2014 PLP 575 (YLR)

RIAZAT ALI SAHAR J.

Having been found guilty of committing murder of Mukhtiar Ali, appellant Arbab Chandio was convicted for offence under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000 to the legal heirs of deceased Mukhtiar Bhurgri in terms of section 544-A, Cr.P.C. and in case of default in payment of fine, to suffer S.I. for six months more, with benefit of section 382-B Cr.P.C., by judgment dated 16-10-2006, passed by learned 1st Additional Sessions Judge, Dadu in Sessions Case No.268 of 2000 re: State v. Arbab. However, case against absconding accused Naveed was ordered to be kept on dormant file.

2. Briefly stated, the facts of the prosecution case are that on 2-8-2002 at 0800 hours, first informant Liaquat Ali lodged F.I.R. at Police Station, Thariri Mohabbat, alleging therein that he owns Datsun, which is being plied by his brother, namely, Mukhtiar Ali on K.N. Shah to Sindhi Butra village route. On the eventful day i.e. 2-8-2000, complainant along with his brother Mukhtiar Ali, Haji Azizullah and relative Bashir Ahmed went to village Sindhi Butra with some work and after finishing the same, when they were returning to K. N. Shah in the Datsun, which was being driven by Mukhtiar Ali. At about 6.45 p.m., when they reached 'Ladho-dero watercourse', three persons with open faces emerged from the watercourse, out of them complainant party identified two persons to be Arbab Ali Gojani Chandio and Naveed, while third person was unidentified. Accused Arbab and Naveed were armed with pistols while unidentified person was having hatchet. Accused persons signaled to stop, therefore, Mukhtiar Ali stopped the Datsun, whereafter accused persons by showing weapons got Akhtiar Ali alighted from Datsun and asked his brother to pay Rs.100 per day to the accused persons else they would not allow him to ply Datsun on the route, to which Mukhtiar Ali refused. After that, accused Arbab and Naveed suddenly made fire upon Mukhtiar Ali, which hit him on left side of head. The complainant party raised cries, therefore, accused persons made their escape good from the scene of offence. Akhtiar Ali died at the spot and the complainant party found firearm injuries on his person. The complainant leaving the above witnesses over dead body of his brother went to police station and lodged F.I.R.

3. On completion of investigation, the Investigating Officer submitted charge-sheet against appellant by letting off co-accused Naveed, however, he was joined in the proceedings in the result of application under section 190(b) and (c), Cr.P.C. moved by the complainant.

4. Trial Court framed charge against the appellant, to which he pleaded 'not guilty' and claimed trial. To substantiate its case, prosecution examined P.W.1 mashir PC Liaquat Ali as Exh.5, who produced memo of arrest of co-accused Naveed as Exh.5/A, P.W.2 Inayatullah Bhutto, the then Civil Judge and Judicial Magistrate as Exh.7, who produced confessional statement of appellant Arbab Ali as Exh. 7/A, P.W.3 complainant Liaquat Ali as Exh.8, he produced F.I.R. as Exh. 8/A, P.W.4 Haji Zafarullah as Exh. 9, P.W.5 Bashir Ahmed as Exh.10, P.W.6 Dr. Santosh Kumar as Exh. 15, he produced police letter and postmortem report as Exh. 15/A&B respectively, P.W.7 mashir Abdul Aziz as Exh. 16, who produced mashirnama of place of incident, inquest report, mashirnama of clothes of deceased, mashirnama of arrest of accused Arbab, mashirnama of recovery of revolver as Exh.16/A to 16/E respectively, P.W.8 A.S.-I. Imtiaz Ali Thebo as Exh. 21, P.W.9 SIP Sibghatullah Jatoi as Exh.22, being well conversant with the handwriting and signature of late A.S.-I. Khadim Ali Butt. The prosecution then closed its side by statement at Exh.23.

5. Statement of accused/appellant under section 342, Cr.P.C. was recorded by the trial Court, wherein he denied the prosecution allegations. The appellant produced certified copy of judgment dated 31-5-2005, passed by II-Civil Judge and Judicial Magistrate, Mehar in the case of 13(e) Arms Ordinance case as Exh.24/A, whereby he has been acquitted of the charge. However, neither appellant examined himself on oath in terms of section 340(2), Cr.P.C. nor led any evidence in his defence.

6. It is, inter alia, contended by learned counsel for the appellant that the impugned judgment is contrary to law, facts and equity; there are material contradictions in the evidence of P.Ws. but same were not considered by the trial Court; trial Court has miserably failed to appreciate and assess the evidence against appellant on record and has, thus, arrived at erroneous conclusion on the basis of misreading and non-reading of evidence brought on record by believing the evidence of highly interested witnesses; trial Court has relied upon the confessional statement of appellant which was not recorded in accordance with law and suffers from many illegalities and irregularities and cannot be relied upon safely; trial Court has not considered the fact that according to F.I.R., appellant was allegedly armed with pistol while during course of investigation, I.O. recovered Revolver, but this important aspect was not considered by the trial Court; appellant has been acquitted in connected case of 13(e) Arms Ordinance by judgment dated 31-5-2005, passed by learned 2nd Civil Judge and Judicial Magistrate, Mehar; trial Court has not taken into consideration the improvements and exaggerations made by the prosecution witnesses.

7. Conversely, the learned State Counsel, assisted by learned counsel for the complainant, has supported the impugned judgment; however, in rebuttal, he contended that the prosecution has proved its case beyond shadow of reasonable doubt and if there is any minor contradiction on the part of prosecution, it does not carry any weight in the eyes of law. He further contended that the crime weapon used in the commission of offence was recovered from the appellant. He next contended that the confessional statement of appellant was recorded before Judicial Magistrate in which he confessed his guilt. Lastly, he prayed for maintaining of conviction and sentence awarded to the appellant by the trial Court.

8. I have considered the respective submissions of learned counsel for the appellant as well as learned State counsel and examined the record carefully.

9. The record reveals that incident was witnessed by complainant, prosecution witnesses Zafarullah and Bashir Ahmed, who have fully implicated the appellant in the commission of offence, by deposing that on the day of incident they along with deceased Mukhtiar Ali were returning from their village on Datsun, which was being driven by deceased Mukhtiar Ali and when they reached near 'Kundan watercourse', suddenly accused persons emerged and gave them signal to stop. The prosecution witnesses identified them to be Arbab and Naveed having pistols in their hands, while third was not identified by them at the spot, who was holding hatchet. Deceased Mukhtiar stopped Datun and appellant asked him to pay Rs.100 per day as a route commission and on refusal of deceased, appellant opened straight fire upon him and committed his murder. Per confessional statement of appellant before a Magistrate that he committed murder of deceased Mukhtiar just to take revenge from deceased, who had served intoxicated tea to him and committed zina with him, the same was testified by the Magistrate, therefore, it stands proved that appellant had made his confessional statement voluntarily as he had committed murder of deceased to take revenge from him, hence confessional statement of appellant was recorded well according to law, as such it is proved that in fact he committed Qatl-e-Amd either on account of taking so-called revenge or demanding Rs.100 per day as a route commission. The complainant, P.Ws. Zafarullah and Bashir Ahmed are the eye-witnesses of the incident and their evidence is fully corroborated by the medical evidence and circumstantial evidence of recovery of crime weapon from the possession of appellant is in line with the ocular evidence coupled with evidence of Magistrate, who recorded the confessional statement of appellant.

10. After scrutinizing the evidence, I am of the view that there is no material contradiction in the evidence of prosecution witnesses and no misreading or non-reading of evidence is found in the impugned judgment. There is also no infirmity in the assessment of evidence by the trial Court requiring interference to the impugned judgment. For the above stated reasons, I have no hesitation to hold that the prosecution has proved its case against the appellant beyond any shadow of doubt as the trial court has appreciated the evidence in accordance with the settled principle of law. Judgment of trial Court dated 16-10-2006 is based upon sound reasons. Consequently, the appeal fails and conviction and sentence awarded by the trial court is maintained.

11. The instant appeal was dismissed by short order dated 12-7-2013, and these are the reasons for the same. HBT/A-128/K Appeal dismissed.