IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-100 of 2019
Appellants : (1). Ghulam Rasool son of Allah Warayo Ogahi (2). Kashmir son of Huzoor Bux Ogahi
Through Mr. Faiz Muhammad Larik, Advocate
Complainant : Manzoor Ali Ogahi
Through M/s. Safdar Ali Bhutto and Mushtaq Ali Langah, Advocates.
State : Through Mr. Aitbar Ali Bullo, Deputy
Prosecutor General, Sindh.
Date of hearing : 03.04.2023
Date of judgment : 13.04.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.:- This criminal jail appeal is directed against the impugned judgment dated 24.10.2019, passed by learned 1st Additional Sessions Judge/ Model Criminal Trial Court, Kandhkot, in Sessions Case No.152/2019 (M.C.T.C Case No.80/2019), arisen out of Crime No.45/2018, registered with P.S Ghouspur (District Kashmore @ Kandhkot), for offence under Sections 302, 114, 148, 149 P.P.C, whereby the appellantswere convicted and sentenced to suffer imprisonment for life as Tazir under Section 302 (b) P.P.C and to pay fine of Rs.200,000/- each payable to legal heirs of deceased Ahsan Ali and in default whereof to suffer six months more R.I. The appellants were also convicted for offence punishable under Section 148 P.P.C, to suffer S.I for three years. However, benefit of section 382-B Cr.P.C. was extended to the appellants.
2. The facts of the prosecution case as depicted from para 2 of the impugned judgment are as under:
“The facts of the case as per F.I.R are that about four years back the brother of absconding accused Adam alias Dado was murdered, therefore the accused were suspected on complainant party and were threatening to get revenge to that murder. On 05.8.2018 complainant along with brother Ahsan Ali (now deceased) aged bout 24/25 years, cousin Nawab son of Wadhal and Rehmatullah son of Muhammad Hayat Ogahi were returning from Kandhkot to their house on two motorcycles. The complainant was standing along with Ahsan Ali, while Ahsan Ali was driving the motorcycle. It was about 04.00 p.m. when complainant party reached near house of Shahdad Bahalkani where they saw and identified accused namely Hazoor Bux, Abdul Razzaq, Ghulam Rasool all sons of Allah Warrayo, Kashmir son of Hazoor Bux, Adam alias Dado son of Wahid Bux, Imran son of Noor Hassan, Ghulam Yasin son of Muhammad Yousif all by caste Ogahi, residents of village Allah Warrayo Ogahi Taluka Tangwani having pistols in their hands were standing, complainant party while seeing deadly weapons in the hands of the accused persons due to fear ran towards the house of Shahdad Bahalkani. The accused persons chased the complainant party entered in the house of Shahdad Bahalkani. Present accused Hazoor Bux instigated other accused to commit murder of Ahsan Ali in revenge, on his instigation absconding accused Adam alias Dado opened fire from his pistol upon Ahsan Ali which hit him on left side of head, absconding accused Abdul Razzaq opened the fire from his pistol which hit Ahsan Ali on his chest, present accused Ghulam Rasool opened fire from his T.T pistol which hit Ahsan Ali on left side of abdomen, present accused Kashmeer opened fire from his pistol upon Ahsan Ali which hit him on right side of neck, absconding accused Imran opened fire from his pistol which hit Ahsan Ali on left hand, absconding accused Ghulam Yaseen opened fire from his pistol which hit Ahsan Ali on left leg and Ahsan Ali fell down on the ground while raising cry. The complainant party gave sake of Holy Quran to accused persons and so also on firing the co-villagers came there by running while seeing them all the accused went away outside of the house. Then complainant found that Ahsan Ali received firearm injuries on his head (loundree), chest, abdomen, neck, left hand and left leg and was expired away at the spot.”
3. After completing the investigation challan was submitted thereafter by completing the legal formalities charge was framed against the appellants, to which they pleaded not guilty and claimed trial. Consequently, the prosecution examined as many as 08 witnessesComplainant Manzoor Ali, PW Nawab, PW Khadim Hussain, PW/ ASI Ghulam Rasool, PW/ ASI Gulzar Ahmed, PW/ Medical officer Dr. Sundro, PW/ Tapedar Ali Hassan Dahani and PW/ P.C Abdul Wahab who exhibited certain documents and items in support of their evidenceand then the prosecution closed its side.
4. The statements of appellants under Section 342 Cr.P.C. were recorded, in which they denied all the allegations of prosecution leveled against them and claimed innocence. They however did not examine themselves on oath in terms of Subsection (2) of Section 340 Cr.P.C, nor led any evidence in their defence in disproof of the charge.
5. After conclusion of the trial and hearing the parties, the learned trial Court passed the impugned judgment wherein the appellants were convicted and sentenced as stated above. The appellants have preferred instant appeal against the said judgment.
6. Learned counsel for the appellants has argued that the judgment passed by the trial Court is perverse and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellants; that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court, as it consists of interested and related witnesses and it is insufficient to warrant conviction of the appellants. He further added that material contradictions appeared in the statements of the prosecution witnesses on crucial points, but those have not been taken into consideration by learned trial Court while passing the impugned judgment; that on the basis of same set of evidence the co-accused Hazoor Bux has been acquitted of the charges by learned trial Court while present appellants have been convicted and complainant had not challenged the acquittal; that eyewitness Rehmatullah was not examined by the prosecution; therefore, presumption would be that he was not going to support the prosecution’s case therefore, his evidence was given up; that the impugned judgment suffers from miss-reading and non-reading of evidence. In last he contended that defence has created so many doubts in the prosecution case and benefit of which may be extended in favour of the appellants by setting-aside the impugned judgment and ordering acquittal of the appellants.
7. On the other hand learned D.P.G. assisted by learned Advocate for complainant opposed the appeal on the grounds that the prosecution has fully established its case by producing trustworthy ocular as well as medical and circumstantial evidence coupled with recoveries of crime weapons; that no major contradiction has been pointed out by defence counsel; that all the witnesses supported the case against the appellants; that it was daytime incident and no mistake in identity of the appellants. Lately, they prayed that the appeal preferred by the appellants may be dismissed.
8. I have heard learned counsel for the parties and carefully perused the material available on record with their able assistance.
9. The case of complainant as per his evidence was that four years back before this incident the brother of one Adam son of Dado Ogahi namely Khadim Hussain was murdered and they leveled the allegation of said murder upon them. The accused used to issue threats for taking the revenge. On 5.8.2018, the complainant alongwith his brother Ahsan Ali, cousin Rahmatullah and another cousin Nawab were coming towards their houses from Kandhkot on two motorcycles and when reached near the house of Shahdad Bahalkani at 04:00 pm, they saw and identified the accused namely Hazoor Bux, Abdul Razaque, Ghulam Rasool, Kashmir, Adam, Imran, Ghulam Yasin, all by caste Ogahi who while holding pistols in their hands were standing at the road. The accused signaled them to stop. Due to fear of life they turned their motorcycles towards the house of Shahdad Bahalkani. The accused followed the men entered in the house of Shahdad Bahalkani then accused Hazoor Bux instigated other accused persons to kill the Ahsan Ali in the revenge of murder of Khadim Hussain as such the accused Hazoor Bux and Adam opened the straight fires upon Ahsan Ali which hit him on left side of head/(LOUNDRI). Accused Abdul Razzaque fired upon Ahsan which hit him on the left side of chest. Accused Ghulam Rasool fired upon Ahsan which hit him on the left side of abdomen. Accused Kashmir fired upon Ahsan which hit him on the right side of the neck. Accused Imran fired upon Ahsan which hit him on the left hand. Accused Ghulam Yasin fired upon Ahsan which hit him on left leg. After receiving firearm injuries Ahsan fell down. They have given the name of Holy Quran to the accused persons and on the firing of the accused persons the villagers gathered, therefore, the accused went away. They saw the fire shots on the body of Ahsan who expired away. Complainant brought the dead body at police station Ghouspur at 04:45 pm on a Datsun, got letter for the postmortem and after the postmortem the dead body was handed over to him, then he left the dead body at his house and registered the FIR against the accused persons at 10:10 pm (night) on the same date. Complainant further deposed that last worn clothes of the deceased were handed over to the police and then on 06.8.2018, at 09:00 am police visited place of incident on his pointation in presence of mashirs Amanullah and Khadim Hussain. Police collected the blood stained earth and sealed the same. 06 empties of pistols scattered at the place of incident were also collected by the police and were sealed. Such mashirnama was prepared by the police and obtained signatures of both the mashirs. His evidence was further supported by the evidence of another eye-witness namely Nawab who fully supported the version of complainant on every aspect of the case as deposed by the complainant including the roll assigned against the appellants and the manner in which this incident took place. Both the eye-witnesses were cross-examined by the defence counsel but nothing favourable to appellant is pointed out by the defence counsel.
10. The ocular account furnished by above two eye-witnesses was further supported by the medical account and to prove un-natural death of deceased Ahsan, the prosecution examined Medical Officer Dr. Sundro, who conducted postmortem of the dead body of deceased Ahsan Ali, deposed that on 05.08.2018 he was posted as M.O at RHC Ghouspur, on the same date, at about 04:45 pm, he received dead body of deceased namely Ahsan Ali son of Badal Khan Ogahi, through PC-4050 Abdul Wahab, referred by SHO PS Ghouspur along with letter No.861/2018 dated 05.08.2018, for conducting postmortem examination. The dead body was identified by Manzoor Ali and Khadim Hussain brothers of deceased. He started postmortem examination of deceased Ahsan Ali at 05-00 pm and finished at 06-05 p.m. On external examination of the dead body of deceased Ahsan Ali he found following injuries on his person.
1. Lacerated punctured wound measuring 1.25 cm x 1.25 cm on left side of temporal Bone of skull, margins are inverted, appear to be the wound of entrance.
2. Lacerated punctured wounds 2.5 cm x 2.5 cm on right side of temporal Bone of skull margins are everted, appear to be the wound of exit of injury No:1.
3. LPW 1.25 cm x 1.25 cm on left side of chest on Anterior side, margins are inverted, appear to be the wound of entrance.
4. LPW 2.00 cm x 2.00 cm on right side of chest on lateral side, margins are everted, appear to be the wound of exit of injury No:3.
5. LPW 1.25 cm x 1.25 cm, on right side of neck, below, right ear, margins are inverted, appear to be the wound of entrance.
6. LPW 2 cm x 2 cm ring & little finger of left hand, on posterior side, wound of entry & exit same.
7. LPW 1.25 cm x 1.25 em on left side of abdomen, on anterior side, near umblicus, margins are inverted appear to be wound of entrance.
8. LPW 1.25 cm x 1.25 cm on left side of knee joint on lacerated side, margins are inverted appear to be the wound of entry.
9. LPW 2 cm x 2 cm on left knee joint, wound of exit of Injury No 8.
On internal examination, he found damages as Scalp Skull and vertebrae:- Intact & healthy except fracture of right & left temporal Bone. Thorax:- Walls, ribs and cartilages: Walls ruptured at the site of injuries. Ribs No: 3 & 4 fractured on left: chest Rib No: 4 & 5 fractured on right chest Pleurae Ruptured at sites of injuries Blood stained. Right lung Ruptured contains blood. Pericardium and heart Ruptured, Blood oozed out. Blood vessels Ruptured at sites of injures. Walls Ruptured at site of injury. Peritoneum Ruptured at site of injury contain blood. Stomach and its contents Intact & healthy contains food material. Small intestine: Ruptured at site of injuries contains semi-digested food material. Large intestine Intact & healthy contains faecal matter. Rest all organs intact and healthy.The medical officer further deposed that, from external as well as internal examination of dead body of deceased, he is of the opinion that the cause of death was due to shock and hemorrhage as a result of fire arm injuries. Injuries Nos. 2 & 4 are sufficient to cause death in ordinary course of nature. Injury Nos.1 & 3 are sufficient to cause death in ordinary course of nature. All the injuries were anti mortem in nature. Time between injuries and death was instantaneously while time between death and postmortem examination was within one hour approximately. The medical evidence found to be in supportive in nature with the ocular account and no major contradiction/conflict is found.
11. After the ocular and medical accounts, the prosecution by producing circumstantial evidence in shape of recovery etc; examined PW/ ASI Ghulam Rasool, who conducted first Karerwai/investigation and deposed that on 05.08.2018, he was posted as duty officer at PS Ghouspur. On the same date complainant Manzoor Ahmed brought the dead body of deceased Ahsan Ali at police station for issuance of letter for postmortem. He kept such entry No.16-1645 hours and inspected the dead body in presence of mashirs Amanullah & Khadim Hussain. He prepared mashirnama of inspection of dead body of deceased in presence of same mashirs. He also prepared danistnama. Then he handed over the dead body to PC Abdul Wahab for conducting postmortem from RHC Ghouspur. After conducting post mortem PC Abdul Wahab deposited the last worn clothes of deceased at police station on 5.8.2018 at 2025 hours, he prepared such mashirnama of last worn clothes in presence of same mashirs. On the same date at 2210 hours complainant Manzoor Ahmed appeared at police station and narrated the facts of cognizable offence, he registered FIR as per his verbatim. His evidence is further supported by the evidence of mashir PW Khadim Hussain, who deposed that on 05.08.2018, they were available at their house at about 04:40 pm he has been informed by his brother Manzoor Ahmed that their brother Ahsan Ali is murdered. He along with his relative Amanullah (co-mashir) reached at police station Ghouspur on motorcycle at 04:50 pm. They saw that the dead body of Ahsan Ali was lying in DALAA of Datsun in front of police station. ASI Ghulam Rasool Ogahi inspected the dead body in his presence and in presence of co- mashir Amanullah Ogahi. six fire injuries were observed on the dead body of deceased. ASI Ghulam Rasool Ogahi prepared the mashirnama of inspection of dead body and the danistnama. On 5.8.2018, at 08:25 pm, PC Abdul Wahab brought last worn clothes of the deceased. There was blue colour Shalwar & Kamis of the deceased which were stained with the blood same were sealed under the mashirnama. On 6.8.2018, at 09:00 am, the place of incident was visited by ASI Gulzar Ahmed Gujrani on the pointation of complainant Manzoor Ali wherefrom six empties of the pistol and blood stained earth was collected & sealed under the mashirnama. Accused Ghulam Rasool and accused Kashmir were apprehended by ASI Gulzar Ahmed Gujrani in their presence under the mashirnama. On 12.8.2018 at 03:00 pm he along with co-mashir Amanullah were going through way/kacha path leading towards Ghouspur when they reached at village of Mehrab Khan Jageerani where the police mobile reached in which the accused Ghulam Rasool and Kashmir were available. The accused confessed their guilt on 12.8.2018 and became ready to discover the crime weapons used in murder. The accused stopped the police mobile near village Mehrab Khan Jageerani and accused led towards the road side and took out the two pistols from the bushes to the police and stated that they have committed the murder of deceased Ahsan Ali with the same pistols. The accused disclosed that weapons are without license. The pistols were loaded with empty magazines. The police sealed the pistols separately under the mashirnama. Their cross-examination is also perused carefully no major contradiction is found which suggest that they are cooked up witnesses to give false evidence.
12. The PW/ ASI Gulzar Ahmed, who was investigating officer of the case, inspected place of vardat, recovered empties and blood stained earth sealed the same and also arrested the accused persons and recovered crime weapons used by them in the commission of offence was examined who deposed that on 05.8.2018, he received case papers & property from ASI Ghulam Rasool Ogahi for investigation. On 06.8.2018, he recorded statements of PWs under section 161 Cr.P.C at police station. Then he visited place of incident on pointation of complainant Manzoor Ali in presence of mashirs Amanullah and Khadim Hussain vide roznamcha entry No:6-0830 am and collected blood stained earth and 06 empties of 30 bore from the place of incident and prepared such mashirnama. On 09.8.2018, he arrested accused Ghulam Rasool and Kashmir near Khariro Shaakh/canal in presence of same mashirs and prepared mashirnama. On 12.8.2018, he interrogated both the accused vide entry No:13-1400 hours. During interrogation both accused Ghulam Rasool and Kashmir became ready to discover the weapons used in commission of offence. Vide entry No.14 he took both accused Ghulam Rasool and Kashmir the accused led them towards katcha path leading towards village Mehrab Jageerani. During the way mashirs Amanullah and Khadim Hussain were associated by him. At 1500 hours when they reached at jungle of LAEE tree both accused stopped police mobile, got down and discovered T.T pistols buried in the straws/BOOTA, same were handed over by accused to him and both accused disclosed that they had committed the murder of Ahsan Ali with these pistols on 5.8.2018 which were unloaded and found loaded with empty magazines. He sealed both the pistols separately, in presence of mashirs and prepared such joint mashirnama of arrest & recovery in presence of mashirs Amanullah and Khadim Hussain. Thereafter, he returned back at police station alongwith accused and case property vide entry No:23-1700 hours, and registered separate FIRs vide crime No.46/2018 against accused Kashmir and 47/2018, against accused Ghulam Rasool, recorded statements of PWs under section 161 Cr.P.C of PC Mumtaz Ali and PC Zahoor Ahmed. On 12.8.2018, he wrote letter to SSP for permission to send two TT pistols & 06 empties to chemical lab which he received on 13.8.2018 and on the same date he sent the pistols & empties to Chemical examiner vide receipt dated 15.8.2018. On 27.8.2018, he received ballistic expert report of TT pistols and empties. Also issued letter to SSP for permission to send blood stained earth to chemical lab and on 13.8.2018, he received permission letter from SSP and on the same date he sent the blood stained earth to Chemical examiner vide receipt dated 13.8.2018. After usual investigation he submitted charge against accused. He was cross-examined at some length but nothing favourable to the appellants has been pointed out by the defence counsel.
13. In the casein hand, 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 as has been held by the Honourable Supreme Court of Pakistan in the 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”.
14. Main contention of the learned defence counsel is that the witnesses are near relatives to deceased and are interested, therefore, their evidence cannot be relied upon.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 occurrenceincluding the role played by the accused persons in the commission of offence. Both the parties are known to each other as is evident from their evidence and this is a day time incident,therefore, there was no chance of mistaken identity of the appellants. 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/appellants 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 appellants to justify their false implication in this case at the hands of complainant party on account of any previous enmity. In case of Zulfiqar Ahmed & another v. State (2011 SCMR 492), the Supreme Court of Pakistan has held as“...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 appellants 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 principle 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.”
16. The sequel of above discussion arrived at judicious conclusion that the learned trial Court on being finding the present appellants guilty of committing murder of an innocent, has rightly convicted and sentenced them 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