IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Jail Appeal No.S-06 of 2017

Appellant         :             Bashir Ahmed s/o Wahid Bux Sanjrani,

                                      Through Mr. Javed Ahmed Soomro, advocate

Complainant    :             Sikandar Ali s/o Allah Dino Sanjrani

                                      Through Mr. Raja Riaz Akhtar, Advocate.

The State         :              Through Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing:             06-03-2023 & 13-03-2023

Date of decision:             17-03-2023

JUDGMENT

ZULFIQAR ALI SANGI, J;- Through listed criminal jail appeal, appellant Bashir Ahmed Sanjrani impugns the Judgment dated 20.12.2016, passed by learned 2^nd Additional Sessions Judge, Jacobabad, in Sessions Case No.91/2011, (Re: State Vs. Bashir Ahmed Sanjrani), outcome of FIR bearing Crime No.122/2010 registered with P.S, Civil Line, Jacobabad, for offence punishable under Section 302, 34 PPC, whereby he was convicted for offence punishable under Section 302 (b) PPC and sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.200,000/- to the legal heirs of deceased and in default whereof to undergo S.I for six months more, with benefit of Section 382(b) Cr.PC.

2. Precisely, facts of the prosecution case as unfolded in the FIR lodged by complainant Sikandar Ali are to the effect that accused Bashir Ahmed who happened to be son of his sister-in-law, demanded hand of his daughter Quratul-Aain which he refused whereupon the said accused on being annoyed asked to see him. On the eventful day i.e 18.11.2010, the complainant alongwith PWs Ghulam Sarwar and Abid Ali as well as Quratul-Aain were available in the house, the electric bulbs were glowing, at about 07.00 P.M, accused namely Bashir Ahmed, Wazeer and Pathan, duly armed with T.T Pistols, entered into his house, of them accused Bashir Ahmed while raising hakal asked the complainant that he has not given hand of his daughter Quratul-Aain to him, therefore, she will not remain to marry with someone else. Saying so, all the accused fired from their T.T Pistols at Quratul-Aain, she while raising cries fell down on the ground. Due to empty handed, they did not come near to accused and when all the accused went outside of the house, they found Quratul-Aain having sustained firearm injuries on different parts of her body and she died within their sight. Leaving the witnesses over her dead body, the complainant came at police station and reported the incident with police.

3. After completion of usual investigation, a report under section 173 Cr.PC was submitted by the investigation officer before learned Judicial Magistrate. Subsequently, on joining of trial by the present appellant after his arrest, the formal charge was framed against him by learned trial Court to which he pleaded not guilty and claimed trial.

4. To establish accusation against the present appellant, the prosecution examined in all twelve witnesses i.e PW-01 Dr.Farheen Pathan, PW-02 Tapedar Kamil Lashari, PW-03 Complainant Sikandar Ali, PW-04 Mashir Ghulam Sarwar, PW-05 Mashir Farzand Ali, PW-06 SIO/SIP Shabir Ahmed Sahito, PW-07 PC Corpse bearer Mumtaz Ali, PW-08 HC Abdul Malik Khoso, PW-09 SIP/SHO Tarique Hussain Jhullan, PW-10 HC Ameeruddin Golato, PW-11 SIP Aijaz Ali Farooque and PW-12 WHC Noor Ahmed Buriro. Thereafter, the learned State Counsel closed the side of prosecution.

5. The appellant in his statement recorded in terms of Section 342 Cr.PC denied the allegations leveled against him by pleading his innocence and produced certain documents in support of his defence plea. He, however, neither examined himself on oath but examined DW Mst.Hotri w/o Sikandar Ali Sanjrani in his defence.

6. On assessment of the evidence and hearing counsel for the parties, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as mentioned above.

7. Learned Counsel for the appellant contended that the appellant being innocent has falsely been implicated in this case by the complainant; that the impugned judgment passed by learned trial Court is contrary to law, facts and equity, hence not sustainable and liable to be set aside; that there are material contradictions and inconsistencies in the evidence of all witnesses but the learned trial Court has not properly discussed and considered the same while passing the impugned judgment; that the ocular testimony is not in worthy of reliance and could not form the basis of conviction against the appellant; that the motive behind the offence set-forth by the complainant has not been established by the prosecution through any strong and substantive piece of evidence; that the mashirs of recovery are also closely related to the complainant and the deceased, even the evidence of I.O and mashir of recovery is contradictory to each other on material points, therefore, the conviction of the appellant is based upon manifestly and unsatisfactory evidence, which is contradictory to medical evidence and other circumstances of the case. Learned counsel further contended that the learned trial Court has failed to properly appreciate and assess the entire evidence brought on record in its true perspective and there are many other illegalities, irregularities, improprieties and legal flaws in the impugned judgment, therefore, it requires to be set aside. In    support of his contentions, he relied upon case laws reported as Saghir Ahmed V/S The State and others (2023 SCMR 241), Abdul Ghafoor versus The State (2022 SCMR 1527), Tajmal Hussain Shah versus The State and another (2022 SCMR 1567), Najaf Ali Shah versus The State (2021 SCMR 736).

8. Learned Additional Prosecutor General who is assisted by learned counsel for the complainant has supported the impugned judgment and submitted that the prosecution has proved the case beyond any reasonable shadow of doubt and succeeded to bring home the guilt against the appellant who committed murder of an innocent girl brutally by causing her fire shot injuries; that the delay in lodgment of FIR has properly been explained; that the accused escaped away from the lockup during investigation which obviously shows his involvement in the present case; that all the PWs have supported the prosecution case, in these circumstance, the appellant is not liable for acquittal, therefore, the appeal filed by him being meritless may be dismissed. In support of his contentions, learned counsel for the complainant relied upon case law reported as    Anwar Shamim and another v. The State (2010 SCMR 1791).

9. Heard learned counsel for the parties and have minutely gone through the material available on the record with their able assistance.

10.  The case of complainant was that the appellant/accused demanded hand of his daughter Quratul-Aain for marriage and on refusal, he alongwith other accused persons committed murder of his daughter Quratul-Aain. It is apparent from the evidence that appellant/accused is near relative to the complainant being son of his sister-in-law, therefore, he was previously known to him. Although, the incident took place at night time but at that time there appears some conversation in between the complainant and the accused from a close distance where the electric bulbs were glowing, therefore, there is no chance of mistaken identity. The perusal of record reflects that the incident took place on 18-11-2019 at 07.00 P.M and the FIR was lodged promptly on the same date at 2000 hours, which also suggests that it was registered without consultation and in the FIR complainant stated each and every aspect of the case. Complainant Sikandar Ali being the eye-witness deposed before learned trial Court that accused Bashir Sanjrani demanded hand of his daughter Quratul-Aain to which he refused. On which accused used to issue threats that if he will not give the hand of his daughter to him, its result will be bad. At the time of incident, it was about 07-00 P.M time, the electric bulbs were glowing, he alongwith Ghulam Sarwar, Abid and other inmates including his daughter Quratul-Aain were available in his house, his daughter was preparing for Wazoo to offer prayer. All of sudden, accused Wazir, Bashir and Pathan entered into his house. All the accused persons were armed with T.T pistols. Accused Bashir raised hakal to him and asked as he has not given the hand of his daughter to him, hence his daughter will be no more alive, so she could not be married to someone else. Saying so, all the accused persons fired from their T.T pistols at his daughter Quratul-Aain, who received firearm injuries and fell down on the earth while raising cries. Due to empty handed, they did not come near to the accused party due to fear. Thereafter, all the accused persons ran away from his house. Thereafter, he found that his daughter received firearm injuries at left side of cheek and fore-head and was dead. Leaving PWs Sarwar and Abid to guard the dead body, he went to P.S and lodged the FIR. He further deposed that the police also visited the place of incident and collected blood as well as empties, which were 6 in number from place of incident. Police also inspected the dead body, thereafter the dead body was shifted to hospital by the police in police mobile. After postmortem, the dead body was delivered to him. On 19.11.2010, the accused was arrested at his pointation in presence of mashirs Abid and Ghulam Sarwar and recovered one T.T pistol from his possession. The accused was arrested at Jamali Wah. The pistol recovered from the accused was containing 04 live bullets in its magazine. The police also recovered two currency notes of Rs.100/- each from the possession of accused. The complainant identified the appellant at the time of trial to be the same who committed murder of his daughter. His evidence was further supported by the evidence of another eye-witness namely Ghulam Sarwar PW-04 who fully supported the version of complainant on every aspect of the case as deposed by the complainant.

11.  The ocular account furnished by above two eye-witnesses was further supported by the medical account and to prove un-natural death of Quratul-Aain, the prosecution examined PW-01 Dr.Farheen. She deposed that on 18.11.2010, she while posted as Woman Medical Officer, Civil Hospital, Jacobabad, on the same day received dead body of Quratul-Aain d/o Sikandar Ali Sanjrani, brought at hospital by PC Mumtaz All Lashari of P.S Civil Line Jacobabad alongwith a letter No.122/2010, dated 18.11.2010 issued by Incharge SIO, P.S Civil Line, Jacobabad, for postmortem and report. The dead body was identified by one Sikandar Ali and Ghulam Sarwar (father and cousin of the deceased). She started postmortem on the same date at about 08.45 P.M, completed it at about 09.45 P.M. On external examination, she found the following injuries on the body of deceased:-

1. A lacerated punctured wound measuring ½ cm in diameter at left cheek lower 1/3^rd blackening charring positive causing the left mandibular margins inverted (wound of entry)

2. A lacerated punctured wound measuring about 2 cm in diameter at forehead just lateral to the mid line blackening charring positive, margins inverted (wound of entry)

3. A lacerated punctured wound measuring about 8 cm in diameter in right side of head margins everted (wound of exit of injury No.02) brain matter out skull fractured.

12.     On internal examination of dead body of deceased, she found scalp and skull lacerated, membranes lacerated, brain lacerated. The muscles lacerated the side of injury, bone fractured at the side of injury. From external and internal examination of dead body of deceased Quratul-Aain, she opined that the death occurred due to shock and hemorrhage and injury to vital organ as brain. All the injuries were ante-mortem in nature and sufficient to cause death in ordinary course of life. All the injuries were caused by fire arm. The probable time between injuries and death was instantaneous and time between death and postmortem would be 1½ hour. The evidence of medical officer is fully supportive to the case of prosecution and the same cannot be discarded.

13.      After ocular and medical accounts, the prosecution by producing circumstantial evidence in shape of recovery etc; examined PW-5 Mashir Farzand Ali and PW-9, SIO/SHO Tarique Hussain Jhullan and they both deposed on one voice that on 18.11.2010, they proceeded to the place of incident alongwith complainant and visited the same at his pointation. The place of incident was situated in the house of complainant Sikandar Ali near Sessions Court Jacobabad, where they saw dead body of deceased Mst.Quratul-Aain which was lying in Courtyard on a cot. The investigation officer inspected the injuries of the deceased and secured blood stained earth from the place of incident so also 06 empty bullets of 30 bore and three shells and also sealed the same separately, prepared the memo of place of incident in presence of mashirs with their signatures. The investigation officer also prepared the memo of inspection of dead body and inquest report in presence of above named mashirs with their signatures. The dead body was handed over to PC Mumtaz Ali for postmortem purpose alongwith Lash Chakas Form. The investigation officer collected last worn clothes of the deceased from PC Mumtaz Ali. Thereafter, on 19.11.2010, HC Ameeruddin Golato arrested accused Bashir Ahmed alongwith T.T Pistol and handed over such memo, custody of the accused and recovered property to investigation officer for investigation. The prosecution examined PW-10 HC Ameeruddin who deposed that on 19.11.2010, he was posted as HC at PS Civil Line Jacobabad, where the complainant of Crime No.122/2010, under Section 302 PPC namely Sikandar Ali and PWs namely Ghulam Sarwar and Abid Ali came at P.S and disclosed that wanted accused namely Bashir Ahmed Sanjrani is available at Jamali Wah then he left P.S vide entry No.08 at 1330 hours, alongwith above named complainant and PWs and HC Muhammad Nawaz, PC Mukhtiar Ali and PC Sono Khan and proceeded towards the pointed place for affecting the arrest of the above named accused. They reached at the pointed place at about 1400 hours, saw the accused Bashir Ahmed available there and waiting for some conveyance. Then he arrested the above named accused at the pointation of Sikandar Ali. He then took personal search of the accused, secured one T.T Pistol from right side fold of the shalwar of accused. He also secured two notes of Rs.100/- denomination from pocket of the accused. He unloaded the weapon and found its magazine containing four live bullets of 30 bore. On enquiry accused failed to produce valid licensee of the weapon and accused further disclosed that he has committed murder of Quratul-Aain from said weapon. Then he prepared memo of arrest and recovery in presence of mashirs namely Ghulam Sarwar and Abid Ali and obtained their signatures on it. Then they returned back at P.S alongwith arrested accused and property where he lodged the FIR against accused for offence under section 13(d) Arms Ordinance. He also kept arrival entry at P.S. Then he handed over the FIR, memo of arrest and recovery, recovered Pistol and arrested accused to ASI. Tarique Hussain Jhullan for investigation purpose. The prosecution also examined PW-06 Shabir Ahmed who deposed that on 20.11.2010, he was posted as ASI/SIO at PS Civil Lines Jacobabad. On that day, he received FIR bearing Crime No.122 and 123 of 2010 from ASI Tarique Hussain Jhullan along with memo of dead body, Danistnama, place of incident, memo of arrest and recovery of accused Bashir Sanjrani and custody of accused Bashir Sanjrani alongwith sealed pistol recovered from him for further investigation. Then he obtained the police remand of accused Bashir from concerned Magistrate. The statements of PWs under Section 161 Cr.PC were already recorded by ASI Tarique Hussain Jhullan. He sent the blood stained earth of deceased Quratul-Aain to the Chemical Examiner, Rohri. He also sent the recovered weapon to the Forensic Division Sindh Karachi for its test and report. On 01.12.2010, the arrested accused Bashir Sanjrani escaped away from the lock up of P.S Civil Lines Jacobabad during investigation under police remand, hence, the investigation papers were transferred from him to SIP Aijaz Ali Farooque for further investigation on orders of learned S.P Investigation Jacobabad. The prosecution also examined PW-07 Mumtaz Ali who deposed that on 18.11.2010, he was posted as PC at PS Civil Lines Jacobabad on that day ASI Tarique Hussain Jhullan handed over him the dead body of deceased Mst.Quratul-Aain for purpose of postmortem. He then handed over the dead body to WMO Civil Hospital Jacobabad for conducting postmortem of dead body alongwith lash Chakas Form and after postmortem, he handed over the dead body of deceased to Sikandar Ali Sanjrani and obtained such receipt from him alongwith his signature. Thereafter, he went to P.S and deposited last worn clothes of deceased to WHC of P.S Civil Lines, Jacobabad, where his statement was recorded by ASI Tarique Hussain Jhullan. The prosecution examined author of FIR PW-08 Abdul Malik who deposed that on 18.11.2010, he was as H.C at P.S Civil Lines Jacobabad and was night Incharge. On that date, at 2000 hours, complainant Sikandar Ali Sanjrani came at P.S and disclosed the facts regarding commission of cognizable offence. He recorded the FIR of complainant as per verbatim being Crime No.122/2010 for offence under Section 302, 34 PPC, read over its contents, he accepted it to be correct and thereafter, he obtained his signature on it. He delivered the copy of FIR to ASI Tarique Hussain Jhullan for investigation. All the witnesses were cross-examined but learned defence counsel could not point out any contradiction which may suggest the false implication of the appellant.

14.      The prosecution also examined PW-11 Aijaz Ali who while supporting the case deposed that on 01.12.2010, he was posted at P.S Dodapur. On that day, he was handed over the charge of SIO of P.S Civil Lines Jacobabad by the orders of S.P Investigation Jacobabad. He had gone through the police papers of case crime and found that arrested accused Bashir Ahmed Sanjrani was escaped away from the lockup of P.S Civil Lines, Jacobabad, who was under remand and custody of the accused was with SIO Shabir Ahmed Sahito at that time, hence due to escape away of accused Bashir, SIO Shabir Ahmed Sahito was suspended and investigation was entrusted to him. The investigation was almost completed by SIO Shabir Ahmed Sahito, hence he submitted the charge sheet before the Court of law by showing accused Bashir Ahmed Sanjrani as escaped away and accused Wazir Sanjrani as absconder. The prosecution examined PW-12 Noor Ahmed who deposed that on 06.11.2013, he was posted as WHC at P.S Civil Lines, Jacobabad. On that day, at 1600 hours, he arrested accused Bashir Ahmed at police of P.S A-Section, Kandhkot, in presence of mashirs, namely Farzand Ali and Ashique Ali in the present case, as he was already arrested there in some other case. He prepared the memo of assumption of arrest of accused in presence of above said mashirs and read over its contents to them, who accepted the same and put their signatures on it. The above witnesses were cross-examined but nothing favourable to appellant has been pointed out by learned defence counsel.

15.     In the present case, two eye-witnesses have 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 direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, 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 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”.

16.     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 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. Both the parties are known to each other as is evident from their evidence and this is a day time incident, the appellant is also son of sister-in-law of the complainant and maternal cousin to the deceased, 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 the 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 his 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”. 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 any previous enmity and the documents produced by him in his support is also belied by his own DW Mst.Hotri (maternal aunt of accused) who in her cross examination admitted that at the time of incident she had not gone to P.S for registration of FIR against complainant Sikandar Ali and that she had not gone to the Court for getting the order of registration of FIR after the incident. If such wavering statement of the defence witness produced by the appellant in his defence is believed to be true then it obviously has led the defence plea of the appellant at stake. 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.

17.     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.”

18.       The sequel of above discussion arrived at judicious conclusion that the learned trial Court on being finding the present appellant guilty of committing murder of an innocent girl(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 substantive 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

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