HIGH COURT
OF SINDH AT KARACHI
Criminal Jail Appeal No.235
of 2010
Confirmation Case No.04/2010
(Karachi)
Present: Mr. Justice Sajjad Ali Shah
Mr. Justice Naimatullah
Phulpoto
Appellant: Muhammad Iqbal Makrani through Mr. A.Q Halepota,
Advocate.
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Respondent: The
State through Mr. Ali Haider Saleem, A.P.G
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Date of
hearing: 10.04.2013
Date of
Judgment: April 23rd
2013
J U D G M E
N T
NAIMATULLAH PHULPOTO, J- Appellant Mohammad Iqbal was tried by
learned Additional Sessions Judge Tando Adam in
S.C.No.174/2009. He was found guilty and convicted vide judgment dated
21.12.2009 under Section 302(b) PPC and sentenced to
death. Appellant was also directed to pay Rs.2,00,000/-as
compensation u/s 544-A Cr.P.C to the legal heirs of deceased. Reference for
confirmation of death sentence was made to this Court. This judgment will
dispose of above appeal and confirmation case, as the same arise out of a
common judgment.
2. Brief
facts of the prosecution case, as disclosed in the FIR are that on 10.10.2005
at 0130 hours, complainant Mohammad Khan Khaskheli
lodged his report alleging therein that he is a Tailor Master. One day prior to
the lodging of the FIR in the evening time, there was a quarrel between his
brother Qurban Ali (now deceased) and appellant Iqbal
over the matter of the parking of a Chingchi/Rickshaw
in front of shop of accused. It is alleged that appellant Iqbal issued threats
to Qurban Ali. On 09.10.2005 at 10:00 p.m. complainant along with his brother Mumtaz Ali, nephew Ghulam
Hussain were standing near Hira Hospital. It
is stated that Qurban Ali, brother of the complainant
was standing on the other side of the road near Hospital in the street. It is
alleged that appellant Mohammad Iqbal, carrying dagger in his hand appeared and
challenged Qurban Ali while saying that as to why he
had abused him and declared that he would not be spared, thereafter, it is
alleged that appellant Iqbal gave dagger blows to Qurban Ali, who fell down.
Complainant party raised cries. Appellant while seeing the complainant, coming
nearer to him ran away to the Northern side. Complainant and P.Ws saw that
Qurban Ali had sustained dagger blows at the left side of his stomach. Qurban Ali on the way to the Tando
Adam Hospital died. Complainant gave such information on the telephone to the
concerned police. Police arrived at hospital and after postmortem examination, the dead body was handed over to the
complainant. After registration of the FIR, its copy was handed over to
Inspector Mohammad Hassan Malah P.S Tando Adam for investigation. I.O visited the place of wardat, it was shown to him by complainant situated near his
house in the street. I.O collected blood stained earth from place of vardat in presence of mashirs, sealed it, recorded 161
Cr.P.C statements of P.Ws Ghulam Hussain and Mumtaz Ali. On 10.10.2005 PC Ghulam
Qadir produced blood stained clothes of the deceased
to the I.O. He prepared such mashirnama in presence of the mashirs. On
12.10.2005, he arrested appellant/accused Mohammad Iqbal from Bhitai Nagar Bus stop in presence of mashirs Gul Hassan and
Ali Nawaz. On 15.10.2005, during interrogation appellant admitted his guilt and
prepared to produce crime weapon viz dagger, which he
had hidden under the ground at abandoned godown. I.O
on the pointation of the accused, secured it in
presence of mashirs and prepared such mashirnama and sealed it. Thereafter,
blood stained earth, clothes of the deceased and dagger were sent to the
Chemical Examiner for analysis and report.
3. On
the completion of the usual investigation, Challan was submitted against
accused under Section 302 PPC. Case was sent up to the Court of Sessions.
Learned Additional Sessions Judge, Tando Adam framed
the Charge against the appellant under Section 302 PPC. Appellant pleaded not
guilty to the charge and claimed to be tried.
4. In
order to prove its case, prosecution examined the witnesses i.e. P.W-1 Tapedar Manglio Mal, P.W-2
complainant Mohammad Khan, P.W-3 mashir Ali Nawaz, P.W-4 Dr. Mohammad Ashraf Legahri, P.W-5 Ghulam Hussain,
P.W-6 SIP Dur Mohammad, P.W-7 Inspector Haji Mohammad
Hassan Malah Investigating officer. Thereafter,
prosecution side was closed.
5. Statement
of appellant/accused was recorded under Section 342 Cr.P.C, in which appellant
has denied the prosecution allegations. It is stated that he had not committed murder
of deceased Qurban Ali and he had no quarrel with
deceased over the parking of Chingchi. He has stated
that he was not arrested on 12.10.2005, but he was produced by his relative Lal Muhammad before police two days after lodging of the
FIR. He has further stated that dagger has been foisted upon him. P.Ws are interested, hostile and inimical to him. In reply to the
question what else he has to say? He
replied that he is innocent and he has been falsely implicated in this case by
the complainant due to enmity. P.W Mumtaz Ali, brother of deceased Qurban
Ali had so many enemies. P.W Mumtaz Ali has criminal
record and deceased was murdered in misunderstanding. However, appellant/accused
did not examine himself on oath in disproof of prosecution allegations and no
evidence in defence was produced. On the conclusion of the prosecution
evidence, learned trial court assessed the evidence, convicted and sentenced
the appellant as stated above.
6. Mr.
A.Q.Halepota learned Advocate for the appellant
contended that prosecution story is highly unnatural and unbelievable. It was
night time incident. There was no electricity. P.Ws are
setup in this case. PW Ghulam Hussain was residing in
a village at the time of incident. P.W Mumtaz is
involved in a number of cases. He had close resemblance in the features to the
deceased and deceased has been murdered by his enemies in mistake. Mr. Halepota
has argued that eye witnesses have not given the probable cause of their
presence in the street at the odd hours of the night. It is also argued that
incident had taken place at 10:00 pm. According to the Medical Officer, stomach
of the deceased was empty. According to Mr. Halepota food takes about 6 hours
in digestion and deceased had taken meal at 8:00/8:30 pm as per evidence of prosecution
witness. Medical evidence is contradictory to the ocular evidence. He has
further argued that in the mashirnama of recovery of dagger it is not mentioned
that it was blood stained and possibility that the crime weapon has been
foisted upon the accused could not be ruled out. Lastly, it is contended that
recovery of dagger was in violation of section 103 Cr.PC. In support of his
contentions he has relied upon the cases reported as:
1.
Muhammad Akram
Vs. The State (2009 SCMR 230)
2.
Khurshid Ahmad Vs. Kabool Ahmad and
Others (PLD 1964 (W.P) Karachi 356)
3.
Abdul Sattar and others Vs the State
(2002 PCr.LJ 51)
4.
Muhammad Amir
alias Muskhi & 3 others Vs. the State (PLD 1977
Karachi 695)
5.
Ata Muhammad and another Vs. The State (1995 SCMR 599)
6.
Nawab and another
vs. The State (1979 PCrLJ 736)
7.
Piaremian versus the State (1978 PCr.LJ
369)
8.
Muhammad Afzal alias Abdullah and others Vs. The State and others
(2009 SCMR 436)
9.
Wahid Bux Versus the State (PLD 1963 (W.P) Karachi 837)
10.
Khan versus The
Crown (PLD 1955 Sind 65)
11.
Ahmad and another
versus The State (1977 PCr.LJ 662)
12.
Lalan and 2 others Versus The State (1976 PCrLJ 52)
13.
Rasool Bux and another versus The
State (1980 SCMR 225)
14.
Charan Singh and others Versus State of Punjab (AIR 1975
Supreme Court 246 – 1974 CRI. L. J. 1253)
15.
Makhan and 3 others Versus the State (PLD 1977 Lahore 722)
16.
Ibrahim and
another Versus the State (PLD 1969 Karachi 33)
17.
Mehr Ali and others versus The State (1968 SCMR 161)
18.
Muhammad Sadiq versus Muhammad Sarwar and
2 others (1979 SCMR 214)
19.
Nazir Muhammad alias Nazir Ahmed
versus The State (PLD 1974 Karachi 274)
7. In
the case of Muhammad Akram 2009 SCMR 230 (supra)
it has been observed as under:
“The nutshell of the whole discussion is that the
prosecution case is not free from doubt. It is an axiomatic principle of law
that in case of doubt, the benefit thereof must accrue in favour
of the accused as matter of right and not of grace.”
8. In the case of Khurshid Ahmad (Supra) it has been held as under:
“There
is also on record the evidence of Yasin Rajput PW.8,
who is a member of the Shahpur Chakar
Union Council and who on coming to the scene that evening learnt from the
complainant Khurshid as well as the other Khurshid P.W.11 that the respondents were responsible for
the attack made upon them. But, as neither the complainant nor Khurshid Ahmed P.W. 11 were asked
when giving evidence as to whether they had at all met or spoken to Yasin that evening the evidence of P.W. Yasin
as to who were responsible for this attack on the complainant party is clearly
inadmissible in law.”
9. In the
case of Abdul Sattar (2002 PCrLJ
51) supra, it has been held as
under:-
“Admittedly, in neither of the cases in hand Roznamcha
entry was produced by the prosecution in order to prove that the police, in
fact, proceeded to the place of scene to recover the alleged weapon. This lapse
on the part of prosecution has cut the root of the case of prosecution, thus,
rendering the entire episode shrouded by doubt. This fact by itself was enough
to disbelieve the prosecution version.”
10. In
case of Muhammad Amir alias Mushki supra it has been observed as under:
“Contents of a mashirnama,
do not constitute substantive evidence”
11. In
the case of Ata Muhammad supra, it
has been observed by the Honourable Supreme Court of Pakistan as under:-
“The ocular evidence may be classified into three
categories—firstly, wholly reliable; secondly wholly unreliable; and thirdly,
partly reliable and partly unreliable. In the first category conviction may
safely be sustained on uncorroborated testimony. In the second category, even
strongest corroborative evidence may not rehabilitate such evidence. In the
third category, conviction cannot be recorded unless such evidence is
corroborated by oral or circumstantial evidence coming from distinct source. In
the instant and the deceased suffered one fire-arm injury and Khizara suffered three fire-arm wounds caused by 12 bore
gun. The possibility of three entry wounds caused by one shot from 12 bore gun
is very much there. The number of the injuries of the deceased and the P.W.
does not commensurate with the number of the accused named by the eye
witnesses. In view of the aforesaid infirmities in the ocular evidence we feel
that in the instant case the testimony of the eye witnesses falls within third
category.”
12. In
the case of Nawab and another supra, it
has been held as under:
“Although the appellants may have had a dispute over
land with the deceased, as alleged by the first informant and Mst. Alam Khatoon, were motive,
howsoever strong, cannot provide corroboration to other pieces of evidence
which are themselves infirm and not worthy of credence.”
13. In the case of
Piaremian supra,
it has been held as under:
“In our opinion the discovery of revolver cannot be
considered voluntary because it was after three days of the commission of
offence that the revolver was discovered.”
14. In
the case of Muhammad Afzal alis Abdullah supra,
it has been observed by the Honourable Supreme Court of Pakistan as under:
“12. After
taking out from consideration the ocular evidence, the evidence of
identification and the medical evidence, we are left with the evidence of
recoveries only, which being purely corroboratory in nature, in our view, alone
is not capable to bring home charge against the appellant in the absence of any
direct evidence because it is well settled that unless direct or substantive
evidence is available conviction cannot be recorded on the basis of any other
type of evidence, howsoever, convincing it may be.”
15. In
the case of Wahid Bux PLD 1963 (W.P) Karachi 837, supra, it has been held as under:
“In my opinion, be necessary for the purpose of
deciding a to whether the statements the witnesses
made in the committal Court were true or whether the statements they were
making in the Sessions Court were false. In the event of there being admittedly
no evidence in corroboration it will be unsafe to base the conviction solely on
the statements brought on record under section 288 Cr.PC.
16. In the case of
Nazir Muhammad alias Nazir
Ahmed, supra, it has been held as
under:
“All the above circumstances create genuine doubts
regarding the truth of the prosecution evidence which apart from being
contradictory and being inherently incredible is also belied by the medical
evidence as well as P.W. Jumo, mashir of the vardat, who is
none else than the son of Shahbazi, the owner of the
kiln where the prosecution witnesses worked and it would be extremely unsafe to
place reliance thereon on capital charge.
17. In
the case of Muhammad Sadiq (PLD 1973 SC 469), supra, it has been held as under:
“As the recovery of the gun was made in brazen
disregard of the mandatory provisions of the law, the recovery is of no
evidentiary value whatsoever, therefore, it is not necessary to examine the
other infirmities about this recovery on which the learned counsel for the
accused relied and it is sufficient to observe that far from supporting the
ocular evidence, this strange recovery cast doubt on the prosecution case,
because to say the least, the investigation was conducted in a most deplorable
manner.”
18. In the case of
Mehr Ali and others (1968 SCMR 161), supra, it has been held as under:
“The omission
to indicate on the plan where Haku and Patti the
alleged eye-witnesses were, when the shooting took place, thus gains
significance and reflects on the possibility that Haku
and Patti were not there at all when the shooting took place.”
19. In
the case of Ibrahim and another (PLD 1969 Karachi 33), supra, it has been held as under:
“There was no quarrel with that proposition, but in
view of the peculiar facts of this case we relied on the medical evidence only
as an additional circumstance, because admittedly our conclusion in regard to
the time of death of the deceased was supported by other evidence.”
20. In
the case of Makhan and 3 others (PLD 1977 Lahore 722),
supra, it has been held as under:
“The corroboration need not be any recovery of
incriminating article from the accused but the circumstances of the case which
may satisfy the mind of the Court that witnesses have spoken the truth may be
taken as a corroboration of the interested and partisan evidence.”
21. In
the case of Charan Singh and others (AIR 1975 Supreme
Court 246), supra, it has been observed
by the Indian Supreme Court as under:
“Normally a vegetable diet containing mostly
farinaceous food as usually taken by an Indian does not leave the stomach
completely empty within six to seven hours after its ingestion.”
22. In
the case of Rasool Bux and
another (1980 SCMR 225), supra, it
has been Supreme Court as under:
“Now no doubt it might sometimes be difficult for the
police to obtain independent witnesses as mashirs
but if so, it is for the prosecution to explain how it could not obtain an
independent witness as a mashir, and,
in the instant case, neither of the Investigation Officers have explained why
they were not able to find at least one independent person as a mashir.”
23. In
the case of Lalan and 2 others (1976 PCrLJ 52), supra,
it has been held as under:
“On a capital charge, where the ocular evidence
requires corroboration, it would, in my humble opinion, not be safe to rely on
the evidence of a mashir, who was
closely related to the party of the complainant; accordingly this appellant
also has to be given the benefit of doubt.”
24. In
the case of Ahmad and another (1977 PCrLJ 662), supra, it has been held as under:
“As the evidence of the eye witnesses in the case is
not of a type which could inspire confidence, and reliance on the same for the
purpose of conviction was unsafe, it was necessary to seek some independent
corroboration. In the circumstances of this case no independent corroboration
is available and corroborative evidence coming from a source which obviously
was not of such a nature, cannot again be safely relied upon. The case against
the appellants is not proved beyond reasonable doubt and the appellants are,
therefore, entitled to benefit of doubt.”
25. In
the case of Khan (PLD 1955 Sind 65), supra,
it has been held as under:
“If then in such cases a statement is made to the
police, by an accused in custody that he has concealed or kept the property in
such and such a place and then the property is so found, then that statement
would become admissible and provide unambiguous evidence. The formal and
ambiguous word “produce” is commonly used in such mashirnamas
without any amplification or explanatory details.”
26. Mr.
Ali Haider Saleem, A.P.G. argued that prosecution has
examined two eye witnesses of incident. They were natural witnesses of the
incident. Incident had occurred in front of the house of the complainant in the
street. Incident had occurred at 10:00 p.m., it was not odd hour of the night.
Appellant was not stranger to the eye witnesses and belonged to same Mohallah. Eye witnesses had no difficulty to identify him.
He has further argued that prior to the commission of the offence there was
quarrel between the deceased and the accused over the parking of Chingchi Rickshaw in front of the shop of appellant. He has
further argued that medical evidence corroborates the ocular evidence.
Contradiction regarding digestion of food as highlighted by defence counsel is
no contradiction as digestion of the food depends upon the digestive system of
every individual. He has further argued that blood stained dagger was also
produced by the appellant and report of chemical examiner was positive. All the
pieces of the evidence have been properly appreciated by the trial court and he
has supported the impugned judgment. In support of his contentions he has
relied upon the following reported cases
1.
Ch. Muhammad Yaqoob and others Versus The State and others (1992 SCMR
1983)
2.
Sh. Muhammad Amjad versus The State (PLD 2003 Supreme Court 704)
3.
Anwar Shamim and another Versus The State (2010 SCMR 1791)
4.
Zakir Khan and others versus The State (1995 SCMR 1793)
27. In
the case of Ch. Muhammad Yaqoob and others (1992 SCMR
1983), supra, it has been observed by
the Honourable Supreme Court as under:
“The Court is to sift grain from chaff and, therefore,
any contradiction or improvement or any other factor which may adversely
reflect on the credibility of a witness, would not be by itself sufficient to
reject the testimony as a whole of such a witness. The Court can rely upon a
portion of the testimony of such a witness, if it is corroborated by other
reliable evidence or circumstances”.
28. In
the case of Sh. Muhammad Amjad (PLD 2003 Supreme
Court 704), supra, it has been
observed by the Honourable Supreme Court as under:
“Further, it is
noted that as per Article 40, corresponding to section 27 of the Evidence Act,
when any fact is revealed in consequence of information received from any
accused in custody of a police officer, such information whether it amounts to
a confession or not as it relates distinctly to the fact thereby discovered,
may be proved. The information supplied by the appellant, under Article 40
ibid, relating to incriminatory articles is admissible.”
29. In
the case of Anwar Shamim and another (2010 SCMR
1791), supra, it has been observed by
the Honourable Supreme Court as under:
“It is a settled principle of law that mere
relationship between the witnesses and the deceased is not enough to discard
their evidence. It is duty and obligation of the court for requiring
corroboration of interested witnesses then it must first ascertain whether he
saw the occurrence and was in a position to identify the accused and whether he
should be believed without corroboration. The witnesses have faced lengthy
cross-examination but their veracity cannot be shaken by the defence counsel.
Both the courts below have come to the conclusion that their statements are of
such a nature that their testimony must be given due weight and were believed.
It is also settled law that if court is satisfied about the truthfulness of
direct evidence then the requirement of corroborative evidence is not of much
significance. Corroboration is not a rule of law but is that of prudence.”
30. In
the case of Zakir Khan and other (1995 SCMR 1793), supra, it has been observed by the
Honourable Supreme Court as under:
“However, the rule laid down by this Court in respect
of the evidence of interested witnesses is only a rule of caution. No doubt,
judicial authorities are replete with instances where a more cautious approach
was preferred by the Court while dealing evidence of a partisan witness but
support in such case may be sought from other independent evidence. The same
would nevertheless depend upon the circumstances of each case. However, mere
relationship of a prosecution witness to the complainant or other prosecution
witness cannot render his evidence unreliable unless it is established that he
had motive to implicate the accused falsely in the case. Nothing can be spelt
out from the evidence of the accused falsely.
From the perusal of prosecution
evidence it appears that complainant Mohammad Khan has deposed that on
09.10.2005 at 10:00 pm, he along with P.Ws. Mumtaz
Ali and Ghulam Hussain were standing. Qurban Ali was
also standing at opposite side at the distance of 30 to 35 feet. Appellant
Iqbal appeared with dagger in his hand and moved towards his brother Qurban
Ali. Appellant Iqbal challenged Qurban Ali that he would not be spared on
account of parking of Chingchi in front of his shop
of Refrigerators. Complainant has stated that two daggers blows were inflicted
by appellant Mohammad Iqbal to his brother. He asked appellant not to kill his
brother but appellant ran away. Complainant and witnesses found that one dagger
blow was received by Qurban Ali at his left lumber region and another blow on
his head and his brother went unconscious. Complainant took the injured brother
with the help of PWs Mumtaz Ali and Ghulam Hussain to the Hospital, but Doctor declared him as
dead. Complainant gave information on phone to the P.S Tando
Adam. Police immediately arrived and handed over the dead body to the Doctor
for postmortem examination. Leaving dead body of his brother complainant went
to police station on 10.10.2005 at about 01:30 or 02:00 a.m., lodged F.I.R.
against accused and produced at Ex-8/A. In the cross-examination complainant
has stated that place of wardat is surrounded by houses and shops. He along
with P.Ws and deceased reside in one and same house. Deceased had taken night
meal at 8:00 or 8:30 pm. He has denied the suggestion that there was close resemblance
of the features of the Mumtaz Ali with deceased
Qurban Ali. Complainant had shown ignorance that P.W Mumtaz
Ali had received threats on account of criminal history. He has denied suggestion
that some unknown persons had committed murder of Qurban Ali as they wanted to
kill P.W Mumtaz. He has denied the suggestion that he
was deposing falsely as deceased was his brother.
31. PW-Ghulam Hussain has stated that on 09.10.2005, he alongwith complainant and PW Mumtaz
were standing near Hira Medical Centre, while
deceased Qurban was standing at the road at the
distance of 30 to 35 feet from the Hira Medical
Centre. It was 9:30 p.m. when appellant Iqbal attacked upon him while saying
that he has exchanged hot words with him in the evening and declared that he
would not be spared, while saying so, he has stated that the appellant
inflicted dagger blow, which hit him at left lumber region, he raised cries and
fell down, appellant made escape good alongwith
dagger. He alongwith complainant and PW Mumtaz shifted the injured to the hospital, but the
deceased died. In cross-examination, he has replied that the place of wardat is
surrounded by medical stores and Hira Medical Centre,
which remained opened round the clock, however, he has denied the suggestion
that PW Mumtaz is a criminal person, but admitted
that cases were registered against him, in which he is facing trial. He has
also admitted that Qurban and Mumtaz
are brothers inter se and their features resemble. He has denied the suggestion
that he was not present at the time of incident and denied for deposing falsely
in this case.
32. PW-Ali
Nawaz has stated that on 09.10.2005, he was made as mashir of the inspection of
dead body of deceased Qurban Ali at Taluqa Hospital, Tando Adam by Tando Adam police. Clothes of the deceased were blood
stained. Mashirnama of the inspection of dead body was prepared in his presence
and co-mashir was Gul Hassan. He has further stated that I.O. collected clothes
of deceased in the hospital in his presence, he was made as mashir of blood stained clothes, co-mashir was
same. He has stated that I.O. inspected the place of wardat in his presence,
which was shown by the complainant, situated near Hira
Hospital in the street leading to the house of the complainant. Blood stained
earth was collected and sealed, mashirnama of the place of wardat was prepared,
he acted as mashir, co-mashir was same. He stated that
appellant/accused Mohammad Iqbal son of Abdul Haq Makrani was arrested on 12.10.2005 at Bhittai
Nagar Bus stop, Tando Adam and his personal search was conducted, nothing was recovered, mashirnama of arrest
was prepared, he acted as mashir, co-mashir was same. He has deposed that on
15.10.2005, appellant lead police and mashirs
to a wall of godown near Railway Station, Tando Adam, where he had concealed blood stained dagger and
produced the same to the I.O. in presence of mashirs, such mashirnama
was prepared. He has stated that he acted as mashir, while co-mashir
was same. In cross-examination, mashir
Ali Nawaz has admitted that complainant is his maternal cousin. He has also
admitted that place of recovery of the weapon is surrounded by houses and godowns and persons of the area had gathered at the time of
recovery. However, he has denied the suggestion that he had signed the
mashirnama at police station. He has also denied the suggestion for deposing
falsely against the appellant at the instance of the complainant.
33. Manglio Mal, Tapedar, Tando Adam has deposited that he had prepared a sketch of the
place of wardat of this case. Place
of wardat was shown to him by the
complainant Mohammad Khan. He has deposed that he had taken the measurement of
the relevant points, prepared such sketch and produced the same in evidence as
Ex.6/A. In cross-examination he has admitted that place of wardat is situated
on the road, which leads to the town and the same is surrounded by so many
shops and Hira Medical Centre.
34. Dr.
Mohammad Ashraf Leghari, Medical Officer has
deposited that on 09.10.2005 at 10:20 p.m, he
received dead body of a male, aged about 26 years, through SHO, PS Tando Adam for conducting postmortem examination of the
deceased. He started postmortem at 11:40 p.m. and
finished at 1:30 a.m. On external examination of the dead body, Medical Officer
found the following injuries:-
One stab wound
03.05 c.m. x 1 c.m. x
cavity deep on left axillary region of chest at the level of 07th
and 9th rib. The second injury was lacerated wound 0.2 c.m. x 0.4 c.m. x scalp deep on
left parieto frontal region.
On internal examination, Medical
Officer found the following injuries: -
Left pleura,
left lung, left ventricle of the heart are punctured. Thoracic cavity is full
of blood. Right lung and right pleura are healthy. Stomach contained digestive
secretions, other organs were healthy.
In the opinion of the
Medical Officer, cause of death was hemorrhage and shock due to punctured wound
of heart, caused by sharp cutting weapon like dagger. Injury No.1 was
sufficient to cause death of the deceased.
Evidence of the Medical Officer goes
unchallenged and unrebutted in the cross-examination.
35. Haji
Mohammad Hassan Mallah, I.O. of the case has stated
that on 10.10.2005, he had received copy of the F.I.R. of this case for
investigation purpose alongwith inquest report of
deceased Qurban Ali. He went to the house of the
complainant situated near Rajput street, near Hira Hospital, Tando Adam. He has
deposed that on the pointation of complainant he inspected the place of wardat. He collected bloodstained earth
from the place of wardat and sealed
the same in presence of mashirs Gul
Hassan and Ali Nawaz and prepared such mashirnama. He also recorded 161 Cr.P.C.
statements of PWs Ghulam Hussain and Mumtaz Ali on the same day. On 10.10.2005, PC Ghulam Qadir produced clothes of
the deceased before him, the same were blood stained. He prepared the mashirnama in presence of same mashirs.
He deposed that on 12.10.2005, he arrested the appellant Mohammad Iqbal from Bhittai Nagar bus stop in presence of mashirs Gul Hassan
and Ali Nawaz and prepared such mashirnama. On 15.10.2005, during
interrogation, accused/appellant admitted the guilt and volunteered to produce crime
weapon, concealed by him under the ground at godown.
He has stated that he called mashirs
and proceeded to the pointed place by making such entry in the record.
Appellant led the police to old godown from where by
digging the earth appellant recovered the dagger used by him in the commission
of offence. He prepared mashirnama of
the recovery of dagger in presence of mashirs
and sealed the same. He has stated that blood stained earth, clothes of the
deceased and dagger produced by the accused, were sent by him to the Chemical
Examiner for examination and report. On the conclusion of the investigation he
submitted challan against the appellant. In cross-examination, I.O. has
admitted that place of wardat is
situated near Hira Medical Centre and Rajput Street
is a common street. He has denied suggestion that no blood stained earth was collected
from the place of wardat. He has also
denied the suggestions that dagger was not produced by the accused and the
investigation was not carried by him fairly.
36. We have
carefully examined / scrutinized prosecution case based upon ocular testimony
furnished by complainant Muhammad Khan and P.W. Ghulam
Hussain. Evidence of both eyewitnesses is trustworthy and reliable. Complainant
has highlighted each and every aspect of the case. Presence of the complainant
at place of incident was natural as incident had occurred outside of his house
in the street. Another eyewitness namely Ghulam
Hussain has also given probable cause of his presence in the street at the time
of incident. He is closely related to complainant. It was not strange that he came
from village Khaskheli to meet complainant. There is
no legal force in the contention of the learned defence counsel that it was
night time incident and source of identification has not been disclosed. It is
the matter of the record that appellant is neighbourer
of complainant, the manner in which they have given the evidence, we believe
that eye witnesses had no difficulty to identify accused at the time of incident.
Complainant and P.W. Ghulam Hussain had no previous
enmity or motive to falsely implicate the appellant in this case. Therefore, we
see no reason to disbelieve such strong ocular evidence. Prosecution has also
succeeded to prove the motive against the appellant for commission of the
offence. Prior to the incident, there was quarrel between the deceased and
appellant over parking of rickshaw/chingchi. Evidence
of the prosecution witnesses on the point of motive is fully established. Both
the eyewitnesses have categorically deposed that appellant caused dagger blows
to the deceased, which resulted in his death. Ocular evidence is corroborated
by medical evidence on all material points. As regards to the contention of the
learned defence counsel that medical evidence is contradictory to the ocular
evidence as PW Muhammad Khan has stated that deceased had taken night meals on
at 08:00 p.m. or 08:30 p.m. and Medical Officer in the postmortem report has mentioned
that stomach of deceased contained digestive secretions and large and small
intestine were found empty. Deceased was a young person and digestive system of
every person varies. Medical evidence can only establish the type of weapon
used, seat of injuries and nature of injuries. Medical evidence has been
produced by prosecution in support of ocular evidence. Variations of such
nature as highlighted by Mr. Halepota, learned
counsel for the appellant would not be fatal for the prosecution case for the
reasons that in this case ocular evidence is coherent and trustworthy. Medical
evidence will not over weigh such confidence inspiring evidence. Even
otherwise, complainant has not stated whether deceased had taken vegetable diet
or meat. Reliance can be placed upon the case of Sarfraz
alias Sappi and 2 others versus the State (2000 SCMR 1758), relevant
portion is reproduced as under:
“Here we also invoke another
principle of law namely that medical and expert evidence is produced in support
of ocular evidence by the prosecution in the criminal trial or in other words
it can be said that such evidence is termed to be of confirmatory nature.
Therefore, if there is any variation both in ocular and medical evidence the
latter will not overweigh the former type of evidence if otherwise it is
coherent and trustworthy. Reliance in support of this principle is placed on
the case of Muhammad Hanif v. The State (PLD 1993 SC
895)”
Therefore such
contention is without any legal force. Another contention of learned defence
counsel that prosecution witnesses are related inter se is also no ground to rejected
their testimony. It is settled principle of law that mere relationship between
the witnesses and the deceased is not enough to discard their evidence. Both
the eye witnesses were subjected to lengthy cross-examination but nothing favourable to the appellant
came on record. This Court is satisfied about the truthfulness of direct
evidence, furnished by two eyewitnesses who had no motive to falsely implicate
the appellant, residing in same area. Moreover, ocular evidence is corroborated
by medical evidence, motive and recovery of the dagger from an abandoned place,
which was in exclusive knowledge of the appellant. Recovery of dagger during
police custody within 03 days of his arrest on the information of appellant/accused
is admissible in evidence as per Article 40 of the Quanun-e-Shahadat Order 1984 as held in the case of Sh. Muhammad Amjad
versus the State (PLD 2003 Supreme Court 704):
“Further, it is noted that as per Article 40,
corresponding to section 27 of the Evidence Act, when any fact is revealed in
consequence of information received from any accused in custody of a police
officer, such information whether it amounts to a confession or not as it
relates distinctly to the fact thereby discovered, may be proved. The
information supplied by the appellant, under Article 40 ibid, relating to
incriminatory articles is admissible.”
The report
of the Medical Examiner with regard to the bloodstained dagger is also
positive. Contradictions as highlighted by learned defence counsel in
prosecution evidence are of minor in nature, the same are bound to occur after
lapse of time. Such minor contradictions would not be fatal to the prosecution
case. Mr. Halepota again and again argued that after
the incident complainant gave information of the incident to the concerned
police, but such entry has not been produced in the evidence. From the scrutiny
of the evidence, it transpires that learned defence counsel did not ask
question regarding such roznamcha from the I.O. nor
insisted for production of such entry before the trial Court. Complainant has
produced F.I.R. in the evidence. He has been cross-examined at length, but his
veracity could not be shaken by defence counsel. Case law relied upon by the
A.P.G. is quite applicable to the circumstances of the case.
37. We, therefore, hold that prosecution has
proved its case against the appellant beyond any shadow of doubt and learned
trial Court has rightly appreciated the evidence. Honourable apex Court has
time and again observed that if charge of qatl-e-amd is proved against the culprit normal penalty of the
death should be awarded and leniency in any case should not be shown except
where strong mitigating circumstances for lesser sentence are brought on
record. Reliance can be placed upon case
of Miss
Najiba and another versus Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988) in which honourable Supreme Court of Pakistan was pleased to observe
that when in the case involving capital punishment prosecution proves its case,
Court is duty bound to impose deterrent punishment to make evil doers an
example. Relevant observations are reproduced as under:
“10. It is obvious from the above cited case law
that it has been consistently held that when prosecution proves its case beyond
any doubt then it is the legal duty of the Court to impose deterrent punishment
on the offenders to make the evil doers an example and a warning to the
likeminded people. Despite the fact that the crime is increasing in the society
yet the Courts normally avoid to award normal penalty of death in offences
punishable with death which amounts to gross miscarriage of justice whereas the
Courts are duty bound to do complete justice with both the parties. It has been
observed with great concern that whenever people fail to get due justice from
the Court of law, they resort to take the law in their own hands to settle
their matters themselves. Such a situation is very alarming and it is the need
of the hour that the Courts should hold the scale of justice even in
dispensation of justice to the parties. In offences punishable with death, the
normal penalty prescribed by law is death sentence, however, in cases where
there are mitigating or extenuating circumstances warranting lesser punishment,
the Courts while awarding lesser punishment have to record reasons justifying
the same. In the present case so far as question of sentence is concerned, both
the trial Court and the High Court have failed to record reasons for awarding
lesser punishment to the respondents, who committed preplanned triple murder in
a very brutal and gruesome manner and buried the dead bodies in the houses,
where they were killed. Till the time of disclosure of murders by the
respondents themselves in their confessional statements, it was not known to
anybody that they had killed three persons namely, Engineer Fahim,
Mst. Kishwar Kamal alias Laila and Syed Faqir and their
dead bodies had been buried in the houses, which were recovered at their
instance from the places specified in the confessions, in presence of the
Magistrates. Keeping in view the findings of both the Courts below that the
prosecution has proved its cases against the respondents beyond any shadow of
doubt, they did not deserve any leniency in sentence in premeditated cruel
triple murder.”
This is a
case of preplanned and pre-mediated cruel murder, no
mitigating circumstances have been pointed out. Authorities relied upon by Mr.
A.Q. Halepota, learned defence counsel are quite
distinguishable from the facts and circumstances of this case.
38. In our considered view, circumstances of
the case disentitle appellant Muhammad Iqbal to any leniency in the sentence. We
are duty bound to do complete justice with both parties. Appellant, therefore,
deserves normal penalty of death which has been rightly awarded to him by
learned trial Court. We, therefore, for the above said reasons while relying
upon the case law cited by learned A.P.G. maintain conviction and sentence awarded to appellant and confirm the death sentence
awarded to him. Reference made by learned trial Court is answered in
affirmative and appeal is dismissed.
JUDGE
JUDGE
Gulsher/PA