IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
CriminalJail Appeal No.S-53 of 2020
Appellant Ghulam Nabi s/o Muhammad Yousif Khoso
Through Mr. Irfan Badar Abbasi, Advocate
Complainant: Nizamuddin s/o Muhammad Usman Khoso,
Through Mr. Rafique Ahmed K.Abro, Advocate,
The State: Through Mr. Aitbar Ali Bullo, D.P.G.
Date of hearing: 12-01-2023
Date of decision: 23-01-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:-The listed criminal jail appeal is directed against the judgment dated 30.09.2020, passed by learned Additional Sessions Judge-I/MCTC, Dadu, in Sessions Case No.370/2018 (Re.State Vs Ghulam Nabi Khoso), emanating from FIR bearing Crime No.59/2018, for offence punishable U/S.302, 324, 504, 337-H(ii), 114, 147, 148, 149 PPC registered with P.S, B-Section Mehar, whereby the appellant has been convicted for offence punishable U/S.302(b) r/w Section 149 PPC and sentenced to suffer rigorous imprisonment for life as “Tazir”on each count with compensation of Rs.200,000/- to be paid to the legal heirs of the deceased and in default whereof to suffer simple imprisonment for six months; he is also convicted for offence punishable U/S.148 r/w Section149 PPC and sentenced to suffer rigorous imprisonment for two years and for offence punishable U/S.337-H(ii) r/w Section 149 PPC he is liable to pay fine of Rs.10,000/- and in default thereto, he shall suffer simple imprisonment for one month. The sentences were ordered to run concurrently, with benefit of Section 382-B Cr.P.C.
2. Brief facts of the prosecution case are that on 03.03.2018, at 1500 hours, complainant Nizamuddin Khoso got registered the FIR with P.S, B-Section Mehar, to the effect that a dispute over the agricultural land and fish pond is existing in between him and accused Ghulam Nabi who in order to pressurize the complainant party got registered FIR No.01/2015against them through Court orders, for offence U/S.302 PPC after an accidental death of his son Ghulam Ali Khoso and then accused illegally occupied their agricultural land and fish pond and also used to issue threats. On 02.03.2018, the complainant alongwith his sons Amjad Ali, Mohsin Ali and nephews Nazaruddin and Aslam came from village to Mehar. In the meantime, at about 1230 hours, when reached on road adjacent to Alfalah Bank, they saw and identified accused namely Muhammad Yousif, 2). Ghulam Nabi, 3). Shabir, 4). Abbas and one unknown culprit, duly armed with pistols. Of them, accused Muhammad Yousif while abusing asked the complainant party as they are not giving Faisla over the agricultural land and the fish pond, therefore they will see them. Saying so, he asked the remaining accused not to spare and kill the complainant party and on instigation of accused Muhammad Yousif Khoso, accused Ghulam Nabi Khoso (present appellant) made straight pistol shot at complainant’s son Amjad Ali which hit him on right side of his chest/nipple and he fell down, while accused Abbas Khoso coming closer, caused pistol shot at him with intention to commit his murder which hit on back of his left rib. Thereafter, the complainant party while raising cries of murder started running, during which the complainant’s another son Mohsin Ali also ran from Telenor Office towards TCS Office to which all the accused also went behind him in order to commit his murder and accused Ghulam Nabi Khoso while coming closer made pistol shot at him with intention to commit his murder which hit him on back below his left rib who fell down raising cry. Accused Abbas Khoso made pistol shot at him on his right arm while accused Shabir made pistol shot at him on right side of his chest with intention to commit his murder, the unidentified accused also made pistol shots at the complainant party with intention to commit their murder, they fell down and in fear raised cries of “save save” and later on gathering of city peoples, the accused went away towards western side by making aerial firing. The complainant then saw and found his both sons dead on receipt of fire arms injurieswhich were bleeding. The complainant after intimating the incident to Mehar police shifted the dead bodies of both the deceased to Taluka Hospital Mehar where the police came and after observing the necessary formalities of postmortem, their dead bodies were brought at village and after their funeral, the complainant came at police station and reported the incident with police.
3. After completion of usual investigation, theinvestigating officer submitted final report under section 173 Cr.P.C against the accused before the Court of concerned Judicial Magistrate where the case papers were supplied to accused Ghulam Nabi and Waheed under receipt, while the case after observance of codal formalities against the absconding accused was then sent up before the Court of learned Sessions Judge, Dadu, from where it was made over to learned trial Court for its disposal according to law.
4. The formal charge was framed against both the accused, to which they pleaded not guilty and claimedtrial.
5. In order to establish the accusation against the accused, the prosecution examined in all eight witnesses including Complainant Nizamuddin Khoso, Eye-witness Nazaruddin Khoso, Tapedar Faheem Ahmed, Mashir Riaz Ali Khoso, SIO/ASI Manzoor Ali Kartio, medical officer Dr. Wazir Ahmed Thebo, ASI Muhammad Paryal Samejo and SIO/Inspector Qadir Bux Bahrani, they all produced certain documents in support of their statements. Thereafter, the learned State Counsel closed the side of prosecution.
6. The present appellant/accused in his statement recorded in terms of Section 342 Cr.P.C, denied the allegations leveled against him by pleading his innocence. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.
7. The learned trial on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused, as discussed above, which he has assailed before this Court by preferring the instant criminal jail appeal.
8. Per learneddefence counsel, the case is false and fabricated against the present appellant/accused; that the complainant and PWsbeing related inter-se are interested witnesses and their evidence having no credibility cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the weapon allegedly secured from the appellant/accused was indeed foisted upon him at the behest of complainant party. Summing up his contentions, the learned defence counsel submitted that the present accused was roped in the present case on account of earlier enmity over the land and fish pond which was discernible from the narration given in the FIR itself. Lastly, he concluded that the case of prosecution being doubtful has no foundation and the appellant/accused deserves to be acquitted in the circumstances of the case. In support of his contentions, he relied upon the case laws reported as Ayub Masih vs. The State (PLD 2002 SC 1048), Tariq Pervez vs. The State (1995 SCMR 1345), Muhammad Asif vs. The State (2017 SCMR 486) and Pathan vs. The State (2015 SCMR 315).
9. While rebutting theabove contentions, learned D.P.G for the State who is assisted by learned counsel for the complainant contended that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence; that two innocent persons have been done to death at the hands of appellant/accused on account of earlier enmity; that the ocular evidence is consistent with medical as well circumstantial account; that the recovery of empties from the venue of occurrence and that of weapon secured from the possession of present appellant/accused on chemical analysis has substantiated the involvement of the present appellant in the commission of the incident; that the chemical examiner’s and FSL reports have fully supported the case of the prosecution. Lastly, they submitted that the learned trial Court finding the appellant guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which even otherwise does not call for any interference by this Court, therefore, the appeal filed by himbeing meritless is liable to its dismissal.In support of their contentions, they relied upon the case laws reported as Muhammad Ehsan vs. The State (2006 SCMR 1857), Munir Akhtar alias Munir Ahmad vs. The State (2021 SCMR 298), Akhmat Sher and others vs. The State (2019 SCMR 1365), Muhammad Akbar alias Bhola and others vs. The State and others (2019 SCMR 2036)andMir Muhammad vs. The State (1995 SCMR 610).
10. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on the record with their able assistance.
11. The prosecution examined two eyewitnesses of the incident viz. PW.1Nizamuddin (complainant) and P.W.2Nazaruddin who have fully supported the case and as per their evidence on 02-03-2018 they along with deceased and other witnesses went to Mehar and when they reached at 12-30 hours in front of bank Al-Fallah they saw accused Yousif, Ghulam Nabi, Shabir, Abbas and Waheed armed with pistols. Accused Yousif challenged and abused them for not giving Faisla in respect of land and fish pond, accused Yousif instigated remaining accused for committing their murder on that accused Ghulam Nabi made straight fire upon his son Amjad Ali which hit on his chest near right side nipple, thereafter accused Abbas made straight fire upon his son Amjad Ali which hit on his back side. They raised cries whereupon Mohsin Ali the son of complainant started running towards Telenor office and all accused persons followed him when accused Ghulam Nabi reached near him, he made straight fires upon Mohsin Ali which hit on his back, accused Abbas made straight fire at his son Mohsin Ali which hit on his right arm, thereafter accused Shabir made straight fire on chest of Mohsin Ali. Accused Yousif and Waheed made aerial firing upon them due to which so many persons gathered, on seeing the public, accused persons went away towards western side.
12. As per the evidence of complainant, police was properly informed and they shifted the dead bodies to Taluka Hospital Mehar. ASI Manzoor Kartio came at Taluka Hospital and examined the dead bodies, prepared mashirnama in presence of mashirs Riaz Hussain and Shahnawaz. Thereafter the dead bodies were handed over to Dr. Wazeer Ali Thebo for conducting the postmortem which was accordingly conducted. After the postmortem, complainant received the dead bodies and the same were handed over by him to his relatives and he himself went with ASI for visiting the place of incident and had pointed out the place where his son Amjad Ali was murdered.As per complainant,from place of incident three empties of 30 bore pistol were taken into custody and sealed, then he pointed out the place where his another son Mohsin Ali was murdered it was in front of the house of Dr. Abdul Sattar Abbasi and 04 empty bullets of pistol were taken by ASI and sealed the same. ASI also collected blood stained earth and sealed it and then prepared mashirnama. The oral account furnished by the complainant was fully corroborated by another eyewitness PW-2. Both the eye-witnesses were cross-examined by the defence counsel but no major contradiction was brought on record which may suggest that the appellant was falselyinvolved in a double murder case.
13. In the present case two eyewitnesses fully supported the case as has been discussed above. However, the sole evidence of a material witness i.e. an eyewitness is always sufficient to establish guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge. The accused can be convicted if the Court finds the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect,the reliance is placed on cases of Muhammad Ehsan v. The State (2006 SCMR 1857)and Niaz-Ud-Din v. The State (2011 SCMR 725).Further, the Honourable Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable."There can be no denial tothe legally established principle of law that it is always the directevidence which is material to decide a fact (charge). The failureof direct evidence is always sufficient to hold a criminal charge as‘not proved’but where the direct evidenceholds the field and stands the test of it 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 can safely be placed on case of Muhammad Ehsan vs. the State(2006 SCMR-1857), wherein the Honourable Supreme Court of Pakistan 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”.
14. The investigation officer PW-5 ASI Manzoor Ali Kartio was examined who also fully supported the case of prosecution who on information received from complainant reached at Taluka Hospital Mehar where he examined dead bodies of both the deceased.On examination, he found firearm injuries which were noted by him and prepared the mashirnama so also Danistnamawhich were counter signed by the mashirs while accepting their contents to be true. He prepared inquest reports of the deceased,issued letter No.216 for conducting the postmortem of dead bodies and handed over the same as well as the dead bodies to medical officer Dr. Wazir Ahmed Thebo. As per his evidence, he received the dead bodies and the last wearing cloths, the cloths were sealed by him and mashirnama in such respect was prepared which was signed by the mashirs. Thereafter, dead bodies were handed over to Nizamuddin. The complainant pointed out the place of incident in presence of mashirs which he inspected. From the place of incident where deceased Amjad Ali was murdered,three empty bullets were recovered by himwhich were taken in-to custody and sealed in presence of mashirs Riaz and Shahnawaz and mashirnama was prepared, thereafter he inspected place of incident in respect of murder of deceased Mohsin Ali which was nearthe old hospital of Dr. Abdul Haque Abbas wherefrom he collected blood stained earth and four empty bullets and sealed in presence of mashirs. On 03.03.2018 at about 15.00 hours, complainant Nizamuddin appeared at P.S where he lodged his FIR vide Crime No.59/2018 for offence U/S.302, 324, 148, 149, 504, 114, 337-H(ii) PPC against accused persons. After lodging of FIR, he investigated the case and during investigation on 06.03.2018 he recorded statements U/S.161 Cr.P.C of witnesses Aslam Ali and Nazaruddin both sons of Qamaruddin Khoso. On 08.03.2018 he received the postmortem reports from medical officer which were kept in police file. On 10.03.2018 he issued letter to the DSP for permission to send recovered articles for forensic examination. On 10.03.2018 investigation of the case was entrusted to SHO Qadir Bux Behrani. The prosecution examined SHO Qadir Bux Behrani as PW-8 who by supporting the case of prosecution deposed that after receiving the investigation he sent blood stained clothes of both the deceased and blood stained earth recovered from the place of incident to the Chemical Examiner on 14-03-2018 along with the proper documents and he tried to arrest the accused persons but could not succeeded therefore, he submitted the challan under section 512 Cr.P.C. Both the witnesses were cross-examined but no substantial material was brought on record by the defence to disbelieve their evidence.
15. The oral evidence of the eye-witnesses was also supported by circumstantial evidence and the recovery of crime weapon used in commission of the offence. The prosecution examined PW-7 ASI Muhammad Paryal who arrested the appellant and recovered pistol used by him in commission of the offence. This witness fully supported the case of prosecution and deposed that on 07.07.2018, he was posted at P.S Mehar. On same day he alongwith PC Azhar Ali, PC Aijaz Ali, PC Irshad Ali duly armed with government arms and ammunitions proceeded in official vehicle with driver PC Ahmed Khan, under the directions of officers to arrest the proclaimed offenders vide entry No.14 at about 13.00 hours. After patrolling at various places, when they reached at Bismillah hotel at college road where Nooruddin and Aslam Khoso met with them and informed that wanted accused of Crime No.59/2018, U/S 302 PPC of P.S Mehar namely Ghulam Nabi and Waheed Khoso are going with Mangwani link road. He took them and proceeded towards pointed place where at about 14.00 hours they reached at Naseer Wah and saw two persons are going with road. They were arrested tactfully, on their personal search 30 bore T.T pistols were recovered from their fold. On enquiry both accused disclosed the pistols are without license and disclosed their names as Waheed and Ghulam Nabi Khoso, r/o Village Bajhi Khan Khoso, Taluka Mehar. He prepared such mashirnama of arrest and recovery. Recovered articles were sealed and mashirnama was signed by mashir Nooruddin and Aslam, on reaching at police station he registered the FIR on behalf of the State. The pistols were examined by the ballistic expert and such report he exhibited in his evidence.This witness was also cross-examined but nothing favourable to the appellant is brought on record by the defence counsel.
16. The ocular evidence is further supported by the medical evidence. The prosecution in order to prove the medical evidence examined Dr. Wazir Ahmed as PW-6 who conducted postmortem of both the deceased. As per his evidence deceased Mohsin Ali received 06 firearm injuries, 03 were entry wounds and 03 were exit wounds and as per his opinion,all the injuries were anti-mortem in natureand caused by firearm. The death was occurred due to damage of vital organs i-e heart and lungs. On examination of deceased Amjad Ali, he found 04 firearm injuries, two were entry wounds and two were the exit wounds. As per his opinion, all the injuries were anti-mortem in nature and caused by firearm. The death was occurred due to damage of vital organs i-e heart and lungs. It is observed that themedical evidence isin nature ofsupporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not “corroborative evidence” in the sense the term is used in legal parlance for a piece of evidence which itself also has some probative force to connect the accused person with commission of the offence. Medical evidence by itself does not throw any light on identity of the offender. Such evidence may confirm the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in commission of the offence, as it does not establish the identity of the accused person. Reliance can be placed on the cases of Yaqoob Shah v. State (PLD 1976 SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the case in hand,from the oral evidence produced by two eyewitnesses, it is established that the accused used pistol for murdering deceased Mohsin Ali and Amjad Ali, the sons of complainant which is further corroborated by recovery of crime empties and blood stained earth from the place of incident and recovery of crime weapon from possession of the appellant.
17. Learned counsel for the appellant mainly focused on the point that the witnesses are near relatives to the deceased and are interested, therefore their evidence cannot be relied uponand the contention raised has no force as in the instant matter, the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence. Boththe parties are known to each other as is evident from their evidence and this is a day time incident, so there was no chance of mistaken identity of the appellant. Where the witnesses fall within category of natural witnesses and detailed the manner of the incident in a confidence-inspiringmanner then only escape available with the accused/appellant is that to satisfactorily establish that witnesses are not the witnesses of truth but “interested” one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and his witnesses. In the matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the “natural witnesses” in involving the innocent at the cost of escape of “real culprits”.No substance has been brought on record by the appellant to justify his false implication in this case at the hands of complainant party on account of anyprevious enmity. In case of Zulfiqar Ahmed & another v. State (2011 SCMR 492),the 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.
18. Although, learned counsel for the appellant had pointed out some minor contradictions in the evidence which in my view are not sufficient to discard evidence of the eye witnesses who fully supported the case of prosecution on every aspect. It is settled principal of law that where in the evidence prosecution established its case beyond reasonable doubt then if there may appear some minor contradictions which always are available in each and every case as no one can give evidence like a photograph, hence thesame are to be ignored. The reliance is placed on case of Zakir Khan V. The State (1995 SCMR 1793), wherein the Supreme Court has held 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. For the foregoing reasons, I am of the view that the prosecution has successfully proved the charge against the appellant. The impugned judgment is based on sound reasons and does not call for any interference by this court. Consequently, the instant criminal appeal is dismissed; the conviction and sentence awarded to the appellant by learned trial court are maintained.
JUDGE