2010 PLP 1752 (SCMR)

GHULAM RABBANI, J.

This appeal with leave of the Court is directed against the judgment dated 7-8-2006, whereby Criminal Appeal No.S-60 of 2004 filed by the appellant was dismissed with modification in sentence of compensation.

2. Briefly stated facts of the case are that deceased Haji Gaman is brother of complainant Chinkoo Khan on whose complaint the appellant was put on trial along with his brother co-accused Imamudin for having committed Qatl-e-amd of the deceased. During course of trial, co-accused Imamuddin absconded and his case was ordered to be kept on dormant file; whereas the appellant, on conclusion of trial, was convicted under section 302(c), P.P.C. and sentenced to suffer R.I. for 25 years with fine of Rs.2 lac to be paid to the legal heirs of deceased as compensation or in case of non-payment to suffer R.I. for two years more with benefit of section 382-B, Cr.P.C. vide judgment dated 27th May, 2004. The appeal there-against was dismissed with modification in sentence for non-payment of compensation from two years to six months vide judgment dated 7th August, 2006 passed by a learned Single Judge of the High Court of Sindh, Bench at Sukkur. Aggrieved, the appellant filed Criminal Petition No. 60-K of 2009 before this Court in which leave to appeal was granted, after hearing learned counsel for him, in the following terms:-- "We have considered the arguments of Mr. Nur-ud-Din Sarki, Advocate Supreme Court and with his assistance have gone through some of the evidence/documents relevant for the purposes of deciding the question, of grant or otherwise of the leave. We are satisfied that certain important aspects had not been considered and were over-looked by the Trial Court as well as the High Court and the same necessarily require to be considered for a just and fair decision. Accordingly, leave to appeal is granted."

3. We have heard learned counsel for the appellant who during the course of his arguments pressed this appeal on the grounds that the prosecution story being contrary to human conduct was doubtful; that the oral evidence was in conflict with the medical evidence brought on record, more particularly, through P.W.8, Dr. Mehmood Ali Laghari, who examined injured Mst. Kariman wife of appellant; that no independent eye-witness was examined in support of prosecution case whereas those examined were interested witnesses; that the recovery of the crime weapon, i.e. gun from appellant became redundant since the same with empty cartridges were sent for Expert Report with a considerable delay; that there was no motive and that the evidence of the witnesses was not only contradictory but they had made improvements. Lastly, his contention was that the prosecution had failed to prove the guilt against the appellant beyond shadow of doubt; therefore, the appellant was entitled to acquittal. On the other hand, learned Prosecutor-General supported the impugned judgment and submitted that the appellant was rightly convicted and sentenced in the light of evidence brought on record during the course of trial.

4. Careful examination of evidence of complainant reflects that the complainant Chinkoo, brother of deceased Gaman, stated that the incident took place at 5-00 a.m. on 8-7-1996 when he in company of deceased and other two eye-witnesses, namely, Sakhawat Hussain and Muhammad Sharif, who are their cousins, had gone to the village of appellant to receive the remaining amount of sale price of cattle sold to the appellant and his brother, absconding accused Imam Din. According to him he and witnesses had proceeded to the house of the appellant where the complainant and the P.Ws./eye-witnesses sat on the ground outside "Otaq", at a distance of 50 paces from house of appellant, while deceased went towards the house of the appellant when the appellant, on his call, came out with a DBBL gun in his house followed by absconding accused Imam Din and, on whose instigation, he fired straightaway at deceased causing him injury at his left side nipple of the chest which resulted in death. Thereafter, he stated in his testimony, the appellant went back to his house saying that deceased had illicit relations with Mst. Kariman, his wife and inside of his house, fired upon her and they had heard gun shot reports. Police reached at the spot, took dead body of the deceased which they dispatched to Taluka Hospital Mirpur Mathelo. Both the above witnesses have supported the complainant in all material aspect.

5. Learned counsel for appellant contended that the incident, according to oral evidence took place on 8-7-1996 at about 5-00 a.m., while the evidence of Dr. Mehmood Ali Laghari, who examined Mst. Kariman on her arrival in hospital at 7-00 p.m., showed that the probable time between injuries and treatment was about 8 hours meaning thereby that the incident took place not at 5-00 a.m. as stated by, eye-witnesses but at about 11-00 p.m. on previous day, heavily shadowing the entire ocular evidence rendering whole of it false and belying the prosecution story. We have given `due attention to the contention of learned counsel and do not find ourselves persuaded to agree with him, firstly, for the reason, that Mst. Kariman was neither examined by the prosecution nor in defence and in absence of her evidence, the statement of Dr. Mehmood Ali Laghari, in the nature of corroboratory evidence, loses its worth and value; secondly, the Medical Officer has simply stated in his deposition that there was delay of 8 hours of time in between injuries and treatment, palpably, given to Mst. Kariman. He has neither stated in his deposition the time of giving treatment to Mst. Kariman nor in the Certificate issued by him so that the time between injury and treatment could precisely be determined. Strange enough his statement in cross-examination that, "I cannot say from progress report as to who treated the injured lady". In the wake of this evidence of his, it became hard to place implicit reliance on his opinion that, "between injuries and treatment 8 hours time". As against that Dr. Farooq Ahmad (P.W.9), who conducted postmortem of deceased stated in his deposition that on 8-7-1996 he started postmortem at about 11-30 a.m. and finished the same at 12-30 p.m. and that on examination he found a lacerated wound 2 cm x diameter with burnt edges into muscle and thorasic cavity deep at the level of 5th rib over left nipple (wound of entry) and that the time between death and postmortem was about 6 hours meaning thereby that the time so given by this P.W. accurately matches with the time of occurrence of incident as deposed by the eye-witnesses. Thus we do not find any conflict in between ocular and medical evidence which, rather is corroborative on date, time of the incident' and the seat of injury. Learned counsel took a plea in his arguments that the eye-witnesses were interested witnesses. There is no denial that the complainant is brother of the deceased while two other eye-witnesses, namely, Sakhawat Hussain and Muhammad Sharif are their cousins but, it is well-settled that mere relationship does not hold a witness interested to a party and we find nothing to hold them so. On the contrary we find their ocular evidence unbiased, consistent in material aspects and more so reliable.

6. Coming to the question of delay in sending crime weapon and crime empties, admittedly, the crime empties were recovered on the day of incident and the crime weapon was recovered on 17-7-1996. It appears that the same were, however, sent to Chemical Examiner on 24-7-1996 with considerable delay but such delay shall not, in the facts and circumstances of this case, overweigh the ocular evidence found in line with and supported by the medical evidence.

7. As far the question of absence of motive is concerned in case of murder it may be stated that even failure of the prosecution to prove the motive is not fatal to the prosecution. (2005 SCMR 427 referred). Considering the case of the appellant in above-stated background, we find that learned High Court was justified in maintaining the conviction; however, altering the punishment of 2 years to 6 months under section 544, Cr.P.C. for valid reasons. The impugned judgment is, therefore, neither perverse nor arbitrary nor it suffers from any illegality or irregularity but is quite in consonance with the law laid down by this Court. No case, therefore, is made out for interference with the impugned judgment. The appeal of the appellant merits no consideration and is dismissed. N.H.Q./N-9/SC Appeal dismissed.