empty of 30 bore pistol from the place of incident. He lastly prayed that the learned trial Court has rightly appreciated the evidence while recording conviction and sentence of the appellant in accordance with law, thus he lastly prayed for dismissal of the instant Crl. Jail Appeal. He placed his reliance on cases of Talib Hussain and others Vs. The State and others (2009 SCMR 825), Javed Akhtar Vs. The State (PLD 2020 Supreme Court 419), Abdul Rehman Vs. The State (2019 P.Cr.L.J 161), Meer Nawaz and another Vs. The State (2019 P.Cr.L.J 17), Abdul Khaliq Vs. The State (2020 SCMR 178) and Abdul Aziz alias Abdullah Vs. The State (SBLR 2020 Sindh 122).

8.      I have heard learned counsel for the parties and perused the material available on record.

9.      On the evaluation of the material brought on the record, it appears that the case of prosecution solely depends upon the ocular and circumstantial evidence adduced in the shape of evidence of the complainant as well as eyewitness Akhtar Hussain, Investigating officer, Medical Officer and other witnesses of the case. In order to prove the case against the appellant, the prosecution has examined complainant Sajjad Hussain and eyewitness Akhtar Hussain. Both the above witnesses with one voice narrated the story which was disclosed by the complainant in the FIR and P.Ws in their 161 Cr.P.C statements that on the day of report, when complainant along with his nephew Athar Hussain left their house at about 6-15 pm to graveyard for Dua purpose and when they reached near Middle School Usman Rind, deceased Athar Hussain talking on mobile with someone. Meanwhile PW Akhtar Hussain and Saleem Raza also reached at the spot. They were talking with each other, It was about 6-30 pm, when accused Ghulam Akbar having TT pistol came running towards them. They enquired from him that where he is going, on which he replied that he is going to commit murder and then within their sight he made straight fire upon his nephew Athar Hussain, which fire it to Athar Hussain at his abdomen and he fell down while crying, then accused ran away from the spot along with pistols. They checked the Athar Hussain and found that he had sustained firearm injury at his abdomen. On fire shot and their cries, some villagers reached at the spot. Then they took away injured Athar Hussain towards RHC Mirwah, where after examination of medical officer disclosed that Athar Hussain had already been expired. Then complainant left the dead body in the Hospital and had gone towards PS Mirwah, where got entry against the accused and also obtained letter for post mortem of deceased. He produced such letter at Ex. 6/. After handing over letter medical officer had conducted the post mortem of deceased Athar Hussain and then they took away the dead body to their village for burial purpose. On next date of the incident, after burial the dead body, he had gone to PS Mirwah along with PWs, where he lodged the FIR against the accused, which is produced at Ex. 6/B. He showed the place of wardhat to police on 09-08-2011 from where police had collected bloodstained earth of deceased and sealed the same at the spot in their presence. Police had also collected one empty of pistol, which was lying about six feet away from the place, where dead body was lying and then police went back to police station. The mashirnama of wardhat was prepared by the police at the spot. Accused present in Court is same. In order to support the version of the complainant, the prosecution has examined PW Akhtar Hussain, who is eyewitness of the incident and fully supported the version of complainant as well as contents of FIR. The complainant and eyewitness were cross-examined by the defence at length wherein the learned counsel for the defense asked multiple questions to shatter their confidence but he could not extract anything from any of the said witnesses, who remained consistent on all material points. The parties are known to each other, so there was no chance of mistaken identity of the appellant.

10.    In the instant matter, the complainant as well as eyewitness has sufficiently explained the date, time, place of incident, manner of occurrence, and involvement of the appellant. There can be no denial to the legally established principle of law that it is always direct evidence that is material to decide the fact and to prove the charge. Insufficient, contradictory, discrepant direct evidence is deemed adequate to hold a criminal charge as not proved but where direct evidence remains in the field with that of its being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance may be placed upon the case of Muhammad Ihsan v. The State (2006 SCMR 1857) wherein the Apex Court has held that:

5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence.”

 11.    From the perusal of the evidence of the complainant and eyewitness, it appears that they cannot be termed as chance witnesses rather would fall within the category of natural witnesses; deceased Athar Hussain was the nephew of the complainant. The presence of the complainant Sajjad Hussain and PW Akhtar Hussain at the time and place of incident is not disputed and both these witnesses are natural witnesses. It may be added here that the status of one being a natural witness would never unnecessarily stand to be the witness of truth but always to the satisfaction of the Court. For which witnesses have given the detail of the incident in a manner that is believable to a prudent mind. Reliance in this regard is placed on the case of Abid Ali and 02 others v. The State (2011 SCMR 208) wherein the Apex Court has held that:

“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 crime and 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 I illogical and unbelievable, no prudent man despite his nobility would accept such statement”.

12.    The direct evidence also finds support from the medical evidence concerning the cause of death of deceased Athar Hussain so also the time of the incident. It is established from the evidence of Senior Medical Officer Dr. Ansar Ali Gopang who deposed that on 09-08-2011 he was posted as medical officer at RHC Mirwah. One the same day PC Dilber Ali Mallah brought the dead body of deceased Athar Hussain Rind along with police letter for postmortem and report. He produced the police letter at Ex. 08/A. The dead body was identified by Ali Gul Rind grandfather of deceased and Ali Gulab Rind uncle of deceased. He started the postmortem at about 8-00 pm and completed the same at 9-00 pm on the same day. During the external appearance, he find that a dead body of deceased an average built lying sine position on a cot wearing Badami color shirt shalwar and green towel, postmortem lividity and rigor mortis positive. From the external appearance, he find following injuries on the person of dead body.

          One firearm lacerated type of penetrating wound size 1/5 cm x 1.5 cm x cavity deep averted margin (wound of entry) at lover part of left side of abdomen circular in shape pass through and through at left buttock 2 cm x 2 cm with averted margin circular in shape (exit wound) (pistol).

          Scalp, skull and vertebrae noting any significant, membrane, brain, spinal card intact. Thorax. Walls, ribs and cartilages healthy, pleurae healthy, larynx and trachea healthy, right and left lungs healthy, pericardium and heart healthy. Blood vessels ruptured at the site of injury. Walle ruptured left side, peritoneum ruptured left side, mouth, pharynx and esophagus healthy, diaphragm healthy, stomach and its contents contains digested food, pancreas contains secretary juices, small intestine and the contents ruptured urinic digest food along with food, large intestines and their contain fecal matter. Liver healthy, spleen healthy, kidneys healthy, bladder contains few cc of urine. Organs of generation external and internal, healthy.  From the external as well as internal examination of deceased, he opined that death of deceased has occurred due to shock and hemorrhage, resulted with firearm injury (pistol). The time between injury and death within 10 to 20 minutes and time between death and post mortem was about one hour. After the post mortem, he issued such postmortem report, which he produced at Ex.08/A, thus, this also corroborates the ocular testimony furnished by the complainant and eyewitnesses. The reliance is placed upon the case of Zahoor Ahmed Vs. The State (2017 SCMR 1662), wherein the Honourable Supreme Court of Pakistan has held that:

“4. The ocular account, in this case, consists of Muhammad Khan complainant (PW-06) and Shahbaz (PW-07). They gave the specific reasons of their presence at the place of occurrence as, according to them, they alongwith the deceased were proceeding to harvest the sugarcane crop. Although they are related to the deceased they have no previous enmity or ill-will against the appellant and they cannot be termed as interested witnesses in the absence of any previous enmity. They remained consistent on each and every material point. The minor discrepancies pointed out by the learned counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both parties knew each other so there was no mistaken identity and in absence of any previous enmity, there could be no substitution by letting off the real culprit specially when the appellant alone was responsible for the murder of the deceased. The evidence of two eyewitnesses was consistent, truthful and confidence inspiring. The medical evidence fully supports the ocular account so far the injuries received by the deceased, time which lapse between the injury and death and between death and postmortem. Both the Courts below have rightly convicted the appellant under section 302(b), PPC.

                   

13.    Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. The Investigating Officer SIP Qalandar Bux was also examined by the prosecution, who in his evidence has deposed that on 10-08-2011 he was posted as Sub-Inspector/SIO at police Station Mirwah. On the same day he had received FIR of Crime No. 219/2011 offence U/S 302 PPC along with other police papers for further investigation. On 11-08-2011 he had recorded statements U/S 161 CrPC of PWs. On 10-08-2011 he wrote a letter to SSP Khairpur for getting permission about sending the property to expert for opinion, so also wrote a letter to Mukhtiarkar for preparation of site plan/sketch. He produced both letters as Ex. 14/A & B respectively. On 16-08-2011 he left police station vide entry No. 08 at 1300 hours for the investigation purpose. He produced such entry at Ex. 14/C. PC Sadoro Khan and PC Jinsar Ali were with him in private car and when they reached in village Jhoonjhan, where he received information that wanted accused Ghulam Akbar is available at Siyal curve and waiting for transport. They reached at Sabar Rind School, where two private persons namely Imtiaz Hussain and Fida Hussain were available and they took them and then reached at the pointed place where one suspected person was available. They alighted from car, encircled the accused and caught hold to him. On enquiry, the apprehended persons disclosed his name as Ghulam Akbar Rind. He was wanted in Crime No. 219/2011. During his personal search he recovered one unlicensed TT pistol of 30 bore from right side fold of his shalwar with magazine. He unloaded the pistol and found that three live bullets were lying in the magazine. He had prepared such mashirnama of arrest and recovery of mashirs Fida Hussain and Imtiaz Hussain. He produced such mashirnama of arrest and recovery in presence of mashirs Fida Hussain and Imtiaz Hussain, which he produced at Ex. 14/D, it is same, correct and bears his signature. He sealed the property at the spot. Accused could not produce license of pistol before him. Accused also disclosed that he has used the pistol in the commission of offence. Thereafter they brought the accused and case property police station, where got entered entry No. 18 at 1630 hours. He produced such entry at 14/E. Then he lodged the FIR against the accused on behalf of the State u/s 13 (d) Arms Ordinance Crime No. 226/2011. He received the reports of Chemical examiner which he produced at Ex. 14/F. After completion of investigation, he submitted the challan before the court having jurisdiction. Accused and case property present in the Court are same.

14.    The appellant named above in his statement recorded under section 342 Cr.P.C denied the allegations levelled against him by stating that he is innocent and prayed for justice. He produced Primary School Leaving Certificate issued by Govt. Boys Primary School Anwarabad. However, he did not opt to examine himself on oath but examined DW Mujahid Shah as defense witness. The accused persons have took plea that they have falsely been involved in this case due to dispute with complainant over landed property.

15.   I would mention here that the deceased was the real nephew of the complainant, normally the possibility of substitution of accused become rare by leaving the actual persons and involving other persons, thus no material has been brought on record by the appellant to show the deep-rooted enmity existed earlier between the parties, which could have been the reason for his false involvement in this case. Reliance in this respect is placed in the case of Lal Khan v. State (2006SCMR 1846) Farooque Khan v. The State (2008 SCMR 917), Zulfiqar Ahmed and others v.The State (2011 SCMR 492) so also case of Zahoor Ahmed v. The State (2007 SCMR 1519) wherein Hon’ble Apex Court discussed as under:-

6.     The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further, it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.

16.   Considering the above facts and circumstances, I have concluded that the prosecution has successfully established its case against appellant Ghulam Akbar Rind through ocular account furnished by the complainant and witnesses which is corroborated by the medical evidence coupled with circumstantial evidence. Learned counsel for appellant has failed to point out any material irregularly or serious infirmity committed by the learned trial Court while passing the impugned judgment which in my humble view is based upon proper appreciation of evidence and same does not call for any interference of this Court. Thus, the conviction awarded to the present appellant by learned trial Court is hereby maintained and the instant Crl. Appeal filed by the appellant merits no consideration, which is dismissed accordingly.The case law relied upon by the learned counsel for the appellants is not applicable in the case in hand as the facts and circumstances of the present case are quite different from the cited case.

                                                                                       JUDGE

Nasim/P.A