2022 PLP 109 (YLRN)

AMJAD ALI SAHITO, J.

By this common judgment, I intend to decide aforesaid appeals filed by the appellant Ghaffar Mahesar, by challenging the judgment dated 22-01-2019 passed by learned Sessions Judge Naushehro Feroze in Sessions Case No. 227/2018 Re. The State Versus Ghaffar and others, for offences punishable under sections 302, 34, P.P.C. bearing Crime No. 63/2018 registered at Police Station Tharushah, whereby the appellant was convicted and sentenced for imprisonment for life under section 302(b), P.P.C. as Tazir and fine of Rs. 600,000/- (Six lacs), to be paid to the legal heirs of the deceased Saddaruddin as compensation, in case of default in payment of fine, he shall undergo S.I. for one year more with the benefit of section 382-B, Cr.P.C.

2. The appellant has also impugned the judgment dated 22.01.2019 passed in Sessions Case No. 177/2018 Re. The State v. Ghaffar Mahesar for offence under section 23(1)(a) Sindh Arms Act, 2013, bearing Crime No. 64/2018 registered at Police Station Tharushah, whereby the appellant was convicted under section 265-H(ii), Cr.P.C. and sentenced under section 23(i)(a) Sindh Arms Act, 2013 to undergo R.I. for seven years and to pay fine of Rs. 20,000/- (Twenty thousand), in default whereof to suffer S.I. for one month more with benefit of section 382-B, Cr.P.C.

3. Brief facts of the prosecution case are that Complainant Ali Nawaz Mahesar lodged FIR On 19-05-2018 at Police Station Tharushah alleging therein that deceased Saddaruddin aged about 28/29 years was his son, who contracted marriage with the daughter of Arbab Ali Mahessar, to which, accused Ghaffar had annoyed and used to extend threats to see his son Saddaruddin. On 18-05-2018 he along with his son Saddaruddin his relative Sher Muhammad and his neighbour Abdul Raheem Dahari were going to old Station through Darbelo road by foot, when they reached primary School Ghanwar Mahessar, it was about 11.30 am, where they saw accused Abdul Ghaffar Mehessar, Lakhmir alias Lakho Mahesar and one unidentified person with open came on motorcycle. They alighted from the motorcycle, accused Abdul Ghaffar and Lakhmir alias Lakhoo took out pistols from their folds and threatened Saddaruddin that they will not spare him and commit his murder. Both accused saying so fired straight from their pistols, which hit him. He cried and fell down. On their cries and tire shot reports neighbours came there, then the persons escaped away on their motorcycle. The Complainant found that his son Saddaruddin sustained fire-arm injuries at his chest. He along with witnesses took injured Saddaruddin to Darbelo Hospital where he succumbed the injuries. After the funeral ceremony, he appeared at the police station and lodged the above-said FIR. On 20-05-2018 at about 1900 hours accused Ghaffar was apprehended and one unlicensed pistol of 30 bores along with magazine and two live bullets were recovered from his possession and such FIR was also registered against him on behalf of the State.

4. After registration of FIR, SIP Muhammad Azeem Rajper conducted the investigation, recorded statements under section 161, Cr.P.C. of witnesses Sher Muhammad, Abdul Raheem, Muhammad Saleh alias Sadam Maehsar and Muhammad Ishaque alias Aamir. On 18.05.2018 at 1210 hours, he inspected the dead body of deceased Sadaruddin ire presence of mashirs Muhammad Saleh alias Sadam and Muhammad Ishaque alias Aamir, inspected wardhat and secured blood-stained earth in presence of said mashirs and prepared such memos. On 20.05.2018 Tapedar Muhammad Yousif Rajput inspected the place of wadhat and prepared the sketch, then SIO submitted a final report before the Court of law by showing accused Ghaffar in custody while accused Lakhmir alias Lakho and one unknown accused as absconders. After submission of challan, the NBWs were issued against the absconding accused. On conclusion of all the legal formalities, they were declared as proclaimed offenders. The necessary copies of case documents were supplied to accused. Thereafter the charge against the accused Ghaffar was framed at Ex. 02, to which he pleaded not guilty and claimed to be tried vide his plea at Ex. 2/A. In order to establish the case against the accused, the prosecution has examined PW/1 Complainant Ali Nawaz at Ex. 4/A, PW/2 Sher Muhammad at Ex. 5, who produced, PW/3 Abdul Raheem at Ex. 6, PW/4 Muhammad Saleh at Ex. 7, who produced mashirnama of inspection of dead body at Ex. 7/A, Danishtnama at Ex. 7/B, mashirnama of securing the bloodstained earth at Ex. 7/C, mashirnama of securing the last worn clothes of deceased at Ex. 7/D, mashirnama arrest of accused Ghaffar and recovery of unlicensed pistol along with magazine and two live bullets, PW/5 medical officer Dr. Imdad Ali Dahri at Ex. 8, who produced police letter at Ex. 8/A, postmortem report at Ex. 8/B and chemical report at Ex. 8/C, PW/6 Tapedar Muhammad Yousif at Ex. 9, who produced the sketch of wardhat at Ex. 9/A, PW/7 PC Shahnawaz at Ex. 10, who produced receipt of delivering the dead body at Ex. 10/A, PW/8 SIP/SIO Muhammad Azeem Rajper at Ex. 11, who produced station diaries at Ex. 11/A to 11/C, PW/9 HC Dildar Ali at Ex. 12, thereafter learned ADPP for the State closed the side of prosecution vides Ex:

13. The Statement of the accused was recorded at Ex:

15. The accused during his examination denied the prosecution allegations. The accused has examined his defence witness Muhammad Soof at Ex.16 but did not examine himself on oath. Ultimately learned counsel for the accused closed the side vide Ex.

17. In Sessions Case No. 177/2018, after framing of the charge, the prosecution has examined PW/1 Complainant SIP Muhammad Azeem at Ex. 4, who produced mashirnama of arrest and recovery at Ex. 4/A, FIR at Ex. 4/D, station diaries at Ex. 4/C to 4/D, FSL report at Ex. 4/E, PW/2 Muhammad Saleh at Ex. 5, PW/3 Raheem at Ex. 6, PW/4 HC Dildar Ali at Ex. 7, thereafter learned ADPP closed the side on behalf of the State at Ex.

9. The Statement of accused recorded at Ex. 10, who denied the allegations of prosecution, but neither examined himself on oath nor examined any defence witness.

5. The learned trial Court, after hearing the learned counsel for the parties and going through the material brought on record, awarded the conviction and sentence to the appellant/accused in above-mentioned cases as stated above vide judgment dated 22-01-2019, which the appellant has impugned before this Court by way of filing instant jail appeals. The appellant has filed Appeals Nos. S.07 and 08 of 2018 through jail superintendent and Appeals Nos. 11 and 12 of 2018 through his counsel.

6. Learned counsel for the appellant mainly contended that the impugned judgment passed by learned trial Court in a hasty manner and is against the law and facts of the case and based on surmises and conjectures; that learned trial Court neither discussed nor considered the lacunas of the case which was arises during the trial; that the appellant is innocent and has falsely been implicated in this case by the complainant due to enmity, which is admitted by the complainant in the FIR; that it has come on record that there were many contradictions in between the ocular evidence and medical evidence, but same were not considered; that the motive has not been proved by the prosecution and failed to explain the delay to inform the incident information to police; that prosecution witnesses are setup witnesses; that the prosecution has miserably failed to prove the case against the appellant thus under the abovementioned facts and circumstances, appellant is entitled to his acquittal. In support of his arguments learned counsel for the appellant has relied upon the cases of Zahoor Ahmed v. The State (2007 SCMR 1519), Zulfiquar Ahmad and another v. The State (2011 SCMR 492), Ali Bux and others v. The State (2018 SCMR 354), Zahoor Ahmed v. The State (2017 SCMR 1662), Ravi Kapur v. State of Rajasthan (2013 SCMR 480) and Oshan and others v. The State (2018 YLR Note 272).

7. Learned Additional Prosecutor General appearing on behalf of the State fully supported the impugned judgments and argued that name of the appellant is nominated in the FIR and he has rightly and correctly been identified by the complainant as well as other eye-witnesses during trial before the trial court; that the appellant along with his companions fired upon Sadaruddin son of the complainant, who later on succumbed to the injuries and died in the Hospital; that the empties and bloodstained earth was collected from the spot, which was produced before the trial Court; that later on appellant was arrested and crime weapon/unlicensed 30 bore pistol along with magazine and two live bullets were recovered from the possession of appellant; that even the minor contradictions as the same had occurred due to lapse of time; that no any major contradiction has been pointed by the counsel for the appellant; that there is no any conflict in between the medical evidence and the ocular version; all the prosecution witnesses have supported the case and implicated the appellant and absconding accused.

8. I have heard the learned counsel for the parties and perused the material available record.

9. On evaluation of the material brought on the record, it appears that the case of prosecution mainly depends upon the ocular testimony furnished by the prosecution in shape of statements of complainant Ali Nawaz (PW-01) and eye-witness Sher Muhammad (PW-02) and Abdul Raheem (PW-03), which is corroborated by the evidence of medical officer Dr. Imdad Ali (PW-05) including circumstantial evidence of rest of witnesses.

10. There can be no denial to legally establish principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as 'not proved' but where the direct evidence remains in the field with test of its being natural and confidence inspiring then requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance can safely be placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857), wherein the Hon'ble Supreme Court of Pakistan has held that;- "

5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence".

11. The direct evidence, as detailed above, is in the shape of evidence of complainant Ali Nawaz. According to him, his son Sadaruddin aged about 29 years contracted marriage with the daughter of Arbab Ali Mahesar, on which appellant Ghaffar was annoyed and he used to issue threats to see his son Sadaruddin. On the eventful day, in presence of the complainant, Ali Nawaz and his two Eye-witnesses namely Sher Muhammad and neighbour Abdul Raheem Dahiri, the appellant Ghaffar along with co-accused Lakhmir alias Lakhoo Mahesar and one unidentified person who was driving the motorcycle came at old station road, where complainant Ali Nawaz along with his deceased son Sadaruddin and two eye-witnesses were going to Darbelo road towards old station by foot. The accused persons alighted from the motorcycle and accused Abdul Ghaffar and Lakhmir took out pistols from the folds of their shalwars and straight away fired upon the deceased Sadaruddin son of the complainant. After receiving firearm injuries, he fell down. The complainant shifted the injured Sadaruddin to Hospital, where he succumbed to injuries. The motive, in this case, was that the accused Ghaffar was annoyed on the marriage of the deceased Sadaruddin with the daughter of Arbab Ali Mahesar. PW/2 Sher Muhammad and PW/3 Abdul Raheem also supported the version of the complainant by saying that it was about 11-30 a.m., they saw accused Ghaffar, Lakhmir alias Lakhoo and one unidentified person came on the motorcycle and they got down from the motorcycles. Accused Abdul Ghaffar and Khamir alias Lakhoo took out pistols from the fold of their shalwars and by saying the deceased Sadaruddin that they will not spare him and committed his murder. Both accused straight fires upon the deceased Sadaruddin, who later-on succumbed to the injuries. The incident had taken place at daylight at about 11-30 a.m. In the instant matter, all these eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear cut manners. Besides this, these eye-witnesses have also explained the mode and manner of taking place the occurrence qua the culpability of the appellant. Although, they were cross-examined by the defense at length, wherein the learned counsel for the defense asked multiple questions to shatter their confidence and so also presence at the scene of occurrence but could not extract anything from them and they remained consistent on all material points. The parties are known to each other, so there was no chance of mistaken identity of the appellant. I would not hesitate that where the witnesses fall within the category of natural witnesses and detail the manner of the incident in a confidence-inspiring manner then only escape available to the accused is that to satisfactorily establish that witnesses, in fact, are not the witnesses of truth but 'interested' one. The reliance in this context is placed upon the case of Abid Ali and 2 others v. The State (2011 SCMR 208) wherein the Hon'ble Supreme Court of Pakistan has held that:-

21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement, which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.

12. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. The reliance can.safely be placed on the case of Lal Khan v. State (2006 SCMR 1846) wherein at Rel. P-1854 it is held as : ... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not. In another case of Farooq Khan v. The State (2008 SCMR 917) it is observed as:

11. PW.8 complainant is real brother of the deceased who is a natural witness but not an interested witness. An interested witness is one, who has motive, falsely implicates an accused or has previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not "sufficient" to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State (PLD 1962 SC 269) and Sheruddin v. Allhaj Rakhio (1989 SCMR 1461).

13. Thus, the mere relationship of these eye-witnesses with the deceased alone would not support the plea of the appellant that their testimonies are not worth believing. In matters of capital punishments, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record that there had been such a dispute/enmity, which could be believed to have motivated the 'natural witnesses' in involving the innocent at the cost of escape of 'real culprits'. I would mention here that where the natural witnesses are blood-relations then normally the possibility of substitution becomes rare. In the instant matter, the complainant is the father of the deceased and PW/2 Sher Muhammad is relative of the deceased Sadaruddin, hence it does not appear to be believable that all of them agreed in substitution of real culprits with innocents (appellant) when undeniably the time of the incident is day-light. The reference in this context may be made to the case of Zahoor Ahmed v. The State (2007 SCMR 1519) wherein the Hon'ble Supreme Court of Pakistan has observed that:- 6. ...The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further, it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.

14. Furthermore, the ocular account furnished by the above said eye-witnesses is substantiated with medical evidence adduced by the medical officer Dr. Imdad Ali, who conducted post mortem of the dead body of deceased Sadaurddin and found the following injuries:- INJURY NO.1. A penetrating and punctured type of lacerated wound measuring 0.7 cm in diameter with inverted margins situated on right side of chest 2.5 cm interior medial to right nipple with a wound of exit measuring 1.5 cm x 0.5 cm with averted margins situated on the posterior aspect of chest below inferior ankh of the right scapula through and through. INJURY NO.2. A penetrating and punctured type of lacerated wound measuring 0.7 cm in diameter with inverted margins situated on entrigasture region of abdomen with averted margins wound of exit measuring 1.5 cm x 0.5 cm situated on posterior aspect of INJURY NO.3. A penetrating and punctured type of lacerated wound upper lumber region near measuring 0.5 cm in diameter margins inverted situated on right hypemehandrial region of abdomen with wound of exit measuring l cm 0.5 cm with averted margins situated on posterior aspect of right abdominal region through and through INJURY NO.4 A puncturing and punctured type of lacerated wound measuring 0.5 cm in diameter with inverted margins situated on right side of unbind region of abdomen with wound of exit of measuring 1.5 cm x 0.5 cm with averted margins situated on right posterior abdominal wall through and through. On internal examination of the dead body of deceased he found the following damages: Walls, ribs and cartilages and pleurae were damaged at the site of injuries Right lung was damaged in the course of injury No.1. Blood vessels were damaged in the course of injury No.1. Walls, peritoneum, liver were damaged. Other organs were normal and healthy. He issued such postmortem notes which he produced at Ex.8-B and say that it is same correct and bears my signature. He produced a chemical report at Ex.8-C and say that it is same correct and bears my signature. From the external as well as an internal examination of the dead body of Sadaruddin son of Ali Nawaz Mahesar he opined that death of deceased is caused due to excessive haemorrhage shock due to injuries to vital organs i.e. liver right lung and main blood vessels of lung and abdomen caused by injuries Nos. 1,2, 3 and

4. All the injuries were sufficient to cause death within a short course of time. All the injuries were ante-mortem in nature and caused due to discharge of a firearm.

15. Investigation officer visited the place of incident and collected empties of TT pistol and bloodstained earth from there under the mashirnama, which were sent to the office of chemical examiner Sukkur at Rohri and received a report as positive and produced at Ex. 8/C. On 20.05.2018 SIP Muhammad Azeem also arrested appellant Ghaffar along with motorcycle which was used in the commission of the offence and from his personal search, recovered one 30 bore pistol loaded with two live bullets. On enquiry, he disclosed that it was an unlicensed weapon and used in the commission of murder of deceased Sadaruddin. Thereafter a separate FIR under section 23(i)(a) of Sindh Arms Act 2013 was registered against the appellant bearing Crime No. 64/2018 at Police Station Tharushah. In his evidence, he has produced FIR as Ex. No. 4/B in Sessions Case No. 171/2018. The recovered pistol along with empties was sent to the office of Forensic Science Laboratory at Forensic Division Larkana and as per report two 30 bore crime empties now marked as "C1 and C2" were fired from the above mentioned 30 bore pistol, which was recovered from the possession of appellant Ghaffar Mahesar. Thus, from the above evidence, it suffices to say that the death of deceased Sadaruddin was unnatural at the hands of the appellant. In this context, the reliance is placed upon the case of Ali Bux and others v. The State (2018 SCMR 354), wherein the Hon'ble Supreme Court of Pakistan has observed that; "3...in the FIR lodged in respect of the incident in question the present appellants had been nominated and specific role has been attributed to them therein. The ocular account of incident has been furnished before the trial Court by three eye-witnesses namely Ali Akbar complainant (PW-01), Ghulam Shabir (PW-02) and Bilawal (PW-03) who had made consistent statements and had pointed their accusing fingers towards the present appellants as the main perpetrators of the murder in issue. The said eye-witnesses had no reason to falsely implicate the appellants in a case of this nature and the medical evidence had provided sufficient support to the ocular account furnished by them". Another reliance is also placed upon the case of Zahoor Ahmed v. The State (2017 SCMR 1662), wherein the Hon'ble Supreme Court of Pakistan has held that;- "

4. The ocular account, in this case, consists of Muhammad Khan complainant (PW-06) and Shahbaz (PW-07). They gave the specific reasons of their presence at the place of occurrence as, according to them, they along with the deceased were proceeding to harvest the sugarcane crop. Although they are related to the deceased but they have no previous enmity or ill-will against the appellant and they cannot be termed as interested witnesses in the absence of any previous enmity. They remained consistent on each and every material point. The minor discrepancies pointed out by the learned counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both parties knew each other so there was no mistaken identity and in absence of any previous enmity there could be no substitution by letting off the real culprit specially when the appellant alone was responsible for the murder of the deceased. The evidence of two eye-`witnesses was consistent, truthful and confidence-inspiring. The medical evidence fully supports the ocular account so far the injuries received by the deceased, time which lapse between the injury and death and between death and postmortem. Both the Courts below have rightly convicted the appellant under section 302(b), P.P.C.

16. Moreover, nothing has been brought on record by the defence while enjoying the opportunity of cross-examination as well leading defence, which could make it believable that there had been such a grave reason for 'father' to involve the appellant falsely at the cost of the safe escape of killer of his real son. The appellant in his defence has produced his brother Muhammad Soof (DW/1). According to him there is matrimonial dispute between the complainant Ali Nawaz and appellant/accused Ghaffar Mahesar, which shows that his brother also admitting that there was dispute on matrimonial affairs, which is claimed by the complainant that his son has got contracted marriage with the daughter of Arbab Ali Mahesar, on which accused Ghaffar was annoyed. Nothing has been brought on record which may reflect that the deep-rooted enmity was existing between the parties. Thus, I find no substance in such plea of the appellant that he has been implicated in this case due to enmity.

17. The minor discrepancies in statements of all these eye-witnesses are not enough to demolish the case of prosecution because the discrepancies always occur on account of lapse of time which can well be ignored. The reference is made to the case of Zulfiquar Ahmed and others (2011 SCMR 492). It is not the discrepancy or discrepancies which could be pressed for an acquittal but the defence has to bring on record the contradictions which too should be of a nature to cut at the root of the prosecution towards their presence and manner of the incident. Reference is made to the case of Ravi Kapur v. The State of Rajhistan (2013 SCMR 480) wherein it is observed as:-- It is a settled principle that the variations in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely are to be ignored by the court... It is also a settled principle that statements of the witnesses have to be read as a whole and the court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party. The contradictions have to be material and substantial so as to adversely affect the case of the prosecution. Reference in this regard can be made to ....

18. Considering the facts and circumstances discussed above, I am of the humble view that the prosecution has successfully proved its case against the present appellant through ocular account furnished by complainant. Ali Nawaz (PW-01) and eye-witnesses Sher Muhammad (PW-02) and Abdul Raheem (PW-03), which is corroborated by the evidence of medical officer Dr. Imdad Ali (PW-05) as well as empties recovered from the place of incident and subsequently arrest of the appellant along with unlicensed pistol and two live bullets, which were sent to the officer Forensic Laboratory and report received as positive that empties recovered from the place of incident were fired from the pistol recovered from appellant/accused Ghaffar. Learned counsel for the appellant has failed to point out any illegality or serious infirmity committed by the learned trial Court while passing the impugned judgment, which is based on the appreciation of the evidence and same does not call for any interference by this Court. Thus, the conviction and sentence awarded to the appellant by learned trial Court are hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed accordingly. The case law relied by learned counsel for the appellant is quite distinguishable from the facts and circumstances of the case in hand, therefore, the same is not helpful while deciding the instant appeal. MH/G-8/Sindh Appeals dismissed.