Criminal:
Jail. Appeal No. D- 20 of 2010.
Present.
Mr. Justice Ahmed Ali Sheikh.
Mr.
Justice Salahuddin Panhwar.
Appellant: Nawab
Kalhoro: through Mr. Amanullah G. Malik,
Advocate.
Respondent: The State: through Mr.Abdul Rehman
Kolachi APG.
Date of
Hearing:
JUDGMENT
SALAHUDDIN
PANHWAR, J- The
appellant has assailed the Judgment dated 28th January, 2010,
passed by the Court of learned Sessions Judge/ special Judge (STA), Sukkur in
Special Case No.82 of 1997, arising out of Crime No. 146 of 1996, registered
with police station Pano Aqil for offences under sections 302,324,, 404, 392,
114,147,148,149 PPC; whereby the appellant was convicted under Section 302 (b) PPC and sentenced for imprisonment
of life and to pay compensation of Rs.200,000/- (two lacs) to the heirs of
deceased Mohammad Hanif, which if not paid, shall be recoverable as arrears of
land revenue and in default whereof to suffer imprisonment for a period of
6(six) months more. The appellant was awarded benefit of Section 382 (b) Cr.PC.
2. Relevant facts, as set out in prosecution
case are that on 29.8.1996 complainant Khair Mohammad lodged report, which
reveals that, about two years back accused Mir Muhammad alias Miro was declared
“Karo” by Rehmatullah and others, where after Sher Muhammad, brother Mir
Muhammad was thrashed and caused injuries such case was registered against Rehmatullah,
Ali Sarwar, Ali Asghar, who were granted bail; complainant had stood surety for
them, thus they were annoyed with complainant. On 29.08.1996, complainant along
with his son Mohammad Hanif, aged 35 years, brother-in-law Ghulam Mustufa aged
22 years, brother-in-law Ghulam Qadir, nephew Mohammad Sadiq, maternal nephew
Mohammad Suleman, maternal nephew Amir, maternal grand son Aijaz, cousin’s son
Ghulam Mohammad and Feroz all Jatoi by caste resident of village Abdul Rehman
proceeded in a Bus No.P-0439 to village Virch for attending a religious
congregation, when at 06.30pm, they reached near house of Abdul Shakoor Punjab,
all of sudden Miro Ghulam Qadir, Nawab both armed with K.Ks, Mohammad Khan,
Rustam both armed with rifles, Hajan, Dholan armed with rifles and three
unidentified persons with open faces with pistol, who could be identified on
seeing, emerged from an abandoned house situated at Southern side of road and
forcibly got the bus stopped, they pulled all the persons down from the Bus; meanwhile at the instigation of accused Hajan;
accused Nawab caused fire arm injury to Mohammad Hanif, and accused Meero caused firearm injury to Ghulam Mustafa
thereafter, all accused caused straight fire shots Ghulam Qadir, Mohammad
Sadique, Mohammad suleman, Amir and Aijaz and Complainant, all received injuries. Deceased
Mohammad Hanif had his licence pistol, same was taken away by accused Hajan;
thereafter accused persons escaped towards Northern side..
Complainant, Peroz Khan and Gul Mohammad saw that Mohammad Hanif and Ghulam Musutfa , being severely injured, succumbed to the injuries,
whereas Ghiulam Qadir, Mohammad Sadique, Suleman, Amir and Aijaz were also
seriously injured. Ali Mardan, Chakar
and others also attracted on tumult.
03. After usual investigation the accused Nawab
(present appellant), Hajan, Rustam, Dohlan, Mohammad Khan were sent-up for trial while
accused Miro alias Mir Mohammad was declared absconder. Charge was framed
against all the accused persons including the appellant,
they pleaded not guilty and claimed trial. Meanwhile accused Mohammad Khan
expired hence case against him was abated.
04. To substantiate its case, the prosecution
examined PW-1 M.O Dr. Mushtaque Ahmed, who produced inquest reports, postmortem
report of deceased and medical certificates alongwith their reports and X-rays
films; PW-2 complainant Khair Mohammad, who produced FIR. PW-3 Mohammad Suleman,
PW-4 Mohammad Sadiq, PW-5 Tapedar Ghulam Shabbir, who produced sketch of
vardat., PW-6 Ali Mardan, PW-7 Aijaz Ali, who produced his 164 Cr.PC statement,
PW-8 Chakar, PW-9 Mahsir Mohammad Nawaz, who produced mashirnama of injuries,
mashirnama of vardat, danistnama of dead bodies, mashirnama of arrest of
accused Mir Mohammad, mashirnama of
securing blood stained clothes and mashirnama of arrest of accused Mohammad
Khan, PW-10 another mashir Naimatullah, who produced mashirnama of arrest of
accused Nawab, Rustam, Hajan and Dholan, PW-11 second mashir Mohammad Malook
and PW-12 I.O ASI Anwar Ali, PW-13 Amir Bux and finally PW-14 inspector Ali
Hyder, who produced chemical and ballistic reports. Thereafter, prosecution side
was closed.
05. The statements of all accused persons,
including the appellant, were recorded under section 342 Cr.P.C, wherein they
all denied the allegations and professed their innocence. Appellant Nawab had
further stated in his statement that in the year 1995, he had purchased a bus
from Mohammad Hanif for an amount of Rs.475, 000/- out of which he had paid
Rs.238, 000/- to him and had been delivered possession of bus. He had such
documents with himself. Subsequently bus was forcibly taken away from him
through police and since original documents were in name of deceased, thus, complainant
disposed of it. He also examined himself on Oath and examined one defence
witness Haji Samano, as provided under section 340(2), Cr.P.C; however, none of
the other accused persons neither examined themselves on Oath nor led defence.
06. Learned counsel for the appellant
inter alia contended that complainant and the witnesses
did not support each other in respect of distance of place of incident from
house of Abdul Shakoor Punjabi; per Medical Officer all the injured reached in
hospital at 11.00 p.m in night and were referred by Police Post Sangi of Pano Akil, which is at the distance of 10 kms
which proves that no such incident was taken place and complainant and witnesses
deposed falsely due to admitted enmity; there is conflict between medical evidence and
ocular version; PWs have improved their evidence at the time of trial hence
they have lost their credibility; prosecution failed to prove instant case beyond
reasonable shadow of doubt; case against
the appellant was never established by the prosecution as there were material dents in the prosecution case,
which were to be resolved in favour of the appellant but he was not extended
benefit whereof. In support of above contentions, he has relied upon case law Muhammad
Tazeem & others v. The State & others,(2000
YLR 1542). PLD 1982 Peshawer P-25, Muhammad v. The State
(PLD 1979 Karachi P-583), Sobho and 2 others V. The State (PLD 2004
07. Learned APG for the State vehemently
opposed this appeal and further contended that impugned Judgment is speaking
one and does not call for any interference by this Court as the learned trial
Court has rightly convicted and sentenced the appellant. He prayed for the
dismissal of the appeal.
08. Since we are quite conscious of the
fact that no conviction could legally sustain, where direct evidence is
doubtful; because status of the other evidence, being corroborative in nature. Accordingly,
what we have found through scanning of the entire record: prosecution has
examined as many as five witnesses i.e. complainant Khair Mohammad, PWs/Injured
Muhammad Sadiqu, Mohammad Suleman, Ameer Bux and Aijaz to establish the ocular
account, while the PWs Ali Mardan and Chakar, being attracted subsequent to
happening of incident, cannot be termed to be eye-witnesses. After meticulous
examination of the ocular account, it is manifesting that that except PW Aijaz
all other four prosecution witnesses have directly deposed that present
appellant Nawab caused fire arm injury to deceased Mohammad Hanif. The perusal
of evidence of PW Aijaz reflects that he
only named two of the accused persons but did not deny the happening of the
incident, its manner, and injuries received by deceased Muhammad Hanif and
Ghulam Mustafa and witnesses, so claimed
by the prosecution, therefore, mere saying of the witness that he did not
identify other accused persons cannot be taken as sufficient to disbelieve
whole case, when otherwise he sticks with prosecution case nor defence made
this witness to say that remaining accused persons, including appellant, were
not available at place of incident. It is manifest that the evidence of four
out of five eye witnesses carries specific and clear words against the
appellant that it was he who caused fire arm injuries to deceased Mohammad
Hanif; therefore, such direct allegations are undisputedly established through
ocular account.
09. The
complainant is the real father of the deceased Mohammad Hanif, while other
witnesses are closely related to deceased hence this takes away chances of
substitution of murderer of Mohammad Hanif with any innocent person, more
particularly, when defence brought nothing reasonable on record which could
justify that these witnesses (blood-relations) had such a motive on account of
enmity or any other consideration which made them to substitute an innocent
murderer of their blood-relation with an innocent person .It is settled principle
of law that there is no rule having universal
applicability that evidence of a related witness or an interested witness must
be corroborated by ignoring the surrounding circumstances by means of some
independent evidence and statement of such witness can be relied if found
worthy of credence and confidence inspiring. Reference can be made from the
case of Khizar Hayat v. The State (2011 SCMR 429) and case of Hasil Khan v.The State (2012 SCMR 1937). Furthermore, in the
instant case the defence could not brought on record any thing which could
justify that these witnesses of ocular account could have roped the appellant
falsely because of any enmity or other consideration. All the witnesses of
ocular account have categorically named the appellant not only during course of
investigation but also during course of their examination in trial court, thus,
defence counsel is not legally justified to claim any benefit from status of
witnesses being related.
10. As
regard to the plea that co-accused, who were alleged to have caused injuries to
the witnesses have been acquitted by the trial court, thus, their evidence
cannot be relied upon against the appellant. It is manifest that trial court
has not disbelieved the evidence of witnesses, while acquitting co-accused, but
they were acquitted on the ground that witnesses had deposed that the said injuries were sustained
by them in the firing made generally by the remaining accused, and they
themselves had not pinpointed as to at
whose hands they individually sustained the said injuries, therefore they were
acquitted hence in any way it cannot be said that evidence of injured witnesses
is not believable against appellant; however, we are conscious of the fact that
injured witness would not be relied upon ipso facto, because of injuries, but
it is to be examined that whether his evidence is trust worthy and confidence
inspiring; keeping in view such proposition of law we have examined their
evidence, and have drawn inference that evidence of injured witnesses is within
parameters of settled principles of evidence hence their evidence is credible
and reliable.
11.
We are not convinced with the learned counsel for the appellant that since the
witnesses do not support each other in respect of the distance of place of
incident from house of Abdul Shakoor hence their versions should not be
believed. It is also pertinent to mention that such contradictions cannot be
said to be fatal to the prosecution case; it is worth to add here that term “contradiction” used in criminal
administration of justice, means “those conflicts in the evidence of the
witnesses which touching and disturbing the root of the charge”; because
minor contradictions are bound to creep by lapse of time. The witnesses were
subjected to lengthy cross examination but defence could not shatter these
witnesses from their stand that it was the appellant, who caused fire arm
injury to deceased Mohammad Hanif hence prosecution properly established ocular
account and it was rightly believed by the learned trial Court Judge after due
appreciation of evidence.
12. So
for as the Medical evidence, same is in conformity with ocular evidence as the
medical evidence has confirmed that injuries caused to the deceased, were with
fire arm weapon; therefore, in no way, it could be said that medical evidence
is in conflict with that of ocular account. In, addition, the difference
between time of start of post mortem and preparation of mashirnama of dead body,
as pointed out by the learned counsel for the appellant, also not such which
could be allowed to take away the direct evidence. There can be no cavil to
deny that complainant should not suffer for fault of prosecution or mistake of
the I.O in properly noting down the facts while in discharge of his duties and
functions. Reference, if any, required can be given to the case law Ansar
Mehmood v. Abdul Khaliqe & another reported as 2011 SCMR 713. Moreover, if
such discrepancy is allowed to supersede the direct ocular account it would
result in allowing the culprits a safe passage by managing / arranging such
discrepancies which could well be claimed to be protected by prosecution to be
bona fide mistake / errors.
13.
The charge against the appellant is also strengthened from recovery of the
crime weapon viz Kalashnikov along with six live bullets from the house of the
appellant at the pointation of accused/appellant Nawab. Thus it is quite safe
to say that all pieces of evidence i.e. ocular, medical and circumstantial are
in one line and make out a chain of unbroken links, therefore, we are of the
view that the learned trial court judge has not committed any illegality in
recording the judgment impugned, who even, properly has given the benefit of mitigating
circumstance to appellant by awarding life imprisonment.
14.
The upshot of above discussion is that, prosecution has proved its case beyond
reasonable shadow of doubt, consequently the appeal having no force is
dismissed and the conviction recorded by the trial court is maintained.
JUDGE
JUDGE