2017 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

By this common Judgment, I intend to dispose of these four appeals, being outcome of one and same Judgment dated 15th July 2010 passed by the 1st Additional Sessions Judge, Hyderabad in S.C. No.227/1994, whereby the appellants have been convicted as under:-

1. Under section 302(b), P.P.C. and sentenced to imprisonment for life;

2. Under section 452, P.P.C. to suffer R.I. for seven years; and

3. Under section 307, (324, P.P.C.) to suffer R.I. for 10 years. All the sentences, however, were ordered to run concurrently. Proceedings against accused Khuda Bux were abated since he had died while case of absconder accused Khan Chandio was bifurcated and was ordered to be proceeded on his surrender/arrest.

2. The facts giving rise to this appeal are that complainant Wali Muhammad Chandio lodged FIR alleging therein that after murder of four persons of their side by accused Kundo Chandio and others in 1985, there was blood feud between them. Complainant party asked Kundo for faisla but no faisla was held till 1987; thereafter 12/13 persons of complainant's family were shifted and were residing at Primacy School Shaikh Abdul Majeed Sindhi Colony Dhabeji and then they shifted at Gharo; Kundo Chandio and Dada Chandio sent threatening letters to them. On the fateful date complainant, Shahmir, Juman, Budho slept in their house along with their family members and electricity light was one in the courtyard of the house; at about 10.30 pm, firing started. Complainant and his son Sadiq took licensed guns and went to shelter place (Morcha); Jan Muhammad and Abdullah also took positions in another Morcha while deceased Dadan, Juman and Budho, having guns, took positions inside the house. Complainant and Sadiq saw on the bulb light that accused Kando, Laiq son of Gullan, Gullan son of Tahir, Dadan Chandio, Haji Kamal, Noro son of Mubarak, Khan son of Hashim, Janan, Bahawal son of Haji Karocho, Wairs son of Gullan, Hussain son of Tahir, Ulan son of Hussain, Ramzan son of Allah Bux, all by caste Chandia; Bhai Khan Brihmani, Imam Bux Khoso armed with KK, rifle, G/3 and guns were continuously firing. They intruded in the house of complainant by abusing and inquiring about Wali Muhammad and asked to call him out. They fired from their respective weapons; complainant and his son Sadiq also fired in defence, which hit 4/5 persons of accused party who became injured. All these accused then directly fired on complainant's family members, meanwhile Gharo police also came there and opened fire shots. Due to firing of police and complainant party accused, while firing, went away in their vehicles parked outside the house. Complainant, Sadiq, Jan Muhammad and Abdullah came out of Morchas and found in the house that 1) Juman, 2) Budho, 3) Dadan, 4) Allah Bux, 5) Mst. Hanifan, 6) Mst. Hakiman, 7) Mst. Noor Khatoon and little children namely 8) Bashir, 9) Sughran, and 10) Azizan were dead due to firing and 1) Sahib Khan 2) Mst. Zaib un Nisa, 3) Mst. Jannat, 4) Mst. Kazbanu, 5) Mst. Soni, 6) Mst. Ghulam Fatima, 7) Mst. Siyani, 8) Baby Husan, 9) Mst. Sakina, 10) Mst. Bashiran, 11) Mst. Hakima and children 12) Gul Hassan, 13) Allahdad, 14) Muhammad Hassan and 15) baby Anwar Khatoon were lying injured and were crying, meanwhile Gharo police came there and brought injured at Hospital. Thereafter complainant appeared at P.S. and lodged report.

3. After usual investigation, appellants were sent up to face the charge.

4. The charge was framed by the trial court to which the appellants pleaded not guilty and claimed for trial.

5. To substantiate its case, prosecution examined in all 17 witnesses including the complainant, eye-witnesses, mashirs, I.O, Doctor etc who produced respective documents and then closed its side.

6. Statements of the appellants under section 342, Cr.P.C. were recorded wherein they denied the prosecution allegations and claimed their innocence while claiming their involvement to be result of dispute over land, peach of water or matrimonial dispute. However, none of them, came forward to examine himself on Oath or to lead evidence in defence, as provided under section 340(2), Cr.P.C.

7. The learned trial Judge after hearing the parties' counsel convicted the appellants/accused in the above terms.

8. Learned counsel for the appellants submitted that old blood feud is admitted between the parties, therefore, false implication of the appellants cannot be ruled out; all the P.Ws are close relatives of the complainant therefore, their credibility is not free from doubt; charge is defective as no proper details were mentioned therein; identification of the accused on bulb light is weak type of evidence; identification of the accused was jointly made which too with in ordinate delay and no requirements for holding identification test were fulfilled, hence was not in accordance with law. In support of their contradictions they relied upon the cases reported as 2006 YLR 359, 2014 PCr.LJ 527, 2002 SCMR 1439, 2012 SCMR 327, 2008 SCMR 302, 2011 SCMR 527, PLD 1981 Supreme Court 142, PLD 1996 Karachi 246, PLD 2002 Supreme Court 1048, 2008 SCMR 06 and 2009 SCMR 230.

9. Learned Additional Prosecutor-General defended the impugned judgment by submitting that since the presence of the witnesses at place of incident was quite natural hence mere relationship would not diminish the credibility of witnesses; mere defect(s) in identification parade are not fatal to case of prosecution that witnesses, even, identified the appellants during court proceedings, and that the prosecution proved its case beyond reasonable doubt hence case for interference is not made out.

10. I have heard learned counsel(s) for the appellants, learned Additional Prosecutor-General and have perused the evidence on record.

11. Scanning of the all available material would show that prosecution brought ocular account in shape of evidences of the eye-witnesses while claiming them as eye-witnesses of the incident and insisted for conviction on their testimonies. The perusal of the record indicates that appearance(s) of the names of the accused persons happened to be in result of two parts i.e FIR and identification parade.

12. Before going into the details of the merits of the case, I would like to examine the legal value of identification parade and principles settled down in series of decision, falling within the scope of stare decisis. It is settled proposition of law that question of identification parade only comes into play when the witness of an incident makes two claims i.e 1) he saw an unknown accused committing the crime 2) he can identify the accused on seeing again. The clause of seeing the culprit should not only be a claim but it should come on papers for which the witness is required to give the description/feature of the unknown person in his FIR or statement, as held in the case of "Sabir alias Fauji v. State" (2011 SCMR 563) that: "it is also settled principle that identification test is of no value when description/feature of accused is not given in the contents of the FIR". Requirement to provide description is demand of safe Criminal Administration of justice so that claim could be logically tested during further proceedings (investigation and trial) and apprehension of innocence under such claim could be eliminated or least confined. However, mere non-mentioning of description alone is not sufficient to disbelieve identification if otherwise it is proved truthful, natural and convincing.

13. The duty of the witness/prosecution does not come to an end only by saying that "it is the man" but continues unless he/prosecution establishes that "it is the man who committed the offence" because the prosecution is always duty bound not only to prove the happening of the incident but that it was the accused (arraigned) who committed the offence. This has been the object of identification parade because of which it is always insisted that witness, claiming to have identified/picked the accused, should also specify the role played by such identified/picked person in commission of offence. However, worth to add here that it is established principle of law that the law should not be static but it should move along with the times to meet all the present and further situations, circumstances and challenges. Therefore, the principles to examine the delay in identification parade, joint identification parade, number of dummies and non -disclosure of role, have also undergone certain changes, clarification and modification, as discussed and held in the case of "Bacha Zeb v. State" (2010 SCMR 1189) while referring to the case(s) of:- "the case of State v. Farman Hussain PLD 1995 SC 1 and at page 25 thereof it has been observed as under:-- "There cannot be any cavil with the proposition of law pronounced in the above reports. However, it may be pointed out that as a rule of prudence the Court insists upon having the ratio of dummies eight to ten per accused, but there is no statutory provision fixing the number of dummies in the Code of Criminal Procedure. It is not an inflexible rule." In the above case i.e "Bacha Zeb v. State", his lordship Mr. Justice Rehmat Hussain Jafferi has observed that: There is no hard and fast rule that a delayed parade due to late arrest/discovery of the culprits is always to be rejected. It depends upon a host of circumstances including the type, witnesses and other factors. (under lining is ours) In this case they had seen the killing. The killers features were fixed in their memory due to many reasons some of them have been recorded in the High Court Judgment with which we agree on this point. Regarding the formalities at the identifying parade suffice it to observe that all necessary persecutions were taken.

14. While, examination of above case laws, I can safely conclude that: i) mere irregularity of joint identification; ii) delay alone in identification parade; iii) a less number of dummies from legally recognized ratio of dummies i.e eight to ten per accused; Thus, such shortcomings are not so fatal to discard the evidence of a witness if the witness (prosecution), to the satisfaction of the court, explains the role of such identified person in court, circumstances justifying delay in identification parade, including the type of witnesses and other factors and legal requirement. A single circumstance can differently result upon two individuals because it is the effect/consequence of the circumstance which matters in leaving impact, therefore, type of witness also matters. These changes in viewing the evidence of identification, however, have not caused any effect upon the legally established principle of law that: "it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the accused from one place to another which is paramount duty of the police to ensure that the accused should not be seen by the witnesses before the identification parade. It is pertinent to mention that all these precautions should not only be taken but should be proved to have been taken and these precautions should be recorded in the initial record like general diary of the police station and the daily register and the same should be produced in court. In the absence of such precaution and evidence, no value can be attached to the identification of the accused by witnesses".

15. The legal position continues so, for the simple reason that else the very purpose of identification parade shall come under clouds and doubts which shall result only in excluding such piece of evidence, therefore, the prosecution not only has to ensure that it adopted all measures so as to conduct identification parade fairly and properly but also that it eliminated all possibilities which might have provided an opportunity for the witness to see the accused after the commission of crime till the identification parade. Here, it is noteworthy to add here that identification by a witness, who has seen the crime at some distance and a witness, who himself is victim makes the difference, I have no hesitation to say that in case of abduction or robbery, or hurt, a witness who has direct nexus with the incident, and claims that incident lasted upto considerable time, has significant value. If he sticks with his claim upto his evidence before trial court, such evidence cannot be ignored on minor irregularities, found in identification parade, or any lacuna on the part of investigation. Having discussed above, what is important to view/examine the claim of the witness, for which the prosecution would require to prove, are:- i) presence at the spot; ii) his position to see accused persons; iii) availability of light etc. (if incident time is night time)

16. In the instant matter the eye-witnesses of the incident have claimed their presence at the place of incident while claiming that they were residing within one and same enclosure (compound) as is evident from the evidence(s) of: PW-1 Wali Muhammad (complainant) In his cross-examination stated that 'Our houses were 10/12 in number and were within the same enclosure'. 'The houses of deceased Budho, Dadan and Juman were situated in front of our house within the same enclosure' PW-2 Muhammad Saddiq In his examination-in-chief stated that 'We were consisting 10/12 houses situated within the same enclosure' PW-3 Jan Muhammad In his examination in chief stated that We started residing together at Gharo having our 14 houses Since two facts are not disputed i.e i) deceased and injured persons are closely related to witnesses of the case and ii) it was a night time incident. The presence of house inmates at night time is quite natural and worth believing. Now let's see what the prosecution witnesses say about their position(s) so as to believe or otherwise their claim to see/identify the culprit(s). About natural availability of all deceased and injured PW-1 Wali Muhammad (complainant) In examination in chief stated that "The incident took place on 13.08.1988 at about 10.30 p.m. At that time of I along with Muhammad Sadiq my son, Jan Muhammad, Dadan, Jumo, Budho, Allah Bux were available in the house when at 10.30 p.m. there was firing/burst of Kalashinkov was made at outer door of our house. We took position in the Morchas at 11.00 p.m., but on incident we were still in the house and have taken position in the Morchas' PW-2 Muhammad Saddiq In his examination-in-chief stated that 'At that time there was firing and brusts of kalashinkoves were made upon our houses, on which we got-up and entered in the Morchas and started firing from our guns in self defence....' PW-3 Jan Muhammad In his examination in chief stated that 'At that time there was firing/Brust of Kalashankoves being made at our houses, We took position in the Morchas as they were armed with Guns' PW-4 Abdullah In his examination in chief stated that 'At that time there was firing from Kalashankoves and Rifles upon us, on which we got up and entered in the Morchas'. From the above, it becomes quite clear that these eye-witnesses have categorically claimed to have taken position in the 'Morchas'. A `Morcha' is usually made/constructed at a place from where the person, inside the Morcha, could have a clear view of outside. Thus, the prosecution witnesses (eye-witnesses) can be believed to be in a position to see/view the assailants (accused persons) from their claimed position. As regard to the availability of source (lights necessary to view things) the eye-witnesses have claimed that: PW-1 Wali Muhammad (complainant) In his cross-examination stated that 'The Electric Bulb was burning on the Electric poll at the distance of 10/12 Feet from the outer door of our house, in the street' PW-2 Muhammad Saddik In his cross-examination stated that 'It is not correct that there was no Electricity bulb or light at the wardat'. PW-3 Jan Muhammad In his examination in chief stated that 'Thereafter I saw on the Electric Bulb which was burning on the poll infront of our houses' PW-4 Abdullah In his examination in chief stated that 'Thereafter the accused persons entered in our houses and we saw and identified them on the Electricity Bulb which was burning on the poll outside our houses..." The above claim of the prosecution is sufficient to prove the existence of source (light) hence claim of the witnesses to see the culprits in night hours time is also worth believing. Since from above, it stood clear that the prosecution established all three facts which are necessary to establish a claim of 'identification of the culprit' by a witness during time of incident, hence the learned trial court judge committed no illegality in believing these witnesses as witnesses of incident and their claim to identify the culprits.

17. It is also worth to insist here that it was, undisputedly, an unfortunate incident wherein the assault was made in such a manner and fashion that it resulted into murder of Ten (10) persons and injuring to 15 persons which numbers did include the minors and females and the assailants were dozens in numbers therefore, in such an assault it cannot be expected from the complainant to give detail of each and every minor things particularly where the FIR was reported/lodged within two hours of the incident. The subsequent introduction of the name(s) of accused persons always carry an element of doubt but in peculiar circumstances and facts of the instant incident such subsequently introduction of accused persons cannot be sufficient to disbelieve the direct evidence(s) of the eye-witnesses more particularly when prosecution established following facts:- i) presence of these witnesses; ii) these witnesses qualifying the criteria necessary for a witness of incident to believe involvement of accused in commission of the offence; iii) accused persons were known to complainant party hence glimpses were sufficient to recall; iv) picking up these accused persons during identification parade; v) these witnesses identified all the accused persons in the court; vi) witnesses named the accused persons in their evidence(s) and stuck with their such stand despite lengthy cross-examination; Since prosecution successfully established all the above facts hence the claim of the eye-witnesses to have identified the accused persons, including appellants, was quite believable in peculiar circumstances of the manner and nature of incident hence learned trial Court judge committed no illegality in holding and believing so.

18. Candidly, these witnesses are closely related to the deceased persons but such relationship alone has never been taken as sufficient to disbelieve the evidence of a witness who, otherwise, qualify the test of cross-examination and his testimony appears to be natural and confidence inspiring. To make the evidence of a witness doubtful or not liable to be consideration for conviction, the defence shall require to prove the witness to be 'un-natural' and 'interested'. The term 'interested' is not subjective to 'relationship' alone but it would require a motivation or consideration for such a witness which could be believed to have made such a witness to falsely involve an innocent person. The reference, if any, can well be given to the case laws, reported as 2010 SCMR 1025, 2011 SCMR 513, 2011 SCMR 429, 2011 SCMR 1954 and 2011 SCMR 492.

19. In the instant matter, these witnesses are closely related to the deceased and injured persons and their such relationship, in absence of a motivation or consideration to falsely involve an innocent in murder of such number of blood-relations, is rather supportive to believe the words of these witnesses. This is so, for simple reason that it is always hard for a blood-relation to name an innocent in place of real murderer unless it is established that there had been such a motive or consideration which could make such a blood-relation to swallow his tears while letting the real culprit remain in cover.

20. Moreover, defence did come up with plea of false involvement on account of some dispute over land or pail of water but such suggestion (s) were not only denied categorically by all witnesses of ocular account but the defence did not attempt to bring any material on record in shape of oral or documentary evidence to strengthen such plea. Even otherwise, such a dispute cannot be believed to have been of such a nature that a blood relation could be believed to let murderers of about dozen of his blood relation(s) go unpunished.

21. As regards to the two of the injured witnesses namely Mst. Jannat and Mst. Fatima who did not name any of the appellants but their such word(s) appear to be quite logical and reasonable as: PW-Mst. Jannat 'I could not see the faces of the culprits at the time of incident because due to fear and harassment I put Holy Quran infront of my face, therefore, I cannot say whether the accused present in Court are same or not. PW-Mst. Fatima 'Due to night time and darkness in the room I could not see the faces of the culprits, therefore, could not say whether the accused present in Court are same or not' The explanation(s), provided by these witnesses for not naming any body is quite natural and believable because they were under direct firing, being made by number of persons hence this would not be of any help for the defence particularly when these witnesses too did not deny the manner of incident and deaths and injuries in result of such incident. Even otherwise, these witnesses were not claimed by the prosecution to be in a position to identify the culprits rather it was very first claim that women and children took shelter within room(s) which reaction is normally expected from women and children under shower of firing. Even otherwise, it is now settled principle of law that statement of a sole eye- witness, if inspiring confidence, is sufficient to hold conviction even in a murder case. Reliance, if any, can well be made to the case law reported as 2011 SCMR 725.

22. The plea of learned counsel with regard to some defect(s) in charge and re-examination of some witnesses after amended charge, it is worth to add here that accused Gullan was subsequently arrested and charge was amended hence under the law trial Court was bound to re-examine the witnesses who were examined before his arrest, but such plea is not helpful to the appellants as on later stage, case against accused Gullan was bifurcated and no judgment was passed against him hence no prejudice is caused to the present appellants. With regard to other minor defects in the charge, it would suffice to say that since it has not been shown that as to which was that defect which materially prejudiced the accused persons in knowing the nature of allegation(s) against them. If a charge gives a complete notice and knowledge of allegation(s) against the accused, charged for allegation(s), then plea of defect(s) in charge will not stand particularly where such plea of prejudice was not taken during course of trial where the trial court is always competent to remove the defect by framing fresh/amended charge.

23. As regard the old enmity between parties, it would suffice to say that enmity is a double edged weapon which cuts either ways. If the enmity gives rise to plea of false involvement then the same allows to presume commission of the complained offence.

24. So far as to the contradictions; that the complainant and witnesses have contradicted each other on material points, suffice to say that there may have been contradiction(s) but the contradiction should be shown to be grave, causing a serious dent on material aspect of the charge, so as to discard the statement. In other words variations in statements of witnesses which are neither material nor serious enough to affect the case of prosecution adversely are to be ignored and would not necessarily qualify the term 'contradiction'. Reliance is made on the case laws reported as 2013 SCMR 480, 2011 SCMR 460 and 2010 SCMR 1791. In instant matter the defence could not succeed in shattering the ocular account regarding i) presence of witnesses, ii) their claim and position to see and identify assailants hence variation, if any, would not of be any help for case of the defence.

25. The ocular account was fully corroborated by the medical evidence which, even, was never disputed to the extent of un natural deaths of number of persons and injuries on persons of ladies and minors being result of fire-arm (s). The medical evidence, supporting the ocular account, was even not questioned by the defence.

26. Where the prosecution successfully establishes the ocular account and same is supported by the medical evidence to extent of nature of injuries or cause of death with reference to time of incident, the other corroborative piece of evidence, looses their substance and value for prosecution to prove the guilt. Mere non-recovery of crime weapon would not lessen the value of the direct evidence, if same is natural and confidence inspiring and has found support from medical evidence. Therefore, there appears no need to discuss the same. For the above discussed reason, I am of the clear view that the learned trial Court has not committed any illegality in recording the impugned judgment of conviction which, otherwise, is proper and well reasoned. Accordingly, the same is hereby maintained; consequently captioned appeal(s) are hereby dismissed. HBT/J-1/Sindh Appeals dismissed.