JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

PRESENT;

MR. JUSTICE IRFAN SAADAT KHAN J.

MR. JUSTICE AFTAB AHMED GORAR J.

 

DATE                             ORDER WITH SIGNATURE OF JUDGE

 

Cr. Jail Appeal No.D-159 of 2004

 

Appellant               Mureed s/o Ameen Jamali through Mr. Shoukat Ali                              Pathan

 

Respondent           The State through Syed Meeral Shah Deputy Prosecutor                      General Sindh.

Complainant Mir Muhammad s/o Haji Wali Dad Jamali through Mr.                          Anwar A. Khan Advocate

 

Cr. Revision Appl. No.D-106 of 2004

 

Applicant              Mir Muhammad S/o Haji Wali Dad Jamali through Mr.      Anwar A. Khan Advocate

 

 

Respondent No.1  Mureed s/o Ameen Jamali through Mr. Shoukat Ali                              Pathan Advocate.

 

Respondent No.2  The State through Syed Meeral Shah Deputy Prosecutor                      General Sindh

 

Date of hearing      20.02.2013.

 

Date of decision    20.02.2013.

 

 

J U D G M E N T

                            

AFTAB AHMED GORAR J:  By this single Judgment, we intend to dispose of both the appeals i.e. one  against the conviction and the other being the Revision for enhancement of the punishment, which are outcome of the same Judgment dated 25.08.2004 passed by the learned Ist Additional Sessions Judge, Nawabshah( Shaheed Benazirabad). In Cr. Jail Appeal No.159/2004, the appellant Mureed has been convicted u/s 302(b) PPC and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000/-, in default whereof, to suffer six months imprisonment more. He was  also directed to pay compensation of Rs.100,000/- to the heirs of deceased Khan Muhammad and in case of default, to suffer R.I. for further six months. Beneift of section 382-B PPC was also extended to him. The applicant/ complainant Mir Muhammad seeks enhancement of punishment awarded to the appellant Mureed from life imprisonment to death as Qisas u/s 302(a) PPC.

2.       Succinctly facts of the prosecution case are that there was altercation between deceased brother of complainant namely Khan Muhammad and accused Mureed, whose lands were adjacent to each other and cattle of accused Mureed was damaging the crop of the complainant. Accused Mureed and his cousin Imam Bux asked the complainant to restrain his brother Khan Muhammad else they would kill him. On 04.08.2000 the complainant Mir Muhammad, his maternal nephew Abdul Nabi and relative Abdul Rashid were available at their lands on their water turn, when at 4.00 p.m. they saw accused Mureed Khan, Imam Bux and his son Khadim Hussain Jamali armed with hatchets came there and made Hakal to Khan Muhammad that they will not spare him today. Complainant also made Hakals to the accused in order to save his brother but accused Mureed, Khadim Hussain and Imam Bux inflicted sharp side hatchet blows to Khan Muhammad, who fell down while raising cries. Thereafter accused persons holding hatchets went away towards western side. The complainant noticed that his brother Khan Muhammad had sustained hatchet injuries on his head and left side abdomen and he succumbed to his injuries on the spot. The complainant leaving the P.Ws at the dead body appeared at Police Station and lodged report.

3.       During course of investigation, appellant Mureed was arrested and the police submitted challan against him while showing names of co-accused Imam Bux and Khadim Hussain were shown absconders. N.B.Ws were issued by the learned trial court to procure attendance of the co-accused but they could not be arrested and were finally declared as proclaimed offenders. Proceedings u/s 87 and 88 Cr.P.C were initiated against them.

4.       We first take up the appeal filed by the appellant Mureed against his conviction.

5.       Formal charge against the appellant was framed u/s 302 PPC in which he pleaded not guilty and claimed his trial.

6.       In order to prove its case, the prosecution examined P.W.1 complainant Mir Muhammad at Ex.7. He produced FIR at Ex.7A, P.W. 2 Abdul Nabi at Ex.8. He produced his 164 Cr.P.C statement at Ex.8/A. P.W.3 Abdul Rashid was examined at Ex.9. He produced his statement u/s 164 Cr.p.C at Ex.9/A. P.W.4 Dr. Nasir Muhammad Medical Officer Taluka Hospital Sakrand was examined at Ex.10. He produced postmortem report at Ex.10/A.P.W.5 Muhammad Daud (Tapedar) was examined at Ex.11. He produced sketch of place of incident at Ex.11/A. P.W.6 Mashir Abdul Ghani at Ex.12, who produced mashirnama of place of wardat and inspection of dead body at Ex.12/A, inquest report at Ex.12/B, mashirnama of dead body at Ex.12/C. Prosecution further examined P.W.7 mashir of arrest of accused namely Kaisar Khan at Ex.13 who produced mashirnama of arrest at Ex.13/A and mashirnama of recovery of hatchet at Ex.13/B, mashirnama of recovery of shirt of accused at Tex.13/C. P.W.8 Ghulam Shabir was examined at Ex.14. P.W.9 SIP Malak Iqbal Hussain was examined at Ex.15. He produced chemical examiner’s reports at Ex.15/A and 15/B respectively. Thereafter side of the prosecution was closed vide statement at Ex.16.

7.       Statement of the appellant was recorded u/s 342 Cr.P.C, in which he denied the material put forward to him in shape of questions. He however, neither examined himself on oath nor produced any defence evidence. He produced copies of FIRs, and other documents at Ex.17/A to 17/H.

8.       Learned counsel for the appellant argued that the appellant is innocent and has been falsely implicated in the present case due to enmity.  He further contended that FIR was delayed by about 13 ½ hours without any plausible explanation which created doubt in the prosecution story. Learned counsel contended that no specific role has been assigned to the appellant and there are general allegations against three accused persons for causing hatchet blows to the deceased, therefore, it was difficult to ascertain as which blow of which accused was fatal to the deceased. He further argued that as per FIR there was Banana orchard at the place of incident and it was not impossible for the complainant party to see and identify the accused in Banana orchard, therefore, identification of appellant was doubtful. Learned counsel further contended that there are contradictions between the evidence of the P.Ws and it appears that they were not available at the place of incident but deposed against the appellant on account of previous dispute between the appellant and deceased. Learned counsel submitted that appellant is behind the bars since 12 years and his considerable portion of his young age has been spent in the Jail on account of his conviction not based upon credible evidence. He further contended that appellant in his statement u/s 342 Cr.P.C produced various FIRs in which the deceased was involved, thus the deceased had enmity with several persons, therefore, possibility that deceased was murdered by someone else cannot be rule out. He further contended that the statements of P.Ws u/s 161 Cr.P.C were recorded after 14 days. He further contended that alleged spade held by the deceased at the time of occurrence was neither recovered by the police nor it was produced before the learned trial court. He submitted that P.Ws are close relatives of the complainant and deceased and no independent witness was cited in the case. He contended that alleged recovered hatchet was not promptly sent to the chemical examiner but after two years it was sent through court therefore, report of the chemical examiner in this regard cannot be used against the appellant. Learned counsel submitted that in view of the above grounds, the case of the prosecution was highly doubtful and it is a well settled principle of law that if a single circumstance creates doubt, its benefit must go to the accused. He prayed that the impugned Judgment may be set-aside and appellant may be acquitted.

9.       On the other hand, learned counsel for the complainant vehemently opposed the appeal. He contended that there is sufficient ocular account duly corroborated by the medical evidence and circumstantial evidence in shape of recovery etc, therefore, appellant was liable to capital punishment of death as Qisas. He argued that eyewitnesses fully supported the prosecution case and they did not differ to each other in respect of date, place of incident, identification of the accused and manner of the incident, therefore, there is no occasion to take lenient view against the appellant, who had committed murder of the deceased. He further contended that no malice or malafide was proved on the part of the complainant and witnesses to implicate the appellant in the murder case falsely. He contended that despite cross examination by defence counsel, the ocular evidence could not be shattered and same remained confidence inspiring. Learned counsel added that a young man of 36 years of age was brutally murdered in presence of witnesses, they deposed on oath and the medical evidence corroborated their testimony. He contended that the prosecution had fully proved the charge against the appellant beyond shadow of doubt therefore, learned trial court was not justified in awarding sentence of life imprisonment instead of death sentence.

10.     Learned Deputy Prosecutor General Sindh supported the Judgment of the trial court and contended that charge of murder stood proved against the appellant. He further contended that the impugned Judgment of the learned trial court is well reasoned, therefore, does not call for any interference by this court.

11.     We have heard learned counsel for the parties and perused the record with their able assistance. It was the case of the prosecution that on the day of incident, the appellant alongwith two other accused, who had been declared absconders, on account of some dispute over trespassing of cattle in the crop of deceased, committed murder of deceased by inflicting hatchet injuries. In this respect, the prosecution has examined three witnesses i.e. the complainant Mir Muhammad and P.Ws Abdul Nabi and Abdul Rashid. The complainant in his evidence has deposed that on the day of the incident he alongwith above named P.Ws saw that accused Mureed Hussain, Imam Bux and Khadim Hussain armed with hatchets came at the place of incident and after giving Hakal to deceased, inflicted sharp side hatchet blow to him resultantly he fell down. He further contended that after causing hatchet injuries to the deceased, the accused persons went away. He further stated that they noticed that deceased had received hatchet injuries, and succumbed to injuries on the spot. He further contended that he left the P.Ws at the dead body and went to lodge the FIR.

12.     P.Ws Abdul Nabi and Abdul Rashid also supported the version of the complainant. There is no contradiction between the evidence of all three eyewitnesses regarding date, time and manner of incident. It was the day time incident and the parties were well known to each other, therefore, identification of the accused persons at the place of incident by the complainant and P.Ws could not be doubted. The defence counsel failed  to establish any ill will or enmity on the part of the P.Ws in order to substantiate they had deposed against the appellant falsely. From the careful examination of the evidence of the aforesaid eyewitnesses it appears that the same is confidence inspiring and did not suffer from any infirmity.

 13.    P.W.4 Dr. Nasir Muhammad has deposed that he examined the dead body of deceased and found following injuries on the body of deceased Khan Muhammad:-

i)                  Incised wound 8 cm x 3 cm x Abdominal cavity deep on left lumber region literally.

ii)               Incised wound 2 cm x ½ cm x Bone deep with underlying fracture of right frontal bone.

iii)            Incised wound 10 cm x 3 cm x bone deep with oozing of brain matter and underlying fracture of right occipital bone.

iv)              Incised wound 6 cm x 1 cm x bone deep with oozing of brain matter and underlying fracture of right parital bone.

v)                 Incised wound 10 cm x 1 cm bone deep with underlying fracture of left parital bone.

 

          The Medical Officer opined that death of deceased occurred due to shock and haemorrhage due to aforementioned injuries caused by sharp cutting weapon. The medical evidence fully corroborated the ocular testimony.

14.     In the case of Badar Munir V. the State and another (2003 YLR 753) it was observed that FIR was lodged with promptitude wherein the accused had been specifically named as murderer of the deceased. Complainant, deceased and the given up eyewitnesses lived in the same house and were stated to have left on the morning of the occurrence together. Presence of witnesses at the place of occurrence stood established from the record. Definite motive had been attributed to the accused and there appeared to be no reason as to why the accused should be implicated instead of real culprit. Prosecution had produced evidence worthy of credence which was sufficient to bring guilt home to the accused. Statement of complainant duly corroborated by medical evidence could not be brushed aside on flimsy grounds. Complainant had stood the test of extensive cross examination and nothing advantageous could be elicited ispite of searching questions. Statement of the complainant was consistent, confidence inspiring and in consistence with the probability in the case and fitted in with other evidence and circumstances of the case. Medical evidence had supported the ocular account furnished by the complainant and fully supported the prosecution version. Consequently conviction and sentence recorded by the trial court was maintained. In the present case also ocular account has been corroborated by the medical evidence and the witnesses have fully supported the prosecution case.

15.     The other witnesses are P.W.5 Dawood Tapedar, who prepared sketch of the place of incident and produced the same in court, P.W.6 Abdul Ghani, who had visited the place of incident, prepared mashrnama colleted blood stained earth from the place of incident and acted as mashir. P.W.7 Qaisar Khan also was the mashir of arrest of appellant and recovery of hatchet and blood stained shirt on his pointation. P.W 8 SIP Ghulam Shabir who was the investigating officer and P.W.9 Malak Iqbal Hussain Ex.15 was the duty officer at police station and recorded the FIR of the complainant. The evidence of these witnesses being circumstantial evidence supported the prosecution case.

16.     From the evidence available on record, it transpires that the prosecution has succeeded to prove charge of murder against the appellant beyond shadow of doubt. We, therefore, do not find force in the arguments advanced by the learned counsel for the appellant. This was a daytime incident where the complainant and P.Ws saw the accused persons and identified them clearly and there appear no iota of evidence to draw an inference that identification of the accused was doubtful. The contention of the defence counsel that the deceased had enmity with several persons and that he might have been murdered by any of them is of no consequence as there is ocular testimony of the P.Ws within their sight, the appellant alongwith two absconding accused while abusing the deceased inflicted hatchet blows and committed his murder.

17.     The complainant has also disclosed motive of the incident being dispute between the appellant and deceased over cattle trespass into the land of the deceased, which actuated the appellant to take life of the deceased.  Learned counsel submits that the motive as set forth in the FIR is a weak motive and that too has not been proved. Here we do not agree with the learned counsel for the appellant, the motive stands proved by the evidence of the complainant Mir Muhammad and P.Ws Abdul Nabi and Abdul Rashid. It is also necessary to mention here that after registration of FIR statements of the both the above witnesses namely Abdul Nabi and Abdul Rashid were recorded u/s 164 Cr.P.C before the Magistrate in which they stated the facts of the incident. In their evidence they disclosed the same facts and there is no contradiction between their earlier statements and evidences recorded before the trial court. There is no reason to disbelieve the statement of the complainant and above named P.Ws, who are the eye-witnesses of the occurrence, having no motive for false implication against the appellant and proving their presence at the spot. Even otherwise in the case of Waris Khan Vs. The State (2001 SCMR 387) it has been held that weakness of motive or its absene or where alleged but not proved would hardly make any difference.

18.     It is also the submission of learned counsel for the appellant that  the hatchet allegedly recovered from the appellant was not sent to the chemical examiner promptly and it was sent by the learned trial court after two years, therefore, such expert report has lost its evidentiary value. This ground is also without force as sending of recovered articles to the Expert with delay can only be termed fatal to the prosecution case where the defence has been able to establish malice on the part of the police. If the dispatch is found to have been delayed, said act on the part of Investigating Officer could be termed as irregularity committed during course of investigation but it is a well settled principle of law that procedural defects and irregularities committed during the course of investigation would neither demolish the prosecution case would nor vitiate the trial, even when the report of the expert was positive. It is pertinent to mention here that the complainant had lost his faith upon the first Investigating Officer and therefore, on his application investigation of the case was transferred to another officer. We, therefore, do not find any suspicious in the recovery or in the report of expert. Reference in this regard could be made to case of Noor Alam Vs. The State (PLD 1978 SC 137).

19.     In view of the above circumstances, we are of the considered view that the prosecution had proved its charge against the appellant regarding murder of the deceased beyond any shadow of doubt.

20.     Reverting to the Revision Application whereby the applicant/ complainant sought enhancement of the punishment awarded to the appellant. It has been held in a number of decisions that if a case is proved against the culprit beyond reasonable shadow of doubt and offence under section 302 PPC is established; the normal penalty of death should be awarded and leniency in any case should not be shown except where strong mitigating circumstances for lesser sentence could be gathered from the evidence available on record. Such mitigating circumstances in the present case were duly found by the learned trial court and thereafter awarded life imprisonment to the appellant instead of death sentence. It is an admitted position that the hatchet recovered from the appellant was not instantly dispatched to the experts for their opinion. There were three persons including the appellant, who conjointly caused hatchet blows to the deceased which resulted into his death. These, in our view, are the strong mitigating circumstances rendering the appellant for lesser punishment of life imprisonment instead of death sentence. We, therefore, do not find any illegality or irregularity so far as this aspect also of the decision given by the learned trial court while awarding life imprisonment to the appellant u/s 302(b) PPC. The findings of the learned trial court in this regard also in our view, appears to be sound and reasonable and require no interference.

21.     The uptshot of the above discussion is that both the appeal as well as Revision, being devoid of merits are hereby dismissed alongwith the pending applications if any.

22.     Above are the reasons for our short order dated 20.02.2013 whereby we have dismissed both the instant Appeal as well as the Revision.

 

 

                                                                                      JUDGE

                                                          JUDGE

A.K