IN THE
HIGH COURT OF SINDH AT KARACHI
CR. JAIL APPEAL NO.122/2010
MR.
JUSTICE SALAHUDDIN PANHWAR
Appellant : Muhammad Saleem Arain,
through Mrs. Abida
Parveen Channer, advocate.
Respondent : the
State,
through Ms. Rahat Ahsan, DPG.
Date
of hearing : 12.11.2013.
SALAHUDDIN PANHWAR J.
By the dint of this judgment
we intend to decide instant Jail Appeal and Reference under section 374 Cr.P.C,
for confirmation of death sentence, filed by the trial Court. Through judgment
dated 02nd February 2010, passed in Sessions Case No.54/2005 (Re:
the State vs. Muhammad Saleem), by Sessions Judge, Thatta, appellant was convicted
under section 302(b) PPC and sentenced to suffer death penalty and further
appellant was convicted and sentenced under section 324 PPC to suffer penal
servitude for seven years and fine of Rs.100,000/-,
with benefit of section 382-B C.P.C.
2.
Succinctly, but relevant facts as set out
in prosecution case are that complainant,
reported to police on 13.04.2005 at 2145 hours, that there had been a dispute
over payment of Rs.350,000/- liable to be paid by the accused Muhammad Saleem
to Seth Iqbal Akbar (a commission agent of fruits market, Subzi Mandi Karachi)
the employer of the complainant in connection with the dealing of fruits made
by the accused with him and despite repeated demands, the accused had failed to
clear the said dues; on 12.04.2005; Iqbal Akbar visited the accused at his
place and demanded the said amount but the accused paid nothing; lastly on the
day of the incident i.e. 13.04.2005, in early hours of the day, the complainant
having failed in the negotiations with the accused, approached Choudhri Arshad,
nek mard of the area, to act as an arbitrator, and thus both the parties sat
together before the arbitrator and reached on a decision over the dispute
referred to above, in the manner that the complainant party purchased the
tractor of the accused against Rs.100,000/- out of outstanding amount of
Rs.350,000/- and remaining outstanding amount of Rs.250,000/- was agreed to be
paid by the accused to the said Iqbal Akbar in the ensuing month of the Ramadan
of the year; the said decision was reduced to writing under signatures of the
parties and that of the arbitrator; both the parties left the arbitrator and
his place for the house of the accused at his instance; for receiving the
original papers of the tractor and parties reached the said place together; the
complainant party consisting of the complainant, Iqbal Akbar, Ziarat, Jawad Ali
and Sher Yar, parked their vehicle in
front of the house of the accused while the accused went inside the house and
brought his NIC copy; on the objection of the seth Iqbal Akbar that the said
copy of the NIC was of no use to him, the accused again went into the house,
and the complainant party started chit chat, while sitting in vehicle;
meanwhile the accused appeared from his house with double barrel gun and made
fire shots at the complainant party, thereby caused injury to seth Iqbal Akbar
and Jawad Ali; the complainant party left the scene for hospital without
wasting the time in the said vehicle; they were on the way towards Gharo
Hospital, meanwhile the injured seth Iqbal Akbar succumbed to injuries; however
they deposited the dead body of the seth Iqbal Akbar in the hospital and the
injured Jawad Ali was given first aid thereafter being serious, he was referred
to the Civil Hospital Karachi. The complainant then approached to the area police
station and on his statement, the police registered FIR No.16 of 2005. Pursuant
to that, investigation was carried, the post mortem examination was conducted,
police secured the dead body and blood stained clothes of the deceased from the
hospital’s authorities under observation of formalities such as: documents i.e.
lash chakas form/inquest report, danishmana of the dead body and memo of
injuries found on it, were prepared; the vehicle of the complainant party was
inspected in the hospital and blood stained stuff was secured from inside
thereof under a memo; the police visited the place of vardat i.e. front of the
house of the accused, under a memo; the police also secured three 12 bore empty
cartridges under seal cover from the spot under the same memo; the police
arrested the accused under a memo; Muhammad Pervaiz and Barkat were taken as
mashirs almost in all the memos; the police recovered double barrel gun of the
accused with its license in his favour, and live cartridges from one room of
his house, on his pointation under a memo, before the same mashirs on
15.04.2005 i.e. next day of his arrest, which took place on 14.04.2005; the police
prepared the memo of the injuries of the injured Jawad Ali before the same
mashirs on 16.04.2005; the police obtained the medical record of post mortem examination
and the injuries of the injured Jawad Ali from Gharo Civil Hospital; the police
then sent the sealed empty cartridge secured from the spot under the memo
thereof, together with the sealed double barrel gun and live cartridges etc. to
the ballistic expert for examination and report; the car of the complainant
party in which the murder took place, was sent to the same expert for
examination and report as well; the secured blood stained material referred to
above was simultaneously sent to the chemical examiner for examination and report;
the police examined the witnesses under section 161 Cr.P.C. and got them
examined by the Magistrate under section 164 Cr.P.C. and having completed the
investigation, submitted the charge sheet for the purpose referred to above.
3.
Charge
was framed against the appellant to which he pleaded
not guilty and claimed trial.
4.
To substantiate the charges prosecution
examined witnesses PW-1 Muhammad Hanif (the complainant). He produced FIR of
the case as Ex. 4-A.PW-2 Jawad Ali (the injured). He produced the 164 Cr.P.C. statement as Ex. 5-A. PW-3 Sher Yar. He produced the 164 Cr.P.C.
statement as Ex.6-A. PW-4 Muhammad
Pervaiz Khan (mashir). He produced memo of vehicle, danishnama, lash chakas
form/inquest report, memo of place of vardat, memo of arrest, memo of recovery
and memo of injuries as Ex.8-A to 8-G respectively. PW-5 Niazmuddin (the
medical officer). He produced post-mortem report and medical certificate of the
injured Jawad Ali as Ex.10-A and 10-B respectively PW-6 SHO Sain Dino Dal, who produced nothing. PW-7 Ex.15 SIO Hameer Nahio. He produced letter
of memo, memo of clothes of deceased Iqbal Akbar and receipt of dead body,
ballistic report and chemical examiner report as Ex.15-A to 15-E respectively.
5.
The trial Court examined appellant/accused
under section 342 Cr.P.C. whereby appellant professed his innocence however he
declined to record his statement on oath and to lead any defence evidence.
6.
Learned
counsel for the appellant,
inter-alia, contended that
appellant is innocent and was made a victim of malafide on part of the
complainant party who coloured some mishap in present incident; she insisted
that there have been material contradictions in the prosecution case but same
were not appreciated properly by the learned trial court though the same are
sufficient as a dent in prosecution case; mashirs and witnesses were set-up,
arranged and interested one but the learned trial court not appreciated this
aspect properly; the recovery of crime weapon was not proved. One of the eye witness was not examined by the prosecution which gives
presumption against prosecution. The appellant / accused was got involved in
the case at the instance of one Choudhry Arshad. Having argued so, she prayed
for allowing the appeal of the appellant.
7.
Learned APG for the State vehemently opposed this
appeal and argued 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 as the
appellant does not deserve any concession.
8.
We have
given our anxious consideration to the contentions of learned counsel of the
parties and have perused the record. 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 PW-complainant
Muhammad Haneef, PW-2 Jawad Ali, and PW-3 Sheryar to prove the ocular account.
The careful examination of the evidence of these witnesses would show that
these witnesses strongly stuck to the prosecution case and corroborated each
other in respect of following material aspects of the case resulted in
unfortunate incident, whereby Seth Iqbal Akbar lost his life and PW Jawad received injury :-
i)
dispute
of amount between deceased Iqbal Akber with accused Saleem Arain;
ii) their arrival with deceased on fateful day i.e 13.4.2005 from Karachi
to Mirpur Sakro for outstanding amount;
iii) their approach to accused/appellant Saleem Arain and settlement
at fruit farm of Choudhry Arshad at request of accused/appellant;
iv) agreeing of accused/appellant to give document of his tractor
towards outstanding amount;
v) joint approach in company of deceased at the house of
accused/appellant after such settlement for purpose of getting document of
tractor;
vi) coming of accused/appellant out of his with copy of his NIC and
his return to his house on demand of documents of tractor by deceased;
vii) Accused/appellant, brought double barrel gun, from his house
and making first fire hitting deceased on right side of his head and second
fire, hitting to injured PW Jawad;
9.
However,
it would be significant to refer, particularly the ocular account, having nexus
directly with manner of incident by the aforesaid eye witnesses in its verbatim.
PW Muhammad Hanif deposed that:-
“Accused Saleem went inside his house and came out with a double barrel Gun in
his hand. We all including deceased Iqbal Akhtar were sitting in the vehicle
and accused Saleem in order to commit our murder opened [opened] gunshot fire
upon us which hit deceased Iqbal Akhtar on the right side of his head. Accused
Saleem again fired second fire with his gun upon us which hit PW Javed Ali. We
due to fear did not resist him, but quickly left the place of incident”
PW Jawad Ali (injured), deposed that:-
“Accused Saleem once again went inside of
his house and brought a gun from his house and fired upon us which hit deceased
Iqbal Akhtar on the right side of his head. He also fired second shot which hit
me on my back. We therefore, started moving in our vehicle towards Gharo
Hospital but before reaching at Gharo Hospital deceased Iqbal Akbar succumbed
to his injuries.”
PW Sheharyar deposed that:-
“Accused Saleem made us to stop outside of
his house and he went inside his house and brought his N.I.C. Deceased Iqbal
Akbar asked the accused that his NIC was useless for him and he demanded the
documents of the tractor from him. Accused therefore, once again went inside of
his house and came out with a D.B.D.L. gun in his hand. Accused Saleem as soon
as came out of his house he fired upon us with a result whereof deceased Iqbal
Akbar received fire arm injury on the right side of his head. Accused again
fired second shot from his gun which hit PW Jawad Ali on his back. The glasses
of the vehicle wherein we all including deceased Iqbal Akbar were sitting, had broken as a result of fire shots made by the
accused. Thereafter, we left the place of incident quickly and started going
towards Gharo Hospital but before reaching at hospital deceased Iqbal Akbar
succumbed to his injuries on the way.”
10.
These
witnesses were cross-examined by the defence counsel at considerable length but
could not succeed in creating a single dent towards said material aspects of
the case, even not suggested any enmity or ill will of the witnesses with
appellant. The ocular account, brought through these witnesses, regarding
manner of incident and kind of weapon, used by the accused / appellant remained
unshaken. The appellant counsel did not refer to any contradiction, even
otherwise, worth mentioning here that ‘contradiction’, if claimed,
should be grave in nature, cutting or least causing effect upon the material
aspects of the prosecution case; because minor contradictions do creep in with
passage of time which, if not effecting the material aspect of prosecution
case, can safely be ignored as held in case of Muhammad Ilyas and others v. The
State, 2011 SCMR 460. We may further safely add here that since the interested
witness has been defined / explained by honourable Supreme Court through number
of case laws as:
“Interested witness is one who is partisan or inimical towards
the accused or has a motive or cause of his own to falsely implicate the
accused in the crime.”
therefore
the appellant would not be justified in insisting for declaration of a witness
as ‘interested witness’ unless he brings on record the substance or least
giving suggestion with reference to a motive or cause that witness was partisan
or inimical towards him, reference can be made to the case of Talib Hussain v.
State, reported in 2009 SCMR 825.
Thus the appellant / accused
failed to bring on record anything, which could show that these witnesses were
having any such enmity with the accused / appellant which could justify false
involvement of the accused / appellant in the incident, particularly when one
of these witnesses is also an injured witness hence his presence, least, cannot
be doubted. Since these witnesses have categorically claimed to have
accompanied the deceased from Karachi therefore, their presence at the scene of
occurrence cannot be said to be by chance. Even otherwise, the rule is that if
chance witness reasonably explains his presence at the spot and his narration
of occurrence inspires confidence then he is not a chance witness and his
testimony can be considered alongwith other evidence, as observed in case of
Anwar Shamim and another v. The State, (2010 SCMR 1791). Regarding giving up of
one eye-witness of the case it would suffice to say that principle of evidence
is that it is the quality and not the quantity of evidence which matters,
therefore, giving up of a witness of same evidence may not always be fatal for
prosecution, as laid down by honourable Supreme Court in the dictum of
Niazuddin v. State reported in 2011 SCMR 725.
11. Now, let’s examine other pieces of
evidence so as to see whether that lean support to ocular account or not. The
mashirnama of place of incident prepared on 13.4.2005 at 2330 hours (placed on
record at Ex.8-D) shows that “Pieces of the broken glass are lying
scattering at the scene of offence which were collected, procured and taken
into custody of police” meaning thereby that it goes to support the
ocular account regarding place of incident. Further, the police also recovers empties of cartridges of 12 bore from the place of
incident which supports the ocular account regarding firing by accused /
appellant with double barrel gun. So far as to the plea of defence counsel that
ocular account says two fire shots were caused by appellant, whereas mashirnama
of sarzameen reflects that three empty cartridges were recovered
, has no substantial importance as it does not in any manner cause major
dent in the prosecution story, on the contrary it supports the witnesses to the
effect that two fire shots were caused.
Further, mashirnama regarding
recovery dated 15.4.2005 (placed on record at Ex.8-F) shows that accused /
appellant himself volunteered and produced, his licenced double barrel gun from
his house bearing No.AHH-10095 and since as per ballistic expert report (placed
on record at Ex.15-D) it was the same gun through which the empties, recovered
from place of incident, were fired. The mashirnama of vehicle (placed on record
at Ex.8-A) also shows that there were collected broken glass and blood
there-from and hole (s) therein also proves the ocular account regarding firing
by accused / appellant on persons sitting in vehicles.
12. Regarding the medical evidence, it
is settled principle of law that medical evidence may help the prosecution to
confirm the ocular account with regard to the seat of injuries, nature of injury and kind of weapon, used in
the occurrence only, and the same cannot identify or locate the perpetrators.
Keeping in view, this legally established principle, we, have examined the
medical evidence for such corroboration, it would be advantageous to reproduce
the relevant portion of post mortem report which is titled as surface wounds
and injuries which is as follows:-
Injury No.(1)—Three (03) lacerated
penetrating fire arm wound measuring 0.6 cms in diameter, 1 to 2 cms apart from
each others with inverted margins on right temporal region of Head. There is no
burning , blackening or tattooing around the wounds
(wounds of entry)
Injury No.(2)—A lacerated penetrating
fire arm wound measuring 0.5 cm in diameter, having inverted margins, on right
side of forehead just above right eye brow. No burning, blackening or tattooing
around the wound (wound of entry)
Injury No.(3)—Three (03) lacerated
penetrating fire arm wounds measuring 0.6 cm x 0.4 cm scattered on right side
of face (i.e on right cheek, below right eye & lateral side of right eye)
with inverted margins. No burning, blackening or tattooing around the wounds
(wounds of entry).
Injury No.(4)—A lacerated penetrating
fire arm wound measuring 1 cm in diameter on right side of nose with inverted
margins. No blackening , burning or tatooing around
the wound. (wound of entry).
Injury No.(5)—A lacerated penetrating
fire arm wound measuring 1.2 cm in diameter on left side of nose with averted
margins (wound of exit)
Injury No.(6)—A Gutter shaped fire arm wound measuring 2 cm x
1cm on nose i.e 1.5 cm below injury No.(4) and (5) with averted margins. No blackening , burning or tattooing around the wound.
All the injuries would show the seating
thereof towards right side of the head/face of the deceased as was stated by
the witnesses of ocular account. Further, the note endorsed by the Medical
Officer (conducting post mortem) at the foot of the post mortem report, being
material is also reproduced hereunder:-
Note:- A sealed and labeled bottle
containing pellets (03) three in numbers and (02) tiny parts of pellets
recovered from deceased cranial cavity (Brain) + original copy of P. Mortem is
handed over to Mr. Hamir Nayo ASI/SIO Police Station Mirpur Sakro”
The recovery of pellets from body of the
deceased also confirms the ocular account regarding firing by double barrel
gun. Thus over all examination of available material shows that case against
the accused / appellant not only stood proved through direct ocular account but
same is also supported with other corroborative pieces of evidence i.e
recovery, medical and circumstantial evidence hence the learned trial court
judge committed no illegality while holding the case against the appellant to
have been proved beyond shadow of doubt.
13. So far as to the plea of learned
counsel for the appellant regarding his false involvement in the case on the
ground that some mishap had happened with complainant party within jurisdiction
of police station Dhabeji, it would be necessary to say that whenever it is a
case of a single accused the chances of substitution of real culprit with an
innocent is normally not believable particularly when it is not proved by the
accused that the witnesses (complainant party) had been on such a severe
inimical terms with him that the complainant party could be believed to have
gone to such an extent, reference can be made to the case of Zahoor Ahmed v.
the state 2007 SCMR 1519 and case of Khizar Hayat v. The State, SBLR 2011 SC 183.
The scanning of considerably long cross-examination, nowhere, shows that the
appellant came with any plea against the witnesses that they had any blood feud
enmity towards the appellant / accused to provide a ground for creating a doubt
in the statements of eye-witnesses or for false implication of the accused. The
appellant / accused during cross-examination of complainant (eye-witness)
Muhammad Hanif made a simple suggestion which was negated as “it is incorrect
to suggest that I had lodged the FIR after deliberations at the instance of
Choudhry Arshad”. While during cross examination of other eye-witness
(PW-Jawad Ali) the accused / appellant put certain suggestions which were
responded as “It is incorrect to suggest that at Gharo road the security
guard opened fire due to which the glasses of vehicle were broken. It is
incorrect to suggest that due to the fire of guard deceased suffered bullet
injury and he expired. The appellant / accused even in his statement,
recorded under section 342 Cr.PC, did not place anything on record which could
prove such plea of substitution at the cost of real culprits because he simply
stated that “I am innocent”. Needless to add here that accused
may make different suggestions during course of trial but once he takes a
special plea then he becomes under the statutory obligations to prove the
special defence plea, taken by him by some cogent, reasonable and prima facie
acceptable evidence.
14. As
regard the quantum of punishment, it would suffice to say that where the
prosecution successfully establishes its case the maximum punishment should be
awarded, particularly, where there exists no mitigating circumstance. The basic
purpose and object of the sentence i.e ‘deterrent one’ should not be
lost sight of and the Court should neither hesitate nor search for laboured
pretexts to award a lesser sentence where case stands proved as held by
honourable Apex Court in case of Hamid Mehmood v. The State (2013 SCMR 1314). Here we would like to refer the operative part
of the judgment of honourable Supreme Court, passed in the case of “Khurram
Malik & others vs The State & others (PLD 2006 SC 354) which reads as
under:-
“It is
a cardinal principle of criminal administration of justice that if an accused
takes a special plea to claim lesser punishment on the basis of particular
facts and circumstances of the case burden lies upon him to establish the same,
as it has been held in the case of Mandoos Khan v. The State
2003 SCMR 884, Abdul Haque v. The State PLD 1996 SC 1.”
Hence, on above touch stone
we have carefully screened the instant case and have not found any substance,
which warrants the exercise of mitigating circumstances. Moreover, the
appellant/accused pleaded no such thing and even altercation of hot words
rather as such the sentence, so awarded by the learned trial Court judge, also deserves no interference.
15. In view of what has been discussed
above, we are of the view that judgment of the learned trial court judge is well
reasoned and legally justified hence the same is hereby maintained. In
consequence thereof the appeal is dismissed. The murder reference by the
learned trial Court, stands affirmed accordingly.
J U D G E