IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No. S-34 of 2019
Appellants: 1). Aijaz s/o Punhal Katohar,
2). Abdullah s/o Yar Muhammad Katohar,
Through Mr.Altaf Hussain Surhayo, Advocate
Complainant: Wahid Bux son of Ghulam Hussain Dayo (In person)
The State: Through Mr.Aitbar Ali Bullo, D.P.G.
Date of hearing: 19-01-2023
Date of decision: 30-01-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- Through captioned criminal jail appeal, the appellants have assailed the judgment dated 18.04.2019, passed by learned 1st Additional Sessions Judge/MCTC, Jacobabad, in Sessions Case No.454/2013 (Re. St. Vs. Aijaz Katohar & another), outcome of FIR bearing Crime No.19/2013, for offence punishable U/S.302, 324, 452, 148, 149 PPC registered with Police Station, Dodapur, whereby they have been convicted for an offence punishable U/S.302 (b) PPC and sentenced to suffer rigorous imprisonment for life as Tazir with fine/compensation of Rs.200,000/- each, to be paid to the legal heirs of deceased and in default whereof, to suffer simple imprisonment for one year more. They were also convicted for an offence punishable U/S.337-F(v) PPC to suffer R.I for five years each and to pay Daman of Rs.50,000/- each to injured baby Khalida and in case of non-payment of Daman, both the accused shall remain in jail till its payment. Both the sentences shall run concurrently, with benefit of Section 382-B Cr.PC.
2. Concise facts of prosecution case as unfolded in the FIR lodged by complainant Wahid Bux Dayo on 21.08.2013, at 0015 hours are that he resides with his brothers namely Fateh Muhammad, Muhammad Aslam, sister Mst.Khursheed including other inmates and house of his cousin Abdul Wahab is situated adjacent to his house. His sister Mst.Shabana was tied in knot with Aijaz Ali and out of said wedlock, she has a son namely Fayaz and daughters namely Arifa and Khalida, aged about 5/6 years. His brother-in-law Aijaz used to maltreat his sister on domestic issues with threats of murder to her and owing to such fear, about 7/8 months back, she alongwith her children left the house of her husband and came to his house and resided with him whereupon both the present appellants/accused used to convey threats that why they have detained his wife in their house, therefore, they will see them. At night, the complainant and his brothers Fateh Muhammad and Muhammad Aslam after having night meals were sleeping on separate cots in front the courtyard of their house and besides him, his sister Mst.Khursheed and niece Khalida were sleeping while the electric bulbs were glowing. At night on 20.08.2013, at about 11.00 P.M, they heard noise of stoppage of motorcycles outside their house on which he and his brothers Fateh Muhammad and Muhammad Aslam woke up and their cousin Abdul Wahab also came there and they saw on bulb light three motorcycles of red colour parked outside their house whereupon accused namely Aijaz, Abdul Majeed, Qado @ Qadan were seated on one motorcycle while accused Abdullah, Ghulam Rasool and Deedar were on another motorcycle and on third motorcycle were accused Suhno, Jan Muhammad and Mangh @ Baboo, all by caste Katohars. Of them, accused Aijaz was armed with DBBL Gun, Abdullah with SBBL Gun, Abdul Majeed, Deedar, Qado @ Qadan had Kalashnikovs, accused Suhno and Jan Muhammad had rifles while accused Ghulam Rasool and Mangh @ Baboo had T.T pistols in their hands, who were earlier known to the complainant party and they trespassed into the house of complainant. Meanwhile, accused Aijaz and Abdullah asked the complainant party that why Mst.Shabana had been retained by them, saying so, both the accused while raising their weapons fired at the complainant with intention to commit his murder but he fell down from his cot and such fires hit to his sister Mst.Khursheed and niece Khalida while other accused also gave hakals and issued threats to the complainant party. The complainant and his brother Muhammad Aslam caught hold of accused Aijaz while his brother Fateh Muhammad and cousin Abdul Wahab caught hold of accused Abdullah with their guns, on which the other accused intervened to rescue them. On fire shot reports and cries, the neighbourers and villagers came running and seeing them all the remaining accused escaped away on their motorcycles towards southern side Lal Shah link road. Thereafter, handing over the apprehended accused with their respective weapons under custody of witnesses, the complainant saw her sister Mst.Khursheed having sustained firearm injuries on abdomen and other parts of her body while her niece Khalida sustained firearm injury on her right thigh but her sister Mst.Khursheed died within their sight. Leaving the witnesses to safeguard dead body of deceased, injured and apprehended accused with their weapons, he came by foot at police station and lodged FIR against the accused, to the above effect.
3. On completion of usual investigation, the police submitted final report under section 173 Cr.PC against the accused. The formal charge was framed against present appellants/accused to which they pleaded not guilty and claimed trial.
4. To establish the accusation against appellants/accused, the prosecution examined in all seven witnesses i.e PW-01 Tapedar Muhammad Din, PW-02 Complainant Wahid Bux, PW-03 Eye-witness Fateh Muhammad, PW-04 Dr.Ghazala Khan, PW-05 Mashir Anwar Ali Dayo, PW-06 Corpse bearer PC Pir Muhammad and PW-07 author/SIO ASI Abdul Khalique, who all produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed the side of prosecution.
5. The present appellants/accused in their statements recorded in terms of Section 342 Cr.PC, denied the allegations leveled against them by pleading their innocence. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.
7. Per learned defence counsel, there is inconsistency in between the evidence of prosecution witnesses which has demolished veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence having no credibility, cannot be relied upon without independent corroboration; that some of the witnesses have been given up by prosecution for no obvious reasons; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove the motive; that the recovery of crime weapons is foisted against appellants/accused at the behest of complainant party. Summing up his contentions, the learned defence counsel submitted that present appellants/accused have been arraigned in this case on account of matrimonial dispute which is discernible from narration given in the FIR itself. He lastly concluded that the case of prosecution is doubtful and the appellants/accused are entitled to their acquittal.
8. On the other hand, the complainant has expressed his full confidence over learned D.P.G for the State who contended that all the witnesses have fully supported the case of prosecution and no material contradiction has been noticed in their evidence; that an innocent lady has been done to death while a minor girl received injury at the hands of appellants/accused over the matter of domestic quarrel; that the ocular evidence is consistent with medical as well circumstantial account; that the chemical examiner’s & FSL reports have fully supported the case of prosecution, in that situation, the learned trial Court has rightly convicted and sentenced the appellants in accordance with law by way of impugned judgment which requires no interference by this Court, hence, the appeal filed by them is liable to be dismissed.
9. Heard learned counsel for the parties and perused the material made available on record with their able assistance.
10. The careful re-appraisal of the evidence brought on record is entailing that the case of prosecution is hinged upon three counts i.e ocular, circumstantial and the medical account and to support its case, the prosecution examined in all seven witnesses. Of them, PW-02 Complainant Wahid Bux Dayo by supporting the averments of FIR deposed that on the day of incident i.e 20.08.2013, at about 11.00 P.M, while he alongwith his sister Mst.Khursheed and PWs Fateh Muhammad and Muhammad Aslam was available and were chit chatting, they heard noise of motorcycle near outer door of their house and found present appellants/accused with seven others came on three motorcycles duly armed with deadly weapons who trespassed into his house and of them present appellants/accused while threatening fired gun shot at him but he by falling on earth escaped the shot which hit to Mst.Khursheed and Khalida. They then apprehended both present appellants/accused with their respective weapons at the spot while other accused made their escape good. He then found Mst.Khursheed dead on receipt of firearm injuries on her chest and then saw Mst.Khalida having received firearm injuries on her right thigh. Leaving the witnesses over there, he came at police station and got registered the FIR against the accused. He further added that after registration of FIR, the police inspected the place of occurrence, inspected dead body of deceased and the injuries of Mst.Khalida, secured blood stained piece of quilt, piece of cloth of Chaddar together with 04 empty cartridges of 12 bore from the place of incident and that injured Mst.Khalida was referred to Larkana hospital for treatment while the dead body of deceased after postmortem was handed over to him. The like disclosure has been made by PW-03 eye-witness Fateh Muhammad in his evidence further adding that his statement was recorded by the police. They both identified the accused and the case property present in Court to be same.
11. Both these eyewitnesses were cross examined by learned defence counsel at length but nothing favorable to the present appellants/accused came out from their mouth. On re-assessment of their evidence, I find the same reliable, trustworthy and confidence-inspiring in nature. In the present case, two eyewitnesses have fully supported the case as has been discussed above. It is well settled principle of law that the sole evidence of a material witness i.e an eyewitness is always sufficient to establish the guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers the quality of evidence and not its quantity to prove the charge. However, 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, reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR-1857). The Honourable Supreme Court in case of Niaz-Ud-Din v. The State (2011 SCMR-725) has also observed in respect for the ability of the Court to uphold a murder conviction even based on the evidence of one eye-witness provided that it was reliable and confidence-inspiring and was substantiated from the circumstances and other evidence, since it is the quality and not the quantity of evidence which is of importance. Further, the Honourable Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC-225) has 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."
12. There can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as ‘not proved’ but where the direct evidence holds 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 upon 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 eyewitness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence”.
13. As to circumstantial evidence, duty officer PW-07 ASI Abdul Khalique examined by the prosecution deposed that on arrival and disclosure of facts of cognizable offence by the complainant, he recorded his FIR and then inspected dead body of deceased Mst.Khursheed and that of injuries of injured Mst.Khalida, recovered blood stained pieces of quilt, bed sheet and 04 empties of 12 bore from the venue of occurrence and also took custody of both present appellants/accused and guns from the complainant party together with recovery of four live cartridges of 12 bore from each accused and then prepared certain documents/mashirnamas in presence of mashirs Anwar Ali and Abdul Wahab. He also recorded 161 Cr.PC statements of the PWs. On return to police station, he also registered separate FIRs against the accused under Sindh Arms Act. Further, he dispatched the recovered weapons to concerned Ballistic Expert who on its examination reported that the empties sent to the Laboratory on microscope examination were fired from the guns which were secured from possession of present appellants/accused while the blood stained pieces of quilt and bed sheet on chemical analysis by Chemical Laboratory Sukkur @ Rohri were found to have been stained with human blood vide such reports (Exh.19/F & 19/G) respectively. He identified both the present appellants/accused and case property present in Court to be same. The like disclosure has been endorsed by mashir Anwar Ali in his evidence which in all is supportive to the ocular account furnished by the complainant party.
14. The medical account is in the nature of supporting, 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 that itself also has some probative force to connect the accused persons with commission of the offence. Medical evidence itself does not throw any light over identity of the offender. Such evidence confirms 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 injuries and death and presence of an injured witness or the injured accused at place of occurrence but it reflects no connectivity of accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused persons in commission of the offence, as it does not establish identity of the accused. The reliance in this context is placed on 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 account produced by above two eyewitnesses, it is established that the accused used guns for committing murder of deceased Mst.Khursheed and causing injury to injured Mst.Khalida which is further substantiated by arrest of present appellants/accused red-handed at the spot with recovery of crime weapons from them coupled with recovery of empties from the venue of occurrence, therefore, the ocular account in respect of incident and circumstantial account furnished by the prosecution has been supported by the medical evidence in shape of deposition of PW-04 WMO Dr.Ghazala Khan, who in her evidence deposed that she firstly examined injured Mst.Khalida and found a lacerated type of punctured wound measuring about 2 cm x 4 cm situated on right thigh x clinically fractured of right femur. Later-on, she examined dead body of deceased Mst.Khursheed and found the following injuries;
1. Three lacerated type of punctured wound measuring about 1 c.m situated at abdomen anteriorly above umbilicus with inverted margins (wound of entry).
2. Three lacerated type of punctured wound measuring about 1 c.m situated at abdomen anteriorly above umbilicus with everted margins (wound of exit).
3. One lacerated type of punctured wound, measuring about 1 c.m situated at abdomen below umbilicus with everted margins (wound of exit).
4. One lacerated type of punctured wound measuring 1 c.m situated on back at mid near vertebral column with inverted margins (wound of entry).
5. One lacerated type of punctured wound measuring 1.5 cm situated at right ring finger.
She opined the cause of death due to shock and hemorrhage as result of above injuries which individually and collectively were sufficient to cause death in ordinary course of life and that all the injuries were anti-mortem in nature and caused by fire-arm.
15. The evidence produced by the prosecution was put to the accused in their statements recorded in terms of 342 Cr.PC, wherein both the appellants/accused also admitted the motive set forth by the prosecution that they were implicated in murder case on account of matrimonial dispute. All these factors prima-facie established a charge against the appellants/accused. Both the appellants/accused in their statements did not desire to examine themselves on oath, nor led any evidence in their defence in rebuttal of prosecution evidence, which fully proved the charge against them beyond shadow of a reasonable doubt and the careful examination of impugned judgment shows that the learned trial Court has rightly appreciated the evidence on record while recording the conviction against them.
16. The motive is always a double-edged weapon. No doubt, the dispute over matrimonial affairs can be a reason for the appellants/accused to commit the alleged crime but it can equally be a reason for the complainant side to falsely implicate them in the case on account of a previous grudge. However, on scrutiny of the evidence produced by the prosecution, it established that the prosecution has proved its case against the appellants/accused beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence. The appellants/accused though availed the chance of cross-examination to the witnesses but failed to bring on record any material contradiction/infirmity in their evidence to base their acquittal.
17. The over-all discussion arrived at judicious conclusion that the prosecution has successfully established the charge of committing murder of deceased Mst.Khursheed and causing injury to injured Mst.Khalida, against the present appellants/accused which is further substantiated from arrest of appellants/accused at the spot together with recovery of crime weapons from them. Therefore, the impugned judgment passed by learned trial Court being sound reasoned, does not call for any interference by this Court. Consequently, the instant criminal jail appeal being devoid of merits is dismissed accordingly; the conviction and sentence awarded to the appellants/accused by learned trial Court are maintained.
JUDGE
.