2018 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

Through this Criminal Jail Appeal, appellants have impugned judgment dated 30.07.2009 passed by learned Sessions Judge, Mirpurkhas in Sessions Case No. 157/2004, whereby he has convicted the appellants and awarded them punishment to suffer R.I. for life under section 302(b), P.P.C. and to pay compensation of Rs,50,000/- each to the legal heirs of deceased under section 544- A, Cr.P.C. and in case of non-payment of compensation to suffer S.I. for six months more. Learned Sessions Judge extended to the appellants benefit of section 382(b), Cr.P.C.

2. Precisely, the prosecution case is that complainant Muhammad Akram and his brother Muhammad Ashraf had a dispute with appellants over an agricultural land; therefore, they shifted from village Muhammad Khoso and started residing on the land adjacent to village Ahmed Khan Khoso. On 29.11.2004 at 1600 hours, while complainant, his deceased brother Muhammad Ashraf, PWs Zulfiqar and Mir Hassan were waiting for a coach to go for participating in a Mela (Fair) of Saman Sarkar; appellants Muhammad Qasim armed with a country made (Desi) Pistol, Anwar, Jumoon and Nabi Bux armed with hatchets arrived there and the co-accused Ghulam Ali and Abdul Karim stated that they were in search of complainant's deceased brother Muhammad Ashraf, therefore, he should not be spared. On their instigation, all the appellants and co-accused chased the deceased while complainant along with Zulfiqar and Mir Hassan followed the appellants and co-accused raising alarm asking them not to kill the man; however, when they reached near Dargah Baba Nooruddin, in, front of the complainant party, appellant Anwar caused sharp side hatchet blow on the head (Central occipital region) of Muhammad Ashraf with intention to kill him. The deceased, on such a blow fell down on the ground while Muhammad Qasim made a direct fire from his country-made pistol hitting the deceased on his stomach. Appellant Muhammad Qasim thereafter reloaded the pistol and made another direct fire on the mouth of deceased. The remaining appellants also caused sharp side hatchet injuries on different parts of body of the deceased and left the scene of the occurrence, whereafter, the victim was taken to Government Hospital, Jhudo, where the deceased succumbed to the injuries. Later, the complainant appeared at Police Station and lodged FIR at 1700 hours on the same day.

3. The investigation was carried out by the police, during the course of which, the Investigation Officer got the post-mortem of the dead body of the deceased conducted, recorded statements of witnesses, arrested the appellants and co-accused, made recoveries, prepared relevant mashirnamas and on its completion submitted his report forwarding the appellants and co-accused to stand their trial as per law.

4. Learned Trial Court framed on 28.02.2006 a charge (Exh-2) against the appellants and co-accused under sections 302, 114, 34, P.P.C. to which, they pleaded not guilty and claimed to be tried. The prosecution; therefore, in order to prove its case against the appellants and the co-accused Ghulam Ali and Abdul Kareem, examined ten witnesses inclusive of complainant/eye-witnesses, mashirs, medical officer, Investigation officer and others and closed its side vide (Exh 21); whereafter, learned Trial Court recorded statements of the appellants and co-accused vide Exhs-22 to 27, wherein they denied the allegations leveled against them claiming their innocence. They did not examine themselves under section 340(2), Cr.P.C.; however they examined two witnesses in defence; whereafter, the defence made closure statement (Exh-30). Later, Learned Trial Court heard Learned Counsel for the appellant and co-accused, Learned Counsel for the complainant and Learned I/C DPP and by way of judgment impugned herein acquitted the co-accused Abdul Karim and Ghulam Ali and convicted and punished the appellants as noted herein above.

5. I have heard Chaudhry Aftab Ahmed Warriach, learned counsel for the appellants, Mr. Aijaz Ahmed Shaikh, learned Counsel for the appellant and Mr. Shahzado Saleem, learned Assistant Prosecutor General. Contentions of Mr. Warriach were that the appellants happen to be innocent and they stood falsely involved in the present case due to enmity on account of dispute over agricultural land; that in the statements of the appellants recorded under section 342, Cr.P.C. no question was put to the appellants regarding alleged motive of the murder viz. previous enmity between the appellants and the deceased; that the prosecution witnesses are related inter se hence interested to implicate the appellants; that no private person was associated as mashir of recovery etc.; crime empties were sent to expert with considerable delay and that the crime weapons were never produced before the trial Court. His further contention was that appellants are behind the bars for the last 12 years. He placed reliance on case law reported in 2008 PCr.LJ 554; 1990 PCr.LJ 357; 2004 PCr.LJ 2052; 2009 YLR 702; 2005 PCr.LJ 138; 2015 SCMR 1142 and PLD 1993 SC

251. Conversely, Mr. Aijaz Shaikh, learned counsel for the complainant while supporting the impugned judgment argued that there is no delay in lodging of FIR; that evidence of the prosecution witnesses is consistent on material aspects of the matter; that though the witnesses are related to the complainant but since their evidence is consistent and no material contradictions have been pointed out in their evidence, such evidence is reliable and confidence inspiring; that the crime weapons had been recovered from the possession of the appellants and that the medical evidence is in conformity with the ocular testimony. He contended that prosecution was successful in establishing the guilt against the appellants, therefore, they stood rightly convicted and punished and the instant appeal is liable to be dismissed.

6. Mr. Shahzado Saleem, learned A.P.G. for State adopted the arguments of learned counsel for the complainant and submitted further that learned Trial Court rightly convicted and punished the appellants by way of the impugned judgment which merits no interference.

7. I have given due consideration to the submissions of learned counsel for the appellants, learned counsel for the complainant as well as learned A.P.G. and have perused the evidence available on the record. Admitted fact is that the incident took place on 29.11.2004 in the daylight at 1600 hours, whereas, the FIR was lodged at 1700 hours on the same day. The complainant had taken the deceased in the injured condition to Government Hospital Jhudo, where the deceased succumbed to his injuries and it is only after death of the deceased, the complainant made it possible to come at the Police Station and lodged the FIR. This all happened within a span of one hour when the Police Station was also at a distance of half kilometer. Therefore, in the circumstances it becomes evident that the FIR was lodged very soon and not with undue delay. Thus, it could not be conceived that the complainant could have managed to fabricate a false story of incident to implicate the accused wrongly by fabrication. The day, time and place where the incident took place have not been denied so the injuries on the person of the dead body have not been denied. On perusal of deposition of complainant, who is an eye -witness, it appears that in his examination-in-chief, he has stated that "Accused persons followed him. We also followed accused persons raising hakals to them not to kill Muhammad Ashraf. But in our presence accused Anwar inflicted hatchet blow to Muhammad Ashraf on the back side of neck. Due to receiving of injury, Muhammad Ashraf fell on the ground within our sight. In the meanwhile accused Qasim made fire shot from his desi pistol at Muhammad Ashraf which hit at his abdomen. Accused Qasim again loaded his pistol with cartridge and made fire in the mouth of Muhammad Ashraf. Accused Jummo and Nabi gave hatchet blows to Muhammad Ashraf" and that: "We saw our brother who was lying in injured serious condition. We brought him to Rural Health Centre, Jhudo where my brother Muhammad Ashraf succumbed to his injuries." Similar statement has been made by another eye-witness namely Mir Hassan by stating in his examinations that "Muhammad Ashraf due to fear ran towards the street of Baba Noorudin. Accused Anwar reached behind, and inflicted hatchet blow at the back of neck of Muhammad Ashraf who on receiving the blow, fell down while Qasim fired from Desi pistol at Ashraf which hit at the abdomen of Ashraf. Qasim again loaded his pistol and fired in the mouth of Ashraf. Accused Anwar, Jummo and Nabi then inflicted hatchet blows to various parts of deceased Ashraf." In their cross-examination, on questions challenging their aforementioned statements, the complainant/eye-witness Muhammad Akram replied that "It is incorrect that our fight took place with some other persons and we have falsely involved the present accused in this case. It is incorrect that I have deposed falsely. It is incorrect that the accused are innocent and I have falsely implicated them," while the other eye-witness Mir Hassan replied that "It is incorrect that neither I was available at the time of incident nor I witnessed the incident. It is incorrect that I am deposing falsely. It is incorrect that the accused persons are innocent. It is incorrect that the accused have not committed the offence." Thus, in view of the aforenoted statements of eye-witnesses, what appears crystal clear is that both these eye-witnesses have in actual fact deposed consistently that the appellants caused the death of the deceased as alleged against them. Complainant is younger brother of the deceased and his presence at the place of incident cannot be said to be unnatural; moreso in view of the fact that both were available together at the scene of occurrence waiting for a coach (vehicle) to go and participate in a fair (Mela) of Saman Sarkar. His evidence appears to be straight forward and fair. As far as the other eye-witness Mir Hassan is concerned his testimony, too appears to be straight forward and fair. Learned counsel for appellants, during his oral submissions, challenged the presence of this eye-witness at the place of occurrence for the reason that he happened to be resident of ten-fifteen kilometers away from the village of the complainant party; therefore, according to him, he was not a natural witness and implicated the appellants in this case falsely. To me, arguments of learned counsel does not sound forceful having already considered his testimony fair and straight forward and also that I could not lay hand on any suggestion in cross-examination of this witness challenging his presence on this count. Merely admitted relationship or being caste fellow of a person with deceased/complainant party, challenged or unchallenged, does not essentially in all circumstances, turn such person when called for testimony, into an interested witness. There is no such rigid rule to presume so conclusively. In this view, I am fortified by the principle laid down by Hon'ble Superior Courts wherein it has been held that mere relationship of PW with deceased is no ground to discredit their evidence if it is proved that it is straight forward fair and inspire confidence. In case it is required reference may be made to cases of Mudassir alias Jemi v. The State (1996 SCMR 2003), Saeed Akhtar and others v. The State (2000 SCMR 383), Noor Muhammad v. The State and others (2005 SCMR 1958), Muhammad Waris v. The State (2008 SCMR 784) and Sahib Khan v. The State (2008 SCMR 1049). Be that as it may, Mir Hassan eye-witness, according to his deposition, was available at the time of occurrence and at the place of incident waiting for a coach to go and participate in Mela (Fair) which does not appear to be unnatural regardless of the fact that he resided anywhere at a distant place from the village or house of the complainant party. In the circumstance I am not impressed with the contention of learned Counsel that the eye-witness Mir Hassan is not a natural witness. I have already stated herein before that both the eye-witnesses namely the complainant and Mir Hassan have consistently deposed that the appellants caused the death of the deceased as alleged against them. I have seen the medical evidence which corroborates the ocular evidence of these two eye-witnesses on point of injuries found on the body of the deceased. Here, it will be pertinent to mention that the prosecution also examined PW Zulfiqar Ali (Exh-17) as an eye-witness, who during the course of his examination was declared hostile. He was cross-examined by the DPP. In his cross-examination he stated that it was correct to suggest that after taking money from accused he patched up with the accused persons and did not give evidence against them; yet the admitted fact remains on record that accused and complainant party are of same caste so PW Zulfiqar too happens to be by caste Khoso. He had in his statement under sections 164, Cr.P.C. before the magistrate of jurisdiction involved the appellants in commission of the offence, but later during the course of recording of evidence he gave a go by to what he had stated in his statement under section 164, Cr.P.C. and was therefore declared hostile before the trial court. In these circumstances, moreso when the other two eye-witnesses have consistently made their testimony involving the ambience in commission of the offence, I prefer to ignore the hostile evidence of PW Zulfiqar Ali. On this I take benefit from a settled principle of law that the evidence of witness who has been declared as hostile by the prosecution could be ignored and place reliance in this behalf on case of Dr. Javed Akhtar v. The State (PLD 2007 SC 249). Thus, in view of whatever has been stated as before mentioned, in my view the ocular evidence of two eye-witnesses corroborated by medical evidence is alone sufficient to establish the case of prosecution against the appellants and I hold accordingly.

8. Coming to the contention of learned counsel that in the statement of appellants under section 342, Cr.P.C. no question was put to the appellants regarding previous enmity between the appellants and the deceased, in the first place, it may be stated that no such suggestion was put forth to the PWs in their cross-examination regarding enmity or motive; secondly, it may be stated that it is not always necessary that for the purpose of commission of capital offence there should always be a motive, thus in my view the contention of learned counsel for appellant loses its force.

9. Lastly, in his oral submissions, learned counsel pleaded that the appellants had remained in custody for around 12 years. It appears that the learned counsel took this plea, perhaps for sympathetical consideration as to the quantum of sentence awarded to the appellants. In the circumstances, however, I do not find any mitigating or extenuating circumstances brought on record to justify for reducing/converting the sentence of imprisonment for life as already undergone as the learned Trial court has already taken a lenient view while awarding lesser punishment i.e. imprisonment for life instead of death penalty. Therefore the punishment of imprisonment for life awarded by learned trial court appears to be justified.

10. The case-law cited by learned counsel for appellants does not appear to be relevant in the circumstances of the case in this appeal hence of no assistance to the appellants.

11. Thus, in the light of whatever has been discussed herein above, in my view the instant appeal merits no interference hence I dismiss the same accordingly along with M.A. No. 6503 of 2011 under section 426, Cr.P.C. moved by the appellants already become infructuous. JK/M-129/Sindh Appeal dismissed.