2019 PLP 1482 (YLR)

MUHAMMAD IQBAL MAHAR, J.

This appeal is directed against the judgment dated 23.08.2006 passed by learned III-Additional Sessions, Khairpur in Sessions Case No.23 of 1991 arising out of Crime No.17/1991 of Police Station, Sobhodero, whereby he convicted appellant Abdul Haq for offence punishable under Section 302(b), P.P.C. and sentenced him to suffer RI for life as Ta'zir and to pay fine of Rs.100,000/- as compensation to be paid to the legal heirs of the deceased, in case of failure to undergo R.I. for three years more, however, benefit of Section 382-B, Cr.P.C. was extended to him, ,whereas his co-accused Abdul Khalique was acquitted of the charge.

2. Briefly stated the facts of the prosecution case are that complainant Khair Mohammad Khuhro his brothers Mohammad Pannah, Abdul Latif, Imam Bux and Hussain Bux used to reside in one and same house in village Dilawar Khuhro. His brother Hussain Bux was serving in Bank at Larkana, whereas he was student of first year and his other brothers were cultivating the lands. Some days back accused Abdul Khalique and Abdul Haque Khuhro had exchanged harsh words with complainant party over rotation of water and had issued threats that the complainant party would be seen. On 30.03.1991 at morning time the brothers of complainant, namely, Abdul Latif and Muhammad Pannah went to their lands for excavating the water course. At about 1130 hours the complainant was standing in the street near the house of Ali Gohar Khuhro and his brothers Abdul Latif and Muhammad Pannah were coming back to home. In the meantime appellant accused Abdul Haque armed with gun and co-accused Abdul Khalique empty handed appeared there. Co-accused Abdul Khalique instigated appellant Abdul Haque not to spare Abdul Latif as he had abused him over the matter of rotation of water. On his instigation appellant accused Abdul Haque fired upon Abdul Latif which hit him, he raised cries and he fell down. The complainant party challenged the accused persons and raised cries which attracted PWs Ali Gohar and Abdullah. The accused persons seeing them went away. The complainant party went over Abdul Latif and found him sustaining injuries and lying unconscious. The complainant took him to P.P. Agra and lodged report, later on the injured succumbed to the injuries.

3. The Police during investigation let off co-accused Abdul Khalique and submitted challan against the appellant before the Court of law. The complainant filed direct complaint which was brought on record and complaint case was consolidated with the main case.

4. Learned trial Court after observing all legal formalities framed the charge against the accused at Ex.03, to which they pleaded not guilty and claimed trial. Such pleas were obtained at Exs. 4 and 5.

5. In order to prove its case, prosecution examined PW-1 complainant Khair Muhammad at Ex.08, who produced copy of daily diary at Ex.8-A, PW-2 Ali Gohar at Ex.09, PW-3 Muhammad Pannah at Ex:10, PW-4 Dr. Bashir Ahmed at Ex.12, who produced medical certificate at Ex.12-A, PW-5. Dr. Saeed Ali at Ex.13, who produced post mortem report at Ex.13-A, PW-6. LPC, Khair Bakhah at Ex.14, who produced entry and FIR at Ex.14-A and B, PW-7. Amanullah Shaikh, Assistant DDO Office, Gambat at Ex.15, who produced 164, Cr.P.C. statements of PWs Ali Hassan, Ali Gohar, Illahi Bux and Ghulam Nabi and confessional statement of appellant accused Abdul Haque at Exs.15-A to 15-E. Thereafter, prosecution side was closed.

6. After conclusion of prosecution evidence, learned trial Court recorded statements of the appellant/accused. and co-accused Abdul Khalique as required under section 342, Cr.P.C. at Exs.16 and 17, in which they denied the prosecution allegations and claimed their innocence, however, neither they examined themselves on oath nor produced any witness in defence.

7. The learned trial Court after hearing the learned counsel for the appellant, learned DDPP for the State and appraising the prosecution evidence passed the impugned judgment, hence this appeal.

8. Learned Counsel for the appellant argued that the impugned judgment passed by learned trial Court is contrary to law and facts of the case; that the impugned judgment has been passed by learned trial Court in disregard to the settled principles of law: that this is an unseen incident but the appellant has falsely been involved in this case due to previous enmity; that there are many other legal flaws in the prosecution case which render the case of prosecution doubtful; that the prosecution evidence is deeply interested and consists of close- relatives of the deceased; that the Mukhtiarkar, who recorded 164, Cr.P.C. statements of PWs and confessional statement of appellant, was not examined before trial Court; that co-accused Abdul Khalique has been acquitted by learned trial Court; that there are glaring contradictions in evidence of prosecution witnesses but the same have not been considered by learned trial Court. He lastly concluded that the prosecution has failed to prove its case against the appellant beyond shadow of doubt, therefore, judgment passed by learned the learned trial Court is liable to be set aside.

9. Learned Deputy Prosecutor General while refuting the arguments of learned counsel for the appellant submitted that the incident was reported at P.S. immediately without loss of time, hence there is no question of substitution; that the appellant is nominated in the FIR with specific role of firing upon deceased Abdul Latif, which is supported by the evidence of prosecution witnesses; that the ocular evidence is corroborated by the medical evidence; that the crime weapon, i.e. the gun was recovered from the possession of the appellant, that on the next day of his arrest, the appellant made confessional statement before learned Mukhtiarkar and 1st Class Magistrate; that the acquittal of co-accused and non-examination of Mukhtiarkar shall not be helpful to the appellant because no active role was attributed to co-accused and the Mukhtiarkar passed away. He submitted that the prosecution has proved its case against the appellant beyond reasonable doubt, hence the judgment passed by the learned trial Court calls for no interference.

10. Arguments advanced by the learned counsel for the appellant and learned Deputy Prosecutor General have been taken into consideration in the light of evidence available on record. It is obvious that the occurrence had taken place on 30.03.1991 at 11.30 a.m. while the complaint was lodged at 12:45 pm on the same day and the distance between the place of occurrence and. P.P. Agra was 03 k.m., therefore, there is no possibility of cooking-up false story within one hour and fifteen minutes.

11. It is also obvious that complainant Khair Muhammad and Muhammad Pannah furnished ocular account by stating that on 30.03.1991 at 11.30 a.m near the house of PW Ali Ghaor, appellant Abdul Haque fired from his gun upon deceased Abdul Latif which hit him and he fell down. They were cross-examined at some length by learned counsel for the appellant but nothing could be brought on record in favour of the appellant. PW Ali Gohar also supported to the extent that he went out on the cries and saw complainant party and injured Abdul Latif and appellant/ accused armed with gun and co-accused empty handed. He was informed by the complainant that appellant Abdul Haque fired upon deceased. The incident took place at day time and the parties were known to each other, therefore, there is no question of mistaken identity of the appellant. The ocular account is corroborated by the evidence of Dr.Bashir Ahemd and who examined Abdul Latif in injured condition and Dr. Saeed Ali who conducted post mortem of the deceased. Both deposed that deceased sustained one fire arm wound of entry on the back of lower abdomen at the level of first second vertebrae close to left side of vertebral column 6 X 4 cms. Margins inverted. Fire arm wounds of exit three in number on front of lower half of abdomen. Two on Hypogastria area each at the distance of 6 c.m. from each other and one on the right Iliac Fossa region. Each of size 1-1/2x1 cm. Margins everted. Abdominal cavity deep. The injuries were anti-mortem in nature and were caused by fire arm weapon (gun-shot). The duration given by the Medical Officers also corroborates the ocular account. Thus, the ocular account is corroborated by the medical evidence.

12. Apart from above the appellant was arrested on 05.04.1991 and on the very day he produced crime weapon, i.e. gun and on 06.04.1991 he recorded his judicial confession before learned Mukhtiarkar and Ist class Magistrate stating therein that; "About 2 years back I have married with Mst. Hakim and I have no issue from her. On 30.03.1991 at 2.30 of night I woke up and went in my room where I saw Abdul Latif who was in objectionable condition with my wife. I became in GHAIRAT and I was empty handed, I gave hakal, on that (Karo) Abdul Latif ran away and my wife Mst. Hakim went away in the house of relatives. On 30.03.1991 at morning time on the Saturday Abdul Latif was going near our house, I saw him and gun was in my hand, I fired upon him, on that who fell down, then died in Gambat Hospital. Then on 05.04.1991 I was arrested by Agra Police and I took out gun from Grave-yard of Pir Muhammad Shah of our village and handed over to Police. My father Abdul Khaliq was admitted in Ranipur Hospital. Complainant has given the name of my father only in addition." The judicial confession made by the appellant appears to be voluntarily and was recorded by learned Mukhtiarkar after completing all necessary formalities and no major illegality or lacuna has been pointed out by learned counsel for the appellant. Even otherwise, any lapse by Magistrate in recording the confession cannot always be treated as fatal to the evidentiary value of confession when the Court is satisfied that lapse on the part of the Magistrate is not in any way adversely affect the voluntariness or truthfulness of the confession. Reference is invited to Naseem Akhtar v. The State 1999 SCMR 1744 and Muhammad Yakoob v. The State 1992 SCMR 1983.

13. So far as non-examination of Mukhtiarkar in Court is concerned, no doubt his evidence could not be recorded before learned trial Court due to his death but there is no impact of his non-appearance in witness box for the reason that PW Amanullah, the clerk of Mukhtiarkar office and well conversant with the signature of the Mukhtiarkar was examined, who deposed that on 06.04.1991 Mr. Ghualm Hussain Mallah recorded 164, Cr.P.C. statements of PWs Ali Hassan, Ali Gohar, Illahi Bux and Ghulam Nabi and judicial confession of appellant Abdul Haque, which bear his signatures. He produced the 164, Cr.P.C. statements of PWs and confessional statement of the appellant in evidence and deposed that the statements and confessional statement are same.

14. Adverting to the contention of learned counsel for the appellant that complainant and eye-witnesses are close relatives of the deceased and no independent witness was cited. It is necessary to mention here that time and again it has been observed by Honourable Apex Court as well as by this Court that mere relationship of the PWs with the deceased is not sufficient to discard their evidence until and unless enmity or motive for false implication of the accused is proved. In the instant case the presence of PWs at the place of incident is natural. In case of Latif v. The State (2008 SCMR 1106) the Honourable Supreme Court has held that; "Testimony of both the aforementioned witnesses cannot be doubted because they being close relatives of the deceased would not like to let go the real offender or substitute him with the appellant just to take revenge. Their presence at the place of occurrence was also natural. The evidence of both the eye-witnesses is corroborated by the medical evidence in all material particulars."

15. For what has been discussed above, I am of the considered view that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt. I have also examined the impugned judgment delivered by learned trial Court and observed that the appellant was rightly found guilty of the charge. The learned trial Court has rightly appreciated the evidence so brought on record and discussed each and every aspect of the case in detail and due to some minor lacunas learned trial Court has already taken lenient view while awarding sentence to the appellant, hence the impugned judgment is not open for any interference by this Court. Accordingly this appeal being devoid of merits was dismissed by my short order dated 12.10.2018 and above are the reasons for the same.

16. It is pertinent to mention here that the benefit of section 382-B, Cr.P.C. has already been extended to the appellant by learned trial Court, which shall be calculated in favour of the appellant by the Jail authorities as per rules. JK/A-119/Sindh Appeal dismissed.