IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-15 of 2021
Appellant: Kambeer son of Arz Muhammad Suhandro
Through M/s. Asif Ali Abdul Razzak Soomro and Habibullah G. Ghouri, Advocates.
Complainant: FazalIllahis/o Ali Muhammad Solangi Through Mr.Sohail Ahmed Veesar, Advocate.
The State: Through Mr.Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 10.04.2023.
Date of Judgment: 30.05.2023.
JUDGMENT
ZULFIQAR ALI SANGI, J:-The instant Criminal Appealhas assailed the judgment dated 11.02.2021, handed down by learned Additional Sessions Judge/MCTC, Kashmore, in Sessions Case No.187/2019, emanating from FIR bearing Crime No.23/2019, for an offence punishable U/S.302, 337-F(v), 337-L(ii), 147, 148 PPC, registered with P.S,Miani at Badani,whereby the appellant has been convicted for offence U/S.147 PPC read with Section 149 PPC tosuffer R.I for one year. For offence U/S.148 PPC read with Section 149 PPC, he is sentenced to R. I for two years and for offence U/S.302 (b) PPC read with Section 149 PPC, he is sentenced to imprisonmentfor life as Tazir and to pay compensation to the legal heirs of deceased to the tune of Rs.200,000/- (Two Lacs only), in default whereof, to undergo S.I for five months. All the sentences were ordered to run concurrently, with benefit of Section 382-B Cr.PC.
2. The concise facts leading to disposal of instant Criminal Appeal are that on 07.06.2019,complainant FazalIllahi lodged FIR with P.S MianiKatcho at Badani, wherein he mentioned that on 04.06.2019, he alongwith his brother Mumtaz Ali, maternal cousin Ali Gul and relative Darya Khan proceeded to village Ameer Bux with some workwhere they heard that the people of Suhandra community had got released the arrested thieves involved in theft of complainant’s relatives and their relatives have sustained serious injuries. On receipt of such information, they all were returning to their homes, when at about 02:00 p.m, they arrived adjacent to hotel of Ghulam Rabani Solangi situated at BadranShakh, they saw three persons on a Motorcycle and six persons on a Tractor Trolley coming towards them, who were identified to be Ghulam Hyder, 2).Kambeer with hatchets, 3).Ghulam Yaseen, 4).Ghulam Hyder, 5).Abdul Nabi,6).Mir Hassan, 7).Abdul Haleem,8).Kehar all by caste Suhandra and one unknown culprit, having lathies in their hands and they on coming while raisinghakal to complainant’s brother Mumtaz Ali and relative Darya Khan that their relatives have quarreled with them, therefore, they will not be spared and will be done to death. Saying so, accused Ghulam Hyder caused blunt side hatchet injury to Mumtaz Ali hitting on his head while accused Ghulam Yaseen caused lathi blow at his head, accused Kambeer caused blunt side of hatchet injury to him on his head and accused Abdul Haleem caused lathi blow at him over his left eye. Accused Mir Hassan caused lathi blow to PW Darya Khan at his left palm, accused Kehar caused lathi blow to Mumtaz Ali over his left ear, accused Abdul Nabi and Keharcaused lathi blows to him while unknown accused caused lathi blows to PW Darya Khan at his left muscle and right shoulder. Thereafter, the accused proceeded ahead for attack but the complainant saved himself and then saw and found his brother Mumtaz Ali and relative Darya Khan writhing on the ground; they then beseeched the accused in the name of “Holy Quran” and raised cries not to kill their persons, thereafter, all the accused went away towards southern side with their Tractor trolley and motorcycle. The complainant then saw his brother seriously injured with bleeding and his brain matter was somewhat out. After making arrangement of conveyance, the injured were immediately shifted to police station and after obtaining referral letter, they were shifted to RHC Taluka Hospital, where the doctor disclosed that the injured is serious so to shift him to Karachi, later-on, complainant’s brother was shifted to Jinnah Hospital Karachi where during treatment on 06.06.2019, at about 07.30 a.m, he died. Subsequently, after postmortem and funeral rituals, the complainant came at police station and lodged the FIR against the accused.
3. On completion of usual investigation, the police submitted report under Section 173 Cr.PC before the Court of learned Magistrate. Thereafter, theformal charge was framed against the present appellant/accused by the learned trial Court, to which he pleaded not guilty and claimed trial.
4. To establish the accusation against the appellant/accused, the prosecution examined all ten witnesses, who produced all certain relevant documents in support of their statements.Thereafter, learned State Counsel closed the side of the prosecution.
5. Appellant/accused in his statement recorded U/S.342 Cr.PC denied the allegations leveled against him by pleading his innocence stating therein that he has been implicated falsely in this case due to property dispute.He however, did not examine himself on oath in disproof of the charge nor led any evidence in his defence.
6. On appraisal of the material brought on record and hearing counsel for the parties, the learned trial Court convicted and sentenced the present appellant/accused vide judgment, as detailed above.
7. Per learned defence counsel, the instant case is false and fabricated against the present appellant; the evidence of all the prosecution witnesses being contradictory have no credibility and thus cannot be relied upon without independent corroboration; that crime weapon was not recovered from the appellant and it was foisted against him. Summing up his contentions, the learned defence counsel submitted that the present accused has been arraigned in this case falsely which is discernible from the averments made in FIR;the case of prosecution is doubtful and has no foundation against the appellant, therefore, the appellant deserves to be acquitted in the circumstances of the case.
8. In rebuttal to the above, learned counsel for the complainant and learned Deputy Prosecutor General for the State contended that all the witnesses have fully supported the case of the prosecution and no major contradiction is noticed in their evidence, therefore, the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of the impugned judgment which requires no interference by this Court, therefore, the appeal filed by him being devoid of merits is liable to its dismissal.
9. I have heard arguments of learned counsel for the parties and perused the material available on record with their able assistance.
10. To establish the ocular account, the prosecution examined two eye-witnesses of the incident namely complainant FazalIllahiand injured witness Darya Khan, who being star/natural witnesses of the actual occurrence unanimously deposed in one voice that on 04.06.2019, they alongwith Mumtaz Aliand Ali Gul Solangi had gone to village of Ameer Bux Solangi in connection with work,where they received information that people of the Suhandracommunity were fighting with their relatives at Ghulam Rabani Hotel near BadranShakh. They proceeded to such place and reached there at about 02:00 p.m. They saw that about six people were riding on a tractor trolley and three were on one motorcycle, came there. They identified the accused to be Ghulam Hyder son of Suhrab with a hatchet, Kambeer with a hatchet, Yaseen with lathi and Ghulam Hyder with lathi all three sons of Arz Muhammad, Abdul Haleem s/o Meer Muhammad with lathi, Meer Hassan s/o Mughal with lathi, Abdul Nabi s/o Suhrab with lathi, Kehar son of Soomar with lathi and one un-identified person with lathi. The accused started fighting with them and accused Ghulam Hyder caused injury with blunt side of the hatchet to Mumtaz Ali, accused Kambeer caused a blunt side of the hatchet injury to Mumtaz Ali on his head, accused Ghulam Yaseen caused a lathi blow to Mumtaz Ali on his head, accused Abdul Haleem caused lathi blow to Mumtaz Ali which hit him at his left eye, accused Meer Hassan caused lathi blow to Darya Khan on the left forearm, accused Abdul Nabi caused lathi blow to Mumtaz Ali which hit on his left foot thumb, accused Kehar caused lathi blow to Mumtaz Ali which hit him on his above-left ear in the head, while unidentified accused persons also caused lathi blows to Mumtaz Ali. Thereafter, all the accused persons went away towards the southern side. They arranged the conveyance and brought Mumtaz Ali to P.S Miani at Badani in injured condition. The police official Anwar Chachar noted the injuries in presence of mashirs namely Allah Warayo and Dilijan. The doctor referred Mumtaz Ali to Karachi. On 06.06.2019, Mumtaz Ali died and the dead body was brought back for postmortem and funeral ceremony was held. Thereafter, FIR was registered on the next date. The investigating officer visited the place of incident in presence of Mashirs. ASI collected blood-stained earthfrom place of incident and also found footprints of the accused party, besides tyre marks of motorcycle and tractor trolley in presence of said mashirs Allah Warayo and Dilijan. 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 thiscase. The evidence of above eye-witnesses on deeper analysis was found to be reliable, trustworthy and confidence-inspiring. Even otherwise, the sole evidence of a material witness i.e. an eye-witness is always sufficient to establish the guilt of the accused, if it is confidence-inspiring and trustworthy and supported by another independent source of evidence because the law considers the 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 the cases of Muhammad Ehsan v. The State (2006 SCMR 1857) and Niaz-Ud-Din v.The State (2011 SCMR 725). Further, the Supreme Court of Pakistan 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 of 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 v. The State (2006 SCMR-1857), wherein the 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”.
11. In support of above ocular evidence, the prosecution examined Dr. Muhammad Umair who deposed that on 05.06.2019, at about 03:00 p.m, he received injured Mumtaz Ali and Darya Khan referred by SHO PS Miani at Badani through letter vide No.402 dated 04.06.2019 and on examination, he found the following injuries on the person of deceased MumtazAli and injured Darya Khan.
INJURED MUMTAZ.
1. Laceration 4cmx2cmxscalp deep on left parietal bone of skull
2. Contused swelling 3cm on left eye.
3. Laceration 3cmx2cm on mid parietal bone of skull
4. Laceration 5cmx2cmxscalp deep on right parietal bone of skull
5. Laceration 2cmx1cm on left temporal bone of skull above left ear.
6. Abrasion 2cmx1cm on left big toe of foot.
7. Abrasion 2cmx1cm on right big toe.
As per evidence of the doctor, the kind of weapon used was a hard and blunt object.On 06-06-2019,at about 05:00 p.m, hereceived dead body of injured/deceased Mumtaz Ali s/o Ali Muhammad by caste Solangi for postmortem examination, referred by SHO, P.S,Miani at Badani through PC-2144 Zafarullah Khan, vide letter No.408, dated 6-6-2019. On examination of the dead body, he found the same above detailed injuries. From the internal examination, he found that the scalp and skull were fractured and clotted with blood at the site of injuries, small intestine contents of semi-digested food particle and large intestine contents of faecal matter, skull bone was fractured while remaining all organs were intact and healthy. From an external and internal examination of the deceased, the cause of death was due to shock and hemorrhage, result of injuries, caused by some hard and blunt object. Injury No.01 and 04 individually and collectively were sufficient to cause death in ordinary course of nature. Injuries were ante-mortem in nature. The doctor also examined the injured Darya Khan and found the following injuries on his person:-
INJURED DARYA KHAN.
1. Contused swelling 4 cm x 2 cm on left forearm.
2. Contusion 3 cm x 2 cm on left upper arm.
3. Contusion 2 cm x 2 cm on right shoulder.
The nature of injuries was declared as Injury No.01 t as J.G.J Hashmiah while the remaining injuries were as 337-L2 PPC. The kind of weapon used was the hard and blunt object.
Medical evidence is like supporting, confirmatory or explanatory of 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 person with the 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 the 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 the place of occurrence, but it does not connect accused with the commission of the offence. It cannot constitute corroboration for proving the involvement of an accused person in commission of the offence, as it does not establish the identity of 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 prosecution examined two eye-witnesses who have fully supported the case in respect of injuries caused to the deceased and the injured by the accused persons with the weapon used at the time of the offence.
12. The ocular account supported by the medical evidence is further corroborated by evidence ofPW-4 Baran Khan,who deposed that he is the author of memo of injuries in this case. On 04-06-2019, he was posted at P.S Miani at Badani. On the same date, injured namely Mumtaz Ali appeared at P.S. He kept entry No.14 and noted the injuries ofinjured person in presence of mashirs Allah Warrayo and DiliJan and then prepared memo of injuries in their presence. Thereafter, he issued a letter for medical treatment and a certificate.P.W-5 Abdullah was examined who deposed that he is the author of FIR and that of mashirnama of dead body and danishnama. On 06-06-2019,the complainant brought dead body of deceased Mumtaz Ali at P.S. He kept entry No.14 at about 1700 hours and inspected dead body of deceased Mumtaz Ali in presence of mashirs namely Allah Warrayo and DiliJan and prepared memo of dead body and danishnama in their presence. He then issueda letter for post-mortem and handed over dead body of the deceased to PC Zafarullah for postmortem and kept such entry No.15.PC Zafarullah handed over him last worn clothes of the deceased and receipt of handing over dead body to the complainant. Thereafter, he recorded statement of PC Zafarullah U/s.161 Cr.PC. On next day, at about 2100 hours, complainant FazalIllahi appeared at P.Sand disclosed the facts of offence which were cognizable, hence helodged FIR as per his verbatim. Thereafter, he handed over the FIR, the last worn clothes of the deceased and other relevant documents to ASI Anwar Ali Chachar for investigation in the case. P.W-6 PC Zafarullah was examined who deposed that on 06-06-2019, he was posted at P.SMiani at Badani. On the same date, he received dead body of deceased Mumtaz Ali from ASI Abdullah Choliyani for postmortem alongwith the letter. He then brought dead body of the deceased to Taluka Hospital Kashmore, where postmortem was conducted,after completion of the postmortem, he handed over dead body of deceased Mumtaz Ali to the complainant who handed over his last worn clothes of the deceased for which he obtained receipt from him. He handed over the last worn clothes of the deceased to ASI Abdullah Choliyani who recorded his statement U/s.161 Cr.PC. The above witnesses were cross-examined by the defence counsel but no major contradictionswere found in their evidence.
13. Further, to prove the circumstantial evidence which includes certain items recovered from the place of incident, so also arrest and recovery of crime weapons from the accused, the prosecution examined P.W-7. Muhammad Anwar (Investigating Officer),who deposed that on 07-06-2019, he was posted at P.S Miani at Badani where he received FIR alongwith relevant documents and last worn clothes from HC Abdullah Choliyani for investigation in the case. On 08-06-2019, at about 0700, as per Entry No.30, he left P.S to visit the place of incident on pointation of the complainant in presence of mashirs Allah Warrayo and Dili Jan. He inspected the place of incident, secured blood-stained earth and sealed the same in presence of same mashirs under the mashirnama. Thereafter, he returned to P.S, where he recorded statements U/s.161 of PWs Ali Gul and Darya Khan. On 14-06-2019, he left P.S as per entry No. 22 at about 0700 hours for investigation in the case/Crime No.23/2019 and at about 0740 hours, he arrested accused Abdul Nabi and Kambeer near Godi Bungalow who were required in the above crime and so also in Crime No.22/2019 U/s.382 PPC in presence of mashirs Allah Warrayo and Dili Jan and recovered one lathi from Abdul Nabi and one Axe (hatchet) from accused Kambeer under the mashirnama.Thereafter, he brought the accused to P.S where he kept entry No.05 at about 0840 hours,he wrote a letter to SSP Kashmore at Kandhkot for obtaining permission and sent the case property to the Chemical Lab for examination, which he collected and then submitted interim challan before the Court of law but the case was transferred from him to CIA for further investigation. The subsequent investigating officer was also examined by prosecution asP.W-8 Gul Muhammad who deposed that on 23-06-2019, he was entrusted with further investigation of the crime by way of transfer under orders of SSP Kashmore at Kandhkot from previous investigating officer ASI Anwar Chachar. After having received the police papers, he perused thesame. On 01-07-2019, complainant FazalIllahi handed over him last worn clothes of deceased Mumtaz Ali which he secured in presence of mashirs Allah Warayo and Dili Jan and prepared mashirnama at about 1800 hours at the CIA Center. On 04-07-2019, he had sent the parcel of blood-stained earth to the Chemical Lab for examination and report. On 09-07-2019, he recorded further statements of the complainant and PWs Darya Khan and Ali Gul in which they implicated an unknown accused being accused Gul Muhammad. The chemical report dated 10-07-2019 was also received. After completingthe usual investigation,he submitted a charge sheet before the Court of law. The evidence of investigating officers is further supported by P.W-10 Allah Warrayo the mashir of case who also deposed every aspect of the case including arrest and recovery of the crime weapon from the accused. Their evidence has not been shattered by the defence counsel during the cross-examination.
14. Learned counsel for the appellant mainly focused on the point that the witnesses are near relatives tothe deceased and are interested, therefore, their evidence cannot be relied upon, the contention raised in this regard carries no weight, as it was a day time incident wherein eye-witnesses have sufficiently explained the date, time and place of occurrence as well as every event of the occurrence wherein an innocent personwas done to death brutallywhile the other received injuries. Both the parties are known to each other as is apparent 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 the incident in a confidence-inspiring manner then the 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 a relative or friend but is one who has a motive to falsely implicate an accused. Mere relationship of eye-witnesses with the deceased alone is not enough to discard the 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 the 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 tangible substance has been brought on record by the appellant to justify his false implication in this case at the hands of the complainant party on account of previous dispute. 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.
15. Learned counsel for the appellant has pointed out some minor contradictions in the evidence of prosecution witnesses which in my view are not sufficient to discard their evidence who have fully supported the case of prosecution on each and every aspect. It is a settled principle of law that where in the evidence, the prosecution established its case beyond a reasonable doubt then if there arise some minor contradictions which always are available in every case as no one can give evidence like a pen-picture; hence the same are to be ignored. The reliance in his context is placed upon 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.”
16. Based upon the above discussion,I have come to the judicious conclusion that the learned trial Court on being finding the present appellant/accused guilty of the charged offence, 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. Consequently, the instant Criminal Appeal being devoid of merits isdismissedaccordingly.
JUDGE