IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-47 of 2019
Appellant: Qutubuddin s/o Shah Murad Jakhrani
Through Mr. Farhat Ali Bugti, Advocate
Complainant: Mst.Haseena w/o Muhammad Iqbal Jakhrani
Through Mr. Zafar Ali Malghani, Advocate
The State: Through Mr.Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 16-02-2023
Date of decision: 10-03-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The above listed criminal jail appeal impugns the judgment dated 29.05.2019, delivered by learned 1st Additional Sessions Judge/MCTC, Jacobabad, in Sessions Case No.71/2013 (Re. St. Vs. Qutubuddin Jakhrani), emanating from FIR bearing Crime No.38/2012, for offence punishable under Section 302, 34 PPC registered with Police Station, Mouladad, whereby the appellant was 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.500,000/- to be paid to legal heirs of the deceased and in default whereof, to suffer simple imprisonment for one year more, with benefit of Section 382-B Cr.PC.
2. Concisely, the facts of prosecution case as unfolded in the FIR lodged by complainant Mst.Haseena on 08.07.2012, at 1730 hours are to the effect that she resided with her son Tarique aged about 16/17 years, brother’s wife Mst.Shanzadi and sister-in-law Mst.Begum and a dispute over Karap is going-on with one Wahidu alias Wahid Bux. In year 2003, said Wahidu alias Wahid Bux had committed murder of Mst.Husna and Muhammad Karim illegally and he used to ask for Faisla whereupon the complainant party replied that he committed murder of Muhammad Karim illegally and how they give Faisla to him. On such, he was annoyed and used to say that he will see them. On the eventful day i.e 01.07.2012, at evening time, they all were standing near the land in village, in the meantime, at about 05.30 P.M, accused namely Nadeem son of Gulsher and Qutub son of Shah Murad Khandwani Jakhrani, duly armed with Kalashnikovs while coming raised hakals saying not to come near them, as they will not spare Tarique. Saying so, both the accused made straight fires from their K.Ks at Tarique with intention to commit his murder which hit him and he fell down raising cries. Due to empty handed, they remained silent and thereafter all the accused fled away with their respective weapons. They then saw Tarique having fire arm injuries on his person which were bleeding and was seriously injured, he was immediately shifted to Civil Hospital Jacobabad after obtaining such letter from police station and then was referred to Larkana Hospital where he succumbed to injuries. After getting conducted his postmortem and observing funeral rituals, the complainant consulting with his elders then got registered the FIR against the accused.
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 the present appellant/accused by learned trial Court to which he pleaded not guilty and claimed trial.
4. To establish the accusation against present appellant/accused, the prosecution examined in all nine witnesses i.e PW-01 Dr.Ajeet Kumar, PW-02 Tapedar Amir Bux, PW-03 Complainant Mst.Haseena, PW-04 Eye-witness/Mashir Mst.Begum, PW-05 Corpse Bear PC Abdullah, PW-06 SIO/ SIP Ghulam Asghar Jarwar, PW-07 SIO/ASI Gulzar Ahmed, PW-08 Mashir PC Akhtiar Ali and PW-09 ASI Muhammad Saifal, who all produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed its side.
5. The appellant/accused in his statement recorded in terms of Section 342 Cr.PC, denied the allegations leveled against him by pleading his innocence stating therein he has been implicated in this case falsely due to registration of FIR lodged by Mst.Taj Bibi against the persons of complainant party. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his 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 appellant/accused vide impugned judgment, as detailed above.
7. Per learned defence counsel, there is inconsistency in between the evidence of prosecution witnesses which has shattered the 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 there is conflict in between the ocular and medical account; that the prosecution has failed to prove motive; that there is no recovery of any sort from the possession of appellant/accused which may justify his involvement with commission of the alleged offence; that one of the eye-witness was not examined by the prosecution for no obvious reason. Summing up his contentions, the learned defence counsel submitted that the present appellant/accused has been arraigned in this case on account of earlier dispute which is discernible from narration given in the FIR itself. He lastly concluded that the case of prosecution is doubtful and the appellant/accused is entitled to his acquittal in the circumstances of the case.
8. Conversely, learned counsel for the complainant and learned Addl.P.G for the State submit that the prosecution case is fully supported by evidence of all the witnesses and no any major contradiction has been noticed therein; that an innocent young boy has been done to death brutally at the hands of appellant/accused over previous grudge; that the ocular evidence is consistent with medical as well circumstantial account; that recovery of empties from place of incident as well as chemical report fully supported the case of prosecution, in that situation, the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by him being meritless is liable to its dismissal. In support of contentions, learned counsel for the complainant relied upon case of Mir Afzal Khan v. The State (2011 SCMR-171).
9. 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.
10. To establish the ocular account, the prosecution examined two eye-witnesses of the incident namely complainant Mst.Haseena and Mst.Begum, who being star/natural witnesses of the actual occurrence deposed unanimously in one voice that on 01.07.2012, while they alongwith deceased Tarique were available at the land near their village, at about 05.30 P.M, the present appellant/accused alongwith co-accused Nadeem, duly armed with Kalashnikovs came and fired at complainant’s son Tarique which hit him on his head and right leg knee and then ran away. After obtaining referral letter from police station, they brought the injured at Civil Hospital Jacobabad for treatment and was then referred to Larkana hospital where he succumbed to injuries. After getting conducted postmortem, the dead body of deceased was delivered to the complainant for burial ceremony and later-on the FIR was registered against the accused. Both these eye-witnesses were cross-examined at length by learned defence counsel but no major contradiction came out from their mouth which may suggest that the appellant was falsely involved in a murder case of complainant’s son.
11. The ocular account furnished by above eye-witnesses is further substantiated by the medical evidence wherein PW-01 Dr.Ajeet Kumar in his evidence deposed that he conducted postmortem of deceased Tarique and found him having received 04 firearm injuries (Entry and Exit). As per his opinion, all the injuries were anti-mortem in nature which were sufficient to cause death in ordinary course of life and were caused by firearm. The death of deceased occurred due to shock and hemorrhage and damage to vital organs. It is observed that medical evidence is in the nature of supporting, confirmatory or explanatory of direct or circumstantial evidence, and is not “corroborative evidence” in sense the term is used in legal parlance for a piece of evidence that 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 the 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 injuries and death, and presence of an injured witness or the injured accused at place of occurrence, but it does not connect accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused person in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed upon 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, the medical evidence is fully supported with ocular evidence in respect of injury caused by firearm weapon and in respect of time of receipt and duration of injuries.
12. In the present case, both these eye-witnesses have fully supported the case, as has been discussed above. In addition to this, one of the eye-witness namely Mst.Shanzadi, no doubt, was given up by the prosecution but such practice was adopted by the prosecution solely on account of availability of sufficient material adduced in shape of evidence of complainant and her eye-witness Mst.Begum. However, the sole evidence of a material witness i.e an eye-witness is always sufficient to establish guilt of the accused if it 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 direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, reliance is placed upon 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 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 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 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”.
13. The ocular account supported by the medical evidence is further corroborated from the evidence of PW-07/ SIO/ASI Gulzar Ahmed Katto who deposed that on 08.07.2012, while posted a ASI at P.S Mouladad, complainant Mst.Haseena arrived at P.S and disclosed the facts of cognizable offence. He then registered FIR at her verbatim, read over its contents to her and she accepted the same to be true and put her RTI on it. He further added that he visited the place of incident on pointation of complainant at about 1815 hours which was situated at land of complainant in Deh Dadpur Jageer, he collected the blood stained earth and three empty shells of 7.62 mm from the place of incident and sealed the same separately. He then prepared such memo in presence of mashirs Mst.Shanzadi and Mst.Begum. Thereafter, he recorded 161 Cr.PC statements of both witnesses during investigation and sent the blood stained earth to the Chemical Examiner, Rohri for test and report. He then handed over the case papers to SHO P.S Mouladad.
14. PW-6 SIO/SHO Ghulam Asghar Jarwar who also conducted investigation of the case and thus deposed that on 01.07.2012 while posted as SHO at P.S Mouladad, complainant Mst.Haseena came alongwith her injured son Tarique and requested for issuing letter for his treatment, as such he kept entry No.18 at 1900 hour and examined the injured named above and prepared such memo of inspection of injuries in presence of mashirs Mst.Shanzadi and Mst.Begum. Thereafter, he referred the injured to Civil Hospital Jacobabad for treatment under letter No.412. On 02.07.2012, at 0045 hours, he received telephonic message from Mst.Haseena that her son Tarique succumbed to injuries at CMC,H Larkana and she had brought his dead body at Civil Hospital, Jacobabad. After keeping entry No.22, he arrived at Civil Hospital, Jacobabad where he examined the dead body of deceased and prepared such memo and inquest report in presence of same mashirs. Thereafter, he handed over the dead body of deceased to PC Abdullah for postmortem purpose who on the same date, after postmortem, produced the last worn clothes of deceased to him at P.S to which he taken into possession and prepared such memo in presence of same mashirs. Like disclosure has been made by PW-4 Mst.Begum (Mashir). The above witnesses were cross-examined by learned defence counsel but could not find any substance favourable to the appellant.
15. Learned counsel for appellant mainly focused on the point that the witnesses are near relatives to deceased and are interested therefore their evidence cannot be relied upon, hence the contention raised in this regard carries no force, as it was day time incident wherein eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence wherein an innocent boy of young age has been done to death brutally. Both the parties are known to each other as is evident from their evidence; therefore, there was no chance of mistaken identity of the appellant. It is observed that where the witnesses fall within the category of natural witnesses and detailed the manner of incident in a confidence-inspiring manner then only escape available with the accused/appellant is 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 her witnesses. In 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 innocent at the cost of escape of “real culprits”. In the instant case, the dispute over matrimonial affairs is allegedly shown by the complainant in her FIR against one Wahidu alias Wahid Bux who is none as accused in the present case. Moreover, no any tangible 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 previous enmity. In case of Zulfiqar Ahmed & another v. State (2011 SCMR 492), the Supreme Court of Pakistan 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.
16. 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 have fully supported the case of prosecution on every aspect. It is settled principal of law that where in the evidence, the prosecution established its case beyond reasonable doubt then if there arise some minor contradictions which always are available in each and every case as no one can give evidence like a pen-picture, hence the same are to be ignored. The reliance is placed on case of Zakir Khan V. The State (1995 SCMR 1793), wherein the Supreme Court of Pakistan 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.”
17. For what has been discussed above, I have arrived at the judicious conclusion that the learned trial Court on being finding the present appellant/accused as guilty of murder of the deceased, has rightly convicted and sentenced him and thus has committed no illegality or irregularity while passing the impugned judgment which even otherwise is based on sound reasoning, therefore, it does not call for any interference by this Court. Resultantly, instant criminal jail appeal being devoid of merits is dismissed accordingly.
JUDGE
.